BILL NUMBER: SB 602 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 18, 2009
AMENDED IN SENATE APRIL 28, 2009
AMENDED IN SENATE APRIL 21, 2009
AMENDED IN SENATE APRIL 13, 2009
INTRODUCED BY Senator Padilla
(Coauthors: Senators Alquist, DeSaulnier, Leno, Oropeza, and
Romero)
FEBRUARY 27, 2009
An act to amend Section 22974.8 of, and to add Section 22973.3 to,
the Business and Professions Code, relating to retail tobacco sales.
LEGISLATIVE COUNSEL'S DIGEST
SB 602, as amended, Padilla. Retail tobacco sales: licenses.
The California Cigarette and Tobacco Products Licensing Act of
2003 requires a retailer to obtain a license from the State Board of
Equalization to engage in the sale of cigarette and tobacco products
in this state, requires a retailer to obtain a separate license for
each retail location, and authorizes the board to suspend or revoke
the license of a retailer that is in violation of the act.
This bill would prohibit the board from issuing a new license to a
retailer for a retail location in an area of overconcentration, as
defined. The bill would authorize the board to issue a new license if
the local governing body of the area in which the applicant premises
are located, or its designated subordinate officer or body
determines that public convenience or necessity would be served by
the issuance. The bill would require that determination to be made
within 90 days of notification of a completed application, as
specified, except that if the local governing body, or its designated
subordinate officer or body, did not make a determination within 90
days, the State Board of Equalization would be authorized to issue a
license if the applicant shows that public convenience or necessity
would be served by the issuance.
Existing law, the Stop Tobacco Access to Kids Enforcement Act or
STAKE Act, establishes various requirements for retailers relating to
tobacco sales to minors. Existing law also makes it a misdemeanor
for a retailer to knowingly or under circumstances in which it has
knowledge, or should otherwise have grounds for knowledge, sell,
give, or in any way furnish a minor with tobacco products or
paraphernalia. Under existing law, violation of the STAKE Act or the
misdemeanor provision result in board action, on a set schedule,
relating to the licensure of the retailer when the youth purchase
survey finds that 13% or more of youth are able to purchase
cigarettes, and makes the board's authority inoperative when a youth
purchase survey shows less than 13% of youth were able to purchase
cigarettes.
This bill would allow the board to take action relating to the
licensure of retailers who have violated the STAKE Act and
misdemeanor provisions at any time, would require the enforcing
agency to notify the board of a conviction of a violation in a timely
manner, and would require the board to take appropriate action upon
that notification. This bill would delete the provision conditioning
the board's authority to take action against retailers on the results
of a youth purchase survey. This bill would also modify the schedule
of actions taken by the board for violations.
This bill would require the Department of Alcoholic Beverage
Control and the State Department of Public Health to provide
specified information to the board upon request.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 22973.3 is added to the Business and
Professions Code, to read:
22973.3. (a) The State Board of Equalization shall not issue a
new license to a retailer for a retail location in an area of
overconcentration.
(b) Notwithstanding subdivision (a), the State Board of
Equalization may issue a new license if the local governing body of
the area in which the applicant's premises are located, or its
designated subordinate officer or body, determines within 90 days of
notification of a completed application that public convenience or
necessity would be served by the issuance. The 90-day period shall
commence upon receipt by the local governing body of (1) notification
by the State Board of Equalization of an application for licensure,
or (2) a completed application according to local requirements, if
any, whichever is later.
If the local governing body, or its designated subordinate officer
or body, does not make a determination within the 90-day
period, then the State Board of Equalization may issue a license if
the applicant shows the State Board of Equalization that public
convenience or necessity would be served by the issuance. In making
its determination, the State Board of Equalization shall not
attribute any weight to the failure of the local governing body, or
its designated subordinate officer or body, to make a determination
regarding public convenience or necessity within the 90-day period.
(c) For purposes of
this section "area of overconcentration" means an area where the
ratio of retail licenses to population in the census tract is greater
than the ratio of retail licenses to population in the county
overall. the license shall be deemed denied.
(c) For purposes of this section:
(1) "Area of overconcentration" means an area where the ratio of
retail licenses to population in the census tract is greater than the
ratio of retail licenses to population in the county overall.
(2) "Population in census tract" means the population as
determined by the most recent United States decennial or special
census. The population determination shall not operate to prevent an
applicant from establishing that an increase of resident population
has occurred within the census tract.
(3) "Population in the county" means the annual population
estimate for California counties published by the Population Research
Unit of the Department of Finance.
(d) Notwithstanding subdivision (c) of Section 22972, this section
shall not apply to the renewal or transfer of a retail license.
SEC. 2. Section 22974.8 of the Business and Professions Code is
amended to read:
22974.8. (a) (1) The board shall take action against a retailer,
convicted of a violation of either the STAKE Act (Division 8.5
(commencing with Section 22950) or Section 308 of the Penal Code,
according to the schedule set forth in subdivision (b).
(2) Convictions of violations by a retailer at one retail location
may not be accumulated against other locations of that same
retailer.
(3) Convictions of violations accumulated against a prior retail
owner at a licensed location may not be accumulated against a new
retail owner at the same retail location.
(4) Prior to suspending or revoking a retailer's license to sell
cigarette and tobacco products, the board shall notify the retailer.
The notice shall include instructions for appealing the license
suspension or revocation.
(b) (1) Upon the first conviction of a violation of either the
STAKE Act (Division 8.5 (commencing with Section 22950) or Section
308 of the Penal Code, the retailer shall receive a warning letter
from the board that delineates the circumstances under which a
retailer's license may by suspended or revoked and the amount of time
the license may be suspended or revoked. The retailer and its
employees shall receive training on tobacco control laws from the
State Department of Public Health upon a first conviction. The
retailer shall also be assessed a penalty of ____ dollars ($____).
(2) Upon the second conviction of a violation of either the STAKE
Act (Division 8.5 (commencing with Section 22950)) or Section 308 of
the Penal Code, the retailer shall be subject to a fine of ____
dollars ($____). The board shall suspend the retailer's license
to sell cigarette and tobacco products for 25 days.
(3) Upon the third conviction of a violation of either the STAKE
Act (Division 8.5 (commencing with Section 22950)) or Section 308 of
the Penal Code , the board shall revoke the retailer's license to
sell cigarette and tobacco products.
(c) For any conviction of a violation of either the STAKE Act
(Division 8.5 (commencing with Section 22950) or Section 308 of the
Penal Code, the State Department of Public Health or other enforcing
agency shall notify the board of the conviction in a timely manner,
and the board shall take appropriate action pursuant to that
notification. If a state or local law enforcement agency does not
timely notify the board, the board may take action against a retailer
for the violation. For purposes of this subdivision, "timely
manner" means when the conviction is obtained and all appeal rights
are exhausted.
(d) (1) Notwithstanding any other provision of this division, no
licensee may petition the board for an offer in compromise for a
third or any subsequent violation of either the STAKE Act (Division
8.5 (commencing with Section 22950)) or Section 308 of the Penal Code
that occurs within 36 months of the initial violation.
(2) Notwithstanding any other law, the board may revoke a license
for a third violation of either the STAKE Act (Division 8.5
(commencing with Section 22950)) or Section 308 of the Penal Code
that occurs within any 36-month period. This paragraph shall not be
construed to limit the board's authority and discretion to revoke a
license prior to a third violation when the circumstances warrant
that penalty.
(3) For purposes of this subdivision, no violation may be
considered for purposes of determination of the penalty until it has
become final.
(e) For purposes of this act, the State Board of Equalization, the
State Department of Public Health, and the Department of Alcoholic
Beverage Control shall share all information in regards to retailers
necessary to implement this act.
(e) The Department of Alcoholic Beverage Control shall, upon
request, provide to the board any licensure information, including,
but not limited to, applications, license issuance, license
transfers, license denials, or any other information necessary to
administer this chapter. The State Department of Public Health shall,
upon request, provide to the board any information, including, but
not limited to, statewide information on the annual Youth Tobacco
Purchase Survey, STAKE compliance checks, California retailers and
youth tobacco control laws, or any other information necessary to
administer this chapter.
(f) For purposes of this section, "conviction of a violation"
includes a conviction under Section 308 of the Penal Code, or a final
administrative adjudication imposing a civil penalty under the STAKE
Act.