Written Communications – PC
Knapp – Received 6/ 10/ 25
From: Cynthia Knapp <
Sent: Tuesday, June 10, 2025 9:59 AM
To: CityClerk < CityClerk@chulavistaca. gov>
Subject: Non- Agenda Public Comment 06/10/ 2025
WARNING - This email originated from outside the City of Chula Vista. Do not click any links and do not open attachments unless you can confirm the sender.
PLEASEREPORTSUSPICIOUSEMAILSBYUSING THEPHISH ALERTREPORTBUTTON or to reportphishing@chulavistaca. gov
Hello,
Please accept this non- agenda public comment for today' s city council meeting.
I am commenting to commend Councilmember Fernandez for referring city staff to explore ways to strengthen the Tobacco Retail License (TRL) program. I also commend the entire city council for their unanimous support of this referral.
Tobacco related disease is the #1 cause of death in the US, including in Chula Vista.
Tobacco addiction overwhelmingly begins in adolescence. If someone makes it to age 18 without ever using nicotine products, they most likely never will. The Tobacco Industry knows this, which is why they continually come out with new, fun, youth- friendly products.
In 2021, a SDSU study ground that of SUHSD students who use tobacco, 42% purchased their products from a local store.
The model TRLordinance drafted by Public Health Law Center, SAYSan Diego, and Chula Vista Police Department Special Investigations Unit is attached. Below is an extraction from the Findings section detailing why and how regulating tobacco retailer density and proximity is of such value to the community. The links go to the sources.
You don' t often get email from Learn why this is
important
Written Communications – PC
Knapp – Received 6/ 10/ 25
Also attached is a summary of Public Opinion data collected in Chula Vista regarding tobacco retailing. It demonstrates high levels of community support for strengthening the TRL.
Thank you again for working to address the harm caused by commercial tobacco on Chula Vista, supporting SIU in having an enforceable program, and protecting youth for tobacco related disease.
Warm regards,
Cynthia
WHEREAS, research indicates that the density and proximity of tobacco retailers increase smoking behaviors, including number of cigarettes smoked per day, particularly in neighborhoods experiencing poverty; 90,180, 181,182
WHEREAS, the density of tobacco retailers near adolescents’ homes has been associated with increased youth smoking rates101 and initiation of noncigarette tobacco product use; 183
WHEREAS, adults who smoke are likely to have a harder time quitting when residential proximity to tobacco retailers is closer107 and density is higher; 184,185, 186 WHEREAS, tobacco retailers are more prevalent in underserved communities, especially in neighborhoods with a higher proportion of African American or Hispanic residents; 93, 94, 95, 96, 97, 98
WHEREAS, tobacco retailer density is higher in urban compared to rural areas, except for low- income communities, which have higher tobacco retailer densities regardless of geography, and Hispanic communities, which are associated with variable retailer densities across geography; 97,187
WHEREAS, policies to reduce tobacco retailer density have been shown to be effective103, 104,188,189 and can reduce or eliminate inequities in the location and distribution of tobacco retailers; 103,104
Written Communications – PC
Knapp – Received 6/ 10/ 25
Cynthia ( Cindy) Knapp, MPH| Senior Program Manager
she, her, hers)
SAYSan Diego | ATODCommunity Engagement
4275 El Cajon Blvd. Ste. 101 | San Diego, CA 92105
Mobile: 619-820-2871
www. saysandiego. org
Confidentiality Notice: This messageand any accompanying documents contain information that is confidential, privileged, or exempt from disclosure under applicable law and is intended for the exclusive use of the addressee. This information is private and protected by law. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the contents of this information in any manner is strictly prohibited
OPINIONSABOUTTHESALEOF
TOBACCOPRODUCTSINCHULAVISTA
KEY FINDINGS FROM A 2022- 2023 PUBLIC OPINION POLL OF 108 CHULA VISTA RESIDENTS 86%
Are in favor of a law that prevents stores
near schools from selling tobacco.
85%
Agreed that tobacco litter is a problem
in Chula Vista.
74%
Are in favor of a law that limits the
number of tobacco retailers.
75%
Agreed that fewer people would use tobacco
products if it were harder to purchase them.
68%
Agreed that secondhand smoke is a
problem in their community.
Would support eventually eliminating
the sale of tobacco.
79%
The County of San Diego’s Tobacco Control Resource Program is implemented in part by Social Advocates for Youth San Diego. This work supports the Live Well San Diego vision for healthy, safe, and thriving communities. For more information, visit LiveWellSD. org. © 2024. California Department of Public Health. Funded under contract # CTCP-21-37.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 1 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
Chapter 5.56
TOBACCO RETAILER
Sections:
5.56.005
5.56.010
5.56.020
5.56.030
5.56.040
5.56.050
5.56.060
5.56.070
5.56.080
5.56.090
5.56.095
5.56.100
5.56.110
5.56.120
5.56.130
Findings
Definitions.
Tobacco retailer' s permit required.
Permit application and procedure.
Issuance of a permit.
Permit renewal and expiration.
Permits nontransferable.
Permit conveys a limited, conditional privilege.
Permit fee.
Tobacco retailer operating requirements and prohibitions.
Sale of certain items prohibited.
Compliance monitoring.
Suspension or revocation of permit.
Violations - Penalties.
Requirement for tobacco retailer permit - Operative date.
Commented [PHLC1]: Public Health Law Center was
asked to provide comments and sample language for
updates for a more comprehensive tobacco retail
licensing ordinance as well as the following public
health measures:
Density caps for tobacco product retailers
Sample language for requested changes by SAY San
Diego are highlighted with blue comments, sample
language highlighting advanced health measures are
highlighted with yellow comments, and language
amended for general updates for structure and to
improve readability are not highlighted.
Changes highlighted in green comments are changes
that need to be taken in conformity with either State or Federal law.
Advanced public health measures the City may
consider include:
Prohibiting the sale of all flavored tobacco products,
including menthol- flavored products;
Regulating the price of commercial tobacco
products, such as establishing minimum prices for
cigars, cigarettes, and other tobacco products,
restricting the redemption of coupons, and other
price promotions;
Regulating the distance between tobacco retailers
as well as tobacco retailers and youth- oriented
facilities; and
Prohibiting pharmacies from selling commercial
tobacco products.
Along with the above- mentioned specific policy
provisions, PHLC also provides comments and sample
language to make corrections and formatting updates,
and for other areas of the ordinance that may be
updated or clarified to strengthen the ordinance and
reduce ambiguity. These changes are not highlighted.
I should mention that the Public Health Law Center
does not lobby, nor does it provide legal representation or advice. However, based on our experiences with
regulation of commercial tobacco products throughout
the country, we are able to provide you with our
observations and other educational information
regarding your questions about commercial tobacco
retail licensing. This information is for educational
purposes only; we do not request that a policymaker
take any specific action in regard to our comments, nor should our comments be considered a replacement for
legal advice. If you require a legal opinion, we
encourage you to consult with local legal counsel. That said, I hope that our comments and suggestions are
helpful to you.
Commented [PHLC2]: These Section names and
numbers would need to be adjusted if the City elects to make the changes as provided below.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 2 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
CROSS REFERENCE: Sales and use tax, see Ch. 3.36 CVMC. Smoking prohibited, see Ch. 8.22 CVMC.
Prior legislation: Prior code§§ 20. 2.1, 20. 2.5 - 20. 2.9; Ords. 1133, 1178, 2506 and 2693.
5. 56. 005 Findings.
WHEREAS, the City Council of Chula Vista hereby finds and declares as follows:
WHEREAS, the City Council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with commercial tobacco control laws and business standards of the City Council, to protect the health, safety, and welfare of our residents;
WHEREAS, approximately 480, 000 people die in the United States from smoking- related diseases and exposure to secondhand smoke every year, making commercial tobacco use the nation’ s leading cause of preventable death; 2 WHEREAS, the World Health Organization ( WHO) estimates that commercial tobacco kills 8 million people and causes over 1. 4 trillion dollars in economic damage each year; 136 WHEREAS, 5. 6 million of today’ s Americans who are younger than 18 are projected to die prematurely from a smoking- related illness; 2
WHEREAS, commercial tobacco use is the number one cause of preventable death in California137 and continues to be an urgent public health issue, as evidenced by the following:
40, 000 California adults die from their own smoking annually; 1 More than 25% of all adult cancer deaths in California are attributable to smoking; 138 Smoking costs California $ 13. 29 billion in annual health care expenses, $ 3. 58 billion in Medicaid costs caused by smoking, and $ 10. 35 billion in smoking- caused productivity losses; 139 Commercial tobacco use can cause disease in nearly all of the organs of the body and is responsible for 87% of lung cancer deaths, 32% of coronary heart disease deaths, and 79% of all cases of chronic obstructive pulmonary disease in the United States; 2
WHEREAS, commercial tobacco use among priority populations in California contributes to health disparities and creates significant barriers to health equity, as evidenced by the following:
African American ( 20. 4%), Asian or Pacific Islander ( 11. 4%), and Hispanic ( 15. 2%) males all report a higher smoking prevalence than the statewide average among all adults ( 11. 0%); 9 American Indian/ Alaska Native Californians have the highest smoking prevalence ( 19. 1%) among all reported adult demographic populations; 9
Smoking is more prevalent among rural ( 14. 9%) compared to urban ( 10. 6%) Californians; 9 Californians with the highest levels of educational attainment and annual household income have the lowest smoking prevalence; 9
Adults who identify as lesbian, gay, bisexual, or transgender report smoking at a higher rate ( 17. 4%) than the statewide average ( 11. 0%); 9
Those who reported experiencing psychological distress in the past month smoke at rates ( 26. 7%) higher than the statewide average ( 11. 0%); 9
WHEREAS, despite the state’ s efforts to limit youth access to commercial tobacco, youth are still able to access tobacco products, as evidenced by the following:
In California, research indicates over 67% of current and former adult smokers started by the age of 18 and almost 100% start by age 26; 140
Commented [PHLC3]: The City could consider
adopting a findings section. A findings of fact section serves as the evidentiary basis for the proposed
commercial tobacco control policies and demonstrates
the City' s reasoning for adopting specific provisions.
Having an established evidentiary basis in addition to
demonstrating the reasoning for adopting the
provisions serves not only an educational purpose but
also a legal purpose in that it can help protect the City from future lawsuits.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 3 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
In California, from 2017 to 2018, approximately 13% of high school students reported using commercial tobacco; 9
Disparities in commercial tobacco use exist among California high school students, with higher rates found among LGBTQ, American Indian, and Pacific Islander youth; 9 Unless smoking rates decline, an estimated 441, 000 of all California youth who are alive today will die prematurely from smoking- related diseases; 1
In 2017, 22. 8% of high school students in California had tried cigarette smoking; 141 Between 2014 and 2018, electronic smoking device use among California youth increased from 14. 1% to
46. 2%; 8
WHEREAS, the tobacco industry encourages youth and young adult commercial tobacco initiation through predatory targeting, 11 as evidenced by the following:
Tobacco companies target young adults ages 18 to 24 to increase their frequency of commercial tobacco use and encourage their transition to habitual users; 66
Tobacco industry documents state that if “a man has never smoked by the age of 18, the odds are three- to- one he never will. By age 24, the odds are twenty- to- one”; 142 The tobacco industry spends an estimated $ 496 million annually to market tobacco products to California residents; 139
WHEREAS, California retailers continue to sell commercial tobacco to underage consumers, evidenced by the following:
9.3% of high school students in California reported buying their own electronic cigarette from a store; 141
19. 1% of California tobacco retailers unlawfully sold tobacco products to underage persons in 2018; 9 WHEREAS, requiring tobacco retailers to obtain a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell tobacco products to adults but will, however, allow the City Council to regulate the operation of lawful businesses to discourage violations of federal, state, and local commercial tobacco control and youth tobacco access laws, as evidenced by the following:
Tobacco products are the number one seller in U. S. convenience stores, and in 2018, they generated an average of $ 595, 870 in sales per store; 143
Systematic scientific reviews indicate that merchant compliance with youth commercial tobacco sales laws reduces the rate of commercial tobacco use among adolescents; 26, 27 Studies found increased retailer compliance and reduced commercial tobacco sales to youth following implementation and active enforcement of youth commercial tobacco sales laws paired with penalties for violations; 144, 145
A review of 41 California communities with strong tobacco retailer licensing ordinances found that youth sales rates declined in 40 of these communities after the ordinances were enacted, with an average 69% decrease in the youth sales rate; 25
WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act (“ Tobacco Control Act”), enacted in 2009, prohibited candy- and fruit- flavored cigarettes, 28 largely because these flavored products are marketed to youth and young adults, 26, 35, 145 and younger smokers were more likely than older smokers to have tried these products; 26
WHEREAS, neither federal nor California state laws restrict the sale of menthol cigarettes or flavored non- cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, electronic smoking devices, and the solutions used in these devices;
WHEREAS, in 2018, more than 86% of tobacco retailers in California sold flavored non- cigarette tobacco products, over 91% of tobacco retailers sold menthol cigarettes, 80 and, as of 2016, 8 out of 10 tobacco retailers near schools sold flavored non- cigarette tobacco products; 147
WHEREAS, flavored tobacco products are used by the majority of youth and young adult commercial tobacco users ( 86. 4% and 57. 7%, respectively) in California; 9 Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 4 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
WHEREAS, mentholated and flavored products have been shown to be “starter” products for youth who begin using commercial tobacco26, 148, 149 and that these products help establish commercial tobacco habits that can lead to long- term addiction; 26, 150, 151
WHEREAS, between 2004 and 2014, use of non- menthol cigarettes decreased among all populations, but overall use of menthol cigarettes increased among young adults ( ages 18 to 25) and adults ( ages 26+); 30 WHEREAS, flavored tobacco has significant public health implications for youth and people of color as a result of targeted industry marketing strategies and product manipulation; 11, 26, 152, 153 WHEREAS, the State of California acknowledges that youth usage of flavored tobacco products continues to rise and that while the FDA recently announced a partial ban of certain flavored electronic cigarette products, the policy does not adequately address the health and safety of California children as it makes dangerous exemptions; 196 WHEREAS, the State of California, in response to the rising epidemic of youth usage of flavored tobacco products, the intentional targeted marketing of certain flavored tobacco products to communities of color, low- income individuals, and the LGBTQ community, and the aggressive marketing of menthol- flavored products to African American community members, enacted SB 793, which came into effect on December 21, 2022; 196 WHEREAS, a review of advertising, promotions, and pack prices near California high schools found that “ for each 10 percentage point increase in the proportion of Black students, the proportion of menthol advertising increased by
5. 9% ... the odds of a Newport [ a leading brand of mentholated cigarettes] promotion were 50% higher ... and the cost of Newport was 12 cents lower.” There was no such association found for non- mentholated cigarettes; 154 WHEREAS, scientific reviews by the FDA and the Tobacco Products Scientific Advisory Committee (“ TPSAC”) found marketing of menthol cigarettes likely increases the prevalence of smoking among the entire population, but especially among youth, African Americans, 33 and possibly Hispanic and Latino individuals; 34 and that menthol cigarettes are associated with increased initiation and progression to regular cigarette smoking, increased dependence on cigarettes, and reduced success in smoking cessation, especially among African American menthol smokers; 33
WHEREAS, research indicates that the FDA ban in 2009 on all flavored cigarette products ( except menthol) led to a 6% decrease in youth commercial tobacco use and a 17% decrease in the likelihood of a youth becoming a cigarette smoker; 155
WHEREAS, studies indicate that laws prohibiting the sale of flavored tobacco products lead to decreases in youth commercial tobacco use, as evidenced by the following:
An evaluation of New York City’s law, which prohibits the sale of all flavored tobacco, excluding menthol, indicated that as a result of the law, youth had 37% lower odds of ever trying flavored tobacco products and 28% lower odds of ever using any type of tobacco; 156
An evaluation of a law in Providence, Rhode Island, which prohibits the sale of all flavored tobacco, excluding menthol, indicated that as a result of the law, current use of any tobacco product among high school youth declined from 22% to 12% and e- cigarette use declined from 13. 3% to 6. 6%, even as statewide e- cigarette use among high school increased to more than 20%; 157 WHEREAS, the health effects of non- cigarette tobacco products such as cigars, cigarillos, smokeless tobacco, and shisha are substantial as demonstrated by research that shows that non- cigarette tobacco products have addictive levels of nicotine, harmful toxins, and dangerous carcinogens; 158- 164 WHEREAS, unlike cigarette use that has steadily declined among youth, the prevalence of the use of non- cigarette tobacco products has increased among California youth; 9 Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 5 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
WHEREAS, evidence also suggests that cigarettes are cheaper in neighborhoods with lower household incomes, 118, 168 Newport menthol cigarettes cost less in areas with higher proportions of African Americans, 118 and underserved communities are targeted with price discounts and coupons; 169- 171 WHEREAS, tobacco companies spend considerably to decrease the price of their products in order to counter state and local commercial tobacco control efforts, appeal to price- sensitive consumers, and increase demand for tobacco products. For example, tobacco companies spent the majority of their cigarette marketing budgets on price discounts, accounting for nearly $ 6. 2 billion of $ 8. 6 billion advertising and promotional expenditures in 2018; 50, 51, 62 WHEREAS, the tobacco industry’ s price discounting strategies, such as coupons and multiple- package discounts, are popular among consumers, with more than half of adults using some price minimization strategy. 70 Coupon receipt and redemption appears more prevalent among white, younger, female, sexual minority, and more nicotine dependent smokers. 172 In California, individuals who used price minimization strategies saved an average $ 1. 04 per pack ( or 18. 6% off the total) in 2010; 70
WHEREAS, price- discounted sales account for a substantial proportion of overall tobacco product sales; 63 WHEREAS, by selling tobacco products, pharmacies reinforce positive social perceptions of smoking, convey tacit approval of commercial tobacco use, and send a message that it is not so dangerous to smoke; 178, 179 WHEREAS, pharmacies sell cigarettes cheaper than other stores118 and advertise tobacco product discounts more than other stores in California; 80
WHEREAS, commercial tobacco- free pharmacy sales policies decrease the availability of tobacco products by reducing tobacco retailer density by up to three times compared with communities that do not have such policies, 119 and immediately after the nationwide CVS policy change to not sell tobacco products, cigarette purchases declined and smokers who had previously purchased their cigarettes exclusively at CVS were up to twice as likely to stop buying cigarettes entirely; 120
WHEREAS, research indicates that the density and proximity of tobacco retailers increase smoking behaviors, including number of cigarettes smoked per day, 90 particularly in neighborhoods experiencing poverty; 90, 180- 182 WHEREAS, the density of tobacco retailers near adolescents’ homes has been associated with increased youth smoking rates101 and initiation of noncigarette tobacco product use; 183 WHEREAS, adults who smoke are likely to have a harder time quitting when residential proximity to tobacco retailers is closer107 and density is higher; 184- 186
WHEREAS, tobacco retailers are more prevalent in underserved communities, especially in neighborhoods with a higher proportion of African American or Hispanic residents; 93- 98 WHEREAS, tobacco retailer density is higher in urban compared to rural areas, except for low- income communities, which have higher tobacco retailer densities regardless of geography, and Hispanic communities, which are associated with variable retailer densities across geography; 97, 187 WHEREAS, policies to reduce tobacco retailer density have been shown to be effective103, 104, 188, 189 and can reduce or eliminate inequities in the location and distribution of tobacco retailers; 103, 104 WHEREAS, six out of 10 tobacco retailers in California sold cigar products using cannabis- related flavor descriptors and these retailers were more prevalent in school neighborhoods with lower median income; 190 WHEREAS, both youth and adult commercial tobacco users are more likely to also use cannabis; 191, 192 Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 6 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
WHEREAS, strict enforcement of policies prohibiting retail sales of cigarettes to youth, sales of cigarettes via vending machines, and other means through which youth gain access to commercial tobacco in the business settings can limit their opportunities to obtain these products; 26, 27 WHEREAS, strong policy enforcement and monitoring of retailer compliance with tobacco control policies ( e. g., requiring identification checks) is necessary to achieve reductions in youth tobacco sales; 193, 194 WHEREAS, the Institute of Medicine recognizes that retailers are not likely to comply with youth commercial tobacco access laws unless such laws are actively enforced through retailer compliance checks paired with meaningful penalties on business owners for violations; 195 WHEREAS, state law explicitly permits cities and counties 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 ( Cal. Bus. & Prof. Code § 22971. 3);
WHEREAS, California courts have affirmed the power of the city council to regulate business activity to discourage violations of law. See, e. g., Cohen v. Board of Supervisors, 40 Cal. 3d 277 ( 1985); Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 ( 1993); Prime Gas, Inc. v. City of Sacramento, 184 Cal. App. 4th 697 ( 2010); WHEREAS, over 180 cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop youth from using tobacco; 9
WHEREAS, in the City Council has a substantial interest in protecting youth and underserved populations from the harms of commercial tobacco use; and
WHEREAS, the City Council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the Chula Vista in order to protect the health, safety, and welfare of our residents;
NOW THEREFORE, it is the intent of the City Council, in enacting this ordinance, to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing and to discourage violations of tobacco- related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to youth, but not 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.
5. 56. 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 in the open market between two 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 the violations of this chapter is not an Arm' s Length Transaction.
B. " Applicant" means the Person applying for a permit pursuant to this chapter.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 7 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
C. “ Cannabis” has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.
D. “ Cannabis Product” has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.
E. “ Cannabis Retailer” means any retail establishment in which cannabis or cannabis products are sold or offered for sale to persons that do not hold a license to engage in commercial cannabis activity issued by the State of California in accordance with the Business and Professions Code Section 26000 et seq., as that section may be amended from time to time.
B. " Chief of Police" means the Chief of Police of the City of Chula Vista, or his/ her designee.
C. F. “Child- Resistant Packaging” means packaging that meets the definition set forth in Code of Federal Regulations, title 16, section 1700. 15( b), as in effect on January 1, 2015, and was tested in accordance with the method described in Code of Federal Regulations, title 16, section 1700. 20, as in effect on January 1, 2015.
D. G. “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 4.5 pounds per thousand.
E. H. “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.
F. I. " City" means the City of Chula Vista.
G. " City Attorney" means the City Attorney for the City of Chula Vista, or his/ her designee.
H. J. “Compliance checks” means systems the department 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 18 and 20 who purchase or attempt to purchase tobacco products. Compliance checks 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.
I.K. “ 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.
J. L. “ 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 Commented [PHLC4]: The intent of this ordinance is to
regulate commercial tobacco products, and commercial
tobacco products alone. The inclusion of these
definitions is to make sure that commercial tobacco
retailers are not selling hybrid products containing
cannabis, and that cannabis retailers are not selling
hybrid products containing commercial tobacco
products without proper licensing.
Commented [PHLC5]: Since the definition holds plain
meaning and no ambiguity, the City could removing this
definition.
Commented [PHLC6]: The City could consider
including hyperlinks to this reference for ease of access for those reading this chapter via the web.
Commented [PHLC7]: The City could consider
including hyperlinks to this reference for ease of access for those reading this chapter via the web.
Commented [PHLC8]: This definition was added to
reflect changes in Federal law.
Commented [PHLC9]: A definition of cigar was added
to be used with the provision of "Minimum Prices for
Cigarettes, Little Cigars, and Cigars" as well as to
support the term used within other definitions.
Commented [PHLC10]: A definition of cigarette was
added to be used with the provision " Minimum Prices
for Cigarettes, Little Cigars, and Cigars" as well as to support the term used within other definitions.
Commented [PHLC11]: Since this definition holds
plain meaning and no ambiguity, the City could
removing this definition.
Commented [PHLC12]: The City could consider
adopting a definition for Compliance Checks to support
the provision they currently have within their ordinance.
Compliance checks should also provide for the use of
individuals under the age of 21 to help with the
compliance checks carried out by the City. The age
here to reflects recent changes in Federal and State
law regarding T21.
Commented [PHLC13]: A definition of coupon was
added to be used with the provision of "Prohibition of
Tobacco Coupons and Discounts."
Commented [PHLC14]: Local communities may be
interested in prohibiting delivery sales as an effective means of curtailing underage access to licensed
products, especially electronic delivery devices sold
online. This definition supports the " Delivery Sales
Prohibition" provision below.
If the City wanted to adopt a provision prohibiting
delivery sales, the adoption of this definition would be needed.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 8 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. 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.
K. M. “Department” means [ insert department name ] and any agency or person designated by the City to enforce or administer the provisions of this chapter.
A. " Crime of Moral Turpitude" means a crime involving a readiness to do evil, an act of moral depravity of any kind that has a tendency in reason to shake one' s confidence in their honesty, deceit, or fraud.
L. " Electronic Smoking Device" means an electronic device that can may be used to deliver an inhaled dose ofany aerosolized or vaporized nicotine, or other substances 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 such athe device, whether or not sold separately 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. " 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.
Electronic Smoking Device" also includes cartridges, cartomizers, e- liquid, smoke juice, tips, atomizers, Electronic Smoking Device batteries, Electronic Smoking Device charges, and any other item specifically designed for the preparation, charging, or use of Electronic Smoking Devices.
N.
M. O. " Flavored Tobacco Product" means any tTobacco pProduct that contains or emits a taste or smell, other than the taste or smell of tobacco, including, but not limited to, any taste or smell relating to fruit, mint, menthol, wintergreen, chocolate, cocoa, vanilla, honey, candy, dessert, alcoholic beverage, herb, or spice.
Flavored Tobacco Products" do not include products approved by the Food and Drug Administration ( FDA) for sale either as a tobacco cessation product or for other therapeutic purposes, where the product is marketed and sold solely for such an FDA- approved purpose. imparts:
1. a taste or odor distinguishable by an ordinary consumer, other than the taste or odor of tobacco, either prior to or during the consumption of such tobacco product, including but not limited to tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or
2. a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.
PRESUMPTIVE FLAVORED TOBACCO PRODUCT. Any communication by or on behalf of the manufacturer or retailer of a tobacco product that such tobacco product imparts a taste or odor other than the taste or odor of tobacco, or that imparts a cooling or numbing sensation, constitutes presumptive evidence that the tobacco product is a flavored tobacco product.
This includes but is not limited to public statements that a product has a minty or cooling effect, such as describing Commented [PHLC15]: The City could consider
adopting this definition to refer to the Department in
charge of supervising administration and enforcement
of this provision as the term also extends to any
designees of the department as well.
Commented [PHLC16]: The City could consider
removing this definition as ( if you scroll further down in the ordinance) the corresponding provisions that
utilized this definition were commented on with
considerations for removal due to bias and potential
litigation exposure.
Please see the comments regarding those
corresponding provisions for further detail.
Commented [PHLC17]: The County could consider
updating this definition to this more concise and
comprehensive version.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 9 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. the product as “chill,” “ice,” “fresh,” “arctic,” or “frost.” N. P. “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.
O. Q. "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 4.5 pounds per thousand. Little Cigar includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.
P. R. "Loose- Leaf Tobacco" means cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll- your- own cigarettes.
Q. S. “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.
T. “ Moveable 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.
R.
S. " Owner" 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 20 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 can or does have or share ultimate control over the day- to- day operations of a business.
U. " Person" means any natural personhuman being, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
T. V. “Pharmacy” means any retail establishment in which the profession of pharmacy is practice 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.
U. W. " Premium Cigars" means any cigar that is handmade, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than $ 12. 00. A Premium Cigar does not have filter, tip, or nontobacco mouth.
X. “ Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be Commented [PHLC18]: The City could consider
including the definition for " Flavored Product" in their ordinance. This definition is comprehensive and
provides a clear definition as to not only the consumer experience when they consume flavored products, but
also addresses " sensation products" that have been
released in the wake of California' s recent legislative changes prohibiting flavored tobacco products.
Not only does the definition address how sensations
are flavored, but also how public statements are
indicative of a product being a flavored product.
This definition is also consistent with State law.
Commented [PHLC19]: A definition of Full Retail Price
was added to be used with the provision of "Prohibition of Tobacco Coupons and Discounts."
Commented [PHLC20]: A definition of little cigar was
added to be used with the provision " Minimum Prices
for Cigarettes, Little Cigars, and Cigars" as well as to support the term used within other definitions.
Commented [PHLC21]: A definition of manufacturer
was added to be used with the provision " Tobacco
Product Pricing and Packaging" as well as the
definition for " Flavored Tobacco Product."
Commented [PHLC22]: A definition of moveable place
of business was added to be used within Provision
Limits on Eligibility for Tobacco Retailer License' s
subprovision " mobile vending."
Commented [PHLC23]: A definition of pharmacy was
added to be used within Provision " Limits on Eligibility for Tobacco Retailer License' s subprovision
pharmacies."
Commented [PHLC24]: The City could consider
deleting the provision " owner" and instead adopting this definition of proprietor. This definition better expands to include those with a "managerial interest in a
business."
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 10 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. deemed to exist when a person has a 10% or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has or shares ultimate control over the day- to- day operations of a business.
V. Y. “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.
W. Z. “Sale” mean any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.
X. AA. " 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.
BB. " Shisha" means a tobacco product that is mixed with molasses, honey, fruit, or dried fruits and is sold for use in a hookah.
Y. CC. “ 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.
Z. DD. '' Tobacco Product" means:
1. Any substance product containing, made of, or derived from tobacco leaf 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 cigarettes, a cigars, pipe tobacco, snuff, snus, or chewing tobacco, dipping tobacco, or any other preparation of tobacco;
2. Any eElectronic sSmoking dDevice and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or
3. Notwithstanding any provision of subsections ( R)( 1) and( R)( 2) of this section to the contrary, " tobacco product" includes aAny component, part, or accessory of GG( 1) or GG( 2), a tobacco product, 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. sold separately. '' Tobacco Product" does not include mean “ drugs,” devices,” or “combination products,” authorized for sale by any product that has been approved by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. 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.
EE. '' Tobacco Retailer" means any pPerson who sells, offers for sale, or does or offers to exchanges or offers to exchange for any form of consideration, tobacco, tTobacco pProducts or Tobacco Paraphernalia. " Tobacco Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tTobacco pProducts or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange. Tobacco Commented [PHLC25]: If the City wants to adopt a
provision prohibiting the sale of licensed products near youth- oriented facility, the City will need to adopt this definition as well as this definition is used to help define youth- oriented facilities.
Commented [PHLC26]: The City could consider
adopting a definition for smoking as they will need to be defined if the City decides to adopt a provision that
prohibits smoking within tobacco retail establishments.
Commented [PHLC27]: The City could consider
updating this definition as it is more comprehensive
and concise.
Commented [PHLC28]: The definition of “tobacco
product” is broad enough to include all paraphernalia,
so no retailer could sell these items without a license.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 11 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
Retailer does not include persons licensed by the City to conduct commercial cannabis activity in accordance with Chapter 5. 19 CVMC.
FF. “ Tobacco Retailing” means engaging in the activities of a tobacco retailer.
GG. “ Youth- Oriented Facility” means a 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 6 to 17, inclusive, come together for programs and activities;
3.5. 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; ( Ord. 3525 § 1, 2022; Ord. 3417 § 1, 2018).
5.56.020 Tobacco retailer' s permit requiredGeneral 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.
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 also prohibited outdoors within 25 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 21 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 21 years of age.
G. Self- service displays prohibited. Tobacco retailing by means of a self-service display is prohibited.
Commented [PHLC29]: The City could consider not
exempting cannabis retailers. The intent of this tobacco retail license is to regulate retailers who engage in the sale of tobacco products, not cannabis retailers
engaging in the sale of cannabis products. However,
the City runs the risk of hybrid products containing,
made, or, or derived from both tobacco or nicotine and
marijuana. These products do need to be regulated. If
a cannabis retailer decides to start selling cannabis
product combined with tobacco products, these
retailers would need to obtain an additional tobacco
retail license to sell these hybrid products.
Commented [PHLC30]: The City could consider
defining tobacco retailing separately from tobacco
retailer for clarity.
Commented [PHLC31]: If the City wants to adopt a
provision prohibiting the sale of licensed products near youth- oriented facilities., the City will need to adopt this definition as well.
Commented [PHLC32]: The City could consider
adopting this Section which establishes general
requirements and prohibitions for licenses. Such as the requirement that a business must remain in lawful
operation, or that sampling is prohibited in stores.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 12 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
H. 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.
I. Windows.
1. In the course of Tobacco Retailing or in the operation of a business or maintenance of a location for which a permit 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 20 percent of the window area with window signs in accordance with CVMC
19. 60. 500.
2. All windows shall be 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.
Ord. 3417 § 1, 2018).
5.56.030 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 moveable 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 under Business and Professions Code Division 10.
C. Pharmacies. One year after the effective date of this ordinance, no license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.
D. Proximity to youth- oriented facilities. No new license may issue to authorize tobacco retailing within [ 1,000 ] feet 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.
E. Proximity to other tobacco retailers. No new license may issue to authorize tobacco retailing within [ 600 ] feet of a tobacco retailer location already licensed pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’ s business is located to the nearest point of the property line of the parcel on which an existing licensee’ s business is located.
F. Proximity to cannabis retailers. No new license may issue to authorize tobacco retailing within [ 600 ] feet of an existing cannabis retailer 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 cannabis retailer is located.
Commented [PHLC33]: The City could also consider
instead of having this provision located within their
tobacco retailer licensing ordinance, to adopt this as a zoning ordinance as applied to tobacco retailers and
alcohol retailers as under zoning ordinances safety and aesthetic are viable reasons for the City to adopt
provisions such as this.
Commented [PHLC34]: The City could consider
enacting a provision to prohibit the issuance of a
license to a moveable place of business. Since the City needs to conduct random compliance checks to make
sure the tobacco retailer is compliant with state and
federal law, as well as random inspections to make
sure the tobacco retailer is adhering to all provisions of the ordinance, it's important to have a fixed location for enforcement personnel to visit. It is hard to conduct
checks on a business that moves from place to place
and is not fixed.
Commented [PHLC35]: The City could consider
adopting a provision to make sure that cannabis
retailers are not licensed to also sell tobacco products and that these products are sold in separate locations.
Commented [PHLC36]: Several communities have
adopted laws prohibiting pharmacies from selling
commercial tobacco products. These laws have been
shown to significantly reduce commercial tobacco
retailer density when compared to communities without
similar laws. Some studies have shown that pharmacy
prohibitions are most effective in reducing health
disparities when combined with proximity restrictions.
Commented [PHLC37]: Research has demonstrated
that policies requiring set distances between retailers and between retailers and youth- oriented facilities help to reduce tobacco retailer density and increase prices
for commercial tobacco products. These proximity
buffers may have significant impact in urban, low-
income neighborhoods, which have been historically
targeted by the tobacco industry with pervasive
marketing and price promotions at the point- of-sale.
The greatest public health impacts are seen when
these policies are combined with a cap on the number
of licenses issued. Jurisdictions with GIS capacity may want to consider mapping locations of commercial
tobacco retailers to identify their proximity to youth- oriented facilities and other retailers.
The youth- oriented facilities proximity limitation here would prohibit tobacco retailing within a certain
distance of relevant business and facilities with no
exception for existing licensed retailers. As a result, retail licenses for locations that do not meet these
proximity limitations would not be renewable after
expiring. Issuing a tobacco retail license is a privilege, not a right, and jurisdictions have the authority to grant or deny tobacco retailer licenses. ... [ 1]
Commented [PHLC38]: The City could consider
adopting a provision to make sure there is geographical distance between cannabis retailers and tobacco
retailers. This makes sure that clusters of retailers do not over- populate and over- burden certain locations
with an over- abundance of retailers.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 13 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
G. Population and density. The issuing of tobacco retailer licenses is limited as follows:
1. The total number of tobacco retailer licenses within a zone shall be limited to one for each 2, 500 ] inhabitants of the county.
2. For the purposes of this subsection, the total population of the city shall be determined by the most current published total available from the U. S. Census Bureau or the California State Department of Finance, whichever has been more recently updated, as of the date the license application is filed.
3. No new license may issue to authorize tobacco retailing if the number of tobacco retailer licenses already issued equals or exceeds the total number authorized pursuant to subsection 1).
H. Existing retailers. A Tobacco Retailer selling tobacco products operating lawfully on the date this ordinance is adopted 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 transferring of a location to a new Proprietor( s); and
4. the Tobacco Retailer retains the right to operate under other applicable laws.
I. Change of business dispute. If the County 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 evidence that such change( s) do not constitute a substantial change.
5.56.04030 LicensePermit application and procedure.
A. All applications shall be submitted on a form supplied by the Police Department and shall include, but not be limited to, the following information: 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 Department.
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. 56. 120 of this Chapter. Nothing in this Chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer’ s license any status or right to act as a tobacco retailer in contravention of any provision of law.
A.C. Applicant submissions must contain the following information:
1. The name, address, and telephone number of each proprietor of the business seeking a license.
1. 2. The Applicant' s business name, and address and telephone number of the location for which a license is sought.
2. 3. The name and mailing address authorized by each proprietor to receive all communications and notices Commented [PHLC39]: If the City is concerned
regarding the time frame surrounding this provision,
further language could be provided if there is concern
of easing into the population cap and giving a period of time to allow turn- over of retailers near schools or other retailers to occur before the population and density cap comes into effect.
Commented [PHLC40]: This language creates a cap
to make sure that the number of retailers in a specific zone is proportionate to the population size in that
zone. It also makes sure that zones that are heavily
populated with disadvantaged communities are not
saturated with tobacco retailers, which is taking into
consideration objectives with the Environmental Justice Element.
Commented [PHLC41]: ATTRITION OPTIONS
If the City would like to reduce its retailers over time through attrition), then the cap for the City would need to be set as something lower than the current number
of retailers per population. The City has the option of tying this cap to population or the City could come up
with a numerical number and set the cap lower than
that numerical number. Including the additional
language exempting compliant existing retailers
provision H), allows the number to be over the cap for
the time being but would reduce over time as retailers
do not renew or become out of compliance with
provision H. If density in a particular area of the City is a concern, there could be an option to set caps
differently based on city zones.
Since language regarding attrition is dependent on
how the City wants to address attrition, no specific
language is included. However, if City is interested in considering that language, PHLC is able to meet and
discuss, and then provide the requested language.
Commented [PHLC42]: If the City is concerned with
the outright enforcement of these provisions, the City
could consider incorporating this provision that takes
into consideration existing retailers and the renewal of their license conditioned on them following the
conditions listed in this provision. A license is a
privilege, not a right, and if retailers fall out of
compliance, their license does not have to be renewed.
Commented [PHLC43]: This provision establishes the
a retail establishment is not allowed to change hands
and continue to operate as a tobacco retailer.
Commented [PHLC44]: The City could consider
removing numerous provisions in this section.
Furthermore, quite a bit of the information required to be submitted for the license application process here is not even directly relate to the granting of a license.
A good question the City can ask is whether other
business licenses are being held to this same standard ... [2] Commented [PHLC45]: If the current form utilized for
License application contains the problematic provisions below, the City could consider creating a new form
established the requirements suggested in the new
language below.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 14 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. required by, authorized by, or convenient to the enforcement of this Chapter. address of the proposed Tobacco Retailer business location.
4. If the Applicant is a natural Person: Proof that the location for which a tobacco retailer’ s license is sought has been issued all necessary state license 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. A signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product without a license required by this Chapter.
3. 7. Such other information as the Department deems necessary for the administration or enforcement of this Chapter as specified on the application form required by this section. a. The full true name and any other names ever used by the Applicant; b. The current residential address and telephone number of the Applicant; c. Written proof that the Applicant is 21 years of age or older; d. The Applicant' s height, weight, and color of eyes and hair; e. The Applicant' s valid social security number;
f. Photographs of the Applicant as specified by the Chief of Police; g. The Applicant' s business, occupation, and employment history for the five years immediately preceding the date of application, including addresses and dates of employment; h. A list of all crimes for which the Applicant has been convicted, including those dismissed pursuant to Penal Code Section 1203. 4, except traffic infractions, and a statement of the dates and places of such convictions.
4. If the Applicant is a corporation, the name of the corporation exactly as shown in its Articles of Incorporation or Charter, together with the state and date of incorporation, the names and residential addresses of each of its current officers and directors, and of each stockholder holding more than 25 percent of the stock of the corporation.
5. If the Applicant is a partnership, the name and residential address of each of the partners, including limited partners. If one or more of the partners is a corporation, the Applicant shall provide the information about that partner required by subsection ( A)( 4) of this section.
6. If the Applicant is a limited partnership, a copy of the limited partnership' s certificate of limited partnership as filed with the County Clerk. If one or more of the partners is a corporation, the Applicant shall provide the information about that partner required by subsection ( A)( 4) of this section.
7. If the Applicant is a corporation or partnership, the name of the responsible managing officer pursuant to subsection ( C) of this section.
Commented [PHLC46]: The City could remove this
provision. Please see comment connected to the top of
this Section 5.56.040 above as to reasoning.
Commented [PHLC47]: This is addressed in the basis
for denial provisions stating that it is a basis for denial if the license applicant is under the age of 21.
Commented [PHLC48]: The City could remove this
provision. Please see comment connected to the top of
this Section 5.56.040 above as to reasoning.
Commented [PHLC49]: The City could remove this
provision. Please see comment connected to the top of
this Section 5.56.040 above as to reasoning.
Commented [PHLC50]: The City could remove this
provision. Please see comment connected to the top of
this Section 5.56.040 above as to reasoning.
Commented [PHLC51]: The City could also consider
removing this provision. The City would need a very
good reason for demanding the disclosure of incidents
that are dismissed. These are not considered crimes.
This could be considered the basis for a discrimination suit as if there is a denial of the license based on
dismissed cases this could be deemed highly
prejudicial to the applicant.
PHLC' s model langauge asks for retailers to disclose
information necessary to the business, an affidavit
stating that no tobacco product will be sold without a
license
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 15 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
8. A single name and mailing address authorized by the Applicant 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, the Applicant shall be understood to consent to the provision of notice at the address specified in subsection ( A)( 1) of this section.
9. All fictitious business names ever used by the Applicant and the respective addresses of those businesses.
10. Whether the Applicant has ever had any license or permit issued by any agency or board, or any city, county, state, or federal agency, suspended or revoked, or has had any professional or vocational license or permit suspended or revoked within five years immediately preceding the application, and the reason for the suspension or revocation.
11. The name and address of the current Owner and lessor of the real property upon which the proposed Tobacco Retailing business is to be conducted, and a copy of the lease or rental agreement.
12. Copies of all business tax certificates and local business licenses.
13. 8. Copies of applications for licenses and licenses issued pursuant to California Business and Professions Code Section 22970 et seq., the " Cigarette and Tobacco Products Licensing Act of 2003." If an application for a license pursuant to the " Cigarette and Tobacco Products Licensing Act of 2003" has been denied, copies of documentation regarding the reason for the denial of such license.
14. At the discretion of the Chief of Police, such other identification and information, including fingerprints, as may be required in order to discover the truth of the matters herein and/ or deemed necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
B. Owners, Corporate Officers, Partners DeemedApplicants. Each Owner of a Tobacco Retailer Applicant is deemed a co- Applicant and each shall provide the information required in subsection ( A) of this section. For Tobacco Retailer Applicants with less than 20 employees, each corporate officer or partner of a Tobacco Retailer is deemed a co- Applicant and each shall provide the information required in subsection ( A) of this section.
C. Designation of Responsible Managing Officer. A Tobacco Retailer Applicant that is a corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer. The responsible managing officer may complete and sign all applications on behalf of the corporate officers and partners.
D. Change in information. A n Applicant licensed tobacco retailer shall inform the Police Department in writing of any change in the information submitted on an application for a Tobacco Retailer' s Permit license within 10 business days of a change.
E. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act ( California Government Code Section 6250 et seq.) or any other applicable law, subject to the laws' exemptions.
F. Application Fee. The Applicant shall pay an application fee in an amount to be set by the City Council to cover the costs incurred by the City to process the application. ( Ord. 3417 § 1, 2018).
Commented [PHLC52]: The City could remove this
provision. Please see comment connected to the top of
this Section 5.56.040 above as to reasoning.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 16 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
5.56.040 License Issuance of aor denial. permit.
A. Issuance of license. Upon the receipt of a complete and adequate application for a Tobacco Retailer' s permit license and the permit license fee required by this chapter, the Chief of PoliceDepartment shall have authority tomay grant or deny the application for Tobacco Retailer permitlicense, or it may delay action for a reasonable period of time to complete any investigation of the application of the applicant deemed necessary.
B. Denial of application. The Department An application for permit may be denyied an application for a tobacco retailer’ s license based on by the Chief of Police for any of the following reasons:
1. The application is received after the designated time and dateThe information presented in the application is inaccurate or false. Intentionally supplying inaccurate information shall be a violation of this chapter;.
2. The application is not in the required form and/ or is incompleteseeks authorization for tobacco retailing at a location for which this chapter prohibits a license to be issued;
3. The Applicant has made a false, misleading, or fraudulent statement, or omission of fact in the application or in the application processapplication 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.
3. Any other suitable reason the granting of a license to the applicant is not consistent with the public health and welfare, including the applicant’ s history of noncompliance with this Chapter and other laws relating to the sale of tobacco products.
5. 4. The applicant is under the age of 21.
5. The Applicant or a co- Applicant has failed to submit fingerprints or other information deemed necessary by the Chief of Police pursuant to CVMC 5. 56. 030.
6. 7. The Applicant or a co- Applicant has within five years immediately preceding the date of the filing of the application been convicted of, suffered any civil penalty, or faced administrative action against any type of license for violations of any tobacco control law, including but not limited to the following offenses: Penal Code Section 308, Business and Professions Code Section 225950 et seq. (" Stop Tobacco Access to Kids Enforcement Act" or the " STAKE Act"), Business and Professions Code Section 22970 et seq. (" Cigarette and Tobacco Products Licensing Act of 2003"), or a charge of violating a lesser- included or lesser- related offense including, but not limited to, Penal Code Section 415, in satisfaction of, or as a substitute for, an original charge of any of the offenses listed in this section.
8. The Applicant or a co- Applicant has within 10 years immediately preceding the date of the filing of the application been convicted of any felony criminal offense or any Crime of Moral Turpitude.
9. There are charges pending against the Applicant or a co- Applicant for a felony offense, a Crime of Moral Turpitude, or an offense involving the use of a weapon.
10. The Applicant or a co- Applicant has within five years immediately preceding the date of the filing of the application been convicted of, suffered any civil penalty, or faced administrative action for violation of local, state, or federal law.
11. The Applicant seeks authorization for Tobacco Retailing that is prohibited pursuant to this chapter, that is unlawful pursuant to this Code including without limitation the zoning, building, and business license tax regulations and codes, or that is unlawful pursuant to any other law.
12. 13. The Applicant or a co- Applicant has had a Tobacco Retailer' s renewal permit or an application for a Tobacco Retailer' s permit denied within one year prior to the date of application.
14. 15. The Applicant or a co- Applicant is ineligible for a Tobacco Retailer permit pursuant to CVMC 5.56. 120.
Commented [PHLC53]: This issue is addressed in the
provision immediately above.
Commented [PHLC54]: The City could consider
removing this provision.
Firstly, the term " crime of moral turpitude" is a term of art only utilized in immigration court. The utilization of this term of art in this provision reads problematic as it seems to try to regulate specifically foreign- born
individuals and situated them differently than any other applicant. This could have equal protection issues and
may result in the City facing lawsuits regarding this
particular issue.
Secondly, persons who have been convicted of
committing a crime in the past should not be outright
prohibited from being able to hold a license regarding
tobacco products, especially if the crime for which they are convicted for has no relation to the regulating of
tobacco products. * Would note that certain felony
convictions may prohibited proximity to certain
geographic locations such as schools and this issue
already takes care of itself through other state
regulations* California has enacted legislation to
prevent individuals from being denied job opportunities regarding the disclosure of their criminal background.
Considering that this is a growing movement not just
within the State, but federally, to ensure that people
who have past convictions aren' t forever prohibited
from being able to move on with their life and engage in legitimate business practices. Instead, other provisions have been added to this Ordinance to prohibit the
issuance of a license to someone who has been
convicted of a crime, whether state, federal, or local, that is related to tobacco product sales. The conviction of this category of crime is going to be the best
indicator as to whether someone can be compliant with
the requirements of a tobacco retail license.
Commented [PHLC55]: The City could consider
removing this provision based on the comments above.
Commented [PHLC56]: These provisions were
relocated above within this Section, however may be
reworded for clarity and conciseness.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 17 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
16. 17. The Chief of Police shall serve the Applicant, either Personally or by first class mail addressed to the Authorized Address, with dated written notice of the decision to approve or deny the application for a Tobacco Retailer' s permit. If the application has been approved, the notice shall state the permit fee amount, the date by which the permit fee must be paid, and the location where payment must be made. If the application has been denied, the notice shall state the reasons for denial, the effective date of the decision, and the right of the Applicant to appeal the decision to the City Manager. Any appeal must be filed in writing with the City Clerk within 14 days of service of the notice. The City Manager' s determination regarding the application shall be final. The City Manager shall provide dated written notice to the Applicant, either Personally or by first class mail addressed to the Authorized Address, of the City Manager' s determination and the right of the Applicant to seek judicial review of the City Manager' s determination.
18. 19. No permit shall issue pursuant to this chapter unless the permit fee, established in accordance with CVMC
5. 56. 080, has been timely paid pursuant to the notice issued above.
20. 21. 6. A permit issued under this chapter shall be valid for a period of one year from the date of the issuance or from the date of renewal. ( Ord. 3417 § 1, 2018).
5. 56. 050 Permit License renewal and expiration.
A. Renewal of license. A Tobacco Retailer' s permit license shall automatically renew on an annual basis unless the Chief of Police determines prior to the date on which the permit is to be automatically renewed that any of the factors identified in subsection ( C) of this section exist. A Tobacco Retailer shall have the duty to ensure that all City records generated pursuant to this chapter are accurate and up to date prior to automatic renewal 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 1 year. Each tobacco retailer will apply for the renewal of their tobacco retailer’ s license and submit the license fee no later than 30 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. 56. 030.
B.
The Tobacco Retailer shall pay a renewal fee established pursuant to CVMC 5. 56. 080 prior to the date on which the permit is to be automatically renewed.
The Chief of Police shall have authority to grant or deny the renewal permit. A renewal permit may be denied by the Chief of Police for any of the following reasons:
Any of the grounds for suspension or revocation under CVMC 5.56. 110 exist.
The permit is suspended or revoked at the time of the application.
The Tobacco Retailer has not been in regular and continuous operation in the four months prior to the renewal application.
The Tobacco Retailer fails to or is unable to renew any required state licenses.
The Tobacco Retailer has failed to pay the renewal fee established pursuant to CVMC 5. 56. 080 prior to the date on which the permit is to be automatically renewed.
The Tobacco Retailer fails to ensure that all City records generated pursuant to this chapter are accurate and up to date prior to the automatic renewal.
The Chief of Police is authorized to make all decisions concerning the issuance of a renewal permit. In making the decision, the Chief of Police is authorized to impose additional conditions on a renewal permit if it is determined to be necessary to ensure compliance with state or local laws and regulations or to preserve the public health, safety Commented [PHLC57]: These provisions are already
addressed in different sections and do not need to be
repeated and therefore can be deleted.
Commented [PHLC58]: This broad catch- all provision
allows license denial under the jurisdiction’s health,
safety, and general welfare authority for reasons that
may not be specifically listed here. If a license is denied under this provision, the jurisdiction would want to have clear reasoning and facts to support the denial.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 18 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. or welfare.
C. A.
D. The Chief of Police shall serve the Tobacco Retailer, either Personally or by first class mail addressed to the Authorized Address, with dated written notice of the decision to approve or deny the renewal permit. A denial notice shall state the reasons for the action, the effective date of the decision, and the right of the Tobacco Retailer to appeal the decision to the City Manager. Any appeal must be filed in writing with the City Clerk within 14 days of service of the notice. The City Manager' s determination regarding the renewal permit shall be final. The City Manager shall provide dated written notice to the Tobacco Retailer, either Personally or by first class mail addressed to the Authorized Address, of the City Manager' s determination and the right of the Tobacco Retailer to seek judicial review of the City Manager' s determination. ( Ord. 3417 § 1, 2018).
5. 56. 060 Permits Licenses notn transferable, past violations at retail location.
A. Licenses not transferrable. A Tobacco Retailer' s permit license may not be transferred from one Person to another or from one location to another. A new Tobacco Retailer' s permit license is required whenever a Tobacco Retailer has a change in more than 20 percent Ownership of the Tobacco Retailer or whenever a Tobacco Retailer changes locationtobacco retailing location has a change in proprietors.
B. Past violations. Notwithstanding any other provision of this chapter, prior violations at a Tobacco Retailer location shall continue to be counted against the a location and permit license ineligibility periods shall continue to apply to the location unless:
1. The location has been transferred to the new Proprietor( s) Owner in an Arm' s Length Transaction; and
2. The new Owner Proprietor( s) provides the City with clear and convincing evidence that the new OwnerProprietor( s) have acquired or are acquiring the location in an Arm' s Length Transaction.
Ord. 3417 § 1, 2018).
5. 56. 070 Permit License conveys a limited, conditional privilege.
Nothing in this chapter shall be construed to grant any Person obtaining and maintaining a Tobacco Retailer' s permit 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. It is the responsibility of each Permittee to be informed regarding all laws applicable to Tobacco Retailing, including those laws affecting the issuance of a Tobacco Retailer' s Permit. No Permittee may rely on the issuance of a permit as a determination by the City that the Permittee has complied with all laws applicable to Tobacco Retailing. 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 lawrender inapplicable, supersede, or apply in lieu of, any other provision of applicable law. ( Ord. 3417 § 1, 2018).
5. 56. 080 Permit Ffee for license.
Commented [PHLC59]: These sentences do not relate
to the overall intent of this provision and its intent to establish that a license conveys a limited, conditional privilege. These items addressed in the deleted
sentences are addressed in other areas of the
ordinance.
Commented [PHLC60]: It is lawful to impose a fee on
applicants in an amount sufficient to offset the cost of the entire Tobacco Retailer enforcement program of
the locality. Sinclair Paint Co. v. Board of Equalization, 15 Cal. 4th 866 ( 1997); Griffith v. City of Santa Cruz, 207 Cal. App. 4th 982 ( 2012).
The license fee can incorporate the cost of enforcing all tobacco laws related to Tobacco Retailing because a
violation of any tobacco- related law is a basis for
suspension of a license. However, there are
constitutional limitations on local fees that could come into play if the fee is set too high or without justification for the cost. We would be happy to discuss this further if it would be helpful.
Fees provide revenue for the administration and
enforcement of the ordinance and for retailer and
community education. Periodic review and adjustment
of licensing fees will ensure that they are sufficient to cover all administration, implementation, and
enforcement costs, including compliance checks. Our
online Tobacco Retail Licensing Calculator and our
publication, Retail License Fees ( 2022), provides more information about retail licensing fees and a license fee checklist.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 19 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
The fee to issue or to renew a Tobacco Retailer' s permit license shall be established from time to time by resolution of the City Council. The fee shall be calculated so as to recover the total cost of administration and enforcement of this chapter, including, for examplebut not limited to, issuing a permitlicense, administering the permit l program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. ( Ord. 3417 § 1, 2018).
5.56.090 Tobacco retailer operating requirements and prohibitions.
A. Compliance with All Laws Required. In the course of Tobacco Retailing or in the operation of the business or maintenance of the location for which a permit issued, it shall be a violation of this chapter for a Permittee, or any of the Permittee' s agents or employees, to violate any local, state, or federal law applicable to Tobacco Products, Tobacco Paraphernalia, or Tobacco Retailing.
B. Fixed Location Required. No Person shall engage in Tobacco Retailing at other than a fixed location. For example, Tobacco Retailing by Persons on foot or from vehicles is prohibited.
C. Display of Permit. Each Tobacco Retailer permit shall be prominently displayed in a publicly visible location at the permitted location.
D. Positive Identification Required. No Person engaged in Tobacco Retailing shall sell or transfer a Tobacco Product or Tobacco Paraphernalia to another Person who appears to be under the age of 27 years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the Tobacco Product or Tobacco Paraphernalia.
E. Self- Service Displays Prohibited. Tobacco Retailing by means of a Self- Service Display is prohibited.
F. Tobacco Display Prohibited without Valid Permit. A Tobacco Retailer without a valid Tobacco Retailer permit shall not display Tobacco Products or Tobacco Paraphernalia in public view. A Tobacco Retailer without a valid Tobacco Retailer permit 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.
G. Drug Paraphernalia. It shall be a violation of this chapter for any Permittee or any of the Permittee' s agents or employees to violate any local, state, or federal law regulating controlled substances or Drug Paraphernalia, except that conduct authorized pursuant to state law shall not be a violation of this chapter.
H. Windows.
1. In the course of Tobacco Retailing or in the operation of a business or maintenance of a location for which a permit issued, it shall be a violation of this chapter for a Permittee, or any of the Permittee' s agents or employees, to cover more than 20 percent of the window area with window signs in accordance with CVMC
19. 60. 500.
2. All windows shall be 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 premiseswhere 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.
Commented [PHLC61]: This section was relocated
above to the amended 5.56.020 General
requirements and prohibitions.
Commented [PHLC62]: This provision is addressed
elsewhere in the ordinance. Also, based on updated
definitions, tobacco paraphernalia is incorporated into the definition of tobacco product and does not need to
be referred to separately.
Commented [PHLC63]: This provision was relocated
to the amended 5.56. 020 General requirements and
prohibitions and the langauge amended to create a
more comprehensive and clear version of the provision.
Commented [PHLC64]: This provision was relocated
to the amended 5.56. 020 General requirements and
prohibitions.
Commented [PHLC65]: This provision was relocated
to the amended 5.56. 020 General requirements and
prohibitions and the langauge amended to create a
more comprehensive and clear version of the provision.
Commented [PHLC66]: This provision was relocated
to the amended 5.56. 020 General requirements and
prohibitions.
Commented [PHLC67]: This provision was relocated
to the amended 5.56. 020 General requirements and
prohibitions and the langauge amended to create
more comprehensive and clear version of the provision.
Commented [PHLC68]: The intent of this ordinance is
to regulate tobacco licensing, not regulate drug
paraphernalia. As such, the City could consider
removing this provision as it does not support the intent of this Ordinance.
Commented [PHLC69]: This provision was relocated
to the amended 5.56. 020 General requirements and
prohibitions.
The City could also consider instead of having this
provision located within their tobacco retailer licensing ordinance, to adopt this as a zoning ordinance as
applied to tobacco retailers and alcohol retailers as
under zoning ordinances safety and aesthetic are
viable reasons for the City to adopt provisions such as this.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 20 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
I. Change in Information. A Tobacco Retailer shall inform the Police Department in writing of any change in the information submitted on an application for a Tobacco Retailer' s permit within 10 business days of a change. ( Ord. 3417 § 1, 2018).
5.56.0905 Sale of certain itemsflavored tobacco products prohibited.
A. Sale of Flavored Tobacco Prohibited. Beginning January 1, 2023, Iit shall be unlawful for any Person tobacco retailer to sell or offer for sale, or to possess with intent to sell or offer for sale, any Flavored Tobacco Product in the City of Chula Vista.
1. There shall be a permissive inference that a Tobacco Retailer in possession of four or more Flavored Tobacco Products, including but not limited to individual Flavored Tobacco Products, packages of Flavored Tobacco Products, or any combination thereof, possesses such Flavored Tobacco Products with intent to sell or offer for sale.
2. There shall be a permissive inference that a Tobacco Product is a Flavored Tobacco Product if:
a. A public statement or claim is 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 statement concerning such tobacco product, that such Tobacco Product has or produces a taste or smell other than tobacco; or
b. Text and/ or images on the Tobacco Product' s Labeling or Packaging explicitly or implicitly indicates that the Tobacco Product is a Flavored Tobacco Product.
B. Exempted Products. This section does not apply to the sale of Shisha, Premium Cigars, or Loose- Leaf Tobacco. ( Ord. 3525 § 1, 2022).
5.56.100 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. Upon request by the City, a licensee must provide a copy of the certificate of compliance or full laboratory testing report for the packaging used.
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.
D. 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
Commented [PHLC70]: The City could consider
deleting this provision where it is currently located and relocating this provision to within the license application procedure section.
Commented [PHLC71]: This provision heading can
still be amended to read flavored tobacco products if
the City decides to continue to exempt Shisha,
Premium Cigars, or Loose- Leaf Tobacco.
Commented [PHLC72]: This language is already
contained within the definition of "sell" in the definition section.
Commented [PHLC73]: The City could consider
removing this provision as the way this sentence is
currently written may be problematic due to the
significant issues around how retailers are supposed to dispose or their stores of flavored products that are no longer legally able to be sold. Or, in the alternative, include an additional sentence which provides that
storage of these items, for the purpose of disposal,
does not constitute a permissive inference that there is an intent to sell or offer for sale prohibited products.
Retailers may be forced to have flavored products in
the back of the store, and not out on the floor due to
recent legislation being passed prohibiting the sale of flavored products.
There is much discussion around whether a retailer can
legally mail or ship these items back to the
manufacturer, or whether they can be deposited at
hazardous waste facilities, or if they are to be
confiscated by the local health department, and if so,
does the local health department take on the cost of
properly disposing of some of these products that are
categorized as hazardous materials? There is a
significant cost and burden to hazardous waste ... [ 3] Commented [PHLC74]: The City could consider
removing these provisions. This langauge is already
included in the definitions section under " flavored
product." The City did not have this term defined
originally. It is extremely important that when regulating specific items that these items be defined.
4]
Commented [PHLC75]: The City could consider
adopting a provision that requires retailers adhered to federal regulation regarding child- resistant packaging.
Commented [PHLC76]: Tobacco manufacturers and
retailers frequently distribute free or low- cost samples of their products to consumers when and where
allowed by federal, state, and local laws. In addition, in many locations, lax federal and state laws allow
customers to smoke or vape in tobacco retailer
establishments. Tobacco stores and vape shops allow ... [5] Commented [PHLC77]: The price of tobacco products
directly affects consumption levels, particularly among price- sensitive consumers, such as people with lower
incomes, including youth and young adults. The
commercial tobacco industry devotes billions of dollars per year to these innovative pricing strategies to entice new customers to purchase their products, to ... [ 6]
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 21 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
3. B.E.Minimum package size for little cigars and cigars. No tobacco retailer shall sell:
1. any little cigar unless it is sold in a package of at least [ 20 ] little cigars; or
2. any cigar unless it is sold in a package of at least at least [ 6 ] cigars ; provided, however, that this subsection shall not apply to a cigar that has a price of at least [ $ X. 00 ] per cigar, including all applicable taxes and fees.
C.F. Minimum prices for cigarettes, little cigars, and cigars. No tobacco retailer shall sell:
1. Cigarettes at a price that is less than [ $ X.00 ] per package of 20 cigarettes, including all applicable taxes and fees;
2. Little cigars at a price that is less than [ $ X.00 ] per package of little cigars, including all applicable taxes and fees; or
3. Cigars at a price that is less [ $ X.00 ] per cigar, including all applicable taxes and fees.
The minimum prices established in this section shall be adjusted annually by the Department in proportion with the Consumer Price Index, using a system established by the Department.
5.56.11000 Compliance monitoring.
A. Compliance with this chapter shall be monitored by the Police Department. In addition, the City may designate additional persons to monitor compliance with this chapter. All licensed premises must be open to inspection by city staff or designated persons during regular business hours. any peace and/ or code enforcement officer may enforce the provisions of this chapter.
B. The Police Department shall inspect each Tobacco Retailer at least one one time per 2412- month period.
Nothing in
C.B. this subsection shall create a right of action in any Permittee or other Person against the City or its agents.
C. The city will conduct at least onetwo compliance checks per 12- month period that involves the participation of persons between the ages of 18 and 20 to enter licensed premises to attempt to purchase tobacco products.
D. Nothing in this section shall create a right of action in any licensee or other person against the city or its agents.
D. Right of Access. The Police Department and/ or their authorized representatives shall have full access to enter a permitted Tobacco Retailer location to conduct an inspection during the operating hours of the Tobacco Retailer.
Failure to cooperate with any Police Department inspection may result in a permit violation subject to suspension or revocation. This subsection shall not be construed to deprive a licensee of any privilege guaranteed by the Fifth Amendment to the Constitution of the United States, or any other constitutional or statutory privileges. ( Ord. 3417§ 1, 2018).
5.56.12010 Suspension or revocation of permit.
A. Notice. Upon discovery of a suspected violation, the Department shall issue the alleged violator, either personally or by first class mail addressed to the authorized address, an administrative citation that sets forth Commented [PHLC78]: Indexing minimum prices to
inflation is an efficient policy that does not require
decision- makers to amend the TRL annually to keep
up with prevailing prices. Jurisdictions in California
have pegged the prices to the nearest U.S. Bureau of
Labor Statistics statistical area, and the language here is broad enough that a jurisdiction can take that
approach or determine another effective way to adjust
the prices over time.
Commented [PHLC79]: This is already addressed by
the definition department, which allows for anyone
within the department or its designees.
Commented [PHLC80]: For retailer education
purposes, and to identify and cite repeat offending
retailers, the City could consider at least two inspection checks per year instead one inspection check every 2
years, which is quite a long period of time to only have one inspection check conducted.
The City could also adopt inspection procedures that
test for retailer compliance with all provisions of the ordinance. For example, if a City has prohibited the use of coupons or discounts on tobacco products, the City
should inspect each retailer to ensure compliance with
that prohibition.
Commented [PHLC81]: Addressed below.
Commented [PHLC82]: For retailer education
purposes, and to identify and cite repeat offending
retailers, the City could consider at least two
compliance checks per year. Currently the city does not have a provision regarding the requirement to conduct
compliance checks to make sure tobacco retailers are
not engaging in the sale of tobacco products with
underage persons.
The City could also adopt compliance check
procedures that test for retailer compliance sales to
underage persons.
Commented [CK83R82]: Reduce to 1 per year.
Commented [CK84R82]: Except those found to be in
violation. See 5.56.130 Violations- Penalties.
Commented [PHLC85]: This provision is addressed
above in a more concise manner.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 22 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. the alleged violation and which shall inform the alleged violator of their right to be heard on the accusation.
The Department shall serve the Tobacco Retailer, either Personally or by first class mail addressed to the Authorized Address, with dated written notice of the decision to suspend or revoke the permit. A suspension or revocation notice shall state the reasons for the action, the effective date of the decision, and the right of the Permittee to appeal the decision to the City Manager.
B. Hearings. Upon issuance of an administrative citation, a person accused of violating this Ordinance may request in writing a hearing on the matter. Hearing requests must be made within 10 business days of the issuance of a citation and delivered to the City Manager or other designated City officer. Failure to properly request a hearing within 10 business days of the issuance of that citation will terminate the person’s right to a hearing. The City Manager or other designated City official will set a time and place for the hearing. Written notice of the hearing time and place will be mailed first class or delivered in person to the accused violator at least 10 business days prior to the hearing.
C. Hearing officer. The City of Chula Vista shall designate a hearing officer. The hearing officer will be an impartial employee of the City or an impartial person retained by the City to conduct the hearing.
D. Decision. If the hearing officer determines that a violation of this Ordinance did occur, that decision, along with the hearing officer’s reasons for finding a violation and the penalty to be imposed under Section of this Ordinance, shall be recorded in writing, a copy of which shall be provided to the accused violator. If the hearing officer finds that no violation occurred, or finds grounds for not imposing any penalty, such findings shall be recorded and a copy provided to the acquitted accused violator.
E. Costs. If this administrative citation is upheld by the hearing officer, the city’s actual expenses in holding the hearing up to a maximum of $ 1, 000 must be paid by the person requesting the hearing.
F. Appeals. Appeals of any decision made by the hearing officer shall be filed in the superior court for the jurisdiction of the county in which the alleged violation occurred.
G. Continued violation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense.
A.
B. Suspension or Revocation of Permit for Violation. In addition to any other penalty authorized by law, a Tobacco Retailer' s permit may be suspended or revoked if any court of competent jurisdiction determines, or the Chief of Police finds, based on a preponderance of the evidence, after the Permittee is afforded notice and an opportunity to be heard, that the Permittee, or any of the Permittee' s agents, officers, partners, representatives, managers, or employees, has violated any of the requirements, conditions, or prohibitions of this chapter, or has pleaded guilty, no contest" or its equivalent, or admitted to a violation of any law designated in CVMC 5.56. 020 as follows:
1. Upon a finding by the Chief of Police of a first violation of this chapter at a location, the Permittee shall be issued a warning by the Department.
2. Upon a finding by the Chief of Police of a second violation of this chapter at a location within any 60- month period, the permit shall be suspended for 90 days.
Commented [PHLC86]: The City could consider
adopting this provision to recoup the cost of the
hearing.
Commented [PHLC87]: The City could consider
adopting the following provisions that establish due
process around the determination and appeal of the
suspension or revocation of a license.
By providing due process the City establishes a fair
and objective process in determining suspensions and
revocations that better protects against potential
lawsuits and challenges under due process violations.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 23 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
3. Upon a finding by the Chief of Police of a third violation of this chapter at a location within any 60- month period, the permit shall be suspended for one year.
4. Upon a finding by the Chief of Police of a fourth violation of this chapter at a location within any 60- month period, the permit shall be revoked.
C. The Chief of Police shall serve the Tobacco Retailer, either Personally or by first class mail addressed to the Authorized Address, with dated written notice of the decision to suspend or revoke the permit. A suspension or revocation notice shall state the reasons for the action, the effective date of the decision, and the right of the Permittee to appeal the decision to the City Manager. An appeal to the City Manager is not available for a revocation made pursuant to subsection ( C) of this section. Any appeal must be filed in writing with the City Clerk within 14 days of service of the notice. The City Manager' s determination regarding the suspension or revocation shall be final. The City Manager shall provide dated written notice to the Tobacco Retailer, either Personally or by first class mail addressed to the Authorized Address, of the City Manager' s determination and the right of the Tobacco Retailer to seek judicial review of the City Manager' s determination.
D.H. Revocation of Permit Wrongly Issued. A Tobacco Retailer' s permit shall be revoked if the Chief of PoliceDepartment finds, after the Permittee Licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a permit license under CVMC 5. 56. 020 existed at the time application was made, or at any time before the permit issued, or one or more of the bases for denial of a renewal permit under CVMC 5. 56. 0450 existed at the time the renewal permit was issued. Notice and appeal of the revocation shall be conducted in accordance with subsection ( B) of this section.
E. I. If a permit license issued under this chapter is suspended or revoked, all Tobacco Products and Tobacco Paraphernalia at the suspended or revoked Tobacco Retailer' s location shall be removed from public view for the duration of the suspension or revocation. The Tobacco Retailer additionally 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 for the duration of the suspension or revocation. ( Ord. 3417 § 1, 2018).
5.56.1320 Violations - Penalties.
A. It shall be unlawful for any Person to violate any provision, or to fail to comply with the requirements, of this chapter or any regulation adopted hereunder. Any Person violating any of the provisions or failing to comply with any of the requirements of this chapter or any regulation adopted hereunder shall be guilty of a misdemeanor punishable by a fine of not more than $ 1, 000 or imprisonment for a period of not more than six months, or by both a fine and imprisonment. Each day that a violation continues is deemed to be a new and separate offense.
No proof of knowledge, intent, or other mental state is required to establish a violation.
B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
Commented [PHLC88]: The County could also
consider removing misdemeanor prosecution
subdivision below and instead utilize an administrative citation process to educate the retailer to come into
compliance and if they continue to violate the
ordinance, utilize the administrative fine and license
suspension graduated process to increase the amount
of the fine and duration of suspension as reflected by
the number of violations.
Commented [PHLC89]: This provision is relocated to
the penalties section below as these are penalties.
Commented [PHLC90]: This section is addressed in A.
Commented [PHLC91]: The City could consider
removing this provision and instead relying on
suspension and fines as provided above.
At its core, a licensing ordinance is intended to regulate the behavior of licensees. Criminalization does not
serve to better regulate the sale of commercial tobacco products. Instead, education, suspension, revocation
and fines motivate retailers to come into compliance so as to not jeopardize their livelihood.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 24 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
C. Any condition caused or allowed to exist in violation of any of the provisions of this chapter or any regulation adopted hereunder is a public nuisance and may be abated by the City, or by the City Attorney on behalf of the people of the state of California, as a nuisance by means of a restraining order, injunction, or any other order or judgment in law or equity issued by a court of competent jurisdiction. The City, or the City Attorney on behalf of the people of the state of California, may seek injunctive relief to enjoin violations of, or to compel compliance with, this chapter or seek any other relief or remedy available at law or equity, including the imposition of monetary civil penalties. Each day that a violation continues is deemed to be a new and separate offense and subject to a maximum civil penalty of $ 2, 500 for each and every offense.
A. Any licensee who is found to be in violation of this Ordinance, whether such violation is determined by a hearing officer or superior court; or the Licensee has pleaded guilty, " no contest," or its equivalent, or admitted to a violation of any law designated in CVMC 5. 56. 020, CVMC 5.56. 095, and CVMC 5. 56. 90 as will be charged an administrative fine and as well as their license suspended or revoked follows:
1. Upon a finding by the Department of a first violation of this chapter at a location, the Licensee shall be issued a warning.
2. Upon a finding by the Department of a second violation of this chapter at a location within any 36- month period, the licensee will be charged an administrative fine of $ 300 and the license shall be suspended for 90 days.
3. Upon a finding by the Department of a third violation of this chapter at a location within any 36- month period, the licensee will be charged an administrative fine of $ 600 and the license shall be suspended for one year.
4. Upon a finding by the Chief of Police of a fourth violation of this chapter at a location within any 36- month period, the licensee will be charged an administrative fine of $ 1, 000 and the license shall be revoked.
D. B. Tobacco Retailing without a Valid Permit - Ineligibility for Permit. In addition to any other penalty authorized by law, if the Chief of PoliceDepartment finds based on a preponderance of 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' s permit, 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 permit as follows:
1. After a first violation of this section at a location within any 6036- month period, no new permit may issue for the Person or the location ( unless Ownership Proprietorship of the business at the location has been transferred in an Arm' s Length Transaction), until 30 90 days have passed from the date of the violation.
2. After a second violation of this section at a location within any 3660- month period, no new permit may issue for the Person or the location ( unless Ownership Proprietorship of the business at the location has been transferred in an Arm' s Length Transaction), until 90 180 days have passed from the date of the violation.
Commented [PHLC92]: The City could also consider
removing misdemeanor prosecution subdivision below
and instead utilize an administrative citation process to educate the retailer to come into compliance and if they continue to violate the ordinance, utilize the
administrative fine and license suspension graduated
process to increase the amount of the fine and duration of suspension as reflected by the number of violations.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 25 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
3. After of a third or subsequent violation of this section at a location within any 6036- month period, no new permit license may issue for the Person or the location ( unless ProprietorOwnership of the business at the location has been transferred in an Arm' s Length Transaction), until five years have passed from the date of the violation.
C. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a Person under the age of 18 years old, such a Person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasivenesspreponderance of the evidence presented.
E. D. 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 shall be considered an act of the tobacco retailer.
F. E. The remedies specified in this section are cumulative and in addition to any other remedies available under State or local law for a violation of this Code. ( Ord. 3417 § 1, 2018).
5.56. 130 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.
Requirement for tobacco retailer permit - Operative date.
For a Tobacco Retailer business not in existence, a Tobacco Retailer permit must be obtained prior to commencement of Tobacco Retailing. For an existing Tobacco Retailer business, a Tobacco Retailer permit must be obtained the later to occur of six months after the date the Police Department begins accepting applications for Tobacco Retailer permits or upon renewal of the Tobacco Retailer' s business license issued pursuant to Chapter
5.02 CVMC. ( Ord. 3417 § 1, 2018).
5.56.140 Construction & severability.
It is the intent of the City Council of Chula Vista to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance 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 of Chula Vista hereby declares that it Commented [PHLC93]: The City could consider
amending this to an established judicial standard of
review, not a review process that can be deemed as
subjective.
Commented [PHLC94]: The City could consider
adopting a provision that holds licensees responsible
for the actions of their agents or employees.
Commented [PHLC95]: The City could consider
adopting an exceptions provision to exempt sacred
practices and to prohibit the criminalization of
purchase, use, possession penalties, as the intent of a tobacco retail licensing ordinance is to regulate
licensing, not criminalize persons for addiction.
Commented [PHLC96]: This provision is addressed
above and does not need to be reiterated.
Commented [PHLC97]: The City could consider
enacting a construction and severability provision to
ensure that if any provision within the ordinance is
found invalid, the rest of the ordinance is enforceable.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 26 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. 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.
5.56.150 Public records.
All information provided to the Department by a licensee or license applicant pursuant to this Chapter shall be subject to disclosure under the California Public Records Act ( California Government Code section 6250 et seq.) or any other applicable law.
5.56.160 Effective date.
This Ordinance shall take effect and be in force from and after [ 30 days after date of enactment ].
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 27 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
References
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Washington, DC: The National Academies Press. doi: https:// doi. org/ 10. 17226/ 24952 5 Fowles J, Barreau T, Wu N. Cancer and Non- Cancer Risk Concerns from Metals in Electronic Cigarette Liquids and Aerosols. Int J Environ Res Public Health. 2020; 17( 6): 2146. doi:
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15 Cal. Bus. & Prof. Code § 22972( a).
16 Cal. Bus. & Prof. Code § 22970. 1 ( Finding that state tobacco excise tax revenues “ have declined by hundreds of millions of dollars per year due, in part, to unlawful distributions and untaxed sales of cigarettes and tobacco Formatted: English (UnitedStates)
Formatted: English (UnitedStates)
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 28 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. products,” and that “ the licensing of ... retailers will help stem the tide of untaxed distributions and illegal sales of cigarettes and tobacco products.”).
17 Cal. Rev. & Tax Code § 30111 ( providing that state tobacco taxes “ are in lieu of all other state, county, municipal, or district taxes on the privilege of distributing cigarettes or tobacco products.”); Cal. Bus. & Prof. Code § 22964 providing that the Stop Tobacco Access to Kids Act does not “ preempt or otherwise prohibit the adoption of a local standard that imposes a more restrictive legal age to purchase or possess tobacco products.”). 18 Cal. Bus. & Prof. Code § 22971. 3 (“Nothing in this division preempts or supersedes any local tobacco control law other than those related to the collection of state taxes. Local licensing laws may provide for the suspension or revocation of the local license for any violation of a state tobacco control law.”). 19 Cal. Penal Code § 308( a)( 1)( A).
20 Cal. Bus. & Prof. Code §§ 22950- 22964.
21 21 C. F. R. §§ 1140. 14( a)( 4), 1140. 16( b).
22 21 C. F. R. § 1140. 14( a)( 2), ( b)( 2).
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Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 29 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. http:// www. fda. gov/ downloads/ ScienceResearch/ SpecialTopics/ PeerRev- iewofScientificInformationandAssessments/ UCM361598. pdf 34 Tobacco Products Scientific Advisory Committee. Menthol Cigarettes and Public Health: Review of the Scientific Evidence and Recommendations. 2011. Available at: : https:// wayback. archive- it. org/ 7993/ 20170405201731/ https:// www. fda. gov/ downloads/ AdvisoryCommittees/ CommitteesMeetingMaterials/ Tob accoProductsScientificAdvisoryCommit- tee/ UCM269697. pdf 35 Villanti AC, Collins LK, Niaura RS, Gagosian SY, Abrams DB. Menthol cigarettes and the public health standard:
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73 New York City Administrative Code § 17- 176. 1.
74 Oakland, California, Municipal Code § 5. 91. 040.
75 Providence, Rhode Island Municipal Code § 14- 303.
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91 Lipperman- Kreda S, Grube JW, Friend KB, Mair C. Tobacco outlet density, retailer cigarette sales without ID checks and enforcement of underage tobacco laws: associations with youths’ cigarette smoking and beliefs.
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94 Lee JG, Sun DL, Schleicher NM, Ribisl KM, Luke DA, Henriksen L. Inequalities in tobacco outlet density by race, ethnicity and socioeconomic status, 2012, USA: results from the ASPiRE Study. J Epidemiol Community Health. 2017; 71( 5): 487- 492. doi: 10. 1136/ jech- 2016- 208475. 95 Loomis BR, Kim AE, Goetz JL, Juster HR. Density of tobacco retailers and its association with sociodemographic characteristics of communities across New York. Public Health. 2013; 127( 4): 333- 338. doi:
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96 Yu D, Peterson NA, Sheffer MA, Reid RJ, Schnieder JE. Tobacco outlet density and demographics: analysing the relationships with a spatial regression approach. Public Health. 2010; 124( 7): 412- 416. doi:
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97 Rodriguez D, Carlos HA, Adachi- Mejia AM, Berke EM, Sargent JD. Predictors of tobacco outlet density nationwide: a geographic analysis. Tob Control. 2013; 22( 5): 349- 355. doi: 10. 1136/ tobaccocontrol- 2011- 050120. 98 Fakunle DO, Curriero FC, Leaf PJ, Furr- Holden DM, Thorpe RJ. Black, White, or Green? The Effects of Racial Composition and Socioeconomic Status on Neighborhood- Level Tobacco Outlet Density. Ethn Health. 2019; 1- 16. doi: 10. 1080/ 13557858. 2019. 1620178.
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101 Finan LJ, Lipperman- Kreda S, Abadi M, et al. Tobacco Outlet Density and Adolescents’ Cigarette Smoking: A Meta- Analysis. Tob Control. 2019; 28( 1): 27- 33. doi: 10. 1136/ tobaccocontrol- 2017- 054065. 102 Lovato CY, Hsu HCH, Sabiston CM, Hadd V, Nykiforuk CIJ. Tobacco Point- of- Purchase marketing in school neighbourhoods and school smoking prevalence: a descriptive study. Can J Public Health. 2007; 98( 4): 265- 270. doi:
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Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 33 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. 103 Ribisl KM, Luke DA, Bohannon DL, Sorg AA, Moreland- Russell S. Reducing Disparities in Tobacco Retailer Density by Banning Tobacco Product Sales Near Schools. Nicotine Tob Res. 2017; 19( 2): 239- 244. doi:
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104 HG, Henry KA, Scheeres A, et al. Tobacco Retail Licensing and Density 3 Years After License Regulations in Philadelphia, Pennsylvania ( 2012- 2019). Am J Public Health. 2020; 110( 4): 547- 553. doi:
10. 2105/ AJPH. 2019. 305512.
105 Cantrell J, Pearson JL, Anesetti- Rothermel A, Xiao H, Kirchner TR, Vallone D. Tobacco Retail Outlet Density and Young Adult Tobacco Initiation. Nicotine Tob Res. 2016; 18( 2): 130- 137. doi: 10. 1093/ ntr/ ntv036. 106 Young- Wolff KC, Henriksen L, Delucchi K, Prochaska JJ. Tobacco retailer proximity and density and nicotine dependence among smokers with serious mental illness. Am J Public Health. 2014; 104( 8): 1454- 1463. doi: 10. 2105/ AJPH. 2014. 301917.
107 Reitzel LR, Cromley EK, Li Y, et al. The effect of tobacco outlet density and proximity on smoking cessation. Am J Public Health. 2011; 101( 2): 315- 320. doi: 10. 2105/ AJPH. 2010. 191676. 108 Luke DA, Ribisl KM, Smith C, Sorg AA. Family Smoking Prevention And Tobacco Control Act: banning outdoor tobacco advertising near schools and playgrounds. Am J Prev Med. 2011; 40( 3): 295- 302. doi:
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109 Fakunle DO, Milam AJ, Furr- Holden CD, Butler J, 3rd, Thorpe RJ, Jr., LaVeist TA. The inequitable distribution of tobacco outlet density: the role of income in two Black Mid- Atlantic geopolitical areas. Public Health. 2016; 136: 35- 40. doi: 10. 1016/ j.puhe. 2016. 02. 032.
110 Galiatsatos P, Kineza C, Hwang S, et al. Neighbourhood characteristics and health outcomes: evaluating the association between socioeconomic status, tobacco store density and health outcomes in Baltimore City. Tob Control. 2017. doi: 10. 1136/ tobaccocontrol- 2017- 053945. 111 Berg CJ, Henriksen L, Cavazos- Rehg PA, Haardoerfer R, Freisthler B. The emerging marijuana retail environment: Key lessons learned from tobacco and alcohol retail research. Addict Behav. 2018; 81: 26- 31. doi:
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112 Feighery EC, Schleicher NC, Boley Cruz T, Unger JB. An examination of trends in amount and type of cigarette advertising and sales promotions in California stores, 2002- 2005. Tob Control. 2008; 17( 2): 93- 98. doi:
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Available at: https:// news. delaware. gov/ 2014/ 03/ 18/ attorneys- general- call- on- retail- pharmacies- to- stop- selling- tobac- co- products.
Formatted: Spanish (Mexico)
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 34 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. 118 Henriksen L, Schleicher NC, Barker DC, Liu Y, Chaloupka FJ. Prices for Tobacco and Nontobacco Products in Pharmacies Versus Other Stores: Results From Retail Marketing Surveillance in California and in the United States.
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120 Polinski JM, Howell B, Gagnon MA, Kymes SM, Brennan TA, Shrank WH. Impact of CVS Pharmacy’ s Discontinuance of Tobacco Sales on Cigarette Purchasing ( 2012- 2014). Am J Public Health. 2017; 107( 4): 556- 562. doi: 10. 2105/ AJPH. 2016. 303612.
121 Cal. Bus. & Prof. Code § 22963.
122 Prevent All Cigarettes Trafficking Act of 2009, Pub. L. No. 111- 154, 124 Stat. 1087 ( 2009). 123 21 U. S.C. § 387f( d)( 4)( A).
124 Food and Drug Administration. Report to Congress — Progress and Effectiveness of the Implementation of the Family Smok- ing Prevention and Tobacco Control Act. U. S. Department of Health and Human Services. 2013.
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127 Williams RS, Derrick JC. Internet Little Cigar and Cigarillo Vendors: Surveillance of Sales and Marketing Practices via Website Content Analysis. Prev Med. 2018; 109: 51- 57. doi: 10. 1016/ j.ypmed. 2018. 01. 017. 128 FDA announces comprehensive regulatory plan to shift trajectory of tobacco- related disease, death [ press release]. July 28, 2017. Available at:
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132 Chaffee BW, Couch ET, Urata J, et al. Predictors of Smokeless Tobacco Susceptibility, Initiation, and Progression Over Time Among Adolescents in a Rural Cohort. Subst Use Misuse. 2019; 54( 7): 1154- 1166. doi:
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133 Healthy Retail SF. https:// susanahennessey- lavery. squarespace. com. Accessed July 13, 2018. 134 Davis KC, Grimshaw V, Merriman D, et al. Cigarette trafficking in five northeastern US cities. Tob Control. 2014; 23( e1): e62- 68. doi: 10. 1136/ tobaccocontrol- 2013- 051244. 135 Kurti MK, von Lampe K, Thompkins DE. The illegal cigarette market in a socioeconomically deprived inner- city area: the case of the South Bronx. Tob Control. 2013; 22( 2): 138- 140. doi: 10. 1136/ tobaccocontrol- 2011- 050412.
Formatted: English (UnitedStates)
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 35 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. 136 World Health Organization. WHO Report on the Global Tobacco Epidemic, 2019: Offer Help to Quit Tobacco Use. 2019. Available at: https:// apps. who. int/ iris/ handle/ 10665/ 326043. 137 California Department of Public Health, California Tobacco Control Program. The # 1 Preventable Cause of Death.
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145 Institute of Medicine. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products. Washington, DC: The National Academies Press. 2015. Available at: t:
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146 Villanti AC, Johnson AL, Ambrose BK, et al. Flavored Tobacco Product Use in Youth and Adults: Findings From the First Wave of the PATH Study ( 2013- 2014). Am J Prev Med. 2017; 53( 2): 139- 151. doi:
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147 California Department of Public Health, California Tobacco Control Program. 2016 Healthy Stores for a Healthy Com- munity Survey Results- all counties. 2016. Available at:
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Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 36 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. 151 Villanti AC, Johnson AL, Glasser AM, et al. Association of Flavored Tobacco Use With Tobacco Initiation and Subsequent Use Among US Youth and Adults, 2013- 2015. JAMA Netw Open. 2019; 2( 10): e1913804. doi:
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152 Yerger VB, Przewoznik J, Malone RE. Racialized geography, corporate activity, and health disparities: tobacco industry targeting of inner cities. J Health Care Poor Underserved. 2007; 18( 4 Suppl): 10- 38. doi:
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153 Kreslake JM, Wayne GF, Alpert HR, Koh HK, Connolly GN. Tobacco industry control of menthol in cigarettes and tar- geting of adolescents and young adults. Am J Public Health. 2008; 98( 9): 1685- 1692. doi:
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154 Henriksen L, Schleicher NC, Dauphinee AL, Fortmann SP. Targeted advertising, promotion, and price for menthol cigarettes in California high school neighborhoods. Nicotine Tob Res. 2012; 14( 1): 116- 121. doi:
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155 Courtemanche CJ, Palmer MK, Pesko MF. Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use.
Am J Prev Med. 2017; 52( 5): e139- e146. doi: 10. 1016/ j.amepre. 2016. 11. 019. 156 Farley SM, Johns M. New York City flavoured tobacco product sales ban evaluation. Tob Control. 2017; 26( 1): 78- 84. doi: 10. 1136/ tobaccocontrol- 2015- 052418. 157 Pearlman DN, Arnold JA, Guardino GA, Boles Welsh E. Advancing Tobacco Control Through Point of Sale Policies, Providence, Rhode Island. Prev Chronic Dis. 2019; 16: E129. doi: 10. 5888/ pcd16. 180614. 158 Hoffmann D, Hoffmann I. Chapter 3: Chemistry and Toxicology. In: Smoking and Tobacco Control Monograph No. 9: Cigars: Health Effects and Trends. National Cancer Institute; 1998. 159 National Cancer Institute. Cigar Smoking and Cancer. 2010; ; https:// www. cancer. gov/ about- cancer/ causes- preven- tion/ risk/ tobacco/ cigars- fact- sheet. Accessed July 13, 2018. 160 Waziry R, Jawad M, Ballout RA, Al Akel M, Akl EA. The effects of waterpipe tobacco smoking on health outcomes: an updated systematic review and meta- analysis. Int J Epidemiol. 2017; 46( 1): 32- 43. doi:
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161 Stepanov I, Biener L, Knezevich A, et al. Monitoring tobacco- specific N- nitrosamines and nicotine in novel Marlboro and Camel smokeless tobacco products: findings from Round 1 of the New Product Watch. Nicotine Tob Res. 2012; 14( 3): 274- 281. doi: 10. 1093/ ntr/ ntr209. 162 National Cancer Institute. Monograph 2: Smokeless Tobacco or Health: An International Perspective. 1992. 163 Pickworth WB, Rosenberry ZR, Koszowski B. Large Cigars: Smoking Topography and Toxicant Exposure. Nicotine Tob Res. 2018; 20( 2): 183- 191. doi: 10. 1093/ ntr/ ntw289. 164 Pickworth WB, Rosenberry ZR, Yi D, et al. Cigarillo and Little Cigar Mainstream Smoke Constituents from Replicated Human Smoking . Chem Res Toxicol. 2018; 31( 4): 251- 258. doi: 10. 1021/ acs. chemrestox. 7b00312. 165 Yao T, Ong MK, Max W, et al. Responsiveness to cigarette prices by different racial/ ethnic groups of US adults.
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167 Tessman GK, Caraballo RS, Corey CG, Xu X, Chang CM. Exposure to tobacco coupons among U. S. middle and high school students. Am J Prev Med. 2014; 47( 2 Suppl 1): S61- 68. doi: 10. 1016/ j. amepre. 2014. 05. 001. 168 Mills SD, Golden SD, Henrisksen L. Neighbourhood disparities in the price of the cheapest cigarettes in the USA. J Epidemiol Community Health. 2019; 73( 9): 894- 896. doi: 10. 1136/ jech- 2018- 210998.
Ch. 5.56 Tobacco Retailer I Chula Vista Municipal Code Page 37 of 38 The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023. 169 Counter Tobacco. Disparities in Point- of- Sale Advertising and Retailer Density. https:// countertobacco. org/ resources- tools/ evidence- summaries/ disparities- in- point- of- sale- advertising- and- retailer- density/. Accessed May 18, 2020.
170 Lempert LK, Glantz SA. Tobacco Industry Promotional Strategies Targeting American Indians/ Alaska Natives and Exploiting Tribal Sovereignty. Nicotine Tob Res. 2018. doi: 10. 1093/ ntr/ nty048. 171 Henriksen L, Schleicher NC, Johnson TO, Roeseler A, Zhu SH. Retail Tobacco Marketing in Rural Versus Nonrural Counties: Product Availability, Discounts, and Prices. Health Promot Pract. 2020; 21( 1_ suppl): 27S- 36S. doi:
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172 Osman A, Queen T, Choi K, Goldstein AO. Receipt of direct tobacco mail/ email coupons and coupon redemption: Demographic and socioeconomic disparities among adult smokers in the United States. Prev Med. 2019; 126: 105778. doi: 10. 1016/ j.ypmed. 2019. 105778. 173 Cal. Penal Code § 308. 3( a).
174 Gammon DG, Rogers T, Coats EM, et al. National and state patterns of concept- flavoured cigar sales, USA, 2012- 2016. Tob Control. 2019; 28( 4): 394- 400. doi: 10. 1136/ tobaccocontrol- 2018- 054348. 175 Gammon DG, Loomis BR, Dench DL, King BA, Fulmer EB, Rogers T. Effect of price changes in little cigars and cigarettes on little cigar sales: USA, Q4 2011- Q4 2013. Tob Control. 2016; 25( 5): 538- 544. doi: 10. 1136/ tobaccocon- trol- 2015- 052343.
176 Jawad M, Lee JT, Glantz S, Millett C. Price elasticity of demand of non- cigarette tobacco products: a systematic review and meta- analysis. Tob Control. 2018; 27( 6): 689- 695. doi: 10. 1136/ tobaccocontrol- 2017- 054056. 177 Ringel JS, Wasserman J, Andreyeva T. Effects of public policy on adolescents’ cigar use: evidence from the National Youth Tobacco Survey. Am J Public Health. 2005; 95( 6): 995- 998. doi: 10. 2105/ AJPH. 2003. 030411. 178 Katz MH. Banning tobacco sales in pharmacies: the right prescription. JAMA. 2008; 300( 12): 1451- 1453. doi: 10. 1001/ jama. 300. 12. 1451.
179 Hudmon KS, Fenlon CM, Corelli RL, Prokhorov AV, Schroeder SA. Tobacco sales in pharmacies: time to quit.
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The Chula Vista Municipal Code is current through Ordinance 3543, passed February 21, 2023.
Disclaimer: The City Clerk' s Office has the official version of the Chula Vista Municipal Code. Users should contact the City Clerk' s office for ordinances passed subsequent to the ordinance cited above.
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Research has demonstrated that policies requiring set distances between retailers and between retailers and youth- oriented facilities help to reduce tobacco retailer density and increase prices for commercial tobacco products. These proximity buffers may have significant impact in urban, low- income neighborhoods, which have been historically targeted by the tobacco industry with pervasive marketing and price promotions at the point- of- sale. The greatest public health impacts are seen when these policies are combined with a cap on the number of licenses issued. Jurisdictions with GIS capacity may want to consider mapping locations of commercial tobacco retailers to identify their proximity to youth- oriented facilities and other retailers.
The youth- oriented facilities proximity limitation here would prohibit tobacco retailing within a certain distance of relevant business and facilities with no exception for existing licensed retailers. As a result, retail licenses for locations that do not meet these proximity limitations would not be renewable after expiring. Issuing a tobacco retail license is a privilege, not a right, and jurisdictions have the authority to grant or deny tobacco retailer licenses.
The retailer proximity limitation does allow an exception for existing retailers to continue to operate by prohibiting new licenses to be issued, but allowing renewal of the license for existing licensed locations.
The license could eventually be phased out through attrition if the licensee fails to renew or a license is revoked.
The City could consider removing numerous provisions in this section. Furthermore, quite a bit of the information required to be submitted for the license application process here is not even directly relate to the granting of a license.
A good question the City can ask is whether other business licenses are being held to this same standard of regulation and review. If they are not, this may be problematic.
The nature of some of the requirements could almost bring an impartial party to believe that retail license applications are subject to a subjective review that could be based on the weight, race, gender, sex, or the fact the applicant was born in the United States versus a foreign country. Each issue brings about is own complications and potential litigation.
Alternative language has been suggested from our model ordinances that has been adopted in jurisdictions throughout California successfully.
The City could consider removing this provision as the way this sentence is currently written may be problematic due to the significant issues around how retailers are supposed to dispose or their stores of flavored products that are no longer legally able to be sold. Or, in the alternative, include an additional sentence which provides that storage of these items, for the purpose of disposal, does not constitute a permissive inference that there is an intent to sell or offer for sale prohibited products.
Retailers may be forced to have flavored products in the back of the store, and not out on the floor due to recent legislation being passed prohibiting the sale of flavored products.
There is much discussion around whether a retailer can legally mail or ship these items back to the manufacturer, or whether they can be deposited at hazardous waste facilities, or if they are to be confiscated by the local health department, and if so, does the local health department take on the cost of properly disposing of some of these products that are categorized as hazardous materials? There is a significant cost and burden to hazardous waste materials being deposited at the appropriate waste facility and if these items were to be disposed of in this manner due whether the amount is so high that it needs to be distributed amongst different waste facilities due to limits imposed on how much hazardous waste a certain facility is able to accept. E-cigarettes can result in high accumulations in acute hazardous waste because e-liquid nicotine is categorized as a P Waste, which is hazardous waste.
If the City chooses to keep this provision, they City should strongly consider adopting langauge to differentiate between having flavored products relegated to a storage area while awaiting instruction on how to properly dispose of these products and having them within the store where consumers have access to them.
The City could consider removing these provisions. This langauge is already included in the definitions section under " flavored product." The City did not have this term defined originally. It is extremely important that when regulating specific items that these items be defined.
Currently there is industry argument surrounding the issue of whether a "sensation product" is considered a " flavored product." To avoid confusion and future litigation, the City by adopting this term, which already incorporates the langauge for " presumptive flavored tobacco product" does the work in the definition so it does not need to be repeated later in the ordinance.
Tobacco manufacturers and retailers frequently distribute free or low- cost samples of their products to consumers when and where allowed by federal, state, and local laws. In addition, in many locations, lax federal and state laws allow customers to smoke or vape in tobacco retailer establishments. Tobacco stores and vape shops allow on- site sampling where customers smoke or use products and devices in the store. Both distribution of samples and on- site sampling in certain retail establishments are effective marketing strategies used by the tobacco industry to continuously attract new consumers and promote the use of their products.
The price of tobacco products directly affects consumption levels, particularly among price- sensitive consumers, such as people with lower incomes, including youth and young adults. The commercial tobacco industry devotes billions of dollars per year to these innovative pricing strategies to entice new customers to purchase their products, to discourage current users from quitting, and to reduce the effectiveness of tobacco tax increases in decreasing tobacco sales and increasing users’ quit attempts.
These pricing strategies include coupons or in-store price promotions that offer “buy- one- get- one” offers, cents- or dollar- off promotions, and multi- pack offers, and pairing of different tobacco products or other tobacco “ freebies” which are often marketed and redeemed at the point- of-sale. Jurisdictions can prohibit the redemption of these price promotions and coupons to negate the sophisticated discount marketing strategies of the commercial tobacco industry.