5 - Tobacco Ordinance — Colma City Council, August 28, 2024

Staff Report – Ordinance Amending Subchapter 4.10 - Tobacco Retailers Page 1 of 3

STAFF REPORT
T
O: Mayor and Members of the City Council
FROM: Christopher J. Diaz, City Attorney
VIA: Daniel Barros, City Manager
MEETING DATE: August 28, 2024
SUBJECT: Ordinance Amending Subchapter 4.10 Relating to Tobacco Retailers

RECOMMENDATION
Staff recommends that the City Council:

1. Conduct a public hearing; and

2. Adopt the following:

ORDINANCE AMENDING SUBCHAPTER 4.10 OF THE COLMA MUNICIPAL CODE

RELATING TO TOBACCO RETAIL PERMITS AND ADOPTING BY REFERENCE CHAPTER 4.98 OF TITLE 4 OF THE SAN MATEO COUNTY ORDINANCE CODE TO

CONSOLIDATE AND CLARIFY EXISTING DEFINITIONS AND ENACT

ADDITIONAL REQUIREMENTS FOR TOBACCO RETAILER PERMITS PURSUANT TO CEQA GUIDELINE 15378 AND 15061(B)(3) AND WAIVE FURTHER READING

COUNCIL ADOPTED VALUES
The City Council’s adoption of this Ordinance is responsible as it adopts stricter regulations on the sale and advertising of tobacco products in an effort to better protect the youth in the community.

BACKGROUND
In
1998, the Town of Colma (“Town”) adopted Ordinance 538 creating subchapter 4.10 of the CMC titled “Tobacco Retailer’s Permit.” Subchapter 4.10 imposed numerous restrictions on the sale of tobacco products within the Town’s boundaries and created a permi tting system implemented and enforced by the County. Ten years later, the Town subsequently amended Chapter 4.10 in 2008 to include additional regulations on the sale of tobacco products similar to what the County adopted.

ITEM #5
Staff Report – Ordinance Amending Subchapter 4.10 - Tobacco Retailers Page 2 of 3

ANALYSIS
On May 23, 2023, the San Mateo County Board of Supervisors again adopted an amended Tobacco Retailer Permit ordinance clarifying requirements for cities to authorize the County to administer and enforce the ordinance. The updated County ordinance increased penalties on businesses that sell cigarettes and other tobacco products to minors. The County’s amended ordinance also made the following changes:
• Updates definitions to align with similar model ordinances across California. For example, the “Tobacco Product” definition will now include synthetic nicotine, and align language, where appropriate, with the new Statewide ban on flavored tobacco products. • Prohibits posting of advertisements offering tobacco products unless the retailer has a valid permit to sell tobacco products;
• Increases the age for those who sell tobacco products to match the minimum age allowed to purchase tobacco under State law, currently 21 years old; • Increases fines up to $500 for a first violation, and up to $1,000 for all subsequent violations within a 60-month period;
• Prohibits issuing new Tobacco Retailer Permits to any location within 1,000 feet of a “youth-populated area” (public or private school, playgrounds, for instance) or within 500 feet of an existing tobacco retailer;
• Mandates a fine for any ordinance violations;
• Increases the permit suspension and revocation escalation period for cumulative violations from 12 months to 60 months; and
• Increases the number of required on -site inspections by County Environmental Health Services to two per year. The addition of two inspections per year increases the annual permit fee from $174 to $672 for all tobacco retailers.

Subsequent to adopting the ordinance, the County informed the Town that the County Environmental Health Services could not administer tobacco retailer permits or engage in enforcement in incorporated cities , including the Town of Colma, unless, and until, the Town adopted a matching ordinance incorporating the changes made by the County’s ordinance or by adopting Chapter 4.98 of the County of San Mateo Ordinance Code.

More recently, at the July 24
th City Council meeting, the City Council introduced the Town’s ordinance that adopts the County regulations by reference. Staff is now recommending that the City Council conduct a public hearing and adopt the ordinance amending Chapter 4.10 of the CMC and adopting by reference Chapter 4.98 (“Tobacco Retailer Permit”) of the County of San Mateo Ordinance Code.

Staff Report – Ordinance Amending Subchapter 4.10 - Tobacco Retailers Page 3 of 3

FISCAL IMPACT
There was minimal staff time involved with preparing this Ordinance, and the County of San Mateo (“County”) has the responsibility of implementing and enforcing the Tobacco Retailer Permit regulations which will not materially impact the Town's budget.

ENVIRONMENTAL
The City Council’s adoption of this Ordinance is not a project within the meaning of Section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The City Council further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this Ordinance is nonetheless exempt from the requirements of CEQA in that the activity is covered by the general rule that CEQA ap plies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is exempt from CEQA.

Alternatives
The City Council could choose not to adopt the ordinance imposing stricter regulations on the sale and advertising of tobacco products. If the City Council declines to adopt the ordinance, the County will not be able to administer and enforce the Tobacco Retail Permit ordinance, resulting in the Town taking over those responsibilities and incurring significant costs.

CONCLUSION
The City Council should conduct a public hearing and adopt the ordinance.

ATTACHMENTS
A. Town Ordinance
B. County Ordinance

Ord. No. XX - Ordinance Amending Subchapter 4.10 - Tobacco Retailers (Second Reading) Page 1 of 5 ORDINANCE NO. XX

OF THE CITY COUNCIL OF THE TOWN OF COLMA
ORDINANCE AMENDING SUBCHAPTER 4.10 OF THE COLMA MUNICIPAL CODE

RELATING TO TOBACCO RETAIL PERMITS AND ADOPTING BY REFERENCE CHAPTER

4.98 OF TITLE 4 OF THE SAN MATEO COUNTY ORDINANCE CODE TO CONSOLIDATE

AND CLARIFY EXISTING DEFINITIONS AND ENACT ADDITIONAL REQUIREMENTS FOR TOBACCO RETAILER PERMITS PURSUANT TO CEQA GUIDELINE 15378 AND 15061(B)(3)
The City Council of the Town of Colma does ordain as follows:

ARTICLE 1. FINDINGS, PURPOSE AND AUTHORITY.

The City Council of the Town of Colma finds:
(a) A local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the Town of Colma (“Town”) and the San Mateo County Board of Supervisors, to protect the health, safety, and welfare of Town residents.
(b) Despite the state’s efforts to limit youth access to tobacco, youth are still able to access tobacco products, as evidenced by the following:

1. In California, over 67% of current and former adult smokers started smoking by the age of 18,
1 2. In a survey taken in 2019- 20, 28.6% of California high school students reported that they had used a tobacco product and 9.7% of students reported that they had used tobacco in the last 30 days;
2 and

3. According to the 2019 -20 California Student Tobacco Survey, for San Mateo County, the prevalence of the use of vaping devices among high school students was 8.7%.
3 _______________
________________________________
1 California Department of Public Health California Tobacco Control Program. California Tobacco Facts and Figures 2016. Sacramento, CA: California Department of Public Health. 2016. 2 Zhu S-H, Braden K, Zhuang Y-L, Gamst A, Cole AG, Wolfson T, Li S. (2021). Results of the Statewide 2019-20 California Student Tobacco Survey. San Diego, California: Center for Research and Intervention in Tobacco Control (CRITC), University of California San Diego. https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandE valuation/FactsandFigures/CSTS2019-20BiennialReport_ADA.pdf 3 Zhu S-H, Braden K, Zhuang Y-L, Gamst A, Cole AG, Wolfson T, Li S. (2021). Results of the Statewide 2019-20 California Student Tobacco Survey. San Diego, California: Center for Research and Intervention in Tobacco Control (CRITC), University of California San Diego. https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandE valuation/FactsandFigures/CSTS2019-20BiennialReport_ADA.pdf

ATTACHMENT A
Ord. No. XX - Ordinance Amending Subchapter 4.10 - Tobacco Retailers (Second Reading) Page 2 of 5 (c) California retailers continue to sell tobacco to underage consumers, evidenced by the following:

1. According to the 2019 -20 California Student Tobacco Survey, among current underaged vapers, 51.2% reported paying for their vapes. Of those who paid for their vapes, 27.1% reported buying them from a retail store; 4 2. In the Bay Area, 21.6% of licensed tobacco retailers sold tobacco products to underage decoys in 2019;
5 and

3. In 2019, the San Mateo County Sheriff’s Office coordinated undercover enforcement operations and found that 25 out of 289 visits to retailers by underage decoys resulted in tobacco sales to youth decoys.
(d) 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. In California, individuals who use price minimization strategies save an average $1.04 per pack (or 18.6% off the total price per pack). 6 (e) The density and proximity of tobacco retailers influence smoking behaviors, including the number of cigarettes smoked per day.
7 (f) Adults who smoke have a harder time quitting when residential proximity to tobacco retailers is smaller8 and density is higher.9
(g) Policies to reduce tobacco retailer density have been shown to be effective 10 and may reduce or eliminate inequities in the location and distribution of tobacco retailers. _______________________________________________
4 Zhu S-H, Braden K, Zhuang Y-L, Gamst A, Cole AG, Wolfson T, Li S. (2021). Results of the Statewide 2019-20 California Student Tobacco Survey. San Diego, California: Center for Research and Intervention in Tobacco Control (CRITC), University of California San Diego. https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandE valuation/FactsandFigures/CSTS2019-20BiennialReport_ADA.pdf 5 California Department of Public Health, California Tobacco Control Program. California Tobacco Facts and Figures 2021. Sacramento, CA: California Department of Public Health; November 2021. https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandE valuation/FactsandFigures/CaliforniaTobaccoFactsAnd Figures2021-V 3A.pdf 6 Xu X, Pesko MF, Tynan MA, Gerzoff RB, Malarcher AM, Pechacek TF. Cigarette price-minimization strategies by U.S. smokers. Am J Prev Med. 2013;44(5):472476. doi: 10.1016/j.amepre.2013.01.019. 7 Chuang YC, Cubbin C, Ahn D, Winkleby MA. Effects of neighborhood socioeconomic status and convenience store concentration on individual level smoking. J Epidemiol Community Health. 2005;59(7):568-573. doi: 10.1136/jech.2004.029041.
8 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 9 Cantrell J, Anesetti-Rothermel A, Pearson JL, Xiao H, Vallone D, Kirchner TR. The impact of the tobacco retail outlet environment on adult cessation and differences by neighborhood poverty. Addiction. 2015;110(1):152-161. doi: 10.1111/add.12718.
10 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: 10.1093/ntr/ntw185. Myers AE, Hall MG, Isgett LF, Ribisl KM. A comparison of three policy ____________________________________________
Ord. No. XX - Ordinance Amending Subchapter 4.10 - Tobacco Retailers (Second Reading) Page 3 of 5 (h) 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 tobacco in the commercial settings can limit their opportunities to obtain these products.11 (i) 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.12
(j) The Town and the San Mateo County Board of Supervisors have a substantial interest in protecting youth and underserved populations from the harms of tobacco use. (k) The Town and the San Mateo County Board of Supervisors finds that a stronger local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the Town and the County of San Mateo in order to protect the health, safety, and welfare of our residents. (l) As lessons are learned with implementation of licensing systems throughout the State, it is appropriate to update existing Town regulations to ensure that the Town implements best practices in tobacco prevention.

ARTICLE 2. RECITALS INCORPORATED.

The above recitals are hereby adopted as findings of the City Council in enacting this Ordinance.

ARTICLE 3. CEQA
The proposed Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment.
_______________________________________________
approaches for tobacco retailer reduction. Prev Med. 2015; 74:67-73. doi: 10.1016/j.ypmed.2015.01.025.

Luke DA, Hammond RA, Combs T, et al. Tobacco Town: Computational Modeling of Policy Options to Reduce Tobacco Retailer Density. Am J Public Health. 2017;107(5):740-746. doi:

10.2105/AJPH.2017.303685.
11 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: 10.1093/ntr/ntw185. Myers AE, Hall MG, Isgett LF, Ribisl KM. A comparison of three policy approaches for tobacco retailer reduction. Prev Med. 2015; 74:67-73. doi: 10.1016/j.ypmed.2015.01.025.

Luke DA, Hammond RA, Combs T, et al. Tobacco Town: Computational Modeling of Policy Options to Reduce Tobacco Retailer Density. Am J Public Health. 2017;107(5):740-746. doi:

10.2105/AJPH.2017.303685.
12 Macinko J, Silver D. Impact of New York City's 2014 Increased Minimum Legal Purchase Age on Youth Tobacco Use. Am J Public Health. 2018;108(5):669-675. doi: 10.2105/AJPH.2018.304340.

Ord. No. XX - Ordinance Amending Subchapter 4.10 - Tobacco Retailers (Second Reading) Page 4 of 5 ARTICLE 4. SEVERABILITY.

If any section, subsection, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion or sections of the Ordinance.

The City Council of the Town of Colma hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional.

ARTICLE 5. AMENDING CHAPTER 4.10 OF COLMA MUNICIPAL CODE AND ADOPTION OF CHAPTER 4.98 OF THE SAN MATEO COUNTY ORDINANCE CODE.

Chapter 4.10 of the Colma Municipal Code (“Tobacco Retailer’s Permit”) is hereby amended in its entirety to read in full as follows:
“4.10.010 Adoption of County of San Mateo Tobacco Retailer Permit Ordinance Code
Chapter 4.98 "Tobacco Retailer Permit" of Title 4 of the San Mateo County Ordinance Code, and any future amendment thereto, are hereby adopted by reference and made effective in the Town. Certified copies of Chapter 4.98 of the San Mateo County Ordinance Code, as adopted hereby, have been deposited with the City Clerk, and shall be at all times maintained by the City Clerk for use and examination by the public.

4.10.020 Authorization of Enforcement by San Mateo County Personnel The County of San Mateo, its officers, employees and agents are hereby authorized to enforce, on behalf of the T own, Chapter 4.98 (Tobacco Retailer Permit ) of the San Mateo County Ordinance Code, and any amendments thereto, within the jurisdiction areas of the Town. Such enforcement authority includes, but is not limited to, the collection of fees and fines, expending such revenue in the enforcement of the tobacco retailer requirements, holding hearings, suspending permits and issuing administrative fines.”
ARTICLE 6. The City Clerk shall certify the adoption of this Ordinance and shall cause the same to be published as required by law.

ARTICLE 7. EFFECTIVE DATE.

This Ordinance shall go into effect 30 days following its adoption.

Ord. No. XX - Ordinance Amending Subchapter 4.10 - Tobacco Retailers (Second Reading) Page 5 of 5 Certification of Adoption
I certify that the foregoing Ordinance No. ___ was duly introduced at a regular meeting of the City Council of the Town of Colma held on July 24, 2024, and adopted at a regular meeting of the City Council of the Town of Colma held on August 28, 2024, by the following vote:

Name Voting Present, Not Voting Absent
Aye No Abstain Not Participating
John Irish Goodwin, Mayor
Ken Gonzalez
Carrie Slaughter
Helen Fisicaro
Joanne F. del Rosario
Voting Tally
Dat
ed: ____________________ _____________________________________ John Irish Goodwin, Mayor
Attest: _______________________________________
Michelle Estabillo, City Clerk
_________________________
Christopher Diaz, City Attorney

ORDINANCE NO. 4878

BOARD OF SUPERVISORS, COUNTY OF SAN MATEO, STATE OF CALIFORNIA * * * * * *
AN ORDINANCE REPEALING CHAPTERS 4.95, 4.98, AND 4.99, AND ADOPTING A NEW CHAPTER 4.98 OF TITLE 4 OF THE SAN MATEO COUNTY ORDINANCE

CODE TO CONSOLIDATE AND CLARIFY EXISTING DEFINITIONS AND ENACT

ADDITIONAL REQUIREMENTS FOR TOBACCO RETAILER PERMITS
The Board of Supervisors of the County of San Mateo, State of California, ORDAINS as follows:

SECTION 1. Findings.

The Board of Supervisors finds and determines that:
(a) A local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the Board of Supervisors, to protec t the health, safety, and welfare of San Mateo County residents.
(b) Despite the state’s efforts to limit youth access to tobacco, youth are still able to access tobacco products, as evidenced by the following:

1. In California, over 67% of current and for mer adult smokers started smoking by the age of 18;¹

2. In a survey taken i n 2019-20, 28.6% of California high school students reported that th ey had used a tobacco product and 9.7% of students reported that they had used tobacco in the last 30 days;² and

3. According to the 201 9-20 California Student Tobacco Surv ey, for San Mateo County, the prevalence of the use of vaping devices among high school students was 8.7%.³
(c) California retailers continue to sell tobacco to underage consumers, evidenced by the following:

2. In the Bay Area, 21.6% of licensed tobacco retailers sold tobacco products to underage decoys in 2019;⁵ and

ATTACHMENT B

(d) The tobacco industr y’s price discou nting strategies, such as coupons and multiple-package discounts, are popular among consumers, with more than half of adults using some price minimization strategy. In California, indi viduals who use price minimization strategies save an a verage $1.04 per pack (or 18.6% off the total price per pack).⁶

(e) The density and proximity of tobacco retailers influence smoking behaviors, including the number of cigarettes smoked per day.⁷

(f) Adults who smoke have a harder time quitting when residential proximity to tobacco retailers is smaller⁸ and density is higher.⁹

(g) Policies to reduce tobacco retailer density have been shown to be effective¹º and may reduce or eliminate inequities in the location and distribution of tobacco retailers.

(h) 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 tobacco in the commercial settings can limit their opportunities to obtain these products.¹¹

(i) Strong policy enforcement and monitorin g of retailer compliance with tobacco control policies (e .g., requiring identification checks) is necessary to achieve reductions in youth tobacco sales.¹²

(j) The Board of Supervisors has a substantial interest in protecting youth and underserved populations from the harms of tobacco use.

(k) The Board of Supervisors finds that a stronger local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the County of San Mate o in order to protect the health, safety, and welfare of our residents.

(l) As lessons are learned with implementation of licensing systems throughout the State, it is appropriate to update existing County regulations to ensure that the County implements best practices in tobacco prevention.

SECTION 2. Chapters 4.95, 4.98 and 4.99 of the San Mateo County Ordinance Code are hereby repealed and replaced in their entirety by a new Chapter 4.98 to be numbered and entitled and to read as follows:

Chapter 4.98 - TOBACCO RETAILER PERMIT

4.98.100 - Definitions.

(a) "Characterizing Flavor" means a distinguishable taste or aroma , or both, other than the taste or aroma of tobacco, imparted by a Tobacco Product or any byproduct produced by the Tobacco Product. Characterizing flavors include, but are not limited to, tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A Tobacco Product shall not be determined to hav e a Characterizing Flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a Characterizing Flavor.

(b) "Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a Tobacco Product during the processing, manufacture, or packing of the Tobacco Product.

(d) “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.

(e) “Director” means the Chief of San Mateo County Health, or designee.

(f) "Distinguishable" means perceivable by either the sense of smell or taste.

(g) “Electronic Smoking Device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e -cigarette, e -cigar, e -pipe, vape pen, or e - hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, and whether natural or synthetic. “E lectronic Smoking Device” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for suc h an approved purpose.

(h) "Flavored Tobacco Product" means any Tobacco Product that contains a Constituent that imparts a Characterizing Flavor.

(i) “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.

(j) “Labeling” means written, printed, pictorial, or graphic matter upon any Tobacco Product or any of its packaging.

(k) “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a Tobacco Product is sold, or offered for Sale, to a Consumer.

(l) “Permit” or “Tobacco Retailer Permit” means a valid permit issued by the Director to a Person to act as a Tobacco Retailer.

(m) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any oth er entity.

(n) "Pharmacy" means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offer ed for Sale, regardless of whether the retail establishment Sells other retail goods in addition to prescription pharmaceuticals.

(o) “Sale” or “Sell” means transfer to, exchange, barter, or distribute for a commercial purpose.

(p) “Self-Service Display” shall be defined as the open display or storage of Tobacco Products in a manner that is physically accessible 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 th e retailer or employee of the retailer. A vending machine is a form of self-service display.

(q) “Tobacco Paraphernalia” means any item designed or marketed for the consumption, use, or preparation of Tobacco Products.

(r) “Tobacco" or "Tobacco Product(s)" means:

(1) any product containing, made of, or derived from tobacco or nicotine , whether natural or synthetic, that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

(2) any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, and whether natural or synthetic; or

(3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, whether natural or synthetic, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.

(4) “Tobacco Product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

(s) “Tobacco Product Flavor Enhancer” means a product designed, manufactured, produced, marketed or Sold to produce a Characterizing Flavor when added to a Tobacco Product.

(t) “Tobacco Retailer” means any Person who Sells, or offers for Sale, Tobacco Products. This definition is without regard to the quantity of Tobacco Products sold or offered for Sale.

(u) “Youth-Populated Area” means a parcel of real property that is occupied , in whole or in part, by any of the following:

(1) a private or public school that educates children in grades kindergarten through high school;

(2) a library that is open to the public;

(3) a playground that is open to the public;

(4) a youth center, defined as a facility where children ages 6 to 17 come together for programs and activities;

(5) a recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes. “Recreation facility” includes, but is not limited to, a gymnasium, playing court, playing field, and swimming pool;

(6) a public or private college or university that serves as an institution for education beyond the high school level;

(7) a licensed child-care facility or preschool, other than a small-family day care home or a large-family daycare home as defined in California Health & Safety Code § 1596.78.

4.98.110 - Requirement for a Permit.

(a) No Tobacco Retailer or other Person shall Sell or offer for Sale any Tobacco Product without a current and valid Tobacco Retailer Permit from San Mateo County for each location where such activities are conducted.

(b) Permits are valid for one year and must be timely renewed annually by the Permit holder in order to continue to sell or offer for sale any Tobacco Product. A Retailer must o btain a separate Permit for each location at which any Tobacco Product will be sold, offered for sale or distributed. A Permit that is not renewed in a timely manner shall expire at the end of its term , and the Tobacco Retailer must obtain a new Permit prior to any further sale, offer for sale, or distribution of any Tobacco Product.

(c) No Tobacco Retailer shall violate, or cause or allow the Tobacco Retailer’s agents or employees to violate, any provision of this Chapter or any other local, state, or federal law applicable to Tobacco Products or Tobacco Retailing.

(d) Tobacco Retailers are responsible for the actions of their employees and agents relating to the sale, offer to sell, an d furnishing of tobacco produ cts at the retail location. The sale of any tobacco product by an employee shall be considered an act of the tobacco retailer and the permit holder shall be responsible for any monetary penalties levied.

(e) Nothing in this Chapte r shall be construed to penal ize the purchase, use, or possession of a Tobacco Product by any Person not engaged in Tobacco Retailing.

4.98.120 - Permit is Nontransferable.

(a) Tobacco Retailer Permits are nontransferable as between Persons, locations, or otherwise. Any attempted transfer shall render the Permit null and void.

(b) Notwithstanding any other provision of this Chapter, prior violations of this Chapter at a location shall continue to be counted against that location and Permit ineligibility and suspensio n periods shall continue to a pply to that location unless:

(1) One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to the new owner(s); and

(2) The County is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an Arm's Length Transaction. An Arm ’s Length Transaction , for the purposes of this section, means a transaction in which two or more unre lated a nd unaffiliated partie s agree on the transfer in question; the parties act independently and in their own self-interest; and the parties have equal bargaining power and symmetric information, leading the parties to agree upon fair-market terms.

4.98.130 - Permit Conveys a Limited, Conditional Privilege.

Nothing in this Chapter shall be construed to grant any Person or entity obtaining and maintaining a Permit any status or right other than the limited, conditional privilege to Sell Tobacco Produ cts and act as a Tobacco Reta iler at the location in the County identified on the face of the Permit for the period of time shown on the Permit. All Permits are issued subject to the County’s right to amend this Chapter from time to time, and Retailers shall comply with all provisions of this Chapter, as amended.

4.98.140 - Application, Issuance and Renewal Procedure.

(a) Application for a Tobacco Retailer's Permit or the renewal of a Tobacco Retailer Permit shall be submitted in the name of the Person proposing to conduct retail sales of Tobacco Products , referred to herein as the “Applicant,” and shall be signed by such Person or an authorized agent thereof. All applications shall be submitted to the Director on a form supplied by the Director and contain , at a minimum, the following information:

(1) The name, address, and telephone number of the Applicant;

(2) The business name, address, and telephone number of the location where Tobacco Products are proposed to be sold, offered for sale or distributed by the Applicant; and

(3) Proof that the location for which a Tobacco Retailer’s Permit is sought has been issued a valid state license for the sale of Tobacco Products, if the Tobacco Retailer sells products that require such license;

(4) A statement whether or not the Tob acco Retailer or any a gent of the Retailer has been found to have violated this Chapter or other applicable law governing Tobacco Products or Tobacco Retailing and, if so, the dates and locations of all such violations within the previous five years; and

(5) Such other information as the Director determines is necessary for implementation of this Chapter.

(6) An application for a new or renewal Permit will be denied if there are any outstanding fines or late fees issued by the Director, or during any period of suspension.

(7) It is the responsibility of each Permit holder to be informed regarding all laws applicable to Tobacco Retailing, including those laws affecting the issuance of a Tobacco Retailer Permit. No Permit holder may rely on the issuance of a Permit as a determination by San Mateo County that the Permit holder has complied with all laws applicable to Tobacco Retailing.

A Permit issued contrary to this Chapter or any other law, or on the basis of false or misleading information supplied by the Applicant, shall be revoked. Nothing in this Chapter shall be construed to vest in any person or entity obtaining or maintaining a Tobacco Retailer’s Permit any status or right to act as a Tobacco Retailer in contravention of any provision of law.

4.98.150 - Display of Permit.

Upon receipt of an application for a Tobacco Retailer Permit in compliance with the requirements of this Chapter , the Director or designee may issue a Permit which , if issued, must be prominently displayed in a publicly visible loca tion at the location where Tobacco Product Sales are conducted and permitted.

4.98.160 - Prohibitions Regarding Coupons, Discounts, Pharmacies, Flavored Tobacco, and Electronic Smoking Devices.

(a) No Tobacco Retailer shall do any of the following:

(1) Honor or redeem, or offer to honor or redeem, a Coupon to allow a Consumer to purchase a Tobacco Product for less than Full Retail Price;

(2) Sell any Tobacco Product to a Consumer through a multiple package discount or otherwise provide any such product to a C onsumer for less than the Full Retail Price in consideration for the purchase of any Tobacco Product or any other item; or

(3) Provide any free or discounted item to a Consumer in consideration for the purchase of any Tobacco Product.

(b) No Person, Tobac co Retailer or other legal entity shall sell or distribute to a person any electronic smoking device that delivers natural or synthetic nicotine or any other substance(s) to the person inhaling from the device. This includes any component, part, or accessory intended or reasonably expected to be used with the electronic device, whether or not sold separately.

(c) No Person or Tobacco Retailer shall sell or offer to sell any Flavored Tobacco Product or Tobacco Product Flavor E nhancer. There shall be a rebuttable presumption that a Tobacco Prod uct is a Flavored Tobacco Product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed t o consumers or to the public that the Tobacco Product has or produces a Characterizing Flavor including, but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the Tobacco Product has a Characterizing Flavor.

(d) No Pharmacy or Pharmacy employee or agent shall sell or offer to sell any Tobacco Product. The Director shall not issue any new, or renew any existing, Tobacco Retailer Permit for any Pharmacy.

(e) Subdivisions (b) and (c) of this Section shall not apply to the duty - free sto res located at the San Francisco International Airport.

4.98.170 - Packaging and Labeling.

No Tobacco Retailer or other Person shall Sell or offer for Sale any Tobacco Product to any Consumer unless the Tobacco Product (1) is Sold in the original 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.

4.98.180 - Self-Service Displays Prohibited; On-Site, In-Person Sales Required.

(a) Tobacco Retailing by means of a Self-Service Display is prohibited

(b) All Sales of Tobacco Products and Tobacco Paraphernalia shall be conducted in- person, over the counter, in the permitted location.

4.98.190 - Notice of Minimum Age for Purchase of Tobacco Products.

Tobacco Retailers shall post conspicuously, at each point of purchase, a notice stating that Selling Tobacco Products to anyone under 21 years of age is illegal and subject to penalties. The form and content of such notic e shall be subject to the approval of the Director.

4.98.200 - Positive Identification Required.

No Tobacco Retailer or other Person shall Sell or offer to Sell a Tobacco Product to another Person without first verifying by means of government -issued ph otographic identification that the recipient is at least the minimum legal sales age required under state law to purchase a Tobacco Product.

4.98.210 - Minimum Age for Individuals Selling Tobacco Products.

No Tobacco Retailer shall allow, at its Retail location, any individual who is younger than 21 years of age to Sell or offer to Sell Tobacco Products.

4.98.220 - Display or Offers to Sell Tobacco Products Without Tobacco Retailer Permit Prohibited.

A Tobacco Retailer without a current valid Permit:

(a) Shall keep all Tobacco Products out of public view. The public display of Tobacco Products in violation of this provision shall constitute Tobacco Retailing without a Permit.

(b) Shall not display any advertisement relating to Tobacco Products that of fers the Sale of such products from the Tobacco Retailer’s location.

4.98.230 - Limits on Eligibility for a Permit.

(a) No Tobacco Retailer’s Permit may be issued to authorize Tobacco Retailing at or from other than a fixed location. For example, Sales by Persons on foot or from vehicles or other forms of mobile vending are prohibited.

(b) No Tobacco Retailer’s Permit may be issued to authorize Sales of Tobacco Products at a temporary event, such as flea markets and farmers’ markets.

(c) No new Tobacco Retailer Permit may be issued to authorize Tobacco Product Sales at any location within 1,000 feet of a Youth -Populated Area, as measured by a straight line from the nearest point of the property line o f any parcel on which a Youth-Populated Area is located and an y point along the property line of the parcel on which the Permit applicant has or proposes to locate the business.

(d) No new Tobacco Retailer’s Permit may be issued for a location which i s within 500 feet of a location already occupied by another Tobacco R etailer, 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 Tobacco Retailer’s business is located.

(e) Tobacco Retailers with a current and valid Permit as of the date of adoption of this ordinance shall be exempt from subsections (c) and (d) of this Section unless the existing Tobacc o Retailer fails to timely renew the Permit prior to its annual expiration.

(f) The Sale of Tobacco Products and accessories is prohibited in County owned structures and in any area of a structure leased by the County, wherever located.

4.98.240 - Fees for Permit.

Tobacco Retailer s shall pay all applicable fees at t he rates set forth in section

5.64.070 of this ordinance code. Fees shall be used by the Director to administer and enforce this Chapter.

4.98.250 - Enforcement.

(a) The Director or the Director’s designee shall enforce this Chapter consistent with the provisions herein.

(b) Violations of this Chapter may be criminally pr osecuted as infraction(s ) or misdemeanor(s) at the discretion of the prosecuting attorney as the interests of justice require.

4.98.260 - Public Nuisance.

Any violation of this Chapter is hereby declared a public nuisance, subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures of contained in this Ordinance Code and state law, including but not limited to, an action for abatement or injunctive relief

4.98.270 - Compliance Monitoring.

(a) Compliance with this Chapter shall be monitored by the Director. In addition, any peace officer may enforce the provisions of this Chapter. The Director may designate additional persons to monitor an d facilitate compliance with this Chapter.

(b) Individuals designated to enforce the provisions of this Chapter shall inspect each Tobacco Retailer at least two times during each twelve-month period to determine if the Tobacco Retailer is complying with all applicable laws .

Compliance checks shall t ake place during normal business hours, with or without notice. If a violation has occurred, the Tobacco Retailer shall be inspected again within three months. All permitted premises must be open to inspection by designated persons during regular business hours.

(c) Nothing in th is section shall create a right of action in any Tobacc o Retailer or other person or entity against the County or its agents.

4.98.290 - Suspension or Revocation of Permit.

(a) Grounds for Suspension or Revocation.

(1) A Tobacco Retail er Permit may be suspe nded or revoked, as set forth below in subdivision (b), if any court of a competent jurisdiction determines, or the Director finds, based on a preponderance of the evidence after notice and opportunity for the Tobacco Retailer to be heard, that either of the following violations have occurred:

i. After the Permit was issued it is determined that the Application for the Permit is incomplete or inaccurate.

ii. The Tobacco Retailer or Tobacco Retailer’s agent has violated any of the requirem ents, conditions, or p rohibitions of this Chapter or any applicable local, state, or federal tobacco-related law.

(2) Notwithstanding the foregoing, a Tobacco Retailer Permit shall be suspended or revoked, for the maximum time periods and as set forth in subdivision (b), if any court of competent jurisdiction determines, or the Direc tor finds, based o n a preponderance of evidence and after notice and opportunity for the Tobacco Retailer to be heard, that the Tobacco Retailer , or any agent or employee of the Tobacco Retailer, has Sold Tobacco Products to any Person(s) under the age of 21 years.
(b) Time Period of Suspension of Permit.

(1) Upon the first violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to 30 days.

(2) Upon the second violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to 90 days.

(3) Upon the third violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to one year.

(4) Upon the fourth violation within any sixty (60) month period, the Permit to Sell Tobacco Products shall be revoked. If a Permit is revoked, the Retailer shall not be eligible for a new Permit for a period of five (5) years after the effective date of revocation.

Within te n (10) calendar days of the hearing, the Director shall issue written findings and an order regarding the suspension or revocation, which order will be effective ten (10) calendar days from the date such order was sent by certified mail to the Retailer, unless a timely appeal is filed in accordance with subsection (d).

(d) Appeal of Suspension or Revocation.

The decision of the Di rector is appealable to the San Mat eo County Licensing Board and the procedural rules of the San Mateo County Li censing Board shal l govern hearings on all appeals of suspensions and revocations.

(1) An appeal must be in writing, be addressed to the Director and be hand- delivered to the offices of the Division of Environmental Health.

(2) An appeal must be received by the Director before t he effective date of suspension or revocation provided by subsection (c) in order to be considered.

(3) The filing of a timely appeal will stay a suspension or revocation pending a decision on the appeal by the San Mateo County Licensing Board.

(4) The decision of the San Mateo County Licensing Board shall be a final administrative order, with no further administrative right of appeal.

4.98.300 - Administrative Fine.

(a) Grounds for Fine. A fine shall be imposed on a Tobacco Retailer upon findings made by the Director, based on a preponderance of the evidence, that any Tobacco Retailer , or any agent or employee of the Tobacco Retailer, has violated any of the r equirements, conditions, or prohibitions of this Chapter. A fine shall be impose d in the maximum am ounts set forth in subsection (b) of this section upon findings made by the Director that the Tobacco Re tailer, or any agent or employee of the Tobacco R etailer, has Sold any Tobacco Product to any Person(s) under the age of 21 years . Any administrative fin e shall be imposed solely against the Tobacco Retailer, not the Tobacco Retailer’s employees or agents.

(b) Amount of Fine. Upon written findings made by the Director under subsection (a), the person or entity holding the Tobacco Ret ailer Permit shall be subject to an administrative fine for each such violation as follows:

(1) A fine not exceeding five hundred dollars ($ 500) for a first violation within a sixty (60) month period; and

(2) A fine not exceeding one thousand dollars ( $1,000) for each subsequent violation within a sixty (60) month period.

(c) Each day that Tobacco Products are Sold or offered for Sale without a Permit or otherwise in viol ation of this Chapter shall constitute a separate violation. A finding of "offer ed for Sale" in viola tion of t his Chapter will be made if Tobacco Products are either actually Sold and/or displayed in the retail establishment, or if advertisements offering to Sell Tobacco Products are visible to customers.

(d) Fine Procedures. Notice o f the fine shall be served on the Tobacco Retailer by certified mail. The notice shall contain a description of the facts upon which the asserted violation is based and an advisement of the right to request a hearing before the Director contesting the impo sition of the fine. Said hea ring mu st be requested within ten calendar days of the date appearing on the notice of the fine.

The decision of the Director shall be a final adm inistrative order, with no administrative right of appeal.

(a) Failure to Pay Fine. If a fine imposed p ursuant to this Chapter is not paid within 30 calendar days from the date appearing on the notice of the fine or of the notice of determination of the Dire ctor after the review provided for under subdivision (c) of this Section , the fine may be referred to a collec tion ag ency within or external to the County. In addition, any outstanding fines must be paid prior to the issuance of any new Permit or renewal of a Permit.

4.98.310 - Enforcement of this Chapter in Cities.

The Director may administer and e nforce the provisions of this Chapter on behalf of any city located within San Mateo County, within the jurisdictional boundaries of that city, if the city council of that city does each of the following:

(a) Adopts, and makes part of its municipal code:

(1) This Chapter 4.98 in its entirety by reference; or

(2) An ordinance that contains each of the provisions of this Chapter 4.98 verbatim with no additional provisions not included in this Chapter 4.98; and

(b) Authorizes, by ordinance or resolution, the Director to administer and enforce, on behalf of that city, the provisions of this Chapter as adopted pursuant to subsection (a) of this section.

SECTION 3. It is the intent of the Board of Supervisors of the County of San Mateo 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 provision of this Chapter or the application of such provision to any person or in any circumst ances shall be held invalid, the remainder of this Chapter, or the application of such provision to person or in circumstances other than those as to which it is held invalid , shall not be affected thereby.

SECTION 4 . Except as otherwise provided, this ordinance shall app ly only t o the unincorporated area of San Mateo County.

SECTION 5. This ordinance shall be effective thirty days after adoption.

SOURCES

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California Tobacco Facts and Figures 2016. Sacramento, CA: California Department of Public Health. 2016. Available at:

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2. Zhu S-H, Braden K, Zhuang Y-L, Gamst A, Cole AG, Wolfson T, Li S. (2021).

Results of the Statewide 2019-20 California Student Tobacco Survey. San Diego, California: Center for Research and Intervention in Tobacco Control (CRITC), University of California San Diego.

https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Documen t%20Library/ResearchandEvaluation/FactsandFigures/CSTS2019- 20BiennialReport_ADA.pdf

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https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Documen t%20Library/ResearchandEvaluation/FactsandFigures/CSTS2019- 20BiennialReport_ADA.pdf

4. Zhu S-H, Braden K, Zhuang Y-L, Gamst A, Cole AG, Wolfson T, Li S. (2021).

Results of the Statewide 2019-20 California Student Tobacco Survey. San Diego, California: Center for Research and Intervention in Tobacco Control (CRITC), University of California San Diego.

https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Documen t%20Library/ResearchandEvaluation/FactsandFigures/CSTS2019- 20BiennialReport_ADA.pdf

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California Tobacco Facts and Figures 2021. Sacramento, CA: California Department of Public Health; November 2021.

https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document %20Library/ResearchandEvaluation/FactsandFigures/CaliforniaTobaccoFactsAnd Figures2021-V3A.pdf

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* * * * *
ORDINANCE NUMBER: 4878
Re
gularly passed and adopted this 23rd day of May, 2023
AYES and in favor of said ordinance:

Super visors: DAVE PINE

NO ELIA CORZO

RAY M UELLER

WARREN SLOCUM
DAVID J. CANEPA
NO
ES and against said ordinance:

Super visors: NONE
Pr esident, Board of Supervisors
County of San Mateo
State of California
Certificate of Delivery
I c
ertify that a copy of the original ordinance filed in the Office of the Clerk of the Board of Supervisors of San Mateo County has been delivered to the President of the Board of Supervisors.

A ssistant Clerk of the Board of Supervisors

Colma City CouncilAugust 28, 2024

Colma City Council
August 28, 2024