The County of Los Angeles and the cities of El Monte and Pico Rivera prohibit the sale of flavored tobacco and repackaging of tobacco products, but do not establish a radius requirement between a tobacco retailer and youth-oriented areas.
Conclusion
Prohibiting the sale of flavored tobacco and electronic cigarette products, the repackaging of tobacco products, and establishing a radius requirement between a tobacco retailer and youth-oriented areas is important to the health, safety, and welfare of the City and its citizens—particularly minors.
This Ordinance would amend Chapter 8.40 to prohibit the sale of flavored tobacco and electronic cigarette products, the repackaging of tobacco products, and establish a radius requirement for youth-oriented areas. Violations could result in the suspension and revocation of a tobacco and electronic cigarette product permit.
Under the amended ordinance, to the maximum extent permitted by law, all businesses and retailers in the City shall be subject to fines and enforcement as permitted by the municipal code and applicable law for violation of any Federal or State law or regulation as currently enacted, or enacted in the future, by Congress or federal regulators or by the State Legislature or a State agency concerning the sale or use of tobacco products of any kind or type in order to provide for the maximum protection permitted by law to all individuals in South El Monte from the effects of tobacco products and to protect the public health, safety and welfare to the fullest extent permitted by law.
ATTACHMENT(S):
A. Ordinance No. 1278
B. South El Monte Municipal Code Chapters 8.40 & 8.42
C. Baldwin Park Municipal Code Chapter 125
D. El Monte Municipal Code Chapter 8.10
E. Pico Rivera Municipal Code Chapter 5.75
F. Los Angeles County Code Chapter 11.35
i
01257.0011/981167.3
ATTACHMENT A
ORDINANCE NO. 1278
AN ORDINANCE OF THE CITY OF SOUTH EL MONTE
AMENDING SOUTH EL MONTE MUNICIPAL CODE
CHAPTER 8.40 (TOBACCO AND ELECTRONIC CIGARETTE
RETAIL PERMITTING REGULATIONS) TO PROHIBIT THE
SALE OF FLAVORED TOBACCO PRODUCTS; PROHIBIT
THE REPACKAGING OF TOBACCO PRODUCTS; AND
ESTABLISHING A RADIUS REQUIREMENT FOR YOUTHORIENTED AREAS; AND TO ENFORCE FEDERAL AND
STATE REGULATIONS OF ALL TOBACCO PRODUCTS TO
THE FULLEST EXTENT PERMITTED BY LAW
WHEREAS, pursuant to Article XI, Section 7 of the California Constitution, the City of South El Monte (“City”) has the police power to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and WHEREAS, the City regulates tobacco and electronic cigarette retail through South El Monte Municipal Code (“SEMMC”) Chapter 8.40, Tobacco and Electronic Cigarette Retail Permitting Regulations; and
WHEREAS, Chapter 8.40 regulates this industry through a permitting process, allowing the City to ensure compliance with federal and state law; 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 City Council, to protect the health, safety, and welfare of its residents; and WHEREAS, approximately 480,000 people die in the United States from smokingrelated diseases and exposure to secondhand smoke every year, making tobacco use the nation’s leading cause of preventable death; and
WHEREAS, the World Health Organization (WHO) estimates that tobacco kills 8 million people and causes over 1.4 trillion dollars in economic damage each year;1 and WHEREAS, despite the state’s efforts to limit youth access to 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;2
In California, from 2017 to 2018, approximately 13% of high school students reported using tobacco;3
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Disparities in tobacco use exist among California high school students, with higher rates found among LGBTQ, American Indian, and Pacific Islander youth;3 Unless smoking rates decline, an estimated 441,000 of all California youth who are alive today will die prematurely from smoking-related diseases;4 In 2017, 22.8% of high school students in California had tried cigarette smoking;5 Between 2014 and 2018, electronic smoking device use among California youth increased from 14.1% to 46.2%;6 and
WHEREAS, the tobacco industry encourages youth and young adult tobacco initiation through predatory targeting7, as evidenced by the following:
Tobacco companies target young adults ages 18 to 24 to increase their frequency of tobacco use and encourage their transition to habitual users;8 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”;9 The tobacco industry spends an estimated $496 million annually to market tobacco products to California residents;10 and
WHEREAS, California retailers continue to sell 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;5
9.1% of California tobacco retailers unlawfully sold tobacco products to underage persons in 2018; and3
WHEREAS, although federal and state law ban the sale of individual cigarettes,11,12 neither federal nor California state laws restrict the sale of individual little cigars and cigars; and
WHEREAS, many retailers sell little cigars and cigars individually, making them more affordable and appealing to youth.13 Additionally:
78.3% of California tobacco retailers sell a popular brand of youth-friendly cigars for less than $1.00;13
Between 2012 and 2016, annual sales of cigarillos increased by 78% overall and by 155% for “concept-flavored” (e.g., Jazz) cigarillos;14 and
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WHEREAS, research indicates that the density and proximity of tobacco retailers increase smoking behaviors, including number of cigarettes smoked per day,15 particularly in neighborhoods experiencing poverty;15,16–18 and
WHEREAS, the density of tobacco retailers near adolescents’ homes has been associated with increased youth smoking rates19 and initiation of noncigarette tobacco product use;20 and
WHEREAS, adults who smoke are likely to have a harder time quitting when residential proximity to tobacco retailers is closer21 and density is higher;22–24 and WHEREAS, tobacco retailers are more prevalent in underserved communities, especially in neighborhoods with a higher proportion of African American or Hispanic residents;25–30 and
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;29,31 and
WHEREAS, policies to reduce tobacco retailer density have been shown to be effective32–35 and can reduce or eliminate inequities in the location and distribution of tobacco retailers;32–35 and
WHEREAS, Senate Bill 793 bans the sale of flavored tobacco products and tobacco product flavor enhancers, with exceptions for hookah tobacco, loose leaf tobacco, and premium cigars; and
WHEREAS, flavored tobacco products have been shown to be “starter” products for youth who begin using tobacco and that these products help establish tobacco habits that can lead to long-term addiction; and
WHEREAS, the Center for Disease Control and Prevention has reported in 2020, 8 in 10 youth who used e-cigarettes reported using a flavored product, which was an increase from about 7 in 10 youth who reported this in 2019; and
WHEREAS, in 2020, the Center for Disease Control and Prevention reported the most commonly used disposable e-cigarettes reported among youth were flavored among current users of flavored disposable e-cigarettes, the most commonly used flavor types were fruit (82.7%), mint (51.9%), candy, desserts, or other sweets (41.7%), and menthol (23.3%); and WHEREAS, according to the Center for Disease Control and Prevention reported youth and young adults are more likely to use flavored tobacco products than adults; and WHEREAS, the potential failure of tobacco retailers to comply with tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents a threat to the public health, safety, and welfare of the residents of the City; and
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WHEREAS, the City now wishes to revise its regulations of tobacco and electronic cigarette retail to include a prohibition on the sale of flavored tobacco and electronic cigarette products; and
WHEREAS, California Environmental Quality Act (CEQA) in accordance with Section 21065 of CEQA and State CEQA Guidelines Sections 15060(c)(2), 15060(c)(3), and 15378 applies.
NOW, THEREFORE, THE CITY COUNCIL OF THE SOUTH CITY OF EL MONTE, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The recitals above are true and correct and incorporated herein by reference and the City Council finds that this ordinance is exempt from CEQA under Section 21065 of CEQA and State CEQA Guidelines Sections 15060(c)(2), 15060(c)(3), and 15378.
Preparing an ordinance regarding tobacco retailing is an administrative action that would not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Therefore, the proposed action is not a “project” subject to CEQA, as defined in Section 21065 of CEQA and Section 15378 of the State CEQA Guidelines. Since the action is not a project subject to CEQA, no environmental document is required.
SECTION 2. Section 8.40.010 (Definitions) of Chapter 8.40 (Tobacco and Electronic Cigarette Retail Permitting Regulations) of Title 8 (Health and Safety) of the South El Monte Municipal Code is hereby amended by adding the following new definitions and such Section
8.40.010 shall be reorganized upon the inclusion of such additional definitions to ensure that all definitions therein are set forth in alphabetical order (additions marked in bold, italics):
“"Characterizing flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form, mixed with, or otherwise added to, any tobacco product or nicotine delivery device, including electronic smoking devices.
“Flavored tobacco product" means any tobacco product, as defined in this Chapter 8.40, which imparts a characterizing flavor. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco manufacturer or any of the manufacturer’s agents or employees has: (i) made a public statement or claim that the tobacco product imparts a characterizing flavor; (ii) used text and/or images on the tobacco product’s labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or (iii) taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor. “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco or electronic cigarette product; or imports a finished tobacco or electronic cigarette product for sale or distribution into the United States.
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“Package” or “Packaging” means a pack, box, carton, or container of any kind of, if no other container, any wrapping (including cellophane) in which a tobacco or electronic cigarette product is sold or offered for sale. “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. “Youth-Oriented Area” 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;
(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; (6) a park open to the public or to all the residents of a private community; or
(7) a licensed child-care facility or preschool, other than a smallfamily day care home or a large-family day care home as defined by California Health & Safety Code section 1596.78. ”
SECTION 3. Section 8.40.070 (Requirements and prohibitions on sale of tobacco and electronic cigarette products) of Chapter 8.40 (Tobacco and Electronic Cigarette Retail Permitting Regulations) of Title 8 (Health and Safety) of the South El Monte Municipal Code is hereby amended as follows (deletions marked in strikethrough, additions marked in bold, italics):
“A. Display of Permit Required. Each permit shall be prominently displayed in a publicly and readily visible location at the permitted location.
B. Positive Identification Required. No person shall engage in tobacco and electronic cigarette retailing without first examining the identification of the purchaser if the purchaser reasonably appears under the age of thirty years old. No person shall engage in tobacco and electronic cigarette retailing without confirming that the proposed sale is to a purchaser who is at least the minimum age established by state law for being sold the tobacco and electronic cigarette product or tobacco and electronic cigarette paraphernalia.
C. Minimum Age for Persons Selling Tobacco and Electronic Cigarettes. No person
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who is younger than the minimum age established by state law for the purchase or possession of any tobacco and electronic cigarette product shall engage in tobacco and electronic cigarette retailing.
D. Self-Service Displays Prohibited. No person shall display, offer for sale, dispense or allow to be sold any tobacco and electronic cigarette product by means other than vendorassisted sales.
E. Flavored Tobacco Prohibited. No person shall sell or offer for sale, or possess with the intent to sell or offer for any flavored tobacco product or any component, part, or accessory intended to impart or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices. There shall be a rebuttable presumption that a person 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.
F. Repackaging of Products Prohibited. No person shall sell any tobacco or electronic cigarette product unless such product: (1) is sold in the original manufacturer’s packing intended for sale; (2) conforms to all applicable federal and state labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.
Tobacco products shall not be sold or repackaged individually.
G. Proximity to Youth-Oriented Areas. No tobacco and electronic cigarette retail permit may issue, and no existing permit may be renewed, to authorize tobacco and electronic cigarette retailing within 500 feet of a youth-oriented area as measured by a straight line from the nearest point of the property line of the parcel on which the youthoriented area is located to the nearest point of the property line of the parcel on which the applicant’s business is located. To comply with Federal and State laws, the City Council may exclude certain businesses or locations from this section by resolution.
H. Federal and State Regulations. To the maximum extent permitted by law, all businesses and retailers in the City shall be subject to fines and enforcement as permitted by the municipal code and applicable law for violation of any Federal or State law or regulation as currently enacted, or enacted in the future, by Congress or federal regulators or by the State Legislature or a State agency concerning the sale or use of tobacco products of any kind or type in order to provide for the maximum protection permitted by law to all individuals in South El Monte from the effects of tobacco products and to protect the public health, safety and welfare to the fullest extent permitted by law.
SECTION 4. Inconsistent Provisions. Any provision of the South El Monte Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to the extent necessary to implement the provisions of this Ordinance.
SECTION 5. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or any part thereof is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more
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section, subsection, subdivision, paragraph, sentence, clause or phrase would be subsequently declared invalid or unconstitutional.
SECTION 6. The City Clerk shall attest and certify to the passage and adoption of this Ordinance.
PASSED, APPROVED, AND ADOPTED this _____ day of _____________ 2024.
_____________________________
Gloria Olmos, Mayor
ATTEST:
_________________________________
Sabrina Muhne, Interim City Clerk
APPROVED AS TO FORM:
_________________________________
Anthony R. Taylor, City Attorney
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF SOUTH EL MONTE )
I, Sabrina Muhne, Interim City Clerk of the City of South El Monte, do hereby certify that the foregoing ordinance, being Ordinance No. 1278 was passed and approved by the City Council of the City of South El Monte at an adjourned meeting of said Council held on the _____ day of ___________ 2024 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Sabrina Muhne, Interim City Clerk
8 01257.0011/981167.3
REFERENCES
1 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.
2 California Tobacco Control Program. California Tobacco Facts and Figures 2016. Sacramento, CA: California Department of Public Health. 2016. 3 California Tobacco Control Program. California Tobacco Facts and Figures 2019. Sacramento, CA: California Department of Public Health. 2019. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Docu ment%20Library/ResearchandEvaluation/FactsandFigures/CATobaccoFactsand Figures2019.pdf.
4 U.S. Department of Health and Human Services. The Health Consequences of Smoking: 5 Years of Progress. A Report of the Surgeon General. Atlanta, GA:
U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf. 5 Kann L, McManus T, Harris WA, et al. Youth Risk Behavior Surveillance — United States, 2017. MMWR Surveill Summ. 2018;67(8):1-114 and Supplementary Tables 52-93. doi: 10.15585/mmwr.ss6708a1. 6 Lin C, Baiocchi M, Halpern-Felsher B. Longitudinal trends in e-cigarette devices used by Californian youth, 2014–2018. Addict Behav. 2020;108:106459. doi:
10.1016/j.addbeh.2020.106459.
7 United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006), aff’d in part, vacated in part, 566 F.3d 1095 (D.C. Cir. 2009), and order clarified, 778 F. Supp. 2d 8 (D.D.C. 2011).
8 Ling PM, Glantz SA. Why and How the Tobacco Industry Sells Cigarettes to Young Adults: Evidence From Industry Documents. Am J Public Health. 2002;92(6):908-916. doi: 10.2105/ajph.92.6.908.
9 Burrows, D.S. “Estimated Change in Industry Trend Following Federal Excise Tax Increase.” UCSF Library Truth Tobacco Industry Documents. Date Mod.
Industry, Apr. 17, 2012: https://www.industrydocumentslibrary.ucsf.edu/tobacco/ docs/nnnw0084. Accessed May 12, 2020.
10 Campaign for Tobacco-Free Kids. The Toll of Tobacco in California. https://www.tobaccofreekids.org/problem/toll-us/ california. Accessed May 12, 2020.
11 21 C.F.R. § 1140.16(b).
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12 Cal. Penal Code § 308.3(a).
13 Schleicher NC, Johnson T, Rigdon J, et al. California Tobacco Retail Surveillance Study, 2017. Available at:
https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document %20Library/ResearchandEvaluation/SurveyIn
strumentsTrainingManualsAndProtocols/CaliforniaTobaccoRetailSurveillanceStu dt2017-CTRSS%206-4.pdf.
14 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.
15 Chuang YC, Cubbin C, Ahn D, Winkleby MA. Effects of neighbourhood 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.
16 Golden SD, K T-M, Kong AY, et al. County-level associations between tobacco retailer density and smoking prevalence in the USA, 2012. Prev Med Rep. 2020; Mar:17:101005. doi: 10.1016/j.pmedr.2019.101005. 17 Leas EC, Schleicher NC, Prochaska JJ, Henriksen L. Place-Based Inequity in Smoking Prevalence in the Largest Cities in the United States. JAMA Intern Med. 2019;179(3):442-444. doi: 10.1001/jamainternmed.2018.5990. 18 Farley SM, Maroko AR, Suglia SF, Thorpe LE. The Influence of Tobacco Retailer Density and Poverty on Tobacco Use in a Densely Populated Urban Environment. Public Health Rep. 2019;134(2):164-171. doi:
10.1177/0033354918824330.
19 Finan LJ, Lipperman-Kreda S, Abadi M, et al. Tobacco Outlet Density and Adolescents’ Cigarette Smoking: A Me ta-Analysis. Tob Control. 2019;28(1):27-
33. doi: 10.1136/tobaccocontrol-2017-054065.
20 Abdel Magid HS, Halpern-Felsher B, Ling PM, et al. Tobacco Retail Density and Initiation of Alternative Tobacco Prod uct Use Among Teens. J Adolesc Health. 2020;66(4):423-430. doi: 10.1016/j.jadohealth.2019.09.004. 21 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.
22 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
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23 Vyas P, Tsoh JY, Gildengorin G, et al. Disentangling individual and neighborhood differences in the intention to quit smoking in Asian American male smokers. Prev Med Rep. 2020;18:101064. doi:
10.1016/j.pmedr.2020.101064.
24 Shareck M, Datta GD, Vallee J, Kestens Y, Frohlick KL. Is Smoking Cessation in Young Adults Associated With Tobacco Retailer Availability in Their Activity Space? Nicotine Tob Res. 2020;22(4):512-521. doi: 10.1093/ntr/nty242. 25 Siahpush M, Jones PR, Singh GK, Timsina LR, Martin J. Association of availability of tobacco products with so cio-economic and racial/ethnic characteristics of neighbourhoods. Public Health. 2010;124(9):525-529. doi:
10.1016/j. puhe.2010.04.010.
26 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. 27 Loomis BR, Kim AE, Goetz JL, Juster HR. Density of tobacco retailers and its association with sociodemographic char acteristics of communities across New York. Public Health. 2013;127(4):333-338. doi: 10.1016/j.puhe.2013.01.013. 28 Yu D, Peterson NA, Sheffer MA, Reid RJ, Schnieder JE. Tobacco outlet density and demographics: analysing the rela tionships with a spatial regression approach. Public Health. 2010;124(7):412-416. doi: 10.1016/j.puhe.2010.03.024. 29 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. 30 Fakunle DO, Curriero FC, Leaf PJ, Furr-Holden DM, Thorpe RJ. Black, White, or Green? The Effects of Racial Com position and Socioeconomic Status on Neighborhood-Level Tobacco Outlet Density. Ethn Health. 2019;1-16. 31 Rodriguez D, Carlos HA, Adachi-Mejia AM, Berke EM, Sargent J. Retail tobacco exposure: using geographic analysis to identify areas with excessively high retail density. Nicotine Tob Res. 2014;16(2):155-165. doi:
10.1093/ntr/ntt126.
32 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. 33 HG, Henry KA, Scheeres A, et al. Tobacco Retail Licensing and Density 3 Years After License Regulations in Philadel phia, Pennsylvania (2012-2019). Am J Public Health. 2020;110(4):547-553. doi: 10.2105/AJPH.2019.305512.
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34 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.
35 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.2017.303685.190; Henriksen L, Schle icher NC, Ababseh K, Johnson TO, Fortmann SP. Marijuana as a ‘concept’ flavour for cigar products: availability and price near California schools. Tob Control. 2017. doi: 10.1136/tobaccocontrol-2017-053961.
§ 8.40.010. Definitions.
For purposes of this chapter, the following words and terms shall be defined as follows:
"Electronic cigarette" means an electronic or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances, including any such device that is manufactured, distributed, marketed or sold as an electronic cigarette, e-cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah or by any other product name or descriptor. "Electronic cigarette" does not include any inhaler prescribed by a licensed physician. "Person" means any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character. "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have, or can or does share ultimate control over the day-to-day operations of a business. "Self-service display" shall have the same meaning as such term is defined in subsection 5-17.01(c).
"Tobacco and electronic cigarette paraphernalia" includes cigarette papers or wrappers, pipes, electronic cigarettes and their component parts, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco or tobacco products.
"Tobacco and electronic cigarette retailer" means any person or business that operates a store, stand, booth, concession or other place at which the person or business sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco products or tobacco and electronic cigarette paraphernalia, or both. "Tobacco and electronic cigarette retailing" means the selling, offering for sale, exchanging or offering to exchange for any form of consideration tobacco products or tobacco and electronic cigarette paraphernalia products for personal consumption or use. "Tobacco product" means any manufactured substance made from the tobacco plant, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and smokeless tobacco, or products prepared from tobacco and designed for smoking or ingestion, including nicotine.
( Ord. 1185 §1, 2014)
§ 8.40.020. Requirement for tobacco and electronic cigarette retail permit.
A. It is unlawful for any person to act as a tobacco and electronic cigarette retailer without first obtaining and maintaining a valid tobacco and electronic cigarette retail permit pursuant to this chapter, for each location at which that activity is to occur.
B. The city shall not issue a permit to authorize tobacco and electronic cigarette retailing at other than a fixed location. For example, tobacco and electronic City of South El Monte, CA
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ATTACHMENT B
( Ord. 1185 §1, 2014)
§ 8.40.030. Application process.
cigarette retailing by persons on foot or from vehicles is prohibited.
C. It is a violation of a tobacco and electronic cigarette retail permit for a permittee or his or her agent or employee to violate any local, state, or federal tobacco or electronic cigarette-related law.
D. It is the responsibility of each proprietor to be informed of the laws affecting the issuance of a tobacco and electronic cigarette retail permit.
E. The issuance, suspension, and revocation of a tobacco and electronic cigarette retail permit, and all related procedures, shall be governed solely by this chapter.
A. Application for a tobacco and electronic cigarette retail permit shall be submitted in the name of each proprietor proposing to conduct retail tobacco or electronic cigarette sales, or both, and shall be signed by each proprietor or an authorized agent thereof. An application is required for each location where retail tobacco or electronic cigarette sales, or both, are to occur.
B. A permit that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section 8.40.090. All applications shall be submitted on a form supplied by the city and shall contain the following information:
1. The name, address and telephone number of each proprietor;
2. The business name, address and telephone number of the fixed location for which a tobacco and electronic cigarette retail permit is sought;
3. The name and mailing address authorized by each applicant to receive all permit-related communications and notices (the "authorized address"). Failure to supply an authorized address shall constitute consent to the provision of notice at the business address specified in subsection (B)(2) of this section;
4. Whether any applicant has previously been issued a permit pursuant to this chapter that is or was at any time suspended or revoked and, if so, the dates of the suspension period or the date of revocation; and
5. Such other information as the city deems necessary for the administration or enforcement of this chapter.
C. All information required to be submitted in order to apply for a tobacco and electronic cigarette retail permit shall be updated whenever the information changes. A tobacco and electronic cigarette retailer shall provide the city in writing with any updates within ten business days of a change.
D. The information specified in subsections (B)(2) and (B)(3) shall be available to the public for all currently permitted tobacco and electronic cigarette retailers. Upon request, the city shall provide a compilation of this information to any person within City of South El Monte, CA
§ 8.40.020 § 8.40.030
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( Ord. 1185 §1, 2014)
§ 8.40.040. Permit fees.
The city council may by resolution establish fees to cover the cost of administering this chapter. The fee shall be calculated so as to recover the total cost of both permit administration and permit enforcement, including, for example, issuing the permit, administering the permit program, retailer education, retailer inspection and compliance checks, documentation of violations and prosecution of violators. All fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. Fees required by this chapter shall be in addition to any required under any other chapter of the South El Monte Municipal Code.
( Ord. 1185 §1, 2014)
§ 8.40.050. Issuance and renewal of permit.
a reasonable time and subject to a fee approximating the actual cost of compiling and presenting the information.
A. Upon receipt of both the application for a tobacco and electronic cigarette retail permit and the permit fee, the city manager or designee, shall issue a tobacco and electronic cigarette retail permit unless:
1. The application is incomplete or inaccurate;
2. The application seeks authorization for tobacco and electronic cigarette retailing by a proprietor who, pursuant to Section 8.40.090, has a suspended or revoked tobacco and electronic cigarette retail permit;
3. The application seeks authorization for tobacco and electronic cigarette retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, state or federal law;
4. The city has information that the proprietor or his or her agent or employee has violated any local, state or federal tobacco or electronic cigarette control law within the preceding thirty-day period.
B. A permit shall be valid for one year and must be renewed prior to the expiration of the previous term. Each tobacco and electronic cigarette retailer shall apply for the renewal of his, her or its tobacco and electronic cigarette retail permit no later than thirty days prior to the expiration of the then current permit.
C. If the information required in the permit application pursuant to Section
8.40.030(B) changes, a new tobacco and electronic cigarette retail permit is required before the business may continue to act as a tobacco and electronic cigarette retailer. For example, if a proprietor to whom a permit has been issued changes business locations, the proprietor must apply for a new permit prior to acting as a tobacco and electronic cigarette retailer at the new location. If the business is sold, the new owner must apply for a permit for that location before acting as a tobacco and electronic cigarette retailer.
City of South El Monte, CA
§ 8.40.030 § 8.40.050
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( Ord. 1185 §1, 2014)
§ 8.40.060. Permits nontransferable.
A tobacco and electronic cigarette retail permit is nontransferable and is valid only for the person(s) and location specified in the permit application. If a proprietor to whom a permit has been issued changes business locations, that proprietor must apply for a new permit prior to acting as a tobacco and electronic cigarette retailer at the new location.
Similarly, if the proprietor to whom a permit has been issued sells the business, the new owner must apply for a permit before acting as a tobacco and electronic cigarette retailer. ( Ord. 1185 §1, 2014)
§ 8.40.070. Requirements and prohibitions on sale of tobacco and electronic cigarette products.
( Ord. 1185 §1, 2014)
§ 8.40.080. Compliance monitoring.
D. A tobacco and electronic cigarette retail permit that is not timely renewed shall expire at the end of its term. To reinstate a permit that has expired, or to renew a permit not timely renewed pursuant to subsection B, the proprietor must:
1. Submit the permit fee plus a reinstatement fee of ten percent of the permit fee; and
2. Submit a signed affidavit affirming that the proprietor has not sold and will not sell any tobacco and electronic cigarette product or tobacco and electronic cigarette paraphernalia after the permit expiration date and before the permit is renewed.
A. Display of Permit Required. Each permit shall be prominently displayed in a publicly and readily visible location at the permitted location.
B. Positive Identification Required. No person shall engage in tobacco and electronic cigarette retailing without first examining the identification of the purchaser if the purchaser reasonably appears under the age of thirty years old. No person shall engage in tobacco and electronic cigarette retailing without confirming that the proposed sale is to a purchaser who is at least the minimum age established by state law for being sold the tobacco and electronic cigarette product or tobacco and electronic cigarette paraphernalia.
C. Minimum Age for Persons Selling Tobacco and Electronic Cigarettes. No person who is younger than the minimum age established by state law for the purchase or possession of any tobacco and electronic cigarette product shall engage in tobacco and electronic cigarette retailing.
D. Self-Service Displays Prohibited. No person shall display, offer for sale, dispense or allow to be sold any tobacco and electronic cigarette product by means other than vendor-assisted sales.
City of South El Monte, CA
§ 8.40.050 § 8.40.080
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( Ord. 1185 §1, 2014)
§ 8.40.090. Suspension, revocation and issuance after revocation of permit.
A. Compliance with this chapter shall be monitored by the sheriff's department, or the city manager or designee. Any peace officer or code enforcement official may enforce the penal provisions of this chapter.
B. The sheriff's department or code enforcement officials should endeavor to check the compliance of each tobacco and electronic cigarette retailer at least one time per twelve-month period. The sheriff's department or code enforcement officials may check the compliance of tobacco and electronic cigarette retailers previously found to be in compliance a fewer number of times so that the enforcement agency may check the compliance of tobacco and electronic cigarette retailers previously found in violation of the permitting law a greater number of times. Nothing in this subsection shall create a right of action in any permittee or other person against the city or its agents by reason of such compliance checks.
C. Compliance checks shall determine, at a minimum, if the tobacco and electronic cigarette retailer is conducting business in a manner that complies with tobacco and electronic cigarette laws regulating youth access to tobacco and electronic cigarettes. When appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco and electronic cigarette retailing.
D. The city shall not enforce any law establishing a minimum age for tobacco and electronic cigarette purchases or possession against a person who otherwise might be in violation of such law because of the person's age (hereinafter "youth decoy") if the potential violation occurs when:
1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the city; or
2. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Los Angeles County health department or the California Department of Health Services.
A. Suspension. In addition to any other penalty authorized by law, a tobacco and electronic cigarette retail permit may be suspended if the city manager or designee finds, after notice to the permittee and opportunity to be heard, that the permittee or his or her agents or employees has violated the conditions of the permit imposed pursuant to Section 8.40.060 or 8.40.070.
1. Upon a finding by the city of a first permit violation, a written warning will be issued.
2. Upon a finding by the city of a second permit violation within a three-year period of the first violation, the permit may be suspended for up to thirty days.
3. If the second offense occurs within twelve months of the first, the permit may be suspended for up to ninety days.
City of South El Monte, CA
§ 8.40.080 § 8.40.090
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( Ord. 1185 §1, 2014)
§ 8.40.100. Appeal.
Any permittee aggrieved by any decision of the city manager or designee, with respect to the suspension or revocation of such permit, may appeal to the city council by filing a written notice of appeal with the city clerk within ten days of the date of suspension or revocation. The city clerk shall thereupon fix a time and place for hearing such appeal.
The city clerk shall give notice to such person of time and place of hearing by serving it personally or by depositing it in a United States Post Office in Los Angeles County, California, postage prepaid, addressed to the authorized address. The city council shall have the authority to rule on all questions raised during such appeal. ( Ord. 1185 §1, 2014)
§ 8.40.110. Tobacco and electronic cigarette retailing without a permit.
In addition to any other penalty authorized by law, if the city finds or any court of
4. Upon a finding by the city of a third violation within three years of the first violation, the permit may be suspended for up to ninety days.
B. Revocation. A tobacco and electronic cigarette retail permit may be revoked if the city manager or designee finds, after notice to the permittee and opportunity to be heard, that one of the following conditions exist:
1. The occurrence of four violations of the provisions in Section 8.40.060 or
8.40.070 within three years;
2. The application is incomplete for failure to provide the information required by Section 8.40.030(B);
3. The information contained in the application, including supplemental information, if any, is found to be false in any material respect; or
4. The application seeks authorization for a permit that is unlawful under other provisions of this Code, state or federal law.
C. During a period of permit suspension or revocation, the tobacco and electronic cigarette retailer must remove from public view all tobacco and electronic cigarette products and tobacco-and electronic cigarette-related advertising.
D. Issuance After Revocation. A person whose permit has been revoked may be issued a new permit in accordance with the following:
1. After revocation for a first violation of this chapter, no new permit may issue under this chapter for the location until three months have passed from the date of revocation.
2. After revocation for a second violation of this chapter at a location within any sixty-month period, no new permit may issue for the location until sixty months have passed from the date of revocation.
City of South El Monte, CA
§ 8.40.090 § 8.40.110
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competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco and electronic cigarette retailing at a location without a valid tobacco and electronic cigarette retailer's permit, either directly or through the person's agents or employees, the person shall be ineligible to apply for or be issued a tobacco and electronic cigarette retailing permit for that location as follows:
( Ord. 1185 §1, 2014)
§ 8.40.120. Settlement in lieu of hearing.
For a first or second alleged violation of this chapter within any sixty-month period, the city prosecutor may engage in settlement negotiations and may enter into a settlement agreement with a tobacco and electronic cigarette retailer alleged to have violated this chapter without approval from the city council. Notice of any settlement shall be provided to the sheriff's department and no hearing shall be held. Settlements shall not be confidential.
( Ord. 1185 §1, 2014)
§ 8.40.130. Enforcement.
A. After a first violation of this section within a sixty-month period, no new permit may be issued for the person at the location until thirty days have passed from the date of the violation.
B. After a second violation of this section within any sixty-month period, no new permit may be issued for the person at the location until six months have passed from the date of the violation.
C. After a third or subsequent violation of this section within any sixty-month period, no new permit may be issued for the person at the location until one year has passed from the date of the violation.
A. Violations of this chapter may, in the discretion of the city prosecutor, be prosecuted as infractions or misdemeanors.
B. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
C. Violations of this chapter are hereby declared to be public nuisances.
D. Violations of this chapter are subject to a civil action brought by the city prosecutor punishable by a civil fine payable to the city not less than one hundred dollars and not exceeding five hundred dollars. For the purposes of the civil remedies provided in this chapter, each day such violation or violations occur or continue shall be a separate offense.
E. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
F. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not City of South El Monte, CA
§ 8.40.110 § 8.40.130
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( Ord. 1185 §1, 2014)
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 persuasiveness of the evidence presented.
G. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be enforced by a civil action brought by the city prosecutor, including for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
City of South El Monte, CA
§ 8.40.130 § 8.40.130
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§ 8.42.010. Definitions.
For purposes of this chapter, the following terms shall be defined as follows:
"Bar" means a cocktail lounge, nightclub or facility that sells alcohol for on-premises consumption.
"Electronic cigarette" means an electronic or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances, including any such device that is manufactured, distributed, marketed or sold as an electronic cigarette, e-cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah or any other product name or descriptor. "Electronic cigarette" does not include any inhaler prescribed by a licensed physician. "Enclosed" means closed in by a roof and walls with appropriate openings for ingress and egress.
"Hotel" means any building, or portion thereof designed or used for lodging persons for a period of less than thirty consecutive days. Hotels shall include, without limitation, any establishment held out to the public as a hostel, inn, time share project, tourist court or motel, but shall not include hospitals or governmental buildings where persons are detained under legal restraint, such as jails or prisons. "Nonenclosed" means predominantly outdoor area that does not meet the definition of "enclosed," including, but not limited to, an open air dining area. "Open air dining area" means any nonenclosed area located on private or public property, including public right-of-way, made available to or customarily used by the general public that is designed, established or regularly used for consuming food or beverages or where food or beverages are served, whether or not for compensation. An open air dining area does not include open air dining areas that are immediately adjacent to and accessory to a private smokers' lounge, as that term is defined in Labor Code Section 6404.5 or its successor statute.
"Restaurant" means a facility that sells prepared foods and drinks for consumption on site.
"Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except when the combusting material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term smoke includes, but is not limited to, tobacco smoke, electronic cigarette vapors, and marijuana smoke.
"Smoking" means engaging in an act that generates smoke, such as, for example:
possessing a lighted pipe or a lighted hookah pipe; operating an electronic cigarette, vaping, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting a pipe, an electronic cigarette, a hookah pipe, a cigar, or a cigarette of any kind. ( Ord. 1185 §2, 2014)
City of South El Monte, CA
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§ 8.42.020. Smoking in and around city buildings prohibited.
Smoking is prohibited inside any city building in the city, and in an outdoor area within twenty feet of a main exit, entrance or operable window of a city building. ( Ord. 1185 §2, 2014)
§ 8.42.030. Smoking in and around playgrounds and tot lot sandbox areas prohibited.
Smoking is prohibited in and within twenty-five feet of playgrounds and tot lot sandbox areas, as the terms are defined in California Health and Safety Code Section 104495(a). ( Ord. 1185 §2, 2014)
§ 8.42.040. Smoking in restaurants, bars and open air dining areas prohibited.
Smoking is prohibited in all restaurants, bars and open air dining areas and within five feet of all open air dining areas, except while actively passing an open air dining area on the way to another destination.
( Ord. 1185 §2, 2014)
§ 8.42.050. Posting or placing of signs.
Any restaurant, bar or business with an open air dining area subject to the prohibition set forth in Section 8.42.040 of this chapter shall post or cause to be posted and shall maintain "no smoking" signs in conspicuous locations within the open air dining area.
All "no smoking" signs shall be prominently displayed, shall clearly recite the phrase "no smoking" and shall cite Section 8.42.040 of this chapter. The "no smoking" signs shall be posted not less than five feet nor more than eight feet above floor level and shall be of sufficient number and location to cause the message of the signs to be clearly visible and readable and must be made of permanent, weather resistant materials. No person shall willfully mutilate or destroy any sign required by this section. ( Ord. 1185 §2, 2014)
§ 8.42.060. Rights and obligations of owners, operators and employers. ( Ord. 1185 §2, 2014)
§ 8.42.070. Landlords of residential dwelling units may prohibit smoking.
A landlord of a residential dwelling unit, as defined in California Civil Code Section 1940, or his or her agent, may prohibit smoking as provided by California Civil Code Section 1947.5 and sections amendatory or supplementary thereto.
A. Any person who owns, operates, manages or controls a business within the city may designate the entire business as a "no smoking" area.
B. The provisions of this chapter shall not be construed to require the owner, operator or manager of any existing business to make any structural or other physical alterations, modifications or improvements to the business, other than the posting or placing of signs required by Section 8.42.050 of this chapter.
City of South El Monte, CA
§ 8.42.020 § 8.42.070
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( Ord. 1185 §2, 2014)
§ 8.42.080. Smoking in public parks, schools and recreational facilities prohibited.
Smoking is prohibited in all public parks, public schools, public playgrounds or publicly operated recreational ground facilities or buildings. Smoking is prohibited within twenty-five feet of city parks and recreation facilities, except while actively passing on the way to another destination.
( Ord. 1185 §2, 2014)
§ 8.42.090. Smoking on city public transportation service and in city vehicles prohibited.
Smoking is prohibited on the city's public transportation service and in city vehicles. ( Ord. 1185 §2, 2014)
§ 8.42.100. Smoking in family day care homes prohibited.
Smoking is prohibited at all family day care homes, as defined in California Health and Safety Code Section 1596.78.
( Ord. 1185 §2, 2014)
§ 8.42.110. Smoking in enclosed places of employment prohibited.
Smoking is prohibited in all enclosed spaces at places of employment, as "places of employment" are defined in California Labor Code Section 6404.5(b). Smoking is not prohibited in an enclosed place of employment that is a permitted electronic cigarette retailer, unless otherwise limited by the land use limitations contained in the city's zoning ordinance.
( Ord. 1185 §2, 2014)
§ 8.42.120. Penalties and enforcement.
A. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the regulation under this chapter to fail to comply with its provisions.
B. It is unlawful for any person to smoke in any area restricted by the provisions of this chapter.
C. Any person who violates any provision of this chapter shall be guilty of a misdemeanor or may be prosecuted as an infraction in the discretion of the city prosecutor.
D. The city prosecutor, any peace officer or city code enforcement officer shall have the authority to enforce the provisions of this chapter.
E. Punishment under this chapter shall not preclude punishment pursuant to any other provision of law pertaining to electronic cigarette smoking. Nothing in this chapter precludes any person from seeking any other remedies, penalties or procedures City of South El Monte, CA
§ 8.42.070 § 8.42.120
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( Ord. 1185 §2, 2014)
provided by law. The remedies provided in this section are cumulative and in addition to any other remedies available at law or in equity.
City of South El Monte, CA
§ 8.42.120 § 8.42.120
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CHAPTER 125: TOBACCO RETAIL LICENSING
Section
125.010 Definitions
125.020 Requirements and prohibitions
125.030 Limits on eligibility for a tobacco retailer license 125.040 Application procedure
125.050 Issuance of license
125.060 License renewal and expiration
125.070 Licenses nontransferable
125.080 License conveys a limited, conditional privilege 125.090 Fee for license
125.100 Compliance monitoring
125.110 Revocation of license
125.120 Tobacco retailing without a license
125.130 Enforcement
§ 125.010 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ARM’S LENGTH TRANSACTION. 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.
CHARACTERIZING FLAVOR. A taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any by-product produced by the cannabis or tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, cotton candy, herb, bubble gum, spice, or any other flavor that is designed to mask the aroma and flavor of natural cannabis or tobacco or tobacco related products. Characterizing flavor includes flavor in any form, mixed with, or otherwise added to, any tobacco product or nicotine delivery device, including electronic smoking devices.
DEPARTMENT. Community Development Department, and any agency or person designated by the Chief Executive Officer to enforce or administer the provisions of this chapter.
ELECTRONIC SMOKING DEVICE. 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, or vape pen. ELECTRONIC SMOKING DEVICE includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. ELECTRONIC SMOKING DEVICE does not include 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.
FLAVORED TOBACCO PRODUCT. Any tobacco product, which imparts a characterizing flavor. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer or any employee or agent of a tobacco retailer has: (i) made a public statement or claim that the tobacco product imparts a characterizing flavor; (ii) used text and/or images on the tobacco retail product’s labeling or retail packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or (iii) taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
PERSON. Any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
PROPRIETOR. A person with an ownership or managerial interest in a business. An ownership interest shall be 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 can or does have or share ultimate control over the day-to-day operations of a business.
SELF-SERVICE DISPLAY. The open display or storage of tobacco products or tobacco paraphernalia 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 person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a
ATTACHMENT C
form of self-service display.
SMOKING. Possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind).
TOBACCO PARAPHERNALIA. Any item designed or marketed for the consumption, use, or preparation of tobacco products.
TOBACCO PRODUCT.
(1) Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff; (2) Any electronic smoking device that delivers nicotine and other substances to the person inhaling from the device, including, but not limited to an electronic device, cigarette, electronic cigar, electronic pipe; or (3) Any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately or any of these contains tobacco or nicotine.
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.
TOBACCO RETAILER. Any person who sells from a retail establishment, offers for sale from a retail establishment, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia from a retail establishment. TOBACCO RETAILING shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
TOBACCO RETAILING. The doing of any of the activities mentioned in the definition of tobacco retailer. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
(Ord. 1321, passed 10-1-08; Am. Ord. 1463, passed 11-3-21; Am. Ord. 1501, passed 4-5-23) § 125.020 REQUIREMENTS AND PROHIBITIONS.
(A) Tobacco retailer license required. It shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law. (B) Lawful business operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
(C) Display of license. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed 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) Minimum age for persons selling tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing. (F) Self-service displays prohibited. Tobacco retailing by means of a self-service display is prohibited. (G) False and misleading advertising prohibited. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been revoked:
(1) Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under § 125.010; and
(2) 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.
(H) No tobacco retailer shall sell or offer for sale or possess with the intent to sell or offer for retail sale in the City of Baldwin Park, any flavored tobacco product or any component, part, or accessory intended to impart or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices.
There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer or any employee or agent of a tobacco retailer has:
(1) Made a public statement or claim that the tobacco product imparts a characterizing flavor; (2) Used text and/or images on the tobacco product’s retail labeling or retail packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or (3) Taken action directed to consumers in the retail business that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor. (Ord. 1321, passed 10-1-08; Am. Ord. 1463, passed 11-3-21; Am. Ord. 1501, passed 4-5-23) § 125.030 LIMITS ON ELIGIBILITY FOR A TOBACCO RETAILER LICENSE. (A) No license may be issued to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.
(B) No license may be issued to authorize tobacco retailing at any location that is exclusively zoned for residential uses (R-1, RG or R3 zones).
(C) No license may be issued to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (such as an "on-sale" license issued by the California Department of Alcoholic Beverage Control) and no license may be issued to authorize tobacco retailing at any location offering food for sale for consumption on the premises. For example, and without limitation, tobacco retailing is prohibited in bars and restaurants.
This provision shall take effect on November 1, 2009, which is one year after the effective date of the ordinance adopting this chapter.
(Ord. 1321, passed 10-1-08)
§ 125.040 APPLICATION PROCEDURE.
(A) (1) Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct tobacco retailing and shall be signed by each proprietor or an authorized agent thereof. (2) It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's license. No proprietor may rely on the issuance of a license as a determination by the city the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to § 125.080 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. (3) All applications shall be submitted on a form supplied by the Department and shall contain the following information:
(a) The name, address, and telephone number of each proprietor of the business seeking a license. (b) The business name, address, and telephone number of the single, fixed location for which a license is sought. (c) A single name and mailing address authorized by each proprietor 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, each proprietor shall be understood to consent to the provision of notice at the business address specified in division (b) above.
(d) Proof the location for which a tobacco retailer's license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization.
(e) Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five years. If person filing the application for a tobacco retailer does not disclose past violations and a license is issued, the license can be revoked as soon as the past violations are discovered pursuant to § 125.110 below. (f) Such other information as the Chief Executive Officer deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section. (B) A licensed tobacco retailer shall inform the Department in writing of any change in the information submitted on an application for a tobacco retailer's license within ten business days after a change. (C) All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code § 6250 et seq.) or any other applicable law, subject to the laws' exemptions.
(Ord. 1321, passed 10-1-08)
§ 125.050 ISSUANCE OF LICENSE.
Upon the receipt of a completed application for a tobacco retailer's license and the license fee required by this chapter, the Department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exist:
(A) The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.
(B) The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subparagraph shall not constitute a basis for denial of a license if the applicant provides the city with documentation demonstrating by clear and convincing evidence the applicant has acquired or is acquiring the location or business in an arm’s length transaction. (C) The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.
(D) The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful pursuant to this code, including, without limitation, the zoning ordinance, building code, and business license tax ordinance, or that is unlawful pursuant to any other law.
(Ord. 1321, passed 10-1-08)
§ 125.060 LICENSE RENEWAL AND EXPIRATION.
(A) Renewal of license. A tobacco retailer's license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license and submit the annual license fee no later than 30 days prior to expiration of the term.
(B) Expiration of license. A tobacco retailer's license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to division (A), the proprietor must:
(1) Submit the license fee and application renewal form; and (2) Submit a signed affidavit affirming the proprietor:
(a) Has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed; or
(b) Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in § 125.120(A) of this chapter, before seeking renewal of the license. (Ord. 1321, passed 10-1-08)
§ 125.070 LICENSES NONTRANSFERABLE.
(A) A tobacco retailer's license may not be transferred from one person to another or from one location to another. A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietor(s). (B) Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:
(1) The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and (2) The new proprietor(s) provide the city with clear and convincing evidence the new proprietor(s) have acquired or is acquiring the location in an arm’s length transaction.
(Ord. 1321, passed 10-1-08)
§ 125.080 LICENSE CONVEYS A LIMITED, CONDITIONAL PRIVILEGE.
Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supercede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code, including, without limitation, the zoning ordinance, building codes, and business license tax ordinance, or any condition or limitation on smoking in an enclosed place of employment pursuant to Cal. Lab. Code § 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of Cal. Lab. Code § 6404.5. (Ord. 1321, passed 10-1-08)
§ 125.090 FEE FOR LICENSE.
The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the City Council. The fee shall be annual and shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the license 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. 1321, passed 10-1-08)
§ 125.100 COMPLIANCE MONITORING.
(A) Compliance with this chapter shall be monitored by the Department. In addition, any peace officer may enforce the penal provisions of this chapter. The city may designate any number of additional persons to monitor compliance with this chapter.
(B) The Department or other person designated to enforce the provisions of this chapter shall check the compliance of each tobacco retailer at least as often as established by the Chief Executive Officer which could be as often as three times per a 12-month period. The Department may check the compliance of tobacco retailers previously found to be in compliance a fewer number of times so the Department may check the compliance of new licensees and tobacco retailers previously found in violation of the licensing law more frequently. Nothing in this section shall create a right of action in any licensee or other person against the city or its agents.
(C) Compliance checks shall be conducted so as to allow the Department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco. When the Department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.
(D) The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a person who otherwise might be in violation of such law because of the person's age (hereinafter "youth decoy") if the potential violation occurs when:
(1) The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the city;
(2) The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this chapter; or (3) The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Los Angeles County Health Department or the California Department of Health Services. (Ord. 1321, passed 10-1-08)
§ 125.110 REVOCATION OF LICENSE.
(A) Revocation of license for violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be revoked if any court of competent jurisdiction determines, or the Department finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, the licensee, or any of the licensee's agents 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 § 125.020 above. (B) New license after revocation.
(1) After revocation for a first violation of this chapter at a location within any five-year period, no new license may issue for the location until ten days have passed from the date of revocation. (2) After revocation for a second violation of this chapter at a location within any five-year period, no new license may issue for the location until 30 days have passed from the date of last revocation. (3) After revocation for a third violation of this chapter at a location within any five-year period, no new license may issue for the location until 90 days have passed from the date of last revocation. (4) After revocation for four or more violations of this chapter at a location within any five-year period, no new license may be issued for the location until five years have passed from the date of the last revocation. (C) Appeal of revocation. A decision of the Department to revoke a license is appealable to the Chief Executive Officer and must be filed with City Clerk within ten days after mailing of the Department's decision. If such an appeal is made, then it shall stay enforcement of the appealed action. An appeal to the Chief Executive Officer is not available for a revocation made pursuant to division (D) below. The decision by the Chief Executive Officer shall be the final decision of the city. (D) Revocation of license wrongly issued. A tobacco retailer's license shall be revoked if the Department finds, after the licensee is afforded notice and an opportunity to be heard, one or more of the bases for denial of a license under § 125.050 existed at the time application was made or at any time before the license issued. The decision by the Department shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new license application. (Ord. 1321, passed 10-1-08)
§ 125.120 TOBACCO RETAILING WITHOUT A LICENSE.
(A) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Department finds based on a preponderance of evidence, after notice and an opportunity to be heard, any person has engaged in tobacco retailing at a location without a valid tobacco retailer's license, either directly or through the person's agents or employees, then the person shall be ineligible to apply for, or to be issued, a tobacco retailing license as follows:
(1) After a first violation of this section at a location within any five-year period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length
transaction), until 30 days have passed from the date of the violation. (2) After a second violation of this section at a location within any five-year period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 90 days have passed from the date of the last violation. (3) After of a third or subsequent violation of this section at a location within any five-year period, no new license may be issued for the person or the location (unless ownership 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 last violation. (B) Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the Department or any peace officer and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this chapter. The decision by the Department or peace officer may be appealed pursuant to the procedures set forth in § 125.110(C). Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure § 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final. (C) For the purposes of the civil remedies provided in this chapter, each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter or each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.
(Ord. 1321, passed 10-1-08)
§ 125.130 ENFORCEMENT.
(A) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
(B) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of 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 persuasiveness of the evidence presented.
(C) Each violation of this chapter is subject to a civil action brought by the City Attorney, punishable by a civil fine not less than $250 and not exceeding $1,000 per violation.
(D) Each violation of this chapter may, in the discretion of the City Attorney, be prosecuted as an infraction or a misdemeanor when the interests of justice so require.
(E) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
(F) Each violation of this chapter is hereby declared to be a public nuisance. (G) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, for example, administrative citation, judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. 1321, passed 10-1-08)
Chapter 8.10 - RETAIL SALES OF TOBACCO PRODUCTS
Sections:
Footnotes:
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Editor's note— Ord. No. 2781, § 1, adopted Nov. 15, 2011, amended Ch. 8.10 in its entirety, in effect repealing and reenacting said chapter to read as herein set out. The former Ch. 8.10, §§ 8.10.010 and 8.10.020, pertained to vendor assisted sales of tobacco and derived from Ord. No. 2547, § 1 (part), 2002.
8.10.010 - Definitions.
The following words and phrase, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
"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 (2) 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.
"Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to tor during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form, mixed with, or otherwise added to, any tobacco product or nicotine delivery device, including electronic smoking devices.
"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 three (3) pounds per thousand. "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. "Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.
"Department" means the Finance Department of the City of El Monte, and any division or person designated by the department to enforce or administer the provisions of this chapter. 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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"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 devise, 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 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.
"Flavored tobacco product" means any tobacco product, as defined in this Chapter 8.10, which imparts a characterizing flavor. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has: (i) made a public statement or claim that the tobacco product imparts a characterizing flavor; (ii) used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or (iii) taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
"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 three (3) pounds per thousand. "Little cigar" includes, but is not limited to, any tobacco product known or labeled as a "small cigar," "cigarillo," or "little cigar."
"Package" or "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.
"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten (10) 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-today operations of a business.
"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 person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display. 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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"Sale" or "sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for commercial purpose, in any manor or by any means whatsoever. "Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization. The term "smoke" includes, but is not limited to, tobacco smoke, electronic cigarette vapors, marijuana smoke or any other weed, herb, flower or plant. "Smoking" means the generation of smoke, as defined herein, through the use and/or operation of any tobacco product.
"Tobacco paraphernalia" means any item designed or marketed for the consumption, use, or preparation of tobacco products.
"Tobacco product" means:
Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff; Any electronic smoking device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah; or
Any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately or any of these contains tobacco or nicotine. "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.
"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. (Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2935, §§ 2, 3, 9-4-2018; Ord. No. 2980, §§ 2—4, 6-23-2020)
8.10.020 - Requirements and prohibitions.
Tobacco Retailer Permit Required. It shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's permit pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's permit is a nuisance as a matter of law. 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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Lawful Business Operation. 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.
Display of Permit. Each tobacco retailer permit shall be prominently displayed in a publicly visible location at the permitted location.
Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product to another person who appears to be under the age of twenty-seven (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.
Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.
Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.
False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer permit, including, for example, a person whose permit has been revoked:
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 under Section 8.10.120; and
Shall not display any advertisement relating to tobacco products 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.
Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer's packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements.
Minimum Package Size for Little Cigars and Cigars. No tobacco retailer shall sell to a consumer:
Any little cigar unless it is sold in a package of at least twenty (20) little cigars.
Any cigar unless it is sold in a package of at least six (6) cigars, provided, however, that this Subsection I.2. of 8.10.020 shall not apply to a cigar that has a price of at least five dollars ($5.00) per cigar, including all applicable taxes and fees.
No tobacco retailer shall sell or offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco product or any component, part, or accessory intended to impart or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices. There shall be a rebuttable presumption that a 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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tobacco retailer in possession of four (4) 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. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
Made a public statement or claim that the tobacco product imparts a characterizing flavor; Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor. (Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2935, § 3, 9-4-2018; Ord. No. 2980, § 5, 6-23-2020) Editor's note— The provisions of subsection J of Section 8.10.020 shall become operative as of January 1, 2021.
8.10.030 - Limits on eligibility for a tobacco retailer permit.
No permit may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited. (Ord. No. 2781, § 1, 11-15-2011)
8.10.040 - Application procedure.
Application for a tobacco retailer's permit 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.
It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's permit. No proprietor may rely on the issuance of a permit as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A permit issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 8.10.110(D) of this chapter.
Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's permit any status or right to act as a tobacco retailer in contravention of any provision of law.
All applications shall be submitted on a form supplied by the department and shall contain the following information:
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3. The name, address, and telephone number of each proprietor of the business seeking a permit.
The business name, address, and telephone number of the single fixed location for which a permit is sought.
A single name and mailing address authorized by each proprietor 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, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (C)2 above.
Proof that the location for which a tobacco retailer's permit is sought has been issued a valid state tobacco retailer's permit by the California Board of Equalization.
Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five (5) years.
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 permitted tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer's permit within ten (10) business days of a change.
Permit applications must be submitted prior to January 1 of the calendar year for which the permit will be in effect.
(Ord. No. 2781, § 1, 11-15-2011)
8.10.050 - Issuance of Permit.
Upon the receipt of a complete application for a tobacco retailer's permit and the permit fee required by this chapter, the department shall issue a permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:
The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.
The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer permits. However, this subparagraph shall not constitute a basis for denial of a permit if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction.
The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a permit to be issued.
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The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful to this Municipal Code, or that is unlawful pursuant to any other law.
(Ord. No. 2781, § 1, 11-15-2011)
8.10.060 - Permit renewal and expiration.
Renewal of Permit. A tobacco retailer's permit is invalid if the appropriate fee has not been timely paid in full or if the term of the permit has expired. The term of a tobacco retailer permit is one year commencing on January 1 and ending on December 31 of the same calendar year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's permit and submit the permit fee no later than thirty (30) days prior to the expiration of the term.
Expiration of Permit. A tobacco retailer's permit that is not timely renewed shall expire at the end of its term. To renew a permit not timely renewed pursuant to subsection (A), the proprietor must:
Submit the permit fee and application renewal form; and Submit a signed affidavit affirming that the proprietor:
Has not sold and will not sell any tobacco products after the permit expiration date and before the permit is renewed; or
Has waited the appropriate ineligibility period established for tobacco retailing without a permit, as set forth in Section 8.10.120(A) of this chapter, before seeking renewal of the permit.
(Ord. No. 2781, § 1, 11-15-2011)
8.10.070 - Permit Nontransferable.
A tobacco retailer's permit may not be transferred from one person to another or from one location to another. A new tobacco retailer's permit is required whenever a tobacco retailing location has a change in proprietor(s).
Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and permit ineligibility periods shall continue to apply to a location unless:
The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and
The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction. 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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(Ord. No. 2781, § 1, 11-15-2011)
8.10.080 - Permit conveys a limited, conditional privilege.
Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's permit 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. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Municipal Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer permit does not make the retailer a "retail or whole tobacco shop" for the purposes of California Labor Code Section 6404.5. (Ord. No. 2781, § 1, 11-15-2011)
8.10.090 - Fee for permit.
By resolution, the city council shall establish and may from time to time adjust a schedule of fees for the issuance of a tobacco retailer's permit under this chapter. Fees shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a permit, administering the permit program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecutions of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. Fees are nonrefundable except as may be required by law.
(Ord. No. 2781, § 1, 11-15-2011)
8.10.100 - Compliance monitoring.
Compliance with this chapter shall be monitored by the department. In addition, any sworn peace officer or City of El Monte Code Enforcement Officer may enforce the penal provisions of this chapter. The city may designate any number of additional persons to monitor compliance with this chapter.
The department or other person designated to enforce the provisions of this chapter shall check the compliance of each tobacco retailer at least once per twelve-month period. Nothing in this paragraph shall create a right of action in any permittee or other person against the city or its agents.
Compliance checks shall be conducted so as to allow the department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to Tobacco. When the department deems appropriate, the compliance 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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checks shall determine compliance with other laws applicable to tobacco retailing. (Ord. No. 2781, § 1, 11-15-2011)
8.10.110 - Suspension/revocation of permit.
Suspension of Permit for Violation. In addition to any other penalty authorized by law, a tobacco retailer permit shall be suspended or revoked if any court of competent jurisdiction determines, or the department 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 or employees, has violated any of the requirements, conditions, or prohibitions of this part or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Section 8.10.020 of this chapter. A tobacco retailer or proprietor whose permit has been suspended is deemed not to have a valid tobacco retailer permit during the suspension period for purposes of this chapter.
Tobacco Retailer Permit Suspension/Revocation.
After suspension for a first violation of this part at a location within any three-year period, no person may engage in the retail sales of tobacco products at the location until fifteen (15) days have passed from the date of suspension.
After suspension for a second violation of this part at a location within any three-year period, no person may engage in tobacco retailing at the location until thirty (30) days have passed from the date of suspension.
After suspension for a third violation of this part at a location within any three-year period, no person may engage in tobacco retailing at the location until ninety (90) days have passed from the date of suspension.
After revocation for four or more violations of this part at a location within any three-year period, no new permit may issue for the location until one year has passed from the date of revocation.
Appeal of Suspension/Revocation. A decision of the department to suspend or revoke a permit is appealable to the City Manager and/or designee and must be filed with the City Clerk or within ten (10) days of mailing of the department's decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager or designee is not available for a suspension or revocation made pursuant to subsection (D) of this section.
Revocation of Permit Wrongly Issued. A tobacco retailer permit shall be revoked if the department finds, after the permittee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a permit under Section 8.10.050 existed at the time 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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application was made or at any time before the permit issued. The decision by the department shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new permit application.
(Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2789, 3-20-2012)
8.10.120 - Tobacco retailing without a permit.
In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the department 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 retailing permit as follows:
After a first violation of this section at a location within any five-year period, no new permit may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until thirty (30) days have passed from the date of the violation.
After a second violation of this section at a location within any five-year period, no new permit may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until ninety (90) days have passed from the date of the violation.
Tobacco products offered for sale or exchange in violation of this section are subject to seizure by the department or any peace officer and shall be forfeited after the permittee and any other owner of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale or exchange in violation of this chapter. The decision by the department may be appealed pursuant to the procedures set forth in Section 8.10.110(C).
For the purposes of the civil remedies provided in this chapter:
Each day on which a tobacco product is offered for sale in violation of this chapter; or Each individual retail tobacco product that is distributed, sold, or offered for sale in violation of this chapter;
shall constitute a separate violation of this chapter.
(Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2789, 3-20-2012)
8.10.130 - Enforcement.
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The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen (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 persuasiveness of the evidence presented.
Violations of this chapter are subject to a civil action brought by the city prosecutor or the city attorney and are subject to an administrative fine as established by resolution of the City Council.
Violations of this chapter may, in the discretion of the City Prosecutor or City Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.
Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
Violations of this chapter are hereby declared to be public nuisances.
In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2935, § 4, 9-4-2018) 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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CHAPTER 5.75
TOBACCO RETAIL LICENSE
§ 5.75.010. 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:
"Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. 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. "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. "Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than four and one-half pounds per thousand.
"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.
"Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.
"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.
"Department" means the city's community and economic development department and any agency or person designated by the department to enforce or administer the provisions of this chapter.
"Director" means the city's community and economic development director or designee. "Drug paraphernalia" has the meaning set forth in California Health and Safety Code Sections 11014.5, 11364.5, and 11364.7 as those sections may be amended from time to time.
"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 ecigarette, 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 City of Pico Rivera, CA
§ 5.75.010 § 5.75.010
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ATTACHMENT E
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. "Flavored tobacco product" means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, alcoholic beverage, herb, or spice. "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.
"Labeling" means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.
"Little cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than four and onehalf pounds per thousand. "Little cigar" includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo. "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. "Package" or "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.
"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has or shares ultimate control over the day-to-day operations of a business. "Sale" or "sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever. "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 person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
"Tobacco product" means:
Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether smoked,
1. City of Pico Rivera, CA
§ 5.75.010 § 5.75.010
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"Tobacco product" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco products. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange. "Youth decoy" means a person under the age of twenty-one but not younger than eighteen, who is supervised by the sheriff's department or code enforcement division to conduct onsite sting investigations of a tobacco retailer to determine compliance with tobacco retailing laws.
( Ord. 1154 § 4, 2022)
§ 5.75.020. General requirements and prohibitions.
heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff;
Any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or
2. Any component, part, or accessory of subsection (1) or (2) above, 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.
3. A. Tobacco Retailer's License Required. Notwithstanding Section 9.42.030 of this code, it shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law.
B. 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 license is issued, it shall be a violation of this chapter for any person, proprietor, or any of the tobacco retailer's agents or employees, to violate any local, state, or federal law applicable to tobacco products or tobacco retailing.
C. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
D. Minimum Legal Sales Age. No person engaged in tobacco retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco products to any person under twenty-one years of age.
E. Minimum Clerk Age. No person who is younger than the minimum age established by state law for the purchase or possession of any tobacco product shall engage in tobacco retailing.
City of Pico Rivera, CA
§ 5.75.010 § 5.75.020
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( Ord. 1154 § 4, 2022; Ord. 1170 § 4, 2023)
F. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product to another person without first verifying by means of government-issued photographic identification that the recipient is at least twentyone years of age.
G. Drug Paraphernalia. It shall be a violation of this chapter for any person engaged in tobacco retailing or any of the tobacco retailer'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. Self-Service Displays Prohibited. No tobacco retailer shall display tobacco products by means of a self-service display or engage in tobacco retailing by means of a selfservice display. A tobacco retailer who chooses to display tobacco products in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times.
I. Windows.
1. In the course of tobacco retailing or in the operation of a business or maintenance of a location for which a license is issued, it shall be a violation of this chapter for a proprietor, or any of the tobacco retailer's agents or employees, to cover more than ten percent of the window area with window signs unless otherwise prohibited in the applicable zone, whichever is more restrictive shall apply.
2. All windows and doors 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.
J. False and Misleading Advertising Prohibited. A tobacco retailer without a valid tobacco retailer license or a proprietor without a valid tobacco retailer license, including, for example, a person whose license has been suspended or revoked:
1. 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 license; and
2. Shall not display any advertisement relating to tobacco products 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.
City of Pico Rivera, CA
§ 5.75.020 § 5.75.030
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§ 5.75.030. Sale of flavored tobacco products prohibited. ( Ord. 1154 § 4, 2022)
§ 5.75.040. Tobacco product pricing and packaging.
A. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer's agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.
B. There shall be a rebuttable presumption 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.
C. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
1. Made a public statement or claim that the tobacco product has a taste or smell other than tobacco;
2. Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product has a taste or smell other than tobacco; or
3. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product has a taste or smell other than tobacco.
A. Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer's packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.
B. Display of Price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed on the tobacco product or on any related shelving, posting, advertising, or display at the location where the item is sold or offered for sale.
C. 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
City of Pico Rivera, CA
§ 5.75.030 § 5.75.040
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( Ord. 1154 § 4, 2022)
§ 5.75.050. Application procedure.
3. Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
A. 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. It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's license. No proprietor may rely on the issuance of a license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.75.130 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. All applications shall be submitted on a form supplied by the department and shall contain the following information:
1. The name, address, and telephone number of each proprietor of the business seeking a license.
2. The business name, address, and telephone number of the single fixed location for which a license is sought.
3. A single name and mailing address authorized by each proprietor 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, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (A)(2) above.
4. Proof that the location for which a tobacco retailer's license 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.
5. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter or any other local, state, or federal law governing the sale of tobacco products and, if so, the dates and locations of all such violations within the previous five years.
6. Such other information as the department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
7. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the business seeking the license.
City of Pico Rivera, CA
§ 5.75.040 § 5.75.050
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( Ord. 1154 § 4, 2022)
§ 5.75.060. Issuance and renewal of license.
B. A licensed tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer's license within ten business days of a change.
C. 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.
A. Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this chapter, the department may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary.
The department may deny an application for a tobacco retailer's license based on any of the following:
1. The application is incomplete, inaccurate, false, or misleading;
2. The department has information that the applicant, or the applicant's agent(s) or employee(s), violated any local, state, or federal tobacco control law within the preceding one hundred eighty days; or
3. The application seeks authorization for tobacco retailing at an address where a previous tobacco retail license has been suspended, revoked, or is subject to suspension or revocation proceedings for any violation of any of the provisions of this chapter. However, this shall not constitute a basis for denial of a tobacco retail license if either or both of the following apply:
a. The applicant provides documentation which clearly demonstrates that the applicant has acquired or is in the process of acquiring the premises or business in an arm's length transaction, or
b. It has been more than five years since the most recent tobacco retail license for that location was revoked;
4. 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.
B. Renewal of Tobacco Retail License. A tobacco retail license shall be valid for one year and must be renewed between thirty and sixty days prior to the expiration of the tobacco retail license. A tobacco retail license may be renewed for additional one year periods by submission of a renewal application and the applicable fee. Any tobacco retail license that is suspended, has been revoked within the previous five years, or is subject to suspension or revocation proceedings shall not be renewed until suspension or revocation proceedings are complete and the suspension or revocation period, if any, is over.
City of Pico Rivera, CA
§ 5.75.050 § 5.75.060
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( Ord. 1154 § 4, 2022)
§ 5.75.070. Business license required.
In addition to the tobacco retail license, any tobacco retailer must have a valid business license as required by Title 5 of this code.
( Ord. 1154 § 4, 2022)
§ 5.75.080. Licenses nontransferable.
A tobacco retailer's license may not be transferred from one person to another or from one location to another. A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietor(s).
( Ord. 1154 § 4, 2022)
§ 5.75.090. License conveys a limited, conditional privilege.
Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit.
Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including, but not limited to:
( Ord. 1154 § 4, 2022)
§ 5.75.100. Fee for license.
The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the license 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. The level of compliance monitoring will affect the fees charged to tobacco retailers.
( Ord. 1154 § 4, 2022)
§ 5.75.110. Compliance monitoring.
A. Any provision of this code, including, but not limited to, zoning, building and business license provisions; and/or
B. Any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. Obtaining a tobacco retailer's license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.
A. Compliance with this chapter shall be monitored by the department and the city's code enforcement division. In addition, any peace officer may enforce the penal City of Pico Rivera, CA
§ 5.75.060 § 5.75.110
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( Ord. 1154 § 4, 2022; Ord. 1170 § 3, 2012)
§ 5.75.120. Violations.
provisions of this chapter. The city may designate additional persons to monitor compliance with this chapter.
B. Monitoring may include, but is not limited to, unannounced inspections and/or youth decoy operations during a tobacco retailer's hours of operation.
C. The department shall conduct unannounced inspections for each tobacco retailer at least one time per twelve-month period to ensure compliance with this chapter.
D. The city will conduct at least one unannounced compliance check per twelve-month period that involves the participation of youth decoys, or an agent designated by the city to enter licensed premises to attempt to purchase tobacco products.
E. The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a person who otherwise might be in violation of such law because of the person's age (youth decoy) if the potential violation occurs when:
1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement officer of the city;
2. The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this chapter; or
3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by any city or local agency or the California Department of Health Services.
F. Nothing in this section shall create a right of action in any licensee or other person against the city or its agents.
G. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of twenty-one years old, including, but not limited to, a youth decoy operation, 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 persuasiveness of the evidence presented by the city.
H. 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.
A. It shall be a violation of this chapter for any person, tobacco retailer/licensee, or its agent(s) or employee(s), to violate any federal, state, or local tobacco law or regulation, including any provision of this chapter. 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 City of Pico Rivera, CA
§ 5.75.110 § 5.75.120
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( Ord. 1154 § 4, 2022)
§ 5.75.130. Suspension or revocation of license.
this chapter shall constitute a violation.
C. The failure of the tobacco retailer/licensee, or the applicant's agent(s) or employee(s) to allow any peace officer, the director, or any authorized city official to conduct unscheduled inspections of the premises of the business for the purpose of ensuring compliance with any federal, state, or local tobacco law or regulation, including any provision of this chapter, at any time the business is open for business shall constitute a violation.
D. No tobacco retailer/licensee or its agent(s) or employee(s) may sell or offer for sale any little cigar or cigarillo unless it is sold in a package of at least twenty little cigars or cigarillos. Little cigars or cigarillos may not be sold individually or in packages of less than twenty units.
E. A tobacco retail license may be issued to authorize tobacco retailing at a fixed location only. Tobacco retailing on foot or from vehicles, carts, or any other nonfixed location, is prohibited and shall be considered a violation of this chapter.
A. In addition to any other remedy authorized by law, a tobacco retail license may be suspended or revoked as provided in this section if it is discovered that any of the following occurred:
1. The licensee, or the licensee's agent(s) or employee(s), violated any provision of this chapter. Violation by a licensee at one location shall not be construed as a violation at another location of the same licensee, nor shall violations by a prior licensee at the same location be accumulated against a subsequent licensee at the same location;
2. The original or renewal application contained incomplete, inaccurate, false, or misleading information;
3. One or more of the bases for denial listed in Section 5.75.060 existed before the tobacco retail license was issued; or
4. A licensee is convicted of a misdemeanor or felony violation of any federal, state, or local tobacco law or regulation, including any provision of this code.
B. During any period of suspension or revocation, the licensee shall remove all tobacco products and from view, including from displays and behind counter storage areas, whether or not visible to the public. All tobacco products must be placed in a room that is separate from the area where point of sale transactions occur, or removed from the tobacco retail location entirely. Failure to do so may be considered a subsequent violation.
C. During any period of suspension or revocation, the tobacco retailer/licensee shall conspicuously post, at each point of sale register and near the entrance door of the tobacco retail location, a notice of a tobacco retail license suspension provided by City of Pico Rivera, CA
§ 5.75.120 § 5.75.130
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( Ord. 1154 § 4, 2022)
§ 5.75.140. Suspension or revocation procedure.
the department. The notice shall include the suspension or revocation period, reason for suspension or revocation, tobacco retailer/licensee and location information, and department contact information to report violations.
D. When the director finds a violation as set forth in this chapter, the tobacco retail license may be suspended or revoked as follows:
1. Upon finding by the director of a first tobacco retail license violation, the tobacco retail license may be suspended for up to thirty days;
2. Upon a finding by the director of a second tobacco retail license violation within any five-year period, the tobacco retail license may be suspended for up to ninety days;
3. Upon a finding by the director of a third tobacco retail license violation in any five-year period, the tobacco retail license may be suspended for up to one hundred twenty days; and
4. Upon a finding by the director of a fourth tobacco retail license violation within a five-year period, the tobacco retail license shall be revoked.
A. Before a tobacco retail license is suspended or revoked, the director shall provide written notice to the licensee. Said notice shall include the following:
1. A statement that the proprietor's tobacco retail license is being suspended or revoked pursuant to this chapter;
2. The code section violated by licensee or licensee's agents or employees;
3. A description of the violation that occurred;
4. The address of the business where the violation occurred; and
5. The procedure for requesting an administrative review.
B. A licensee served with a notice of suspension or revocation may request an administrative review to contest the suspension or revocation. The request must be made in writing and filed with the city manager within ten calendar days of service of the notice of suspension or revocation. Failure to timely request an administrative review shall be deemed a waiver of the right to request such a review and a failure to exhaust administrative remedies.
C. After receiving a timely administrative review request, the city manager shall schedule an administrative review within twenty calendar days of receipt of the written request and designate a reviewing officer. The city manager may appoint as a reviewing officer, any department or other city employee who is not directly involved in inspection or enforcement of tobacco retailing establishments.
City of Pico Rivera, CA
§ 5.75.130 § 5.75.140
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( Ord. 1154 § 4, 2022)
§ 5.75.150. Violation—Other penalties.
D. The proprietor shall be given written notice of the date, time, and location of the administrative review and the name of the reviewing officer who will conduct the administrative review at least ten calendar days in advance of the review.
E. The reviewing officer, in their discretion, may grant a reasonable continuance upon the written request and showing of good cause.
F. At the administrative review, the department has the burden of providing by a preponderance of the evidence that the alleged violation occurred.
G. The failure to appear at the administrative review shall constitute an abandonment of the review request and a failure to exhaust administrative remedies.
H. Within ten calendar days after the close of the administrative review, the reviewing officer shall issue a written decision on the suspension or revocation of the tobacco retail license, including a statement of the basis for the decision. The reviewing officer's written decision shall constitute the final administrative decision of the city.
I. If the director revokes a tobacco retail license, no new tobacco retail license may be issued for five years after that revocation.
A. In addition to any other penalties and remedies provided by law, including the provisions of this chapter, any violation of the provisions of this chapter may be charged as a misdemeanor pursuant to Chapter 1.20 of this code, or, in the discretion of the prosecutor, as an infraction. Any person who violates any provision of this chapter is subject to an administrative citation pursuant to Chapter
1.20 as well as a civil action, including, but not limited to, an injunction, as well as prosecution for any criminal violation.
B. In addition to any other penalty under this chapter, a person found to have engaged in tobacco retailing without a valid tobacco retail license shall be ineligible to apply for or be issued a tobacco retail license as follows:
1. After a person is caught in violation of this section, no new tobacco retail license may be issued for the person as a proprietor until thirty days have passed from the date of the violation; and
2. Each day that a person engages in tobacco retailing without a valid tobacco retail license shall constitute a separate violation.
C. Any person found by the director to be ineligible to be issued a tobacco retail license pursuant to this section may request an administrative review within ten days of notice of the violation. The request must be made to the director in writing.
Any administrative review shall be held pursuant to the provisions of Section
5.75.140 of this chapter.
City of Pico Rivera, CA
§ 5.75.140 § 5.75.150
Downloaded from https://ecode360.com/PI4985 on 2024-07-09
( Ord. 1154 § 4, 2022; Ord. 1170 § 5, 2023)
§ 5.75.160. Conflict with other laws; severability; saving clause.
Nothing in this chapter shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of this chapter or the application of such provision to other persons or circumstances shall not be affected thereby.
( Ord. 1154 § 4, 2022)
D. Violations of this chapter are hereby declared to be public nuisances pursuant to this code.
City of Pico Rivera, CA
§ 5.75.150 § 5.75.160
Downloaded from https://ecode360.com/PI4985 on 2024-07-09
Title 11 - HEALTH AND SAFETY
Division 1 - HEALTH CODE
Chapter 11.35 TOBACCO RETAILING
Los Angeles County, California, Code of Ordinances Created: 2024-08-20 14:00:20 [EST] (Supp. No. 139)
Chapter 11.35 TOBACCO RETAILING
11.35.010 Purpose and Application.
In promoting the health, safety, and general welfare of its residents, the County of Los Angeles has a substantial interest in encouraging compliance with federal, State, and local laws regulating tobacco sales and use; discouraging the purchase and use of tobacco products by anyone under the age of 21; increasing compliance with laws prohibiting the sale of tobacco products to anyone under the age of 21; and protecting children from being lured into nicotine and tobacco use through the illegal sale of products, including vaping products. It is the intent of the Ordinance codified in this Title, together with the additions to Title 7, to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit the sale or distribution of tobacco products to anyone under the age of 21. This Ordinance does not expand or reduce the degree to which the acts regulated by federal or State law are criminally proscribed or otherwise regulated. (Ord. 2019-0049 § 4, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.020 Definitions.
For the purpose of this Chapter, the words and terms listed below shall have the following meanings:
A. "Accessory" means equipment, products, or materials that are used, intended for use, or designed for use in smoking, vaping, ingesting, inhaling, or otherwise introducing tobacco or tobacco products into the human body and can be an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else.
B. "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, when neither is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this Chapter that occurred at the location, is presumed not to be an arm's length transaction.
C. "Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form, mixed with or otherwise added to any tobacco product or nicotine delivery device, including electronic smoking devices.
D. "Cigarette" is any roll of tobacco wrapped in paper or in any substance not containing tobacco, or any roll of tobacco wrapped in any substance containing tobacco which is likely to be offered to, or purchased as a cigarette, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling.
E. "Cigarillo" 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 three pounds per thousand units. "Cigarillo" includes, but is not limited to, tobacco products known or labeled as small cigar or little cigar.
F. "Component" means any item intended or reasonably expected to be used with or for the human consumption of a tobacco product.
ATTACHMENT F
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
G. "Department" means the Los Angeles County Department of Public Health.
H. "Director" means the Director of the Los Angeles County Department of Public Health or designee.
I. "Electronic Smoking Device" means an electronic device, including but not limited to an electronic cigarette, electronic cigar or cigarillo, electronic pipe, electronic hookah, vaping device, or any other product name or descriptor, which can be used to deliver an inhaled dose of nicotine or other substances, including any component, part, or accessory of such a device, whether manufactured, distributed, marketed, or sold as such.
J. "Flavored Tobacco Product" means any tobacco product, as defined in this Chapter, which imparts a characterizing flavor.
K. "License" means a Tobacco Retail License issued by the County pursuant to this Section.
L. "Licensee" means any proprietor holding a license issued by the County pursuant to this Chapter.
M. "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 three pounds per thousand units. "Little Cigar" includes, but is not limited to, tobacco products known or labeled as small cigar or cigarillo.
N. "Package" or "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.
O. "Part" means a piece or segment of something, which combined with other pieces makes up the whole.
P. "Person" means any individual, entity, firm, partnership, joint venture, limited liability company, association, social or professional club, fraternal organization, corporation, estate, trust, business trust, receiver, trustee, syndicate, or other group or combination of the above acting as a single unit.
Q. "Pharmacy" means any retail establishment, including any location with an on-site pharmacy, in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
R. "Proprietor" means a person with an ownership interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt.
S. "Self-service Display" means the open display or storage of tobacco products or tobacco paraphernalia 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 person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
T. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, characterizing flavors in any form, mixed with or otherwise added to any tobacco product or nicotine delivery device, including electronic smoking devices, and any other item designed or used for the smoking or ingestion of tobacco products.
U. "Tobacco Product" means the following:
1. Any product containing, made, or derived from tobacco or nicotine whether natural or synthetic, that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff; or
2. Any electronic smoking device that delivers nicotine or other substances, whether natural or synthetic, to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, electronic hookah, or vaping device.
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
3. Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately.
4. "Tobacco Product" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
V. "Tobacco Retailer" means any person who sells, offers for sale or distribution, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, distributed, exchanged, or offered for exchange.
W. "Tobacco Retailing" means selling, offering for sale, exchanging, or offering to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange.
(Ord. 2019-0049 § 5, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.030 Mandatory Tobacco Retail License.
A. Any person intending to act as a tobacco retailer, who does not currently hold a Tobacco Retail License, shall, within 180 days of the effective date of the Ordinance codified in this Chapter, obtain a Tobacco Retail License for each location at which tobacco retailing is to occur.
B. Nothing in this Chapter shall be construed to grant any licensee any status or right other than to act as a tobacco retailer at the location identified on the face of the Tobacco Retail License, subject to compliance with all other applicable laws, regulations, or ordinances. Nothing in this Chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law. (Ord. 2019-0049 § 6, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.040 Application Procedure for Tobacco Retail License.
All applications for a Tobacco Retail License shall be submitted in the name of each proprietor proposing to conduct tobacco retailing and signed by each prospective proprietor or an authorized agent. Each Tobacco Retail License application must be accompanied by the required Tobacco Retail License fee pursuant to Section 8.04.720 of this Code. A proprietor proposing to conduct tobacco retailing at more than one location shall submit a separate application for each location. Every application shall contain the following information:
A. The name, address, and telephone number of each proprietor.
B. The business name, address, and telephone number of the fixed location for which the Tobacco Retail License is sought.
C. Whether any proprietor has previously been issued a Tobacco Retail License pursuant to this Chapter that is, or was at any time, suspended or revoked and, if so, the date of the suspension or revocation.
D. Proof that the location for which a Tobacco Retail License is sought has been issued a valid State tobacco retailer's license by the California Department of Tax and Fee Administration, in addition to any other required or applicable licenses, permits, or certifications.
E. A signed affirmation by each proprietor of being informed of, and agreeing to abide by, the laws affecting tobacco retail licenses.
F. Such other information as the County deems necessary for the administration of this Chapter.
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
Any application that is denied is subject to an administrative review, at the request of the applicant, which shall be held pursuant to the provisions of Section 11.35.110 of this Chapter. (Ord. 2019-0049 § 7, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.050 Issuance and Renewal of Tobacco Retail License.
A. Upon receipt of an application for a new Tobacco Retail License and applicable fee, as set forth in Section
8.04.720, the applicant(s) shall be issued a Tobacco Retail License unless:
1. The application is incomplete, inaccurate, false, or misleading;
2. The Department has information that the applicant, or the applicant's agent(s) or employee(s), violated any local, State, or federal tobacco control law within the preceding 180 days; or
3. The application seeks authorization for tobacco retailing at an address where a previous Tobacco Retail License has been suspended, revoked, or is subject to suspension or revocation proceedings for any violation of any of the provisions of this Chapter. However, this shall not constitute a basis for denial of a Tobacco Retail License if either or both of the following apply:
a. The applicant provides documentation which clearly demonstrates that the applicant has acquired or is in the process of acquiring the premises or business in an arm's length transaction; or
b. It has been more than five years since the most recent Tobacco Retail License for that location was revoked.
B. Renewal of Tobacco Retail License. A Tobacco Retail License shall be valid for one year and must be renewed between 30 and 60 days prior to the expiration of the Tobacco Retail License. A Tobacco Retail License may be renewed for additional one year periods by submission of a renewal application and the applicable fee.
Any Tobacco Retail License that is suspended, has been revoked within the previous five years, or is subject to suspension or revocation proceedings shall not be renewed until suspension or revocation proceedings are complete and the suspension or revocation period, if any, is over. (Ord. 2019-0049 § 8, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.055 Business License Required.
A. In addition to the Tobacco Retail License, any Tobacco Shop in an unincorporated area of the County, devoted exclusively or predominantly to the sale of tobacco, tobacco products, and tobacco paraphernalia, must have a valid business license as required by Title 7 of this Code.
B. Tobacco Shops currently holding a valid Tobacco Retail License as of the effective date of the Ordinance codified in this Chapter must apply for a business license as required by Title 7 of this Code and may legally operate while such application is in active process.
C. Any retailer establishing a new Tobacco Shop after the effective date of this Ordinance must apply for and obtain a business license as required by Title 7 of this Code and a Tobacco Retail License, as required by this Chapter, before it may legally operate.
D. If the business license is revoked or suspended for any period of time, the Tobacco Retail License shall be automatically revoked or suspended for the same period. (Ord. 2019-0049 § 9, 2019.)
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
11.35.060 Tobacco Retail License Nontransferable.
A Tobacco Retail License is nontransferable. If a licensee changes business location, that licensee must obtain a new Tobacco Retail License prior to acting as a tobacco retailer at the new location. If a business licensed as a tobacco retailer is sold or transferred, the new proprietor must obtain a Tobacco Retail License for that location before acting as a tobacco retailer.
(Ord. 2019-0049 § 10, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.070 Violations.
A. It shall be a violation of this Chapter for a tobacco retailer/licensee, or its agent(s) or employee(s), to violate any federal, State, or local tobacco law or regulation, including any provision of this Chapter.
B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall constitute a violation.
C. Failure to prominently display the Tobacco Retail License in a publicly visible location at the licensed premises shall constitute a violation.
D. The failure of the tobacco retailer/licensee, or the applicant's agent(s) or employee(s) to allow any peace officer, the Director, or any authorized County official to conduct unscheduled inspections of the premises of the business for the purpose of ensuring compliance with any federal, State, or local tobacco law or regulation, including any provision of this Chapter, at any time the business is open for business shall constitute a violation.
E. After 180 days of the effective date of the Ordinance codified in this Chapter, it shall be a violation of this Chapter for a tobacco retailer/licensee or its agent(s) or employee(s) to sell or offer for sale, or to possess with the intent to sell or offer for sale, any flavored tobacco product or any component, part, or accessory intended to impart, or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices.
F. No tobacco retailer/licensee or its agent(s) or employee(s) may sell or offer for sale any little cigar or cigarillo unless it is sold in a package of at least 20 little cigars or cigarillos. Little cigars or cigarillos may not be sold individually or in packages of less than 20 units.
G. Tobacco retailing by means of a self-service display is prohibited, pursuant to State law.
H. A Tobacco Retail License may be issued to authorize tobacco retailing at a fixed location only. Tobacco retailing on foot or from vehicles, carts, or any other non-fixed location, is prohibited and shall be considered a violation of this Chapter.
I. No Tobacco Retail License may issue and no existing Tobacco Retail License may be renewed, to authorize tobacco retailing in a pharmacy, including any location with an on-site pharmacy.
J. Each tobacco retailer/licensee and its agent(s) or employee(s) must be over the age of 21 in order to sell tobacco and/or tobacco products.
(Ord. 2019-0049 § 11, 2019: Ord. 2007-0118 § 3 (part), 2007.)
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
11.35.080 Compliance Checks.
A. Compliance with this Chapter shall be monitored by the Department of Public Health ("Department") or any law enforcement officer. Any law enforcement officer may conduct compliance checks, including but not limited to youth decoy operations, and enforce the penal provisions of this Chapter.
B. The Department shall check the compliance of each tobacco retailer a minimum of one time per 12 month period. Compliance checks may be unannounced.
(Ord. 2019-0049 § 12, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.090 Administrative Fines.
Subject to the requirements of Chapter 1.25 of this County Code, the Director may impose administrative fines on persons violating any provision of this Chapter or any federal, State, or local law or regulation incorporated into this Chapter. The Director may impose a fine upon such violators in an amount determined by the Director. The imposition of any such fine shall in no way limit the Director's ability or authority to impose other requirements of this Chapter or seek other remedies against violators.
(Ord. 2019-0049 § 13, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.100 Suspension or Revocation of Tobacco Retail License.
A. In addition to any other remedy authorized by law, a Tobacco Retail License may be suspended or revoked as provided in this Section if it is discovered that any of the following occurred:
1. The licensee, or the licensee's agent(s) or employee(s), violated any provision of this Chapter. Violation by a licensee at one location shall not be construed as a violation at another location of the same licensee, nor shall violations by a prior licensee at the same location be accumulated against a subsequent licensee at the same location;
2. The original or renewal application contained incomplete, inaccurate, false, or misleading information;
3. One or more of the bases for denial listed in Section 11.35.050 existed before the Tobacco Retail License was issued; or
4. A licensee is convicted of a misdemeanor or felony violation of any federal, State, or local tobacco law or regulation, including any provision of this Code.
B. During any period of suspension or revocation, the licensee shall remove all tobacco products and tobacco paraphernalia from view, including from displays and behind counter storage areas, whether or not visible to the public. All tobacco products and tobacco paraphernalia must be placed in a room that is separate from the area where point of sale transactions occur, or removed from the tobacco retail location entirely. Failure to do so may be considered a subsequent violation.
C. During any period of suspension or revocation, the tobacco retailer/licensee shall conspicuously post, at each point of sale register and near the entrance door of the tobacco retail location, a notice of a Tobacco Retail License suspension provided by the Department of Public Health. The notice shall include the suspension or revocation period, reason for suspension or revocation, tobacco retailer/licensee and location information, and Department of Public Health contact information to report violations.
D. When the Director finds a violation as set forth in this Chapter, the Tobacco Retail License may be suspended or revoked as follows:
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
1. Upon finding by the Director of a first Tobacco Retail License violation within any five year period, the Tobacco Retail License may be suspended for up to 30 days;
2. Upon a finding by the Director of a second Tobacco Retail License violation within any five year period, the Tobacco Retail License may be suspended for up to 90 days;
3. Upon a finding by the Director of a third Tobacco Retail License violation in any five year period, the Tobacco Retail License may be suspended for up to 120 days; and
4. Upon a finding by the Director of a fourth Tobacco Retail License violation within a five year period, the Tobacco Retail License shall be revoked.
(Ord. 2019-0049 § 14, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.110 Suspension or Revocation Procedure.
A. Before a Tobacco Retail License is suspended or revoked, the Director shall provide written notice to the licensee. Said notice shall include the following:
1. A statement that the proprietor's Tobacco Retail License is being suspended or revoked pursuant to this Chapter;
2. The Code Section violated by licensee or licensee's agents or employees;
3. A description of the violation that occurred;
4. The address of the business where the violation occurred; and
5. The procedure for requesting an administrative review.
B. A licensee served with a notice of suspension or revocation may request an administrative review to contest the suspension or revocation. The request must be made in writing and filed with the Director within 10 calendar days of service of the notice of suspension or revocation. Failure to timely request an administrative review shall be deemed a waiver of the right to request such a review and a failure to exhaust administrative remedies.
C. After receiving a timely administrative review request, the Director shall schedule an administrative review within 20 calendar days of receipt of the written request and designate a reviewing officer. The Director may appoint as a reviewing officer, any Department or other County employee with expertise in public health who is not directly involved in inspection or enforcement of tobacco retailing establishments.
D. The proprietor shall be given written notice of the date, time, and location of the administrative review and the name of the reviewing officer who will conduct the administrative review at least 10 calendar days in advance of the review.
E. The reviewing officer, in their discretion, may grant a reasonable continuance upon the written request and showing of good cause.
F. At the administrative review, the Department has the burden of providing by a preponderance of the evidence that the alleged violation occurred.
G. The failure to appear at the administrative review shall constitute an abandonment of the review request and a failure to exhaust administrative remedies.
H. Within 10 calendar days after the close of the administrative review, the reviewing officer shall issue a written decision on the suspension or revocation of the Tobacco Retail License, including a statement of the basis for the decision. The reviewing officer's written decision shall constitute the final administrative decision of the County.
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
I. If the Director revokes a Tobacco Retail License, no new Tobacco Retail License may be issued for five years after that revocation.
(Ord. 2019-0049 § 15, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.120 Violation—Other Penalties.
A. In addition to any other penalties and remedies provided by law, including the provisions of this Chapter, any violation of the provisions of this Chapter may be charged as a misdemeanor pursuant to Chapter 1.24 of this Code, or, in the discretion of the prosecutor, as an infraction. Any person who violates any provision of this Chapter is subject to a civil action, including but not limited to, an injunction, as well as prosecution for any criminal violation.
B. In addition to any other penalty under this Chapter, a person found to have engaged in tobacco retailing without a valid Tobacco Retail License shall be ineligible to apply for or be issued a Tobacco Retail License as follows:
1. After a person is caught in violation of this Section, no new Tobacco Retail License may be issued for the person as a proprietor until 30 days have passed from the date of the violation; and
2. Each day that a person engages in tobacco retailing without a valid Tobacco Retail License shall constitute a separate violation.
C. Any person found by the Director to be ineligible to be issued a Tobacco Retail License pursuant to this Section may request an administrative review within 10 days of notice of the violation. The request must be made to the Director in writing. Any administrative review shall be held pursuant to the provisions of Section
11.35.110 of this Chapter.
D. Violations of this Chapter are hereby declared to be public nuisances pursuant to this Code. (Ord. 2019-0049 § 16, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.130 Conflict with Other Law, Severability, Saving Clause.
Nothing in this Chapter shall be interpreted or applied so as to create any power or duty in conflict with any federal or State law. If any provision of this Chapter or the application thereof to any person or circumstance is held invalid, the remainder of this Chapter or the application of such provision to other persons or circumstances shall not be affected thereby.
(Ord. 2019-0049 § 17, 2019: Ord. 2007-0118 § 3 (part), 2007.)
Successor Agency Agenda Report
Agenda Item No. 19.a.
DATE: September 24, 2024
TO: Honorable Chairperson and Members of the Board
APPROVED BY: Rene Salas, Executive Director
SUBMITTED BY: Sabrina Muhne, Interim City Clerk
SUBJECT: CONSIDERATION AND APPROVAL OF THE ADJOURNED
SUCCESSOR AGENCY MEETING MINUTES FOR JULY 30,
2024
SUMMARY: Staff is requesting approval of the Minutes of the July 30, 2024, Adjourned Successor Agency Meeting.
RECOMMENDED ACTION: Staff is requesting approval of the Minutes of the July 30, 2024, Adjourned Successor Agency Meeting.
FISCAL/FINANCIAL IMPACT:
DISCUSSION:
ATTACHMENT(S):
A. DRAFT SA Minutes 7-30-24
CITY OF SOUTH EL MONTE
ADJOURNED SUCCESSOR AGENCY MEETING MINUTES
Tuesday, July 30, 2024 - 6:00 p.m.
1415 Santa Anita Ave., South El Monte, CA 91733
Successor Agency Meeting Immediately Followed Regular City Council Meeting.
ANNOUNCEMENT BY THE CITY CLERK (PRIOR TO CONVENING THE SUCCESSOR
AGENCY MEETING)
Pursuant to Government Code Section 54952.3, Board Members do not receive any compensation or stipend for attending the Successor Agency meeting.
Chair Olmos called the meeting to order at 8:47 p.m.
16. CALL TO ORDER AND ROLL CALL
PRESENT: Board Member(s): Acosta, Angel, Delgado, and Chair Olmos
ABSENT: Board Member(s): Vice Chair Bojorquez
STAFF PRESENT: Anthony R. Taylor, General Counsel; Sabrina Muhne, Interim Secretary; Iyob Tessema, Director of Human Resources and Risk Management, and Robert Molina, Interim Deputy City Clerk
STAFF ABSENT: Rene Salas, Executive Director
Zoom was provided for the Public to participate during public comment via teleconference.
17. APPROVAL OF AGENDA
Motion by Board Member Angel, seconded by Board Member Delgado to approve the agenda. Motion carried 4-0, by the following vote:
AYES: Board Member(s): Acosta, Angel, Delgado, and Chair Olmos NAYS: Board Member(s): Vice Chair Bojorquez
18. PUBLIC COMMENTS – None.
19. CONSENT CALENDAR
Motion by Board Member Delgado, seconded by Board Member Angel to approve the Consent Calendar. Motion carried 4-0, by the following vote:
AYES: Board Member(s): Acosta, Angel, Delgado, and Chair Olmos NAYS: Board Member(s): Vice Chair Bojorquez
CONSENT CALENDAR (CONTINUED)
19.a. Approved the Regular Successor Agency Meeting Minutes of June 25, 2024.
20. EXECUTIVE DIRECTOR'S AGENDA – None.
21. ADJOURNMENT OF SUCCESSOR AGENCY MEETING
There being no further business coming before this body, at 8:49 p.m. Chair Olmos adjourned the meeting.
___________________________ _____________________
Sabrina Muhne, Interim Secretary Gloria Olmos, Chair