HomeMy WebLinkAboutOrd 01-20 Amending Chapter 4.40 (Tobacco Retailers) to Title 4 (Regulation of Businesses) of the DMCORDINANCE NO. 01 - 20
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
**************
AMENDING CHAPTER 4.40 (TOBACCO RETAILERS)
TO TITLE 4 (REGULATION OF BUSINESSES)
OF THE DUBLIN MUNICIPAL CODE
WHEREAS, the United States Surgeon General has concluded that secondhand smoke
exposure can cause serious health problems, especially in children; and
WHEREAS, even occasional exposure to secondhand smoke is harmful, and low levels
of exposure to secondhand tobacco smoke can lead to increased health risks; and
WHEREAS, electronic cigarettes produce an aerosol or vapor of undetermined and
potentially harmful substances, which may appear similar to the smoke emitted by traditional
tobacco products; and
WHEREAS, the World Health Organization (WHO) recommends that electronic smoking
devices not be used indoors, especially in smoke free environments, in order to minimize the
risk to bystanders of breathing in the aerosol emitted by the devices and to avoid undermining
the enforcement of smoke free laws; and
WHEREAS, the smoking of tobacco and the use of electronic cigarettes are forms of air
pollution and are a danger to public health as well as a material public nuisance; and
WHEREAS, the California Legislature has recognized the danger of tobacco use and has
made reducing youth access to tobacco products a high priority; and
WHEREAS, despite local, state, and federal efforts to limit youth access to tobacco, minors
are still able to access tobacco products; and
WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act, enacted in
2009, prohibited candy and fruit -flavored cigarettes, largely because these flavored products were
marketed to youth and young adults, and younger smokers were more likely to have tried these
products than older smokers; and
WHEREAS, although the manufacture and distribution of flavored cigarettes (excluding
menthol) is banned by federal law, neither federal nor California laws restrict sales of flavored
non -cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco,
and electronic smoking devices and the nicotine solutions used in these devices; and
WHEREAS, flavored non -cigarette tobacco products have become increasingly common
and are available in a variety of flavors that appeal to children and young adults, including apple,
cherry, chocolate, grape, peach, strawberry, and vanilla; and
WHEREAS, the U.S. Surgeon General has stated that flavored tobacco products are
considered to be "starter" products that help establish smoking habits that can lead to long-term
addiction; and
Ord No. 01-20, Item 4.5, Adopted 02/04/20 Page 1 of 7
WHEREAS, electronic cigarette companies have targeted minors with fruit -flavored
products, and it is unknown if e -cigarettes may lead minors to try other tobacco products; and
WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties
with the authority to enact ordinances to protect the health, safety, welfare, and morals of their
citizens; and
WHEREAS, California state law prohibits the sale or distribution of free or nominal -cost
cigarettes or smokeless tobacco products (or coupons, coupon offers, or rebate offers for such
products) on public grounds or on private grounds that are open to the public; and
WHEREAS, California state law specifically allows adoption of a local ordinance related to
the distribution of free or nominal -cost tobacco products that is "more restrictive" and provides
that a stricter local ordinance shall govern in the case of any inconsistency between the local
ordinance and state law; and
WHEREAS, the FDA and federal law also expressly grants state and local governments
the right to enact measures that are more restrictive than those in the federal law; and
WHEREAS, the City of Dublin has a substantial interest in promoting compliance with
federal, state, and local laws prohibiting the sale or furnishing of tobacco products and electronic
cigarette products to minors; in discouraging the illegal purchase of tobacco and electronic
cigarette products by minors; in promoting compliance with laws prohibiting sales of cigarettes
and tobacco products to minors; and in protecting children from being lured into illegal activity
through adult misconduct; and
WHEREAS, since Chapter 4.40 was last amended in 2010, the public has been presented
with more information about the dangers of electronic cigarettes and flavored tobacco products;
and
WHEREAS, it is the intent of the City Council, in enacting this ordinance, to ensure
compliance with the business standards and practices of the City of Dublin and to encourage
responsible tobacco retailing and to discourage violations of tobacco -related laws, especially
those which prohibit or discourage the sale or distribution of tobacco and nicotine products to
minors, but not to expand or reduce the degree to which the acts regulated by federal or state law
are criminally proscribed or to alter the penalties provided therein.
NOW, THEREFORE, the City Council of the City of Dublin does ordain as follows:
Section 1. Recitals.
The above recitals are true and correct and made a part of this Ordinance.
Section 2. Approval of Amendments.
Chapter 4.40.020 of the Dublin Municipal Code is amended as follows:
Ord No. 01-20, Item 4.5, Adopted 02/04/20 Page 2 of 7
4.40.020 Definitions.
"Arm's length transaction" means a sale in good faith and for valuable consideration that reflects
the fair market value in the open market between two informed and willing parties, neither of which
is under any compulsion to participate in the transaction. A sale for which a significant purpose is
avoiding the effect of the violations of this chapter is not an arm's length transaction.
"Chief of Police" means the Chief of the Dublin Police Department or his or her designee.
"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 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.
"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; provided, however, that a tobacco product shall not be determined to have a characterizing
flavor solely because of the use of additives or flavorings or the provision of ingredient information.
"Electronic smoking device" or "e -cigarette" means any device or delivery system sold in
combination with nicotine which can be used to deliver to a person nicotine in aerosolized or
vaporized form, including, but not limited to, an e -cigarette, e -cigar, e -pipe, vape pen, or e -hookah.
Electronic cigarettes include any component, part, or accessory of such a device that is used
during the operation of the device when sold in combination with any liquid or substance
containing nicotine. Electronic cigarettes also include any liquid or substance containing nicotine,
whether sold separately or sold in combination with any device that could be used to deliver to a
person nicotine in aerosolized or vaporized form. Electronic cigarettes do not include any device
not sold in combination with any liquid or substance containing nicotine, or any battery, battery
charger, carrying case, or other accessory not used in the operation of the device if sold
separately. "Electronic smoking device" does not include any product specifically approved by
the United States Food and Drug Administration for use in the mitigation, treatment, or prevention
of disease.
"Flavored tobacco product" means any tobacco product that imparts a characterizing flavor.
"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 (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.
Ord No. 01-20, Item 4.5, Adopted 02/04/20 Page 3 of 7
"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.
"Smoking" means: (1) 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) or (2) the use of an electronic
smoking device.
"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking
materials of all types, cigarette rolling machines, electronic smoking device cartridges, electronic
smoking device liquids, and any other item designed for the smoking, preparation, storing,
consumption, or use of tobacco products or electronic smoking devices.
"Tobacco product" means:
(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, snuff; and
(2) any electronic 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.
(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. "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, 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, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered
for exchange.
Chapter 4.40.03 of the Dublin Municipal Code is amended as follows (with additions in
italics and deletions in strikethrough):
4.40.030 Tobacco retailer license required; General Requirements and Prohibitions.
A. It shall be unlawful for any person to act as a tobacco retailer in the city of Dublin 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.
Ord No. 01-20, Item 4.5, Adopted 02/04/20 Page 4 of 7
B. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly
visible location at the licensed location.
C. 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 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 or tobacco paraphernalia.
D. 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 Section 4.40.100; 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.
E. License may be issued only to a business that will engage in tobacco retail activities at a
fixed location.
F. 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, supersede, 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 California Labor Code Section 6404.5. For example,
obtaining a tobacco retailer license does not make the retailer a "retail or wholesale tobacco shop"
for the purposes of California Labor Code Section 6404.5.
G. Fee for License. The fee for the issuance and renewal of a tobacco retailer's license shall be
established from time to time by resolution of the City Council, and shall be due and payable at
the time a license application is submitted to the city. The fee shall be calculated so as to include,
but not exceed, the cost of administration and enforcement of this chapter, including the
administration of the license program, retailer inspection and compliance checks.
1. In any year where grant funding has been obtained to recover the cost of administration and
enforcement of this chapter, or a portion thereof, the amount of the license fee charged for the
twelve (12) months following receipt of the grant funding shall be reduced based on the amount
of grant funding received and on the total number of tobacco retailers operating in the city. (Ord.
20-12 § 10 (part))
H. Sale of Flavored Tobacco Products Prohibited. 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.
Ord No. 01-20, Item 4.5, Adopted 02/04/20 Page 5 of 7
1. 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.
2. 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:
(a) made a public statement or claim that the tobacco product imparts a characterizing
flavor;
(b) 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 favor; or
(c) taken action directed to consumers that would be reasonably expected to cause
consumers to believe the tobacco product imparts a characterizing Flavor.
I. Sale of Electronic Smoking Devices Prohibited. 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, an electronic smoking device.
Section 2: California Environmental Quality Act. This Ordinance is exempt from the California
Environmental Quality Act ("CEQA") per CEQA Guidelines Section 15061(b)(3). Section
15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a
significant effect on the environment. The adoption of this Ordinance is exempt from CEQA
because the Ordinance does not, in itself, allow the construction of any building or structure, but
it sets forth the regulations that shall be followed if and when a building or structure is proposed
to be constructed or a site is proposed to be developed. This Ordinance of itself, therefore, has
no potential for resulting in significant physical change in the environment, directly or ultimately.
Section 3. Severability. The provisions of this Ordinance are severable and if any provision,
clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to
any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall
not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts
thereof of the ordinance or their applicability to other persons or circumstances.
Section 4. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days
following its adoption. However, until July 1, 2020 City will not enforce those portions of the
Ordinance prohibiting the sale the flavored tobacco products or electronic smoking devices.
Section 5. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted
in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the
Government Code of the State of California.
Ord No. 01-20, Item 4.5, Adopted 02/04/20 Page 6 of 7
PASSED, APPROVED AND ADOPTED this 4th day of February, 2020, by the following
vote:
AYES: Councilmembers Goel, Hernandez, Josey, Kumagai and Mayor Haubert
NOES:
ABSENT:
ABSTAIN: orA ay r
ATTEST:
City Cler
Ord No. 01-20, Item 4.5, Adopted 02/04/20 Page 7 of 7