BILL NUMBER: AB 1301 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 25, 2011
AMENDED IN ASSEMBLY MARCH 29, 2011
INTRODUCED BY Assembly Member Hill
FEBRUARY 18, 2011
An act to amend Sections 22952 and 22974.8 of the Business and
Professions Code, and to amend Section 308 of the Penal Code,
relating to tobacco.
LEGISLATIVE COUNSEL'S DIGEST
AB 1301, as amended, Hill. Retail tobacco sales: STAKE Act.
Existing law, the California Cigarette and Tobacco 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 California. 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, violations of the STAKE Act or the
above-described 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. Under existing law, for the first violation, the
retailer receives a warning letter, as specified. For the 2nd
conviction in 12 months, the retailer is fined $500. For the 3rd
violation in 12 months, the retailer is fined $1,000. For the 4th to
7th violations, inclusive, in 12 months, the retailer's license to
sell cigarettes and tobacco products is suspended for 90 days. For
the 8th violation in 24 months, the retailer's license is revoked.
Existing law provides for a 30-day appeal of the board's decision.
This bill would revise the schedule for board action in response
to the occurrence of a violation, as defined, of the STAKE Act or the
misdemeanor provision as follows: for a first violation, the
retailer would get a warning letter; for the 2nd violation in
5 3 years, the retailer would be fined
$500 unless he or she can prove to the board that he or she has
purchased an identification verification scanner since the date of
the violation; for the 3rd violation in 5 3
years, the retailer's license would be suspended for
90 45 days, for the 4th violation in 5
3 years, the retailer's license would be
suspended for 180 days; and for the 5th violation in 5
3 years, the retailer's license would be
revoked.
This bill would prohibit the board from considering violations
that occurred prior to January 1, 2011 2012
. The bill would delete the provision conditioning the board's
authority to take action against retailers on the results of a youth
purchase survey. The bill would remove the board appeal
process and would, instead, allow suspension or revocation
through a specified process. The bill would declare the intent of the
Legislature regarding the enforcing agency reporting violations to
the board within 30 days of determining that a violation has
occurred.
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. The Legislature hereby finds and declares all of the
following:
(a) According to the American Cancer Society, almost 90 percent of
adults who are regular smokers started at or before age 19.
(b) A 2009 survey from the United States Centers for Disease
Control and Prevention found that nearly one-half of high school
students had tried cigarette smoking and more than one out of four
high school students were current tobacco users.
(c) Smoking-related diseases remain the leading cause of
preventable death in the United States, claiming the lives of 438,000
Americans annually.
(d) According to the State Department of Public Health's
California Tobacco Control Program survey, 74 percent of youth access
enforcement agencies reported issuing warnings to merchants selling
tobacco products to minors in 2006.
(e) The California Tobacco Control Program survey also found that
law enforcement agencies continued to rank the suspension or
revocation of licenses and civil and criminal penalties for owners
and clerks as effective strategies to reduce youth access to tobacco.
SEC. 2. Section 22952 of the Business and Professions Code is
amended to read:
22952. On or before July 1, 1995, the State Department of Public
Health shall do all of the following:
(a) Establish and develop a program to reduce the availability of
tobacco products to persons under 18 years of age through the
enforcement activities authorized by this division.
(b) Establish requirements that retailers of tobacco products post
conspicuously, at each point of purchase, a notice stating that
selling tobacco products to anyone under 18 years of age is illegal
and subject to penalties. The notice shall also state that the law
requires that all persons selling tobacco products check the
identification of a purchaser of tobacco products who reasonably
appears to be under 18 years of age. The warning signs shall include
a toll-free telephone number to the department for persons to report
unlawful sales of tobacco products to minors.
(c) Provide that primary responsibility for enforcement of this
division shall be with the department. In carrying out its
enforcement responsibilities, the department shall conduct random,
onsite sting inspections at retail sites and shall enlist the
assistance of persons that are 15 and 16 years of age in conducting
these enforcement activities. The department may conduct onsite sting
inspections in response to public complaints or at retail sites
where violations have previously occurred, and investigate illegal
sales of tobacco products to minors by telephone, mail, or the
Internet. Participation in these enforcement activities by a
person under 18 years of age does not constitute a
violation of subdivision (b) of Section 308 of the Penal Code for the
person under 18 years of age, and the person under 18 years of age
is immune from prosecution thereunder, or under any other provision
of law prohibiting the purchase of these products by a person under
18 years of age.
(d) In accordance with Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, the
department shall adopt and publish guidelines for the use of persons
under 18 years of age in inspections conducted pursuant to
subdivision (c) that shall include, but not be limited to, all of the
following:
(1) An enforcing agency may use persons under 18 years of age who
are 15 or 16 years of age in random inspections to determine if sales
of cigarettes or other tobacco products are being made to persons
under 18 years of age.
(2) A photograph or video recording of the person under 18 years
of age shall be taken prior to each inspection or shift of
inspections and retained by the enforcing agency for purposes of
verifying appearances.
(3) An enforcing agency may use video recording equipment when
conducting the inspections to record and document illegal sales or
attempted sales.
(4) The person under 18 years of age, if questioned about his or
her age, need not state his or her actual age but shall present a
true and correct identification if verbally asked to present it. Any
failure on the part of the person under 18 years of age to provide
true and correct identification, if verbally asked for it, shall be a
defense to an action pursuant to this section.
(5) The person under 18 years of age shall be under the
supervision of a regularly employed peace officer during the
inspection.
(6) All persons under 18 years of age used in this manner by an
enforcing agency shall display the appearance of a person under 18
years of age. It shall be a defense to an action under this division
that the person's appearance was not that which could be generally
expected of a person under 18 years of age, under the actual
circumstances presented to the seller of the cigarettes or other
tobacco products at the time of the alleged offense.
(7) Following the completion of the sale, the peace officer
accompanying the person under 18 years of age shall reenter the
retail establishment and shall inform the seller of the random
inspection. Following an attempted sale, the enforcing agency shall
notify the retail establishment of the inspection.
(8) Failure to comply with the procedures set forth in this
subdivision shall be a defense to an action brought pursuant to this
section.
(e) Be responsible for ensuring and reporting the state's
compliance with Section 1926 of Title XIX of the federal Public
Health Service Act (42 U.S.C. Sec. 300x-26) and any implementing
regulations adopted in relation thereto by the United States
Department of Health and Human Services. A copy of this report shall
be made available to the Governor and the Legislature.
(f) Provide that any civil penalties imposed pursuant to Section
22958 shall be enforced against the owner or owners of the retail
business and not the employees of the business.
SEC. 3. 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
who violates 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) Violations by a retailer at one retail location may not be
accumulated against other locations of that same retailer.
(3) 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 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.
(2) Upon the second violation of either the STAKE Act (Division
8.5 (commencing with Section 22950)) or Section 308 of the Penal Code
within five three years, the retailer
shall be subject to a fine of five hundred dollars ($500) unless the
retailer can show proof that he or she has purchased and installed an
identification verification scanner since the date of the violation.
(3) Upon the third violation of either the STAKE Act (Division 8.5
(commencing with Section 22950)) or Section 308 of the Penal Code
within five three years, the retailer
shall have his or her license to sell cigarette and tobacco products
suspended for 90 45 days.
(4) Upon the fourth violation of either the STAKE Act (Division
8.5 (commencing with Section 22950)) or Section 308 of the Penal Code
within five three years, the board
shall suspend the retailer's license to sell cigarette and tobacco
products for 180 days.
(5) Upon the fifth violation of the STAKE Act (Division 8.5
(commencing with Section 22950)) or Section 308 of the Penal Code
within five three years, the board shall
revoke the retailer's license to sell cigarette and tobacco
products.
(c) The decision of the board to suspend or revoke the retailer's
license may be appealed to the board within 30 days after the notice
of suspension or revocation. All appeals shall be submitted in
writing.
(c)
(d) When determining the penalty for violations
pursuant to subdivision (b), the board shall not include violations
that occurred prior to January 1, 2011 2012
.
(d)
(e) The board shall revoke or suspend the license
pursuant to the provisions applicable to the revocation of a license
as set forth in Section 30148 of the Revenue and Taxation Code.
(e)
(f) For the purposes of determining the accumulation of
violations pursuant to this section, it is the intent of the
Legislature that all of the following apply:
(1) A violation of the STAKE Act has occurred when either a final
administrative adjudication is reached or when the retailer pays the
fine of an uncontested violation.
(2) A violation of Section 308 of the Penal Code has occurred when
a final judgment of guilty, either by jury, appeal, or plea, is
entered against the retailer or any employee or agent of the retailer
pursuant to Section 308 of the Penal Code.
(f)
(g) It is the intent of the Legislature for the
enforcing agency to notify the board within 30 days of determining
that a violation has occurred, as set forth in subdivision
(e) (f) .
SEC. 4. Section 308 of the Penal Code is amended to read:
308. (a) (1) Every person, firm, or corporation that knowingly or
under circumstances in which it has knowledge, or should otherwise
have grounds for knowledge, sells, gives, or in any way furnishes to
another person who is under the age of 18 years any tobacco,
cigarette, or cigarette papers, or blunts wraps, or any other
preparation of tobacco, or any other instrument or paraphernalia that
is designed for the smoking or ingestion of tobacco, products
prepared from tobacco, or any controlled substance, is subject to
either a criminal action for a misdemeanor or to a civil action
brought by a city attorney, a county counsel, or a district attorney,
punishable by a fine of two hundred dollars ($200) for the first
offense, five hundred dollars ($500) for the second offense, and one
thousand dollars ($1,000) for the third offense.
Notwithstanding Section 1464 or any other provision of law, 25
percent of each civil and criminal penalty collected pursuant to this
subdivision shall be paid to the office of the city attorney, county
counsel, or district attorney, whoever is responsible for bringing
the successful action, and 25 percent of each civil and criminal
penalty collected pursuant to this subdivision shall be paid to the
city or county for the administration and cost of the community
service work component provided in subdivision (b).
Proof that a defendant, or his or her employee or agent, demanded,
was shown, and reasonably relied upon evidence of majority shall be
defense to any action brought pursuant to this subdivision. Evidence
of majority of a person is a facsimile of or a reasonable likeness of
a document issued by a federal, state, county, or municipal
government, or subdivision or agency thereof, including, but not
limited to, a motor vehicle operator's license, a registration
certificate issued under the federal Selective Service Act, or an
identification card issued to a member of the Armed Forces.
For purposes of this section, the person liable for selling or
furnishing tobacco products to minors by a tobacco vending machine
shall be the person authorizing the installation or placement of the
tobacco vending machine upon premises he or she manages or otherwise
controls and under circumstances in which he or she has knowledge, or
should otherwise have grounds for knowledge, that the tobacco
vending machine will be utilized by minors.
(2) For purposes of this section, "blunt wraps" means cigar papers
or cigar wrappers of all types that are designed for smoking or
ingestion of tobacco products and contain less than 50 percent
tobacco.
(b) Every person under the age of 18 years who purchases,
receives, or possesses any tobacco, cigarette, or cigarette papers,
or any other preparation of tobacco, or any other instrument or
paraphernalia that is designed for the smoking of tobacco, products
prepared from tobacco, or any controlled substance shall, upon
conviction, be punished by a fine of seventy-five dollars ($75) or 30
hours of community service work.
(c) Every person, firm, or corporation that sells, or deals in
tobacco or any preparation thereof, shall post conspicuously and keep
so posted in his, her, or their place of business at each point of
purchase the notice required pursuant to subdivision (b) of Section
22952 of the Business and Professions Code, and any person failing to
do so shall, upon conviction, be punished by a fine of fifty dollars
($50) for the first offense, one hundred dollars ($100) for the
second offense, two hundred fifty dollars ($250) for the third
offense, and five hundred dollars ($500) for the fourth offense and
each subsequent violation of this provision, or by imprisonment in a
county jail not exceeding 30 days.
(d) For purposes of determining the liability of persons, firms,
or corporations controlling franchises or business operations in
multiple locations for the second and subsequent violations of this
section, each individual franchise or business location shall be
deemed a separate entity.
(e) Notwithstanding subdivision (b), any person under 18 years of
age who purchases, receives, or possesses any tobacco, cigarette, or
cigarette papers, or any other preparation of tobacco, any other
instrument of paraphernalia that is designed for the smoking of
tobacco, or products prepared from tobacco, while participating in
the enforcement activities that comply with the guidelines adopted
pursuant to subdivisions (c) and (d) of Section 22925 of the Business
and Professions Code is immune from prosecution for that purchase,
receipt, or possession.
(f) It is the Legislature's intent to regulate the subject matter
of this section. As a result, no city, county, or city and county
shall adopt any ordinance or regulation inconsistent with this
section.