BILL NUMBER: AB 1301	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JANUARY 18, 2012
	AMENDED IN SENATE  JANUARY 4, 2012
	AMENDED IN SENATE  JUNE 29, 2011
	AMENDED IN SENATE  JUNE 22, 2011
	AMENDED IN ASSEMBLY  APRIL 25, 2011
	AMENDED IN ASSEMBLY  MARCH 29, 2011

INTRODUCED BY   Assembly Member Hill
   (Principal coauthor: Senator Padilla)

                        FEBRUARY 18, 2011

   An act to amend Section 22958 of, and to repeal and add Section
22974.8 of, the Business and Professions Code, and to amend Section
308 of the Penal Code, relating to cigarettes and tobacco products.


	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. Existing law 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, enforcing
agencies assess civil penalties in prescribed amounts against a
person, firm, or corporation that sells, gives, or in any way
furnishes to a person under 18 years of age specified tobacco
products. Moneys from these penalties are deposited in the Sale of
Tobacco to Minors Control Account in the State Treasury.
   This bill would remove the schedule for board action in response
to the occurrence of a violation, as defined, of the STAKE Act or the
misdemeanor provision. The bill would declare that these changes
would not result in the limitation or termination of ongoing board
actions. The bill would require the board to suspend or revoke a
retailer's license, as specified, for the 3rd, 4th, or 5th violation.
The bill would require the assessment of an additional civil
penalty, as specified, to be deposited in the existing Cigarette and
Tobacco Products Compliance Fund, which would be made available, upon
appropriation by the Legislature, to fund these suspension and
revocation activities.
   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 22958 of the Business and Professions Code is
amended to read:
   22958.  (a) An enforcing agency may assess civil penalties against
any person, firm, or corporation that sells, gives, or in any way
furnishes to another person who is under the age of 18 years, any
tobacco, cigarette, cigarette papers, any other instrument or
paraphernalia that is designed for the smoking or ingestion of
tobacco, products prepared from tobacco, or any controlled substance,
according to the following schedule: (1) a civil penalty of from
four hundred dollars ($400) to six hundred dollars ($600) for the
first violation, (2) a civil penalty of from nine hundred dollars
($900) to one thousand dollars ($1,000) for the second violation
within a five-year period, (3) a civil penalty of from one thousand
two hundred dollars ($1,200) to one thousand eight hundred dollars
($1,800) for a third violation within a five-year period, (4) a civil
penalty of from three thousand dollars ($3,000) to four thousand
dollars ($4,000) for a fourth violation within a five-year period, or
(5) a civil penalty of from five thousand dollars ($5,000) to six
thousand dollars ($6,000) for a fifth violation within a five-year
period.
   (b) In addition to the  above  civil penalties
 described in subdivision (a)  ,  if the department
assessed the   upon the   assessment of a 
civil penalty  for the third, fourth, or fifth violation  ,
the department, within 30 days of a final administrative
adjudication or payment of the civil penalty for an uncontested
violation, shall  notify the State Board of Equalization of the
violation. The State Board of Equalization shall then  assess a
civil penalty of two hundred dollars ($200) and  direct the
State Board of Equalization to  suspend or revoke a license
issued pursuant to Chapter 2 (commencing with Section 22972) of
Division 8.6 in accordance with the following schedule:
   (1) A 45-day suspension of the license for a third violation 
at the same location  within a five-year period.
   (2) A 90-day suspension of the license for a fourth violation 
at the same location  within a five-year period.
   (3) Revocation of the license for a fifth violation  at the
same location  within a five-year period.
   (c) (1) For each suspension or revocation pursuant to subdivision
(b), the civil penalty of two hundred dollars ($200) assessed
pursuant to that subdivision, notwithstanding Section 22953, shall be
deposited into the Cigarette and Tobacco Products Compliance Fund
established pursuant to Section 22990. Moneys from that civil penalty
deposited into this fund shall be made available to the board, upon
appropriation by the Legislature, for the purposes of meeting its
duties under subdivision (b).
   (2) The department shall, upon request, provide to the State Board
of Equalization information concerning any person, firm, or
corporation that has been assessed a civil penalty for violation of
the STAKE Act pursuant to this section when the department has
 directed   notified  the State Board of
Equalization  to suspend or revoke a license issued pursuant
to subdivision (b)   of the violation  .
   (d) The enforcing agency shall assess penalties in accordance with
the schedule set forth in subdivision (a) against a person, firm, or
corporation that sells, offers for sale, or distributes tobacco
products from a cigarette or tobacco products vending machine, or a
person, firm, or corporation that leases, furnishes, or services
these machines in violation of Section 22960.
   (e) An enforcing agency may assess civil penalties against a
person, firm, or corporation that sells or deals in tobacco or any
preparation thereof, and fails to post conspicuously and keep posted
in the place of business at each point of purchase the notice
required pursuant to subdivision (b) of Section 22952. The civil
penalty shall be in the amount of two hundred dollars ($200) for the
first offense and five hundred dollars ($500) for each additional
violation.
   (f) An enforcing agency shall assess penalties in accordance with
the schedule set forth in subdivision (a) against a person, firm, or
corporation that advertises or causes to be advertised a tobacco
product on an outdoor billboard in violation of Section 22961.
   (g) If a civil penalty has been assessed pursuant to this section
against a person, firm, or corporation for a single, specific
violation of this division, the person, firm, or corporation shall
not be prosecuted under Section 308 of the Penal Code for a violation
based on the same facts or specific incident for which the civil
penalty was assessed. If a person, firm, or corporation has been
prosecuted for a single, specific violation of Section 308 of the
Penal Code, the person, firm, or corporation shall not be assessed a
civil penalty under this section based on the same facts or specific
incident upon which the prosecution under Section 308 of the Penal
Code was based.
   (h) (1) In the case of a corporation or business with more than
one retail location, to determine the number of accumulated
violations for purposes of the penalty schedule set forth in
subdivision (a), violations of this division by one retail location
shall not be accumulated against other retail locations of that same
corporation or business.
   (2) In the case of a retail location that operates pursuant to a
franchise as defined in Section 20001, violations of this division
accumulated and assessed against a prior owner of a single franchise
location shall not be accumulated against a new owner of the same
single franchise location for purposes of the penalty schedule set
forth in subdivision (a).
   (i) Proceedings under this section shall be conducted in
accordance with Section  100171   131071 
of the Health and Safety Code, except in cases where a civil penalty
is assessed by an enforcing agency other than the department, in
which case, proceedings shall be conducted in accordance with the
procedures of that agency that are consistent with Section 
22957   131071 of the Health and Safety Code  .
  SEC. 3.  Section 22974.8 of the Business and Professions Code is
repealed.
  SEC. 4.  Section 22974.8 is added to the Business and Professions
Code, to read:
   22974.8.  (a) Except as provided in subdivision (b), the board
shall suspend or revoke the license of a retailer as directed by the
State Department of Public Health pursuant to subdivision (b) of
Section 22958.
   (b) Notwithstanding any other provision regarding the suspension
or revocation of a license pursuant to this part, the board shall
provide a licensee with at least 10 days' written notice of a pending
suspension or revocation pursuant to this section and an opportunity
to appeal the suspension or revocation and the civil penalty
assessed pursuant to subdivision  (c)   (b)
 of Section 22958 only to correct a mistake or clerical error.
The board shall not accept or consider an appeal of suspension or
revocation under this section if the appeal is founded upon the
grounds of whether the retailer, or any employee or agent of the
retailer, violated the STAKE Act (Division 8.5 (commencing with
Section 22950)) for which violation civil penalties are imposed by
the State Department of Public Health pursuant to  subdivision
(a) of  Section 22958. Nothing in this section shall be
construed to prevent the board from modifying its action on its own
to correct a mistake or clerical error.
  SEC. 5.  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   or  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 22952 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.
  SEC. 6.  No change made by the repeal and addition of Section
22974.8 of the Business and Professions Code pursuant to Sections 3
and 4 of this act shall result in the limitation or termination of an
ongoing action by the State Board of Equalization under that
section.