From:
To:
Cc: Clerk
Subject: Tobacco retailer ordnance
Date: Wednesday, August 12, 2026 4:32:14 PM
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Requested Amendments and Strategy for Proposed Tobacco Ordinance First and foremost, we would like you to pursue amendments that would delay or table the proposed tobacco ordinance. Our goal is to create enough time for us to work with the Mayor's Office and Nelson and authors in good faith toward a practical solution that addresses the City's concerns without unnecessarily harming responsible retailers.
If tabling the ordinance is not achievable, we would like amendments proposed that address the following issues. Please also consider proposing any additional reasonable amendments that you believe would improve the ordinance or that the Council may be reluctant to accept in its current form.
1. Table or Delay the Ordinance
Our first preference is for a motion to table or delay consideration of this ordinance until the City's prior tobacco ordinance has been given sufficient time to work and can be properly evaluated.
American Petroleum and Convenience Store Association (APCA) previously agreed with Council member Esparza not to oppose the prior tobacco ordinance and instead supported it in good faith, with the understanding that the ordinance would be given an opportunity to address the problem.
That ordinance was supposed to be evaluated after approximately 18 months, but only about 12 months have passed. We believe it is premature to impose another layer of regulation before determining whether the existing ordinance is effective.
Our members have provided video documentation identifying some of the worst offenders and have submitted complaints through the FresGO app. Despite the existing enforcement authority and substantial grant funding reportedly available for enforcement, we have not seen adequate use of the laws already on the books.
We therefore request that the City first fully enforce and evaluate the existing ordinance before adopting additional regulations.
2. If the Ordinance Cannot Be Delayed, Request the Following Amendments
A. Limit the Ordinance to Specialty Smoke Shops and Similar Retailers The ordinance should primarily apply to specialty smoke shops, commonly referred to as "Cigarette Stores," rather than traditional convenience stores, gas stations, liquor stores, and other retailers operating under California ABC Type 20 or Type 21 licenses.
ABC-licensed retailers are already subject to significant state and local oversight.
Violations involving prohibited products or drug paraphernalia can jeopardize their ability to sell alcohol and, consequently, the viability of their businesses.
We believe the ordinance should therefore exempt retailers holding valid Type 20 or Type 21 ABC licenses, or at minimum establish a separate enforcement standard for these businesses.
Based on our experience, the overwhelming majority of serious illicit-product problems are occurring at specialty smoke shops rather than traditional ABC-licensed convenience stores, gas stations, and liquor stores. The City's limited enforcement resources should be concentrated on the class of retailers creating the greatest enforcement problem.
Our organization has also taken legal action against retailers that we believe have failed to comply with California law. We want the ordinance to succeed, but enforcement should be targeted toward the actual source of the problem rather than burdening responsible businesses unnecessarily.
B. Mandatory Retailer Education and Opportunity to Cure The ordinance should require the City to establish a formal training curriculum before enforcement begins.
The training should explain:
The requirements of the new ordinance;
Existing tobacco laws applicable to retailers;
Products specifically prohibited from sale;
How retailers can determine whether newly introduced products are legal; and The City's enforcement and appeal procedures.
Because the list of prohibited products changes frequently, retailers need a reliable and continuously updated source of information.
For a first violation involving a product or requirement that does not present an immediate public-safety threat, the retailer should be given an opportunity to cure the violation and complete additional mandatory training before suspension or other severe licensing penalties are imposed.
C. Centralize and Standardize Enforcement
Enforcement of this ordinance and the prior tobacco ordinance should be standardized under one central administrative authority, preferably the Mayor's Office or another designated citywide department.
We are concerned that different Council offices and different Code Enforcement personnel may interpret or enforce the same requirements differently.
Retailers should not receive conflicting interpretations depending upon which Code Enforcement officer conducts an inspection.
The City should establish written enforcement standards, uniform product classifications, inspection procedures, and supervisory review so that similarly situated businesses are treated consistently throughout Fresno.
D. Minimum Tobacco Pricing/Markup Requirement
We would like the City to consider a minimum tobacco pricing or markup requirement as an alternative or complementary method of reducing youth access.
The permitted minimum could be tied to an objective industry benchmark, such as a level approximately 2 percentage points below the national convenience-store industry average markup, provided such a provision is legally permissible.
Minimum-price laws have been adopted in other jurisdictions and states. A properly structured requirement could discourage aggressive discounting of tobacco products, particularly products attractive to price-sensitive younger consumers, while avoiding an unreasonable burden on Fresno consumers.
It could also potentially increase taxable retail sales.
We would like counsel to determine the legally permissible structure for such a provision before proposing specific language.
E. Late Payments Should Not Automatically Jeopardize a License The ordinance contains several references to a retailer being "out of compliance" or not being in good standing.
A retailer who is otherwise compliant should not face suspension or loss of its tobacco license solely because of an administrative late payment.
Many Fresno retailers are small, family-operated businesses. An inadvertent late payment should result in a reasonable late fee and opportunity to cure, rather than suspension or revocation of the retailer's license.
F. Protect the Ability to Sell or Transfer a Business
Nothing in the ordinance should unnecessarily restrict or impair the lawful sale or transfer of an existing business.
A tobacco license or permit system that effectively prevents a buyer from continuing the lawful operation of an established business could substantially reduce the value of that business.
The ordinance should therefore include a reasonable process allowing a qualified purchaser to obtain or transfer the necessary permit in connection with a bona fide sale of an existing business, subject to the purchaser meeting all applicable requirements.
G. Remove the "Each Day Is a Separate Violation" Provision The provision on Page 16, Section (b), stating that each day constitutes a new violation should be removed or substantially modified.
A continuing violation should not generate separate daily penalties before the retailer has received actual notice of the violation and a reasonable opportunity to correct it.
For purposes of penalties, conduct occurring before notice should generally be treated as a single violation. Separate daily violations should begin only after the retailer has been formally notified, given a reasonable opportunity to cure, and knowingly continues the prohibited conduct.
H. Reciprocal Recovery of Legal and Investigation Costs Regarding Page 21, Section (c), if the ordinance permits the City to recover investigation, enforcement, or legal expenses from a retailer found responsible for a violation, there should be a reciprocal provision protecting retailers.
If a retailer successfully challenges an enforcement action and it is determined that the City acted incorrectly or that no violation occurred, the retailer should be permitted to recover reasonable attorney's fees and necessary costs incurred in successfully defending against that enforcement action, to the extent legally permissible.
The principle should be simple: if the City expects a retailer to bear the City's costs when the retailer is proven wrong, a retailer who is forced to spend substantial resources successfully defending an improper enforcement action should have comparable protection.
I. Sell-Through Period for Newly Prohibited Products
Regarding Page 22, Section 9-3814, the ordinance should contain a reasonable sell- through provision for products that were lawful when purchased by the retailer but subsequently become prohibited.
If a product that was lawful to sell is subsequently added to a prohibited-product or "no- sell" list, a retailer should be permitted to sell its existing inventory until the earlier of:
The existing inventory being depleted; or
Three months from the effective date on which the product was added to the prohibited list.
This protection should apply only to inventory lawfully acquired before the retailer received notice that the product would become prohibited.
Retailers should not suffer financial losses because they lawfully purchased inventory that the government later determines can no longer be sold.
J. Quarterly Written Product Updates to Retailers
Code Enforcement or the appropriate City department should be required to provide quarterly written or electronic updates to all licensed tobacco retailers.
The notice should identify products or categories of products that the City understands are prohibited from sale under California law or the Fresno ordinance and identify any material changes since the previous notice.
The City should maintain a current version of this information online and distribute updates electronically to retailers.
A retailer should not be severely penalized for selling a newly prohibited or newly classified product when the City has not provided reasonable notice of the change.
Overall Position
Our position should remain constructive.
We are not asking the City to tolerate illegal tobacco sales or protect bad operators.
APCA and its members support meaningful enforcement against retailers knowingly selling illegal products.
What we oppose is adding additional regulation before existing laws have been fully enforced and evaluated, or adopting provisions that disproportionately burden responsible retailers while failing to focus enforcement resources on the businesses responsible for the majority of the problem.
Our first request is therefore to table or delay the ordinance and work collaboratively with the Mayor's Office, Council, Code Enforcement, and responsible retailers.
If the Council insists on moving forward, we want the ordinance amended to provide targeted enforcement, uniform standards, retailer education, reasonable notice and cure periods, due-process protections, protection for legitimate business transfers, and clear guidance regarding prohibited products.
Regards
Balwinder Singh
APCA Fresno Chapter President