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Tobacco Retail License - Frequently Asked Questions

impact Sonoma

1. Who is considered a tobacco retailer?

A tobacco retailer is any person or business that sells, offers for sale or distribution, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products (see definition below), or tobacco paraphernalia (see definition below). Tobacco retailers must also be in possession of a California State Cigarette and Tobacco License in order to sell tobacco products in the state. No tobacco sales are permitted from mobile vending (see definition below), medical marijuana dispensaries, or pharmacies. Current electronic cigarette retailers are also considered a tobacco retailer under the County TRL and must apply for a local Tobacco Retailer License.

All tobacco retailers who possess a valid state issued license, and electronic cigarette retailers already doing business are "grandfathered" into the program. Thereafter, no license will be issued so long as: the number of retailers exceed density limits set in the ordinance (one retailer per 2,000 inhabitants); the retailer is located within 1,000 feet of a school; or, the retailer is a Significant Tobacco Retailer (see definition below).

2. What are considered tobacco products?

A tobacco product includes any product containing, made, or derived from tobacco or nicotine 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, or snuff. It also includes any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to an electronic cigarette, cigar, pipe, or hookah. A tobacco product does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

3. What is tobacco paraphernalia?

Tobacco paraphernalia includes cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the consumption, use, or preparation of tobacco products.

4. What is the state law regarding sales of drug paraphernalia?

Although selling tobacco paraphernalia is legal, California prohibits the sale of drug paraphernalia, which is defined as items that are "designed for use" or "marketed for use" with drugs (California Health and Safety Code § 11014.5). The sale of drug paraphernalia is illegal when the seller "knows, or under circumstances where one reasonably should know" that the item will be used for taking drugs (California Health and Safety Code § 11364.7).

5. How do I get a license?

Information will be sent to currently licensed tobacco retailers (determined by the Board of Equalization) and electronic cigarette retailers. The information on how to get a license will also be available on the County of Sonoma TRL webpage (www.sonoma -county.org/tobacco-retailers.) Retailers must have submitted their application and payment of $350 by check/money order by June 17, 2016 in order to be in compliance. If a business does not receive an official printed license by July 1, 2016 they will be considered in compliance if they have submitted payment. By providing a valid e-mail address, you will receive an electronic confirmation of receipt for your records.

6. How does a tobacco retailer license work?

Tobacco retailers in the unincorporated areas of the County are required to submit an application for a tobacco retail license, pay an annual fee, and meet ordinance requirements to obtain and maintain a tobacco retailer license.

7. What is the difference between the State license and this license?

The California state license is intended to prevent retailers from avoiding tax and selling unregulated tobacco products. A local TRL would not supplant California's required tobacco license. Unlike the State license, a local TRL fee pays for local compliance and enforcement checks of youth access laws and local tobacco laws. State legislation recently passed that will change the state tobacco license from a one-time $100 license fee to an annual license renewal with an annual fee of $265 per retail location. This new law will go into effect beginning January 1, 2017. From that date forward, every retailer will need to file an application and pay the license fee annually in order to renewal their retailer license.

8. What is the minimum age to purchase tobacco products?

New state law passed May 2016 raises the legal minimum age of purchase for tobacco products from 18 to 21. The law provides that the Stop Tobacco Access to Kids Enforcement (STAKE) Act does not invalidate existing local government ordinances or prohibit the adoption of local government ordinances requiring a more restrictive legal age to purchase or possess tobacco.

The County TRL references "minimum age established by state law." The minimum age to purchase tobacco in Sonoma County will be raised to 21 to comply with the new state requirements.

9. What are other state tobacco laws that effect retailers selling tobacco?

Two other newly adopted state tobacco laws effect tobacco retailers across the state. One new law defines electronic nicotine delivery devices, such as e-cigs or e-hookah, as tobacco products. The law changes the Stop Tobacco Access to Kids Enforcement (STAKE) Act's definition of tobacco products to include these electronic nicotine devices, requiring retailers who sell electronic cigarettes to obtain a state license with the Board of Equalization (BOE). The law also includes electronic cigarettes in California's smoke-free laws and requires child-resistant packaging for these products. Locally, the County TRL tobacco product definition aligns with the new state law because e-cigs and similar products are considered tobacco products.

A second law recently adopted at the State level expands the prohibition on smoking in places of employment by eliminating most of the specified exemptions pertaining to certain work environments. Owner operated businesses, hotel lobbies, bars and taverns, banquet rooms, warehouse facilities, and employee break rooms are no longer exempt and must be smoke-free.

The California Tobacco Control program is developing materials and signage and they should be available on their website (https://www.cdph.ca.gov/programs/tobacco/Pages/default.aspx ) in early June.

10. There are already stings being done re: youth purchase, how is this different?

The Stop Tobacco Access to Kids Enforcement (STAKE Act) Program of the Food and Drug Branch operations (or "Stings") that the state of California sponsors occur infrequently and the random sampling method results in few Sonoma County retailers being visited. Furthermore, STAKE Act Program enforcements are not the same as the compliance checks and enforcement proposed in the TRL. A TRL enables proactive merchant education to support compliance with all retailers under the ordinance as opposed to relying exclusively on enforcement and citation.

11. What will the minimum price per pack be?

The ordinance indicates that minimum price will not go into effect until January, 2018 to allow for coordination and standardization across the county.

The minimum price per pack of cigarettes and cigars will be $7.00. The average cigarette pack price statewide in CA is currently $5.76, well below the nationwide average ($6.18).

12. What will happen if I am cited for a license violation during an inspection?

Violations are subject to license suspension and/or revocation. Violations may also be subject to a civil action brought by the County, including suits for injunctive relief, which may be punishable by fines.

13. How long is the license effective?

The term of the license is one (1) year. Each license must be renewed annually by July 1. Each tobacco retailer needs to apply for renewal of the tobacco retailing license (TRL) and submit the license fee no later than thirty (30) days before the expiration date of the TRL.

Tobacco retailers will be notified annually prior to the expiration of their license to prompt them to renew, which will be facilitated through the completion of an Annual Renewal Application available on the website (www.sonoma-county.org/tobacco-retailers).

14. What happens if I want to sell my business? Is my tobacco retailer license transferrable to potential new owners?

Section 32A-7 describes the ability and restrictions for transferring a license. The ordinance allows transfer of a tobacco license if a retailer possess a California Board of Equalization license to sell tobacco on May 19, 2016 or are an electronic cigarette store that is open for business on that date. Significant tobacco retailers may only transfer to an immediate family member. Retailers within 1,000 feet of a school can transfer to a location not within 1,000 feet of a school or to an immediate family member at the current location. Licenses are transferable for retailers who are "grandfathered in," unless they are a significant tobacco retailer or proposing to transfer to a location within 1,000 feet of a school. However, special allowances are made for these transfers if they are made to Immediate Family Members, (defined as a parent, sibling, or child). Aside from these exceptions, existing tobacco retailers are able to transfer their license from one person to another or from one location to another.

There is a way for any retailer to transfer their license, and that is if they choose to participate in the County's Healthy Retail Project and are certified as a "Healthy Retailer" for at least 24 months prior to the transfer of the license. Healthy Retail Certification refers to the status of a Tobacco retailer that has implemented the minimum set of retail standards established by the Department.

All retailers that receive three or more violations within a 60-month period will lose their ability to transfer a license.

15. What do the density restrictions mean?

Similar to current state ABC laws that limit the number of alcohol retailers in the County to 1 per 2,500 residents, the TRL also limits the number of tobacco licenses to equal 1 per 2,000 residents. For unincorporated Sonoma County, that equals approximately 75 licenses.

Currently, approximately 130 retailers in unincorporated Sonoma County have state tobacco licenses. In order to limit the impact on current tobacco retailers, all retailers that hold state tobacco licenses in good standing on May 19, 2016, are grandfathered into the program and receive a license regardless of the density limit*. However, no new licenses will be issued until the number of retailers in the unincorporated area of Sonoma county falls below the density limit of 75.

* The only exceptions are locations that have on-site pharmacies. They will not be allowed to obtain a TRL.

16. What does it mean for my business if I can't get a local tobacco retailer license?

A tobacco retailer license is not the same as a business license. Retailers that do not have a local tobacco retailer license may still operate their businesses, but will not be able to sell tobacco products.

17. What do I do if I have multiple tobacco retailing locations?

Each location in unincorporated Sonoma County that sells tobacco products and/or tobacco paraphernalia must have its own license. Each location must pay the annual license fee.

18. What are the laws around the large signs and flags that stores put on sidewalks and by the edge of the road?

The STAKE Act prohibits signs that are more than 14 square feet in size. The Sonoma County Zoning Code Article 84 describes signs that are allowed and prohibited by zoning. For tobacco retailers that are also off-sale alcohol retailers, the Lee Law also applies. The Lee Law requires liquor stores and other off-sale alcohol retailers to limit the amount of advertising on their windows to 33% and to ensure an unobstructed view of the inside of the store for law enforcement purposes.

19. Is there an appeal process?

There is a process in place to appeal a denial, suspension, or revocation of the license. The full process is outlined in the Ordinance (Section 32A-12 Appeals). The appeal is heard by a Hearing Officer. There is also a settlement in lieu of appeal opportunity for a first or second alleged violation; even if settlement is pursued, a retailer in violation of the ordinance is subject to a minimum 5 day suspension. A license will be suspended for 30 days for a first violation, 60 days for a second violation, 90 days for a third violation and revocation of a license will occur upon a fourth violation. This applies for any violation within a 60 month period.

"Mobile vending" No license may be issued to authorize Tobacco Retailing at other than a fixed location. For example, Tobacco Retailing by Persons on foot or from vehicles is prohibited.

"Significant Tobacco Retailer" means any Tobacco Retailer for which the principal or core business is selling Tobacco Products, Tobacco Paraphernalia, or both, as evidenced by any of the following: twenty percent (20%) or more of floor or display area is devoted to Tobacco Products, Tobacco Paraphernalia, or both; or 60 percent (60%) or more of gross sales receipts are derived from the sale or exchange of Tobacco Products, Tobacco Paraphernalia, or both; or fifty (50%) percent or more of completed sales transactions include Tobacco Products or Tobacco Paraphernalia.

"Tobacco Paraphernalia" means any item designed for the consumption, use, or preparation of Tobacco Products.

"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, cigar, pipe, or hookah.

(3) Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.