HomeMy WebLinkAboutOrdinance 2799 N.C.S. 12/06/2021Ordinance No. 2799 N.C.S. Page 1
EFFECTIVE DATE OF ORDINANCE January 6, 2022
ORDINANCE NO. 2799 N.C.S.
Introduced by: Pocekay Seconded by: Fischer ORDINANCE OF THE CITY OF PETALUMA CITY COUNCIL AMENDING AND RETITLING
CHAPTER 8.20 OF THE PETALUMA MUNICIPAL CODE AS “REGULATION OF SMOKING,” AMENDING SECTION 8.20.040 OF THE PETALUMA MUNICIPAL CODE REGARDING SMOKING IN PUBLIC PLACES, REPEALING SECTION 8.20.120 OF THE PETALUMA MUNICIPAL CODE AND ADDING A NEW CHAPTER 8.21 TO THE PETALUMA MUNICIPAL CODE ENTITLED “REGULATION OF RETAIL TOBACCO SALES.”
WHEREAS, a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the City to protect the health, safety, and welfare of our residents; and
WHEREAS, approximately 480,000 people die in the United States from smoking-related diseases
and exposure to secondhand smoke every year, making tobacco use the nation’s leading cause of preventable
death;1 and
WHEREAS, the World Health Organization (WHO) estimates that tobacco kills roughly 6 million people and causes over half a trillion dollars in economic damage each year;2 and
WHEREAS, 5.6 million of today’s Americans who are younger than 18 are projected to die
prematurely from a smoking-related illness;3 and
WHEREAS, tobacco use is the number one cause of preventable death in California4 and continues to be an urgent public health issue, as evidenced by the following:
● 40,000 California adults die from their own smoking annually;5
● More than 25% of all adult cancer deaths in California are attributable to smoking;6
● Smoking costs California $13.29 billion in annual health care expenses, $3.58 billion in Medicaid
1 U.S. Department of Health and Human Services, The Health Consequences of Smoking: 50 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. Printed with corrections, January 2014, 11. Available at: https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf. 2 World Health Organization. WHO Report on the Global Tobacco Epidemic, 2013: Enforcing Bans on Tobacco Advertising, Promotion and Sponsorship, 2013, Executive Summary,1. Available at: http://www.who.int/tobacco/global_report/2013/en/.
3 U.S.HHS. The Health Consequences of Smoking: 50 Years of Progress, 4. 4 California Department of Public Health California Tobacco Control Program, “The #1 Preventable Cause of Death – Tobacco Free CA,” as of March 2, 2020. Available at: https://tobaccofreeca.com/health/tobacco-is-the-number-one-preventable-cause-of-
death/#:~:text=Tobacco%20products%20continue%20to%20be,year%20from%20tobacco%2Drelated%20diseases. 5 Centers for Disease Control and Prevention. Best Practices for Comprehensive Tobacco Control Programs — 2014. 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, 82. Available at: https://www.cdc.gov/tobacco/stateandcommunity/best_practices/pdfs/2014/comprehensive.pdf 6 Lortet-Tieulent J, Goding Sauer A, Siegel RL, et al. State-Level Cancer Mortality Attributable to Cigarette Smoking in the United States. JAMA Intern Med. 2016;176(12):1792-1798. doi: 10.1001/jamainternmed.2016.6530.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 2
costs is caused by smoking, resulting in $10.35 billion in smoking-caused productivity losses;7
● Tobacco use can cause disease in nearly all of the organs of the body and is responsible for 87% of
lung cancer deaths, 32% of coronary heart disease deaths, and 79% of all cases of chronic
obstructive pulmonary disease in the United States;8
WHEREAS, tobacco use among priority populations in California contributes to health disparities and creates significant barriers to health equity, as evidenced by the following:
● African American males (20.4%), Asian males (11.4%), and Hispanic males (15.2%) males all
exhibit a higher smoking prevalence than the statewide average among all adults (11.0%);9
● American Indian/Alaska Native Californians have the highest smoking prevalence at 36.2% among all reported adult demographic populations;
● Smoking is more prevalent among rural (14.9%) compared to urban (10.6%) Californians;10
● Californians with the highest levels of educational attainment and annual household income have the
lowest smoking prevalence;11
● Adults who identify as lesbian, gay, bisexual, or transgender report smoking at a higher rate (17.4%) than the statewide average (11.0%);12
● Those who reported experiencing psychological distress over the past month smoke at rates 26.7% higher than the statewide average (11.0%);13 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;14
● In California, from 2013 to 2015, approximately 15% of 9th and 11th graders reported using
tobacco, and from 2017 to 2018, approximately 13% of high school students reported using
electronic smoking devices;15
● Disparities in tobacco use exist among California high school students, with higher rates found
7 Campaign for Tobacco-Free Kids, The Toll of Tobacco in California. https://www.tobaccofreekids.org/problem/toll-us/california. Accessed July 19, 2020 8 U.S.HHS. The Health Consequences of Smoking: 50 Years of Progress, 7. 9 California Department of Public Health 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/C TCB/CDPH%20Document%20Library/ResearchandEval uation/FactsandFigures/2016FactsFiguresWeb.pdf.
10 Ibid. 11 Ibid. 12 Ibid.
13 Ibid. 14 California Tobacco Control Program, California Tobacco Facts and Figures 2016. Sacramento, CA: California Department of Public Health. 2016, 20. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandEvaluation/FactsandFigures/2016FactsFiguresWeb.pdf. 15 CDPH, California Tobacco Facts and Figures 2019.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 3
among LGBTQ, American Indian, and Pacific Islander youth;16
● Unless smoking rates decline, an estimated 441,000 of all California youth who are alive today will
die prematurely from smoking-related diseases;17
● In 2017, 22.8% of high school students in California had tried cigarette smoking;18
● Between 2014 and 2018, electronic smoking device use among California youth increased from 14.1% to 46.2%;19
● E-cigarettes (electronic smoking devices) have been the most commonly used tobacco product by
youth in the United States since 2014;20
● More than 80% of high-school students who consume tobacco use a vaping device;21 and
WHEREAS, the tobacco industry encourages youth and young adult tobacco initiation through predatory targeting,22 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;23
● 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”;24
● The tobacco industry spends an estimated $620 million annually to market tobacco products to California residents;25 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
16 Ibid.
17 U.S.HHS. The Health Consequences of Smoking: 50 Years of Progress, table 12.2.1, 693
18 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. Available at:
https://www.cdc.gov/tobacco/data_statistics/fact_sheets/youth_data/tobacco_use/index.htm
19 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.
20 U.S. Department of Health and Human Services, created through a partnership between the Office of the U.S. Surgeon General and
the U.S. Centers for Disease Control and Prevention, Office on Smoking and Health. Get the Facts on E-cigarettes/Know the Risks, 2020
Available at: https://e-cigarettes.surgeongeneral.gov/getthefacts.html#:~:text=E%2Dcigarettes%20have%20been%20the,(ages%2018%2D24).
21 Office of Governor Newsom, E-cigarette executive order, September 16, 2019, Available at: https://tobaccofreeca.com/e-
cigarettes/governor-gavin-newsom-signs-executive-order-to-confront-youth-vaping-epidemic/
22 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%20Document%20Library/ResearchandEvaluation/Factsan
dFigures/CATobaccoFactsandFigures2019.pdf.
23 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: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1447481/
24 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, 2: https://www.industrydocumentslibrary.ucsf.edu/tobacco/ docs/nnnw0084. Accessed July 20, 2020.
25 Campaign for Tobacco-Free Kids, The Toll of Tobacco in California. Accessed July 20, 2020
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 4
store;26
● 19.1% of California tobacco retailers unlawfully sold tobacco products to underage persons in
2018;27 and
WHEREAS, requiring tobacco retailers to obtain a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell tobacco products to adults but will, however, allow the City to regulate to discourage violations of federal, state, and local tobacco control and youth tobacco access laws, as evidenced by the following:
● Tobacco products are the number one seller in U.S. convenience stores, and in 2018, they generated
an average of $595,870 in sales per store;28
● Systematic scientific reviews indicate that merchant compliance with youth tobacco sales laws reduces the rate of tobacco use among adolescents;29-30
● Studies found increased retailer compliance and reduced tobacco sales to youth following
implementation and active enforcement of youth tobacco sales laws paired with penalties for
violations;31-32 and
● A review of 41California communities with strong tobacco retailer licensing ordinances found that youth sales rates declined in 40 of these communities after the ordinances were enacted, with an average 69% decrease in the youth sales rate;33 and
WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act (“Tobacco Control
Act”), enacted in 2009, prohibited candy- and fruit-flavored cigarettes,34 largely because these flavored products are marketed to youth and young adults,35- 36 and younger smokers were more likely than older smokers to try these products;37 and
WHEREAS, neither federal nor California state laws restrict the sale of menthol cigarettes or
flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, electronic
smoking devices, and the solutions used in these devices; and
26 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. Available at: https://www.cdc.gov/healthyyouth/data/yrbs/ 27 California Tobacco Control Program. California Tobacco Facts and Figures 2019. 28 National Association of Convenience Stores. Convenience Stores and Their Communities. 2019. Available at: https:// https://www.convenience.org/Topics/CommunityToolkit/Convenience-Stores-and-Their-Communities 29 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults: 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. 2012. Available at: https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf
30 DiFranza JR. Which interventions against the sale of tobacco to minors can be expected to reduce smoking? Tob Control. 2012;21:436-442. doi: 10.1136/tobaccocontrol-2011-050145. 31 McLaughlin I. License to Kill?: Tobacco Retailer Licensing as an Effective Enforcement Tool. Tobacco Control Legal Consortium. 2010.
Available at: http://www.publichealthlawcenter.org/sites/default/files/resources/tclc-syn-retailer-2010.pdf. 32 Institute of Medicine. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products. Washington, DC: The National Academies Press. 2015. Available at: https://www.nap.edu/catalog/18997/public-health-implications-of-raising-the-minimum-age-of-legal-access-to-tobacco-products. 33 The American Lung Association in California Center for Tobacco Policy and Organizing, Tobacco Retailer Licensing is Effective. 2018. Available at: https://center4tobaccopolicy.org/wp-content/uploads/2018/09/Tobacco-Retailer-LIcensing-is-Effective-September-2018.pdf. 34 21 U.S.C. § 387g(a)(1)(A). 35 U.S. Depart. HHS, Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General,2012. 36 Institute of Medicine. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products. 2015
37 U.S. Depart. HHS, Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General,2012.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 5
WHEREAS, in 2018, more than 86% of tobacco retailers in California sold flavored non-cigarette tobacco products, over 91% of tobacco retailers sold menthol cigarettes38, and as of 2016, 8 out of 10 tobacco
retailers near schools sold flavored non-cigarette tobacco products;39 and
WHEREAS, flavored tobacco products are used by the majority of youth and young adult tobacco users (86.4% and 57.7%, respectively) in California;40 and
WHEREAS, mentholated and flavored products have been shown to be “starter” products for youth who begin using tobacco41-42 and these products help establish tobacco habits that can lead to long-term
addiction;43- 44 and
WHEREAS, between 2004 and 2014, use of non-menthol cigarettes decreased among all populations, but overall use of menthol cigarettes increased among young adults (ages 18 to 25) and adults (ages 26+);45 and
WHEREAS, flavored tobacco has significant public health implications for youth and people of color
as a result of targeted industry marketing strategies and product manipulation;46 - 47 and
WHEREAS, in 2018, the Surgeon General issued an “Advisory on E-cigarette Use Among Youth” emphasizing the importance of protecting children from a lifetime of nicotine addiction and associated health risks by immediately addressing the epidemic of youth e-cigarette (electronic smoking device) use;48 and
WHEREAS, the FDA declared the use of e-cigarettes (electronic smoking device) among children
to be an epidemic on December 4, 2019;49 and
WHEREAS, a review of advertising, promotions, and pack prices near California high schools found that “for each 10 percentage point increase in the proportion of Black students, the proportion of menthol advertising increased by 5.9% … the odds of a Newport [a leading brand of mentholated cigarettes] promotion were 50% higher … and the cost of Newport was 12 cents lower;” and there was no such association found for
38 Schleicher NC, Johnson T, Vishwakarma M, et al. California Tobacco Retail Surveillance Study 2018. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandEvaluation/Reports/CaliforniaTobaccoRetailSurveillanceStudyReport-2018.pdf. 39 California Department of Public Health, California Tobacco Control Program. 2016 Healthy Stores for a Healthy Community Survey Results-all counties. 2016. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/ CDPH%20Document%20Library/ResearchandEvaluation/Reports/HSHCTechnicalReport2016.pdf. received the following from CTCP: https://3rz43f180d43qd3m43tl5x17-wpengine.netdna-ssl.com/wp-content/uploads/2020/06/HSHC-Retail-Survey-Results-All-Counties.xlsx. 40 California Tobacco Control Program. California Tobacco Facts and Figures 2019. 41 21 U.S.C. § 387g(a)(1)(A). 42 Wackowski O, Delnevo CD. Menthol cigarettes and indicators of tobacco dependence among adolescents. Addict Behav. 2007;32(9):1964-1969. doi: 10.1016/j.addbeh.2006.12.023. 43 U.S. Depart. HHS, Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General,2012. 44 Villanti AC, Johnson AL, Glasser AM, et al. Association of Flavored Tobacco Use With Tobacco Initiation and Subsequent Use Among US Youth and Adults, 2013-2015. JAMA Netw Open. 2019;2(10):e1913804. doi: 10.1001/jamanetworkopen.2019.13804. 45 Villanti AC, Mowery PD, Delnevo CD, Niaura RS, Abrams DB, Giovino GA. Changes in the prevalence and correlates of menthol cigarette use in the USA, 2004-2014. Tob Control. 2016;25(Suppl 2):ii14-ii20. doi: 10.1136/tobaccocontrol-2016-053329.
46 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). 47 Kreslake JM, Wayne GF, Alpert HR, Koh HK, Connolly GN. Tobacco industry control of menthol in cigarettes and targeting of adolescents and
young adults. Am J Public Health. 2008;98(9):1685-1692. doi: 10.2105/AJPH.2007.125542 48 U.S. Depart. HHS, Surgeon General’s Advisory on E-cigarette Use Among Youth. 2018. Available at: https://e-cigarettes.surgeongeneral.gov/documents/surgeon-generals-advisory-on-e-cigarette-use-among-youth-2018.pdf
49 U.S. Food and Drug Administration, The Federal Response to the Epidemic of E-Cigarette Use, Especially Among Children, And the Food and Drug Administration’s Compliance Policy, December 4, 2019. Available at: https://www.fda.gov/news-events/congressional-testimony/federal-response-epidemic-e-cigarette-use-especially-among-children-and-food-and-drug
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 6
non-mentholated cigarettes;50 and
WHEREAS, scientific reviews by the FDA and the Tobacco Products Scientific Advisory
Committee (“TPSAC”) found marketing of menthol cigarettes likely increases the prevalence of smoking among
the entire population, but especially among youth, African Americans, 51 and possibly Hispanic and Latino individuals;52and that menthol cigarettes are associated with increased initiation and progression to regular cigarette smoking, increased dependence on cigarettes, and reduced success in smoking cessation, especially among African American menthol smokers;53 and
WHEREAS, research indicates that the FDA ban on all flavored cigarette products (except menthol)
led to a 6% decrease in youth tobacco use and a 17% decrease in the likelihood of a youth becoming a cigarette smoker; tobacco use by youth decreased by 6%, along with the likelihood of a youth becoming a cigarette smoker;54 and
WHEREAS, studies indicate that laws prohibiting the sale of flavored tobacco products lead to
decreases in youth tobacco use, as evidenced by the following:
• An evaluation of New York City’s law, which prohibits the sale of all flavored tobacco, excluding menthol, indicated that as a result of the law, youth had 37% lower odds of ever trying flavored tobacco products and 28% lower odds of ever using any type of tobacco; 55
• An evaluation of a law in Providence, Rhode Island, which prohibits the sale of all flavored tobacco, excluding menthol, indicated that as a result of the law, current use of any tobacco product among high school youth declined from 22% to 12% and e-cigarette use declined from 13.3% to 6.6%, even as statewide e-cigarette use among high school students increased to more than 20%;56 and
WHEREAS, the health effects of non-cigarette tobacco products such as cigars, cigarillos, smokeless tobacco, and hookah tobacco are substantial as demonstrated by research that shows that non- cigarette tobacco products have addictive levels of nicotine, harmful toxins, and dangerous carcinogens;57-58 and
WHEREAS, unlike cigarette use that has steadily declined among youth, the prevalence of the use of non-cigarette tobacco products has increased among California youth;59 and
WHEREAS, the availability of inexpensive tobacco products leads to increased tobacco use as
50 Henriksen L, Schleicher NC, Dauphinee AL, Fortmann SP. Targeted advertising, promotion, and price for menthol cigarettes in California high school neighborhoods. Nicotine Tob Res. 2012;14(1):116-121. doi: 10.1093/ntr/ntr122. 51 Food and Drug Administration. Preliminary Scientific Evaluation of the Possible Public Health Effects of Menthol Versus Nonmenthol Cigarettes. 2013. Available at: https://www.fda.gov/media/86497/download http://www.fda.gov/downloads/ScienceResearch/SpecialTopics/PeerReviewofScientificInformationandAssessments/UCM361598.pdf. 52 Tobacco Products Scientific Advisory Committee. Menthol Cigarettes and Public Health: Review of the Scientific Evidence and Recommendations. 2011. Available at: https://wayback.archive-it.org/7993/20170405201731/https://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/TobaccoProductsScientificAdvisoryCommittee/UCM269697.pdf 53 FDA, Preliminary Scientific Evaluation of the Possible Public Health Effects of Menthol Versus Nonmenthol Cigarettes. 2013. 54 Courtemanche CJ, Palmer MK, Pesko MF. Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use. Am J Prev Med. 2017;52(5):e139-e146. doi: 10.1016/j.amepre.2016.11.019.
55 Farley SM, Johns M. New York City flavoured tobacco product sales ban evaluation. Tob Control. 2017;26(1):78-84. doi: 10.1136/tobaccocontrol-2015-052418. 56 Pearlman DN, Arnold JA, Guardino GA, Boles Welsh E. Advancing Tobacco Control Through Point of Sale Policies, Providence, Rhode Island. Prev Chronic Dis. 2019;16:E129. doi: 10.5888/pcd16.180614. 57 Hoffmann D, Hoffmann I. Chapter 3: Chemistry and Toxicology. In: Smoking and Tobacco Control Monograph No. 9: Cigars: Health Effects and Trends. National Cancer Institute; 1998. 58 Pickworth WB, Rosenberry ZR, Yi D, et al. Cigarillo and Little Cigar Mainstream Smoke Constituents from Replicated Human Smoking . Chem Res Toxicol. 2018;31(4):251-258. doi: 10.1021/acs.chemrestox.7b00312. 59 California Tobacco Control Program. California Tobacco Facts and Figures 2019.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 7
evidenced by more than 100 academic studies that conclusively show that when tobacco products are made more expensive, fewer people use tobacco, fewer initiate tobacco use, and more people quit tobacco use;60-61 and
WHEREAS, research has also consistently shown that increases in cigarettes prices will result in less smoking across various sociodemographic populations;62 and
WHEREAS, a systematic review by the U.S. Community Preventive Services Task Force found that a 20% price increase would reduce demand for cigarettes by approximately 10.4%, the prevalence of adult tobacco
use by 3.6%, and initiation of tobacco use by young people by 8.6%;63 and
WHEREAS, unequal price increases across different types of tobacco products lead to substitution from one product to another;64-65 and
WHEREAS, youth are particularly responsive to changes in tobacco prices,66- 67 and evidence suggests that tobacco companies deliberately target youth with price reductions;68-69 and
WHEREAS, evidence also suggests that cigarettes are cheaper in neighborhoods with lower
household incomes,70-71 Newport menthol cigarettes cost less in areas with higher proportions of African Americans72 and underserved communities are targeted with price discounts and coupons;73-74 and
WHEREAS, tobacco companies spend considerably to decrease the price of their products in order to counter state and local tobacco control efforts, appeal to price-sensitive consumers, and increase demand for
tobacco products - for example, tobacco companies spent the majority of their marketing budgets on price
discounts, accounting for nearly $6.2 billion of $8.6 billion advertising and promotional expenditures in 2018;75-
76 and
WHEREAS, price-discounted sales account for a substantial proportion of overall tobacco product
60 U.S.HHS. The Health Consequences of Smoking: 50 Years of Progress, price 706, 707+ 61 Jawad M, Lee JT, Glantz S, Millett C. Price elasticity of demand of non-cigarette tobacco products: a systematic review and meta-analysis. Tob
Control. 2018. doi: 10.1136/tobaccocontrol-2017-054056. 62 Yao T, Ong MK, Max W, et al. Responsiveness to cigarette prices by different racial/ethnic groups of US adults. Tob Control. 2018;27(3):301-309. doi: 10.1136/tobaccocontrol-2016-053434. 63 Community Preventive Services Task Force. Reducing Tobacco Use and Secondhand Smoke Exposure: Interventions to Increase the Unit Price for Tobacco Products. 2012. Available at: https://www.thecommunityguide.org/findings/tobacco-use-and-secondhand-smoke-exposure-interventions-increase-unit-price-tobacco. 64 Huang J, Gwarnicki C, A comprehensive examination of own- and cross-price elasticities of tobacco. 65 Jawad M, Lee JT, Glantz S, Millett C, Price elasticity of demand of non-cigarette tobacco products, 2018. 66 2012 U.S. Depart. HHS, Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General,2012. 67 Levy DT, Tam J, Kuo C, Fong GT, Chaloupka F. The Impact of Implementing Tobacco Control Policies: The 2017 Tobacco Control Policy Scorecard. J Public Health Manag Pract. 2018;24(5)448-457. doi: 10.1097/PHH.0000000000000780. 68 U.S. Depart. HHS, Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General,2012. 69 Tessman GK, Caraballo RS, Corey CG, Xu X, Chang CM. Exposure to tobacco coupons among U.S. middle and high school students. Am J Prev Med. 2014;47(2 Suppl 1):S61-68. doi: 10.1016/j.amepre.2014.05.001. 70 Henriksen L, Schleicher NC, Barker DC, Liu Y, Chaloupka FJ. Prices for Tobacco and Nontobacco Products in Pharmacies Versus Other Stores: Results From Retail Marketing Surveillance in California and in the United States. Am J Public Health. 2016;106(10):1858-1864. doi: 10.2105/AJPH.2016.303306.
71 Mills SD, Golden SD, Henrisksen L. Neighbourhood disparities in the price of the cheapest cigarettes in the USA. J Epidemiol Community Health. 2019;73(9):894-896. doi: 10.1136/jech-2018-210998. 72 Henriksen L, Schleicher NC, Barker DC, Liu Y, Chaloupka FJ. Prices for Tobacco
73 Counter Tobacco. Disparities in Point-of-Sale Advertising and Retailer Density. https://countertobacco.org/resources-tools/evidence-summaries/disparities-in-point-of-sale-advertising-and-retailer-density/. Accessed May 18, 2020. 74 Henriksen L, Schleicher NC, Johnson TO, Roeseler A, Zhu SH. Retail Tobacco Marketing in Rural Versus Nonrural Counties: Product
Availability, Discounts, and Prices. Health Promot Pract. 2020;21(1_suppl):27S-36S. doi: 10.1177/1524839919888652 75 CDC. State Cigarette Minimum Price Laws — United States, 2009. 76 NCI. Monograph 2: Smokeless Tobacco or Health 1992.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 8
sales;77 and
WHEREAS, although federal and state law ban the sale of individual cigarettes,78-79 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.80 For example:
• 78.3% of California tobacco retailers sell a popular brand of youth-friendly cigars for less than $1.00;81
• Between 2012 and 2106, annual sales of cigarillos increased by 78%, and by 155% for “concept-flavored” (e.g. Jazz) cigarillos;82 and
WHEREAS, a 10% increase in cigar prices has been associated with decreased cigar sales83-84and may significantly reduce cigar use among youth;85 and
WHEREAS, neither federal nor California state laws set a minimum price for tobacco products;
WHEREAS, minimum price markups and related laws in other states have been shown to be effective at increasing the price of cigarettes but may remain vulnerable to price manipulation by the tobacco industry without attention to coupons and discounts;86 and
WHEREAS, studies have estimated that if price discounts were prohibited across the United States,
the number of people who smoke would decrease by more than 13%;87 the impact of a $10 federal minimum floor price for cigarettes could reduce the number of packs sold in the United States by 5.7 billion per year and prompt more than 10 million smokers to quit;88 and that a state-level minimum floor price law designed to raise the average price of cigarette packs by just under $2.00 could decrease the prevalence of cigarette use and consumption by more than 4% and reduce income-based smoking disparities in California;89 and
WHEREAS, by selling tobacco products, pharmacies reinforce positive social perceptions of
77 Wang TW, Falvey K, Gammon DG, et al. Sales Trends in Price-Discounted Cigarettes, Large Cigars, Little Cigars, and Cigarillos-United States, 2011-2016. Nicotine Tob Res. 2018;20(11):1401-1406. doi: 10.1093/ntr/ntx249. 78 21 C.F.R. § 1140.16(b).
79 Cal. Penal Code § 308.3(a). 80 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/SurveyInstrumentsTrainingManualsAndProtocols/CaliforniaTobaccoRetailSurveillanceStudt2017-CTRSS%206-4.pdf . https://tobaccoeval.ucdavis.edu/sites/g/files/dgvnsk5301/files/inline-files/CaliforniaTobaccoRetailSurveillanceStudt2017-CTRSS%206-4.pdf 81 Ibid. 82 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. 83 Gammon DG, Loomis BR, Dench DL, King BA, Fulmer EB, Rogers T. Effect of price changes in little cigars and cigarettes on little cigar sales: USA, Q4 2011-Q4 2013. Tob Control. 2016;25(5):538-544. doi: 10.1136/tobaccocontrol-2015-052343. 84 Jawad M, Lee JT, Glantz S, Millett C, Price elasticity of demand of non-cigarette tobacco products, 2018. 85 Ringel JS, Wasserman J, Andreyeva T. Effects of public policy on adolescents’ cigar use: evidence from the National Youth Tobacco Survey. Am J Public Health. 2005;95(6):995-998. doi: 10.2105/AJPH.2003.030411.178 Katz MH. Banning tobacco sales in pharmacies: the right prescription. JAMA. 2008;300(12):1451-1453. doi: 10.1001/ jama.300.12.1451. 86 Huang J, Chriqui JF, DeLong H, Mirza M, Diaz MC, Chaloupka FJ. Do state minimum markup/price laws work? Evidence from retail scanner data and TUS-CPS. Tob Control. 2016;25(Suppl 1):i52-i59. doi: 10.1136/tobaccocontrol-2016-053093. 87 Slater SJ, Chaloupka FJ, Wakefield M, Johnston LD, O’Malley PM. The impact of retail cigarette marketing practices on youth smoking uptake. Arch Pediatr Adolesc Med. 2007;161(5):440-445. doi: 10.1001/archpedi.161.5.440. 88 Doogan NJ, Wewers ME, Berman M. The Impact of a Federal Cigarette Minimum Pack Price Policy on Cigarette Use in the USA. Tob Control. 2018;27(2):203-208. doi: 10.1136/tobaccocontrol-2016-053457.
89 Golden SD, Kim K, Kong A, et al. Simulating the Impact of a Cigarette Minimum Floor Price Law on Adult Smoking Prevalence in California.
Nicotine Tob Res. 2020;ntaa046. doi: 10.1093/ ntr/ntaa046.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 9
smoking, convey tacit approval of tobacco use, and send a message that it is not so dangerous to smoke;90-91 and
WHEREAS, pharmacies sell cigarettes cheaper than other stores92 and advertise tobacco product
discounts more than other stores in California;93 and
WHEREAS, tobacco-free pharmacy sales policies decrease the availability of tobacco products by reducing tobacco retailer density by up to three times compared with communities that do not have such policies,94 and immediately after the nationwide CVS policy change to not sell tobacco products, cigarette purchases declined and smokers who had previously purchased their cigarettes exclusively at CVS were up to twice as likely
to stop buying cigarettes entirely;95 and
WHEREAS, the density and proximity of tobacco retailers increase smoking behaviors, including number of cigarettes smoked per day,96 particularly in neighborhoods experiencing poverty; 97-98 and
WHEREAS, the density of tobacco retailers near adolescents’ homes has been associated with increased youth smoking rates,99 smoking and initiation of non-cigarette tobacco use;100 and
WHEREAS, adults who smoke are likely to have a harder time quitting when residential proximity
to tobacco retailers is closer101 and density is higher;102-103 and
WHEREAS, tobacco retailers are more prevalent in underserved communities, especially in neighborhoods with a higher proportion of African American or Hispanic residents;104-105 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
90 Katz MH. Banning tobacco sales in pharmacies: the right prescription. JAMA. 2008;300(12):1451-1453. doi: 178 91 Hudmon KS, et al, Tobacco sales in pharmacies: time to quit. Tob Control. 2006;15(1):35-38. doi: 10.1136/tc.2005.012278. 92 Henriksen L, Schleicher et alNC, Barker DC, Liu Y, Chaloupka FJ. Prices for Tobacco and Nontobacco Products in Pharmacies. 93 Schleicher NC, Johnson T, Vishwakarma M, et al. California Tobacco Retail Surveillance Study 2018. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandEvaluation/Reports/CaliforniaTobaccoRetailSurveillanceStudyReport-2018.pdf. 94 Jin Y, Lu B, Klein EG, Berman M, Foraker RE, Ferketich AK. Tobacco-Free Pharmacy Laws and Trends in Tobacco Retailer Density in California and Massachusetts. Am J Public Health. 2016;106(4):679-685. doi: 10.2105/ AJPH.2015.303040
95 Polinski JM, Howell B, Gagnon MA, Kymes SM, Brennan TA, Shrank WH. Impact of CVS Pharmacy’s Discontinuance of Tobacco Sales on Cigarette Purchasing (2012-2014). Am J Public Health. 2017;107(4):556-562. doi: 10.2105/ AJPH.2016.303612 96 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. 97 Ibid. 98Huang J, Chriqui JF, DeLong H, Mirza M, Diaz MC, Chaloupka FJ. Do state minimum markup/price laws work? Evidence from retail scanner data and TUS-CPS. Tob Control. 2016;25(Suppl 1):i52-i59. doi: 10.1136/tobaccocontrol-2016-053093. 99 Finan LJ, Lipperman-Kreda S, Abadi M, et al. Tobacco Outlet Density and Adolescents’ Cigarette Smoking: A Meta-Analysis. Tob Control. 2019;28(1):27-33. doi: 10.1136/tobaccocontrol-2017-054065. 100 Abdel Magid HS, Halpern-Felsher B, Ling PM, et al. Tobacco Retail Density and Initiation of Alternative Tobacco Product Use Among Teens. J Adolesc Health. 2020;66(4):423-430. doi: 10.1016/j.jadohealth.2019.09.004. 101 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. 102 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. 103 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.
104 Siahpush M, Jones PR, Singh GK, Timsina LR, Martin J. Association of availability of tobacco products with socio-economic and racial/ethnic
characteristics of neighbourhoods. Public Health. 2010;124(9):525-529. doi: 10.1016/j. puhe.2010.04.010.
105 Fakunle DO, Curriero FC, Leaf PJ, Furr-Holden DM, Thorpe RJ. Black, White, or Green? The Effects of Racial Composition and
Socioeconomic Status on Neighborhood-Level Tobacco Outlet Density. Ethn Health. 2019;1-16. doi: 10.1080/13557858.2019.1620178.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 10
communities, which are associated with variable retailer densities across geography;106-107 and
WHEREAS, policies to reduce tobacco retailer density have been shown to be effective108-109 and
may reduce or eliminate inequities in the location and distribution of tobacco retailers; and
WHEREAS, strict enforcement of policies prohibiting retail sales of cigarettes to youth, sales of cigarettes via vending machines, and other means through which youth gain access to tobacco in the commercial settings can limit their opportunities to obtain these products;110-111 and
WHEREAS, strong policy enforcement and monitoring of retailer compliance with tobacco control
policies (e.g., requiring identification checks) is necessary to achieve reductions in youth tobacco sales;112-113 and
WHEREAS, the Institute of Medicine recognizes that retailers are not likely to comply with youth tobacco access laws unless such laws are actively enforced through retailer compliance checks paired with meaningful penalties applicable business owners for violations;114 and
WHEREAS, California Health and Safety Code section 11364 prohibits possession and California
Health and Safety Code section 11014.5 prohibits sales of “drug paraphernalia”; and
WHEREAS, many retailers nevertheless sell items that are commonly known to be “drug paraphernalia,” including bongs and pipes used to smoke methamphetamine and other illicit drugs, claiming that such items are intended for tobacco use; and
WHEREAS, several California cities require compliance with state drug paraphernalia laws as a
condition of obtaining and maintaining a local tobacco retailer license;115
WHEREAS, state law explicitly permits cities and counties to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a local license for a violation of any state tobacco control law;116 and
WHEREAS, California courts have affirmed the power of the city councils to regulate business
activity to discourage violations of law;117 and
WHEREAS, over 180 cities and counties in California have passed tobacco retailer licensing
106 Rodriguez D, Predictors of tobacco outlet density nationwide:2011. 107 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. 108 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. 109 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. 110 U.S. Depart. HHS, Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General,2012. 111 DiFranza JR. Which interventions against the sale of tobacco to minors can be expected to reduce smoking? Tob Control. 2012;21:436-442. doi: 10.1136/tobaccocontrol-2011-050145. 112 DiFranza JR. Best Practices for Enforcing State Laws Prohibiting the Sale of Tobacco to Minors. J Public Health Manag Pract. 2005;11(6):559-565. doi: 10.1097/00124784-200511000-00014. 113 Macinko J, Silver D. Impact of New York City’s 2014 Increased Minimum Legal Purchase Age on Youth Tobacco Use. Am J Public Health. 2018;108(5):669-675. doi: 10.2105/AJPH.2018.304340.
114 Institute of Medicine. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products. Washington, DC: National Academies Press. 2015. 115 Family Smoking Prevention and Tobacco Control Act § 3(1), Pub. L. No. 111-31, 123 Stat. 1776-1858 (2009).
116 (Cal. Bus. & Prof. Code § 22971.3 117 See, e.g., Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985); Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993); Prime Gas, Inc. v. City of Sacramento, 184 Cal. App. 4th 697 (2010);
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 11
ordinances as of 2018 in an effort to stop youth from using tobacco;118 and
WHEREAS, the City has a substantial interest in protecting youth and underserved populations from
the harms of tobacco use; and
WHEREAS, there is no Constitutional right to smoke;119 and
WHEREAS, local governments have broad latitude to declare nuisances and are not constrained by prior definitions of nuisances;120 and
WHEREAS, the findings and purpose of Petaluma Municipal Code Section 8.20.020 are
incorporated in this ordinance as recitals by this reference; and
WHEREAS, the City 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 in order to protect the health, safety, and welfare of Petaluma residents, and especially, Petaluma youth; and
WHEREAS, cigarette butts are the most common toxic waste found in cleanups and the number one
item found on California highways121; and
WHEREAS, the toxic chemicals in cigarette butts are a threat to our aquatic ecosystems, the substances that leach out of cigarette butts are highly toxic to freshwater micro-organisms, and in 2010 over one million cigarettes were removed from California beaches and inland waterways as part of the International Coastal Cleanup;122 and
WHEREAS, E-cigarette waste is potentially a more serious environmental threat than cigarette butts
since e-cigarettes introduce plastic, nicotine salts, heavy metals, lead mercury, and flammable lithium-ion batteries into waterways, soil and to wildlife;123 and
WHEREAS, adoption and implementation of this ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15061(b)(3) of the State CEQA Guidelines because it
can be seen with certainty that there is no possibility that this ordinance may have a significant effect on the
environment, as adoption and implementation of the standards, license requirements, and other measures contained in the ordinance will not in and of themselves result in any direct physical change to the environment subject to CEQA; and
WHEREAS, in the alternative, the adoption and implementation of this ordinance is exempt from
CEQA pursuant to Sections 15307 and 15308 of the State CEQA Guidelines as an action taken to assure the maintenance, restoration, enhancement, and protection of natural resources and the environment as authorized by
118 CDPH, California Tobacco Facts and Figures 2019, 22.
119 Technical Assistance Legal Ctr., Pub. Health Inst., There is No Constitutional Right to Smoke (2004). 120 In Re Jones, 56 Cal.App.2d 658, 663 (1943). See also, Cal. Const., art. XI § 7 and Cal. Gov. Code § 38771
121 California Department of Transportation, "Please Don't Tarnish the Golden State!" Litter Generation Study; Beck RW. Final Report: Litter: A Review of Litter Studies, Attitude Surveys and Other Litter-related Literature. Keep America Beautiful, Inc., 2007.
122 Slaughter, E., Gersberg, R., Watanabe, K., Rudolph, J., Novotny, T.E., "Toxicity of Cigarette Butts, and their Chemical Components to Marine and Freshwater Fish, Atherinops affinis and Pimephales promelas;" Register K. "Cigarette Butts as Litter-Toxic as Well as Ugly," Underwater Naturalist, Bulletin of the American Littoral Society, 2000; Moerman JW, Potts GE "Analysis of Metals Leached from Smoked Cigarette Litter," in Press, Tobacco Control. 2010; Ocean Conservatory, Trash Travels: From our hands to the seam around the globe, and through time, 2010 Report. 123 The Truth Initiative, “A Toxic, Plastic Problem – E-cigarette waste and the environment,” available at: https://truthinitiative.org/sites/default/files/media/files/2021/04/E-Cigarette-Waste-Report-FINAL-042821.pdf.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 12
state law where the regulatory process involves procedures for protection of the environment; and the basis for this determination is that the proposed ordinance does establishes standards, license requirements, and other
measures that regulate the licensure of tobacco retailers more stringently than existing codes and reduce sales of
tobacco products to minors, and these standards, license requirements, and other measures will protect human health, which is an aspect of the environment under Public Resources Code Section 21083(b)(3), by strengthening existing standards for preventing the sale of tobacco to youth and establishing new limitations on tobacco retailer licensure, and reduced sale of tobacco products will reduce the harmful environmental effects of disposal of
tobacco products;
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Petaluma as follows: SECTION 1. Findings. The above recitals are hereby declared to be true and correct and are incorporated into
this ordinance as findings of the City Council.
SECTION 2. CEQA Compliance. Adoption and implementation of this ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15061(b)(3) of the State CEQA Guidelines because it can be seen with certainty that there is no possibility that this ordinance may have a significant effect on the
environment. Adoption and implementation of the standards, license requirements, and other measures contained
in the ordinance in and of themselves will not result in any direct physical change to the environment subject to CEQA. In the alternative, the adoption and implementation of this ordinance is exempt from CEQA pursuant to Sections
15307 and 15308 of the State CEQA Guidelines as an action taken to assure the maintenance, restoration,
enhancement, and protection of natural resources and the environment as authorized by state law where the regulatory process involves procedures for protection of the environment. The basis for this determination is that this ordinance establishes standards, license requirements, and other measures that regulate the licensure of tobacco retailers more stringently than existing codes and reduce sales of tobacco products to minors. These
standards, license requirements, and other measures will protect human health, which is an aspect of the
environment under Public Resources Code Section 21083(b)(3), by strengthening existing standards for preventing the sale of tobacco to youth and establishing new limitations on tobacco retailer licensure, and reduced sale of tobacco products will reduce the harmful environmental effects of disposal of tobacco products.
SECTION 3. Chapter 8.20 Amended and Retitled. Chapter 8.20 of the Petaluma Municipal Code, currently
entitled “Regulation of Smoking and Tobacco Sales,” is hereby retitled as follows: “Regulation of Smoking.” Paragraph C of Section 8.20.040 entitled “Prohibition of smoking in public places, places of employment and certain other areas” of Chapter 8.20 is hereby amended to read as follows (Bold italics is added test;
Strikethrough is deleted text):
8.20.040(C). Unless otherwise prohibited by law, smoking is not prohibited in the following enclosed areas:
1. At theatrical production sites, as part of the production and not by members of the audience.
2. Inside a tobacco retail store if:
a. The tobacco retail store does not sell edible products, including, for example, food, water, or drinks, or allow
such products to be consumed on the business premises;
b. The tobacco retail store prohibits minors from entering the store at all times; and
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 13
c. The premises of the tobacco retail store are an independent freestanding building unattached to any other structure or use.
2.3. Inside a detached, single-family home unless the home is used as a family day care home, a child care or
health care facility licensed by the state of California and/or for a home occupation which has employees and/or is visited twice a month or more by members of the public.
3.4. Inside private vehicles.
Section 8.20.120 entitled “Regulation of the manner of sale of tobacco products and cigarettes” of Chapter 8.20
is hereby repealed in its entirety.
SECTION 4: New Chapter 8.21 Added to the Petaluma Municipal Code. A new Chapter 8.21 of the Petaluma Municipal Code, entitled “Regulation of Retail Tobacco Sales” is hereby added to the Petaluma Municipal Code to read as follows:
8.21.010 PURPOSE.
It is the intent of the City, in enacting this chapter, to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to youth, but not to expand or reduce the degree to which the acts regulated by federal or state law
are criminally proscribed or to alter the penalties provided therein.
8.21.020 DEFINITIONS.
The following words and phrases, whenever used in this chapter, shall have the meanings specified in this section unless the context clearly requires otherwise:
A. “Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair
market value between two informed and willing parties, neither of whom is under any compulsion to participate
in the transaction. There is a presumption that a sale between family members or companies with related shareholders are not arm’s length transactions.
B. “Child-Resistant Packaging” means packaging that meets the definition set forth in the Code of Federal Regulations, title 16, section 1700.15(b), as in effect on January 1, 2015, and that 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, as this definition may be amended from time to time.
C. “Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than 4.5 pounds per thousand unit.
D. “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 as described herein. Cigarettes as defined herein include cigarettes as defined in California Revenue and Taxation Code Section 30003, as amended from time to time.
E. “City” means: the City of Petaluma.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 14
F. “Consumer” means a person who purchases a tobacco product for consumption and not for sale to another person.
G. “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.
H. “Delivery sale” means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a
tobacco retail establishment. Delivery sale includes the sale of any tobacco product when the sale is conducted
by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up.
I. “Department” means Petaluma Police Department and any agency or person designated by the Department to enforce or administer the provisions of this Chapter, which may include, but is not limited to, the Sonoma
County Department of Health Services, the City of Petaluma Planning Department, and the City of Petaluma
Building Department.
J. “Drug paraphernalia” has the meaning set forth in California Health and Safety Code section 11014.5, as that section may be amended from time to time.
K. “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, e-hookah or other electronic nicotine delivery system. 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 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, as \ amended from time to time.
L. “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.
M. “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.
N “Hearing Officer” has the same definition as in Section 1.10.020 of the Petaluma Municipal Code.
O. "License" means a Tobacco Retail License issued by the City pursuant to this Chapter.
P. "Licensee" means any proprietor holding a license issued by the City pursuant to this Chapter.
Q. “Little cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than 4.5 pounds per thousand units. “Little cigar” includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.
R. “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.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 15
S. “Moveable place of business” means any form of business that is operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and not a fixed address store front or other
permanent type of structure authorized for sales transactions.
T. “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.
U. “Person” means any natural person, partnership, cooperative association, corporation, joint venture, limited liability company, personal representative, receiver, trustee, assignee, social or professional club,
fraternal organization, or any other legal entity or combination of the above acting as a single unit.
V. “Pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the California 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.
W. “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 shares ultimate control over the day-to-day operations of a business.
X. “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.
Y. “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.
Z. “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or
any other lighted or heated product containing, made, or derived from nicotine or tobacco, whether natural or synthetic, that is intended for inhalation. “Smoking” includes using an electronic smoking device.
AA. “Tobacco accessories” means any item designed or marketed for the consumption, use, or preparation of tobacco products.
BB. “Tobacco product” means:
1. any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, smoked, heated, chewed, snorted, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, a little cigar, pipe tobacco, chewing tobacco, snuff, or snus;
2. any electronic smoking device and any substances that may be aerosolized or vaporized by such
device, whether or not the substance contains nicotine; or
3. any component, part, or accessory of (1) or (2), 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.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 16
For purposes of this chapter, tobacco product includes tobacco products as defined in California Revenue and Taxation Code Section 30121(b), as from time to time amended.
“Tobacco product” does not mean 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.
CC. “Tobacco Retailer” means any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco products or electronic smoking devices. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange and includes significant
tobacco retailer.
DD. “Tobacco Retailing” means engaging in the activities of a tobacco retailer.
EE. “Youth-Oriented Area” means a parcel in the city of Petaluma that is occupied by:
1. a private or public preschool, kindergarten, elementary, middle, junior high, or high school;
2. a “recreation area” as defined in Section 8.20.030(Y) of the Petaluma Municipal Code.
For purposes of this definition, a preschool is a licensed child-care facility or preschool other than a small-family day care home or a large-family day care home as defined in California Health & Safety Code § 1596.78 as amended from time to time.
8.21.030 GENERAL REQUIREMENTS AND PROHIBITIONS.
A. Tobacco Retailer’s License Required. It shall be unlawful for any person to engage in tobacco retailing in
the City, six months after enactment of this chapter, 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. 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 accessories, or tobacco retailing.
C. Smoking Prohibited. Smoking, including smoking for the purpose of sampling any tobacco product, is prohibited within the indoor area or within 20 feet of any retail establishment licensed under this chapter.
D. Minimum Legal Sales Age. No person engaged in tobacco retailing shall sell a tobacco product to a person
under 21 years of age.
E. Signs Specifying Minimum Legal Sales Age. Any person, business, or other establishment which sells cigarettes and other tobacco products for consumption shall post plainly visible signs at the point of purchase of tobacco products which state:
"THE SALE OF TOBACCO PRODUCTS OR CIGARETTES TO PERSONS UNDER
EIGHTEEN TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID IS REQUIRED TO PURCHASE TOBACCO."
The letters of these signs shall be at least one-quarter-inch high.
F. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 17
location at the licensed location.
G. Positive Identification Required. No person engaged in tobacco retailing shall sell a tobacco product
without first verifying by means of government-issued photographic identification that the recipient is at
least 21 years of age.
H. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.
I. On-Site Sales. All sales of tobacco products and tobacco accessories to consumers shall be conducted in-person in the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of the
tobacco retailer’s agents or employees to engage in the delivery or sale of tobacco products or to
knowingly or negligently sell or provide tobacco products to any person that intends to engage in the delivery or sale of the tobacco product in the City.
J. Drug Paraphernalia. 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 regulating controlled substances or
drug paraphernalia, such as, for example, California Health and Safety Code section 11364.7, as that section may be amended from time to time.
K. Minimum Employee Age. Individuals employed by a person licensed under this ordinance must be at least eighteen (18) years of age to sell tobacco products, tobacco accessories electronic delivery devices, or other
nicotine delivery products.
8.21.040 SALE OF FLAVORED TOBACCO PRODUCTS & ELECTRONIC SMOKING DEVICES PROHIBITED.
A. Flavored Tobacco Product Sales Prohibited. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.
1. Presumptive Flavored Tobacco Product. A public statement or claim made or disseminated by the
manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.
B. Electronic Smoking Device Sales Prohibited. It shall be unlawful for any tobacco retailer to sell any
electronic smoking device.
8.21.050 TOBACCO PRODUCT PRICING AND PACKAGING.
A. Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless the tobacco product:
1. is sold in the manufacturer’s packaging intended for sale to consumers;
2. conforms to all applicable federal labeling requirements; and
3. conforms to all applicable child-resistant packaging requirements.
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
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 18
display at the location where the item is sold or offered for sale.
C. Distribution of Tobacco Samples or Promotional Items. It is unlawful for any person to distribute
free or nominally priced tobacco products.
D. Prohibition of Tobacco Coupons and Discounts. No tobacco retailer shall:
1. honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price;
2. sell any tobacco product to a consumer through a multiple-package discount or otherwise provide
any such product to a consumer for less than the full retail price in consideration for the purchase of
any tobacco product or any other item; or
3. provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
E. Minimum Package Size for Little Cigars and Cigars. No tobacco retailer shall sell to a consumer:
1. any little cigar unless it is sold in a package of at least five (5) little cigars minimum pack size; or
2. any cigar unless it is sold in a package of at least two (2) cigars minimum pack size; provided, however, that this subsection shall not apply to a cigar that has a price of at least $10.00 per cigar, including all applicable taxes and fees.
F. Minimum Prices for Cigarettes, Little Cigars, and Cigars. No tobacco retailer shall sell to a consumer:
1. Cigarettes at a price that is less than $10.00 per package of 20 cigarettes, including all applicable
taxes and fees;
2. Little cigars at a price that is less than $2.00 each per little cigar, including all applicable taxes and fees;
3. Cigars at a price that is less than $5.00 per cigar, including all applicable taxes and fees.
8.21.060 LIMITS ON ELIGIBILITY FOR A TOBACCO RETAILER LICENSE.
A. Mobile Vending. No license may issue to authorize tobacco retailing at other than a fixed location. No tobacco retail license will be issued to a moveable place of business.
B. Pharmacies. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.
C. Proximity to Youth-Oriented Area. No new license may issue, and no existing license may be renewed, to authorize tobacco retailing within one thousand (1,000) 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 youth-oriented area is located to the nearest point of the property line of the parcel on which the applicant’s business is located.
D. Proximity to Other Tobacco Retailers. No new license may issue, and no existing license may be renewed, to authorize tobacco retailing within five hundred (500) feet of a tobacco retailer location already licensed
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 19
pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located.
E. POPULATION AND DENSITY. The issuance of Tobacco Retailer licenses is limited as follows:
1. The total number of Tobacco Retailer licenses within the City shall be limited to one for each 2,000,
or fraction thereof, of inhabitants of the City.
2. For the purposes of this subsection, the total population of the City shall be determined by the most
current published total available from the U.S. Census Bureau or the California State Department of
Finance, whichever has been more recently updated, as of the date the license application is filed.
3. No new license may be issued to authorize Tobacco Retailing if the number of Tobacco Retailer
licenses already issued equals or exceeds the total number authorized pursuant to subsection (1).
F. Notwithstanding subsections (C), (D), or (E) above, a tobacco retailer operating lawfully on
the date this ordinance is adopted that would otherwise be eligible for a tobacco retailer license for the
location for which a license is sought may receive or renew a license for that location so long as all of the
following conditions are met:
1. The license is timely obtained and is renewed without lapse or permanent revocation (as opposed to temporary suspension);
2. The tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than
sixty (60) consecutive days;
3. The tobacco retailer does not substantially change the business premises or business operation. A substantial change to the business operation includes, but is not limited to, the transferring of a location:
a. To a new proprietor(s) in an arm’s length transaction; or
b. For which a significant purpose is avoiding enforcement of violations of this chapter; and
4. The tobacco retailer retains the right to operate under all other applicable laws.
8.21.070 APPLICATION PROCEDURE.
A. An application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. All applications shall be submitted on a form supplied by the Department.
B. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information shall be revoked pursuant to Section 8.21.150(C) 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.
C. Applicant submissions 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 location for which a license is sought.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 20
3. The name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this chapter.
4. Proof that the location for which a tobacco retailer’s license is sought has been issued all necessary
state licenses for the sale of tobacco products.
5. 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.
6. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been
found to have violated, this or any other local, state, or federal law governing the sale of tobacco products or California Health and Safety Code Section 11351 as amended from time to time, and, if so, the dates and locations of all such violations within the previous five years.
7. A signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product
without a license required by this Chapter.
8. 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.
D. 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 10 business days of a change.
8.21.080 LICENSE ISSUANCE OR DENIAL.
A. Issuance of License. Upon the receipt of a complete and adequate 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.
B. Denial of Application. The Department may deny an application for a tobacco retailer’s license based
on any of the following:
1. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this Chapter;
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 or Health and Safety
Code Section 11351 within the preceding 365 days;
3. The application seeks authorization for tobacco retailing at a location regarding which this chapter prohibits issuance of a license;
4. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter
prohibits issuing a license; or
5. The application seeks authorization for tobacco retailing in a manner that is prohibited pursuant to this chapter, that is unlawful pursuant to any other chapter of this code, or that is unlawful pursuant to any other law.
6. Any other reason the granting of a license to the applicant is not consistent with the public health and
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 21
welfare or the purpose of this chapter, including the applicant’s history of noncompliance with this chapter or other laws relating to the sale of tobacco products.
C. Appeal of Denial of Application. A decision of the Department to deny a license is appealable to the Hearing Officer and any appeal must be filed in writing with the City Clerk within ten days of mailing of the Department’s decision.
8.21.90 LICENSE RENEWAL AND EXPIRATION.
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 1 year. Each tobacco retailer shall apply for the renewal of their tobacco retailer’s license and submit the license fee no later than 30 days prior to expiration of the current license. A tobacco retailer that fails to timely submit a renewal application and fee is ineligible for license renewal.
8.21.100 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 the location has been transferred to new proprietor(s) in an arm’s length transaction.
8.21.110 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 license.
8.21.120 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, but not limited to, issuing a license, administering the license program, tobacco retailer
education, tobacco 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.
8.21.130 BUSINESS TAX CERTIFICATE.
A. In addition to the Tobacco Retail License, any tobacco retailer must have a valid business tax
certificate required by Title 6 of this code.
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 22
B. If the business tax certificate is revoked or suspended for any period of time, the Tobacco Retail License shall be revoked or suspended for the same period, pursuant to Section 8.21.150.
8.21.140 COMPLIANCE MONITORING.
A. Compliance with this chapter shall be monitored by the Department. In addition, the City may designate additional persons to monitor compliance with this chapter. All licensed premises must be open to inspection by City staff or designated persons during regular business hours.
B. The Department will have the right to enter tobacco retail license locations from time to time during
regular business hours for the purpose of making reasonable inspections to enforce compliance with this
Chapter.
C. The City will endeavor to conduct at least one (1) compliance check per 12-month period that involves the participation of persons between the ages of 18 and 20 to enter licensed premises to attempt to purchase tobacco products.
8.21.150 SUSPENSION OR REVOCATION OF LICENSE.
A. Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer’s license 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 licensee is afforded notice
and an opportunity to be heard, that 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 applicable to the licensee in violation of this chapter.
1. Upon a finding by the Department of a first violation of this chapter at a location within any five-
year (5) period, the license shall be suspended for sixty (60) days.
2. Upon a finding by the Department of a second violation of this chapter at a location within any five-year (5) period, the license shall be suspended for one year.
3. Upon a finding by the Department of a third violation of this chapter at a location within any five-
year (5) period, the license shall be revoked.
B. Appeal of Suspension or revocation. A decision of the Department to suspend or revoke a license is appealable to the Hearing Officer and any appeal must be filed in writing with the City Clerk within ten days of mailing of the Department’s decision. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to the Hearing Officer is not available for a revocation made pursuant to
subsection (C) below.
C. Revocation of License wrongly issued. A tobacco retailer’s license shall be revoked if the Hearing Officer finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 8.21.080(B) existed at the time application was made or at any time before the license issued. The decision by the Hearing Officer shall be the final decision of the City.
D. 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. The notice shall include the suspension or
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 23
revocation period, reason for suspension or revocation, tobacco retailer/licensee and location information, and contact information to report violations.
8.21.160 TOBACCO RETAILING WITHOUT A VALID LICENSE.
Ineligibility for License. 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 license,
either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer’s license as follows:
A. After a first violation of this section at a location within any five-year (5) period, no new license 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.
B. After a second violation of this section at a location within any five-year (5) period, no new license 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.
C. After of a third or subsequent violation of this section at a location within any five-year (5) period, no new
license 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 five (5) years have passed from the date of the violation.
8.21.170 ADDITIONAL REMEDIES.
A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at
law or in equity, including, without limitation those remedies established in title 1 of this code.
B. Violations of this chapter are subject to a civil action brought by the City, punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000) per violation.
C. Violations of this chapter may, in the discretion of the city attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.
D. 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 administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.
E. Violations of this chapter are hereby declared to be public nuisances.
F. Tobacco products offered for sale or exchange in violation of this chapter 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 accessories seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco accessories 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 8.21.150(B). Forfeited tobacco products and tobacco accessories 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 section 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.
G. For the purposes of the civil remedies provided in this Chapter:
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 24
1. Each day on which tobacco products or tobacco accessories are offered for sale in violation of this chapter shall constitute a separate violation of this chapter; and
2. Each individual retail tobacco product and each individual retail item of tobacco accessories that is
distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.
H. All tobacco retailers are responsible for the actions of their employees relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee
shall be considered an act of the tobacco retailer.
8.21.180 EXCEPTIONS.
A. Nothing in this chapter prevents the provision of tobacco products to any person as part of an indigenous
practice or a lawfully recognized religious or spiritual ceremony or practice.
B. Nothing in this chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.
8.21.190 SAVINGS.
This chapter does not intend to regulate and shall not be interpreted to regulate any conduct the regulation of
which has been preempted by the United States or the State of California. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law. It is the intent of the City to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention.
SECTION 5. Severability. If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of competent jurisdiction or preempted by state legislation, such decision or legislation shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed and adopted this ordinance and
each and all provisions thereof irrespective of the fact that any one or more of said provisions be declared
unconstitutional, unlawful or otherwise invalid. SECTION 6. Effective Date. This ordinance shall become effective thirty (30) days after the date of its adoption by the City Council in accordance with Article XII, Section 76A of the Petaluma Charter. However, Section
8.21.040 shall not take effect until 6 months after date of enactment.
SECTION 7. Posting/Publishing of Notice. The City Clerk is hereby directed to publish or post this ordinance or a synopsis for the period and in the manner provided by the City Charter and other applicable law. reference, and distributed to the various funds as set out in said exhibit and shall be expended and used in
accordance therewith.
INTRODUCED and ordered posted/published the 15th day of November 2021 by the following vote: Ayes: Mayor Barrett, Vice Mayor Barnacle, Fischer, Healy, King, McDonnell, Pocekay
Noes: None
Abstain: None Absent: None
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5
Ordinance No. 2799 N.C.S. Page 25
ADOPTED this 6th day of December 2021 by the following vote:
Ayes: Mayor Barrett, Vice Mayor Barnacle, Healy, King, McDonnell, Pocekay Noes: None Abstain: None Absent: None
Teresa Barrett, Mayor
ATTEST: APPROVED AS TO FORM:
Samantha Pascoe, CMC, Deputy City Clerk Eric Danly, City Attorney
DocuSign Envelope ID: 1FD38CC5-A089-4507-928B-6368545C68B5