BILL NUMBER: SB 24 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Hill
DECEMBER 1, 2014
An act to amend Sections 22950.5, 22951, 22952, 22956, 22958,
22960, 22961, 22962, 22963, 22970.2, 22971, 22972, 22973, 22974,
22974.7, 22980, 22980.1, 22980.2, 22980.3, and 22980.4 of, and to add
Section 22950.1 to, the Business and Professions Code, to add
Section 119406 to the Health and Safety Code, and to amend Section
308 of the Penal Code, relating to electronic cigarettes.
LEGISLATIVE COUNSEL'S DIGEST
SB 24, as introduced, Hill. STAKE Act: electronic cigarettes.
Existing law, the Stop Tobacco Access to Kids Enforcement Act
(STAKE Act), establishes various requirements for distributors and
retailers relating to tobacco sales to minors. Existing law makes it
a crime, punishable by a fine not to exceed $500 or by imprisonment
not exceeding 30 days in a county jail, to fail to post a notice, at
each point of purchase, stating that the sale of tobacco products to
minors is illegal. Existing law also permits enforcing agencies to
assess various civil penalties for violations of the STAKE Act.
Existing law prohibits a person from selling or otherwise
furnishing an electronic cigarette to minors, and makes a violation
punishable as an infraction.
Existing law, the Cigarette and Tobacco Products Licensing Act,
requires the State Board of Equalization to administer a statewide
program to license manufacturers, importers, distributors,
wholesalers, and retailers of cigarettes and tobacco products.
Existing law makes a violation of the Cigarette and Tobacco Products
Licensing Act a misdemeanor punishable by a fine not to exceed
$5,000, by imprisonment not exceeding one year in a county jail, or
by both the fine and imprisonment. Existing law also permits the
State Board of Equalization to assess various civil penalties for
violations of the Cigarette and Tobacco Products Licensing Act.
This bill would extend the STAKE Act to sales of electronic
cigarettes to minors. The bill would require the State Department of
Public Health to enforce the STAKE Act's provisions with regard to
sales of electronic cigarettes commencing July 1, 2016.
The bill would provide that the STAKE Act does not invalidate
existing local government ordinances regulating the distribution or
sale of cigarettes, electronic cigarettes, or tobacco products, or
prohibit local goverments from adopting ordinances regulating the
distribution or sale of cigarettes, electronic cigarettes, or tobacco
products that are more restrictive than state law.
The bill would require that retailers apply for a license to sell
electronic cigarettes commencing April 15, 2016, and to display the
license at each retail location commencing June 30, 2016. The bill
would require the State Board of Equalization to administer a
statewide program to license retailers of electronic cigarettes.
The bill would make the failure to post a notice, on and after
July 1, 2016, at each point of purchase, stating that the sale of
electronic cigarettes to minors is illegal, a crime. The bill would
also make retailers of electronic cigarettes subject to various civil
and criminal penalties if they fail to comply with licensing
requirements. By expanding the scope of existing crimes, the bill
would impose a state-mandated local program.
The bill would require that cartridges for electronic cigarettes
and solutions for filling electronic cigarettes be in child-proof
packaging to protect children from opening and ingesting the
contents.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 22950.1 is added to the Business and
Professions Code, to read:
22950.1. Nothing in this division nor any other law shall be
construed to invalidate an existing ordinance of, or prohibit the
adoption of an ordinance by, a city or county that regulates the
distribution or sale of cigarettes, electronic cigarettes, or tobacco
products in a manner that is more restrictive than this division, to
the extent that the ordinance is not otherwise prohibited by federal
law.
SEC. 2. Section 22950.5 of the Business and Professions Code is
amended to read:
22950.5. For purposes of this division, the following terms have
the following meanings:
(a) "Department" means the State Department of Public Health.
(b) "Enforcing agency" means the State Department of Public
Health, another state agency, including, but not limited to, the
office of the Attorney General, or a local law enforcement agency,
including, but not limited to, a city attorney, district attorney, or
county counsel.
(c) "Tobacco product" means a product containing tobacco leaf,
including, but not limited to, cigarettes, cigars, pipe tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or other preparation
of tobacco, or a tobacco substitute.
(d) "Electronic cigarette" means a device that can provide an
inhalable dose of nicotine by delivering a vaporized solution.
SEC. 3. Section 22951 of the Business and Professions Code is
amended to read:
22951. The Legislature finds and declares that reducing and
eventually eliminating the illegal purchase and consumption of
tobacco products and electronic cigarettes by minors is
critical to ensuring the long-term health of our state's citizens.
Accordingly, California must fully comply with federal regulations,
particularly the "Synar Amendment," that restrict tobacco sales to
minors and require states to vigorously enforce their laws
prohibiting the sale and distribution of tobacco products to persons
under 18 years of age. Full compliance and vigorous enforcement of
the "Synar Amendment" requires the collaboration of multiple state
and local agencies that license, inspect, or otherwise conduct
business with retailers, distributors, or wholesalers that sell
tobacco.
SEC. 4. Section 22952 of the Business and Professions Code is
amended to read:
22952. On or before July 1, 1995, the 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 and electronic cigarettes to persons
under 18 years of age through the enforcement activities authorized
by this division.
(b) Establish requirements that retailers of tobacco products
or electronic cigarettes post conspicuously, at each point of
purchase, a notice stating that selling tobacco products or
electronic cigarettes 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 or
electronic cigarettes check the identification of a purchaser
of tobacco products or electronic cigarettes 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 or
electronic cigarettes 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 or electronic cigarettes 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 , electronic 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 ,
electronic 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.
(g) The amendments made to this section by the act adding this
subdivision shall become operative on July 1, 2016.
SEC. 5. Section 22956 of the Business and Professions Code is
amended to read:
22956. All persons engaging in the retail sale of tobacco
products or electronic cigarettes shall check the
identification of tobacco purchasers of those
items , to establish the age of the purchaser, if the
purchaser reasonably appears to be under 18 years of age.
SEC. 6. 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, electronic 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) (1) In addition to the civil penalties described in
subdivision (a), upon the assessment of a civil penalty for the
third, fourth, or fifth violation, the department, within 60 days of
the date of service of the final administrative adjudication on the
parties 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 fifty dollars ($250) and suspend or revoke a license issued
pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6
in accordance with the following schedule:
(A) A 45-day suspension of the license for a third violation at
the same location within a five-year period.
(B) A 90-day suspension of the license for a fourth violation at
the same location within a five-year period.
(C) Revocation of the license for a fifth violation at the same
location within a five-year period.
(2) The provisions of Chapter 4 (commencing with Section 55121) of
Part 30 of Division 2 of the Revenue and Taxation Code apply with
respect to the collection of the penalty imposed by the State Board
of Equalization pursuant to paragraph (1).
(c) (1) For each suspension or revocation pursuant to subdivision
(b), the civil penalty of two hundred fifty dollars ($250) 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 State Board
of Equalization, 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
notified the State Board of Equalization of the violation.
(d) The enforcing agency shall assess penalties pursuant to the
schedule set forth in subdivision (a) against a person, firm, or
corporation that sells, offers for sale, or distributes tobacco
products or electronic cigarettes 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 or electronic cigarette 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 pursuant to
Section 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 pursuant to
the procedures of that agency that are consistent with Section 131071
of the Health and Safety Code.
SEC. 7. Section 22960 of the Business and Professions Code is
amended to read:
22960. (a) Except as provided in subdivision (b), no
a cigarette , electronic cigarette,
or tobacco product shall not be sold, offered for sale, or
distributed from a vending machine or appliance, or any other coin
or token operated mechanical device designed or used for vending
purposes, including, but not limited to, machines or devices that use
remote control locking mechanisms.
(b) (1) Commencing January 1, 1996, cigarette
Cigarette, electronic cigarette, or tobacco product
vending machines or appliances may be located at least 15 feet away
from the entrance of a premise issued an on-sale public premises
license as defined in Section 23039 by the Department of Alcoholic
Beverage Control to sell alcoholic beverages.
(2) As used in this subdivision "at least 15 feet away from the
entrance" means within the premises of the licensed establishment and
not outside those premises.
(c) This section and subdivision (b) of Section 22958 set forth
minimum state restrictions on the sale of cigarettes ,
electronic cigarettes, or tobacco products from vending
machines or devices and do not preempt or otherwise prohibit the
adoption of a local standard that further restricts access to and
reduces the availability of cigarette s, electronic cigarettes,
or tobacco products from vending machines or devices or that
imposes a complete ban on the sale of cigarettes or tobacco products
from vending machines or devices. A local standard that further
restricts or imposes a complete ban on the sale of cigarettes ,
electronic cigarettes, or tobacco products from vending
machines or devices shall control in the event of an inconsistency
between this section and a local standard.
(d) The amendments made to this section by the act adding this
subdivision shall become operative on July 1, 2016.
SEC. 8. Section 22961 of the Business and Professions Code is
amended to read:
22961. (a) No person, firm, corporation, partnership, or other
organization shall advertise or cause to be advertised any tobacco
products or electronic cigarettes on any outdoor billboard
located within 1,000 feet of any public or private elementary
school, junior high school, or high school, or public playground.
(b) This section sets forth minimum state restrictions on the
advertisement of any tobacco products or electronic cigarettes
on outdoor billboards near schools and public playgrounds and
does not preempt or otherwise prohibit the adoption of a local
standard that imposes a more restrictive or complete ban on billboard
advertising or on tobacco-related billboard advertising. A local
standard that imposes a more restrictive or complete ban on billboard
advertising or on tobacco-related billboard advertising shall
control in the event of any inconsistency between this section and a
local standard.
(c) This section shall not be construed to prohibit the display of
a message or advertisement opposing the use of tobacco products
or electronic cigarettes . However, this subdivision shall not
be construed to permit an advertisement promoting the use of tobacco
products or electronic cigarettes by including a message
opposing the use of tobacco products or electronic cigarettes
within that advertisement.
SEC. 9. Section 22962 of the Business and Professions Code is
amended to read:
22962. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Self-service display" means the open display of
electronic c igarettes, tobacco products ,
or tobacco paraphernalia in a manner that is accessible to the
general public without the assistance of the retailer or employee of
the retailer.
(2) "Tobacco paraphernalia" means cigarette papers or wrappers,
blunt wraps as defined in Section 308 of the Penal Code, pipes,
holders of smoking materials of all types, cigarette rolling
machines, or other instruments or things designed for the smoking or
ingestion of tobacco products.
(3) "Tobacco product" means any product containing tobacco leaf,
including, but not limited to, cigarettes, cigars, pipe tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or any other
preparation of tobacco.
(4)
(3) "Tobacco store" means a retail business that meets
all of the following requirements:
(A) Primarily sells tobacco products or electronic cigarettes
.
(B) Generates more than 60 percent of its gross revenues annually
from the sale of electronic cigarettes, tobacco
products products, and tobacco paraphernalia.
(C) Does not permit any person under 18 years of age to be present
or enter the premises at any time, unless accompanied by the person'
s parent or legal guardian, as defined in Section 6903 of the Family
Code.
(D) Does not sell alcoholic beverages or food for consumption on
the premises.
(b) (1) (A) Except as permitted in subdivision (b) of Section
22960, it is unlawful for a person engaged in the retail sale of
tobacco products or electronic cigarettes to sell, offer
for sale, or display for sale any electronic cigarette,
tobacco product product, or tobacco
paraphernalia by self-service display. A person who violates this
section is subject to those civil penalties specified in the schedule
in subdivision (a) of Section 22958.
(B) A person who violates this section is subject to those civil
penalties specified in the schedule in subdivision (a) of Section
22958.
(2) It is unlawful for a person engaged in the retail sale of
blunt wraps to place or maintain, or to cause to be placed or
maintained, any blunt wraps advertising display within two feet of
candy, snack, or nonalcoholic beverage displayed inside any store or
business.
(3) It is unlawful for any person or business to place or
maintain, or cause to be placed or maintained, any blunt wrap
advertising display that is less than four feet above the floor.
(c) Subdivision (b) shall not apply to the display in a tobacco
store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping
tobacco, provided that in the case of cigars they are generally not
sold or offered for sale in a sealed package of the manufacturer or
importer containing less than six cigars. In any enforcement action
brought pursuant to this division, the retail business that displays
any of the items described in this subdivision in a self-service
display shall have the burden of proving that it qualifies for the
exemption established in this subdivision.
(d) The Attorney General, a city attorney, a county counsel, or a
district attorney may bring a civil action to enforce this section.
(e) This section does not preempt or otherwise prohibit the
adoption of a local standard that imposes greater restrictions on the
access to tobacco products or electronic cigarettes than
the restrictions imposed by this section. To the extent that there is
an inconsistency between this section and a local standard that
imposes greater restrictions on the access to tobacco products
or electronic cigarettes , the greater restriction on the
access to tobacco products or electronic cigarettes in the
local standard shall prevail.
SEC. 10. Section 22963 of the Business and Professions Code is
amended to read:
22963. (a) The sale, distribution, or nonsale distribution of
tobacco products or electronic cigarettes directly or
indirectly to any person under the age of 18 years through the United
States Postal Service or through any other public or private postal
or package delivery service at locations, including, but not limited
to, public mailboxes and mailbox stores, is prohibited.
(b) Any person selling or distributing, or engaging in the nonsale
distribution of, tobacco products or electronic cigarettes
directly to a consumer in the state through the United States
Postal Service or by any other public or private postal or package
delivery service, including orders placed by mail, telephone,
facsimile transmission, or the Internet, shall comply with the
following provisions:
(1) (A) Before enrolling a person as a customer, or distributing
or selling, or engaging in the nonsale distribution of, the tobacco
product or electronic cigarette through any of these
means, the distributor or seller shall verify that the purchaser or
recipient of the product is 18 years of age or older. The distributor
or seller shall attempt to match the name, address, and date of
birth provided by the customer to information contained in records in
a database of individuals whose age has been verified to be 18 years
or older by reference to an appropriate database of government
records kept by the distributor, a direct marketing firm, or any
other entity. In the case of a sale, the distributor or seller shall
also verify that the billing address on the check or credit card
offered for payment by the purchaser matches the address listed in
the database.
(B) If the seller, distributor, or nonsale distributor, is unable
to verify that the purchaser or recipient is 18 years of age or older
pursuant to subparagraph (A), he or she shall require the customer
or recipient to submit an age-verification kit consisting of an
attestation signed by the customer or recipient that he or she is 18
years of age or older and a copy of a valid form of government
identification. For the purposes of this section, a valid form of
government identification includes a driver's license, state
identification card, passport, an official naturalization or
immigration document, such as an alien registration receipt card
(commonly known as a "green card") or an immigrant visa, or military
identification. In the case of a sale, the distributor or seller
shall also verify that the billing address on the check or credit
card provided by the consumer matches the address listed in the form
of government identification.
(2) In the case of a sale, the distributor or seller shall impose
a two-carton minimum on each order of cigarettes, and shall require
payment for the purchase of any tobacco product or electronic
cigarette to be made by personal check of the purchaser or the
purchaser's credit card. No money order or cash payment shall be
received or permitted. The distributor or seller shall submit to each
credit card acquiring company with which it has credit card sales
identification information in an appropriate form and format so that
the words "tobacco product" or "electronic cigarette" may
be printed in the purchaser's credit card statement when a purchase
of a tobacco product or electronic cigarette is made by
credit card payment.
(3) In the case of a sale, the distributor or seller shall make a
telephone call after 5 p.m. to the purchaser confirming the order
prior to shipping the tobacco products or electronic cigarettes
. The telephone call may be a person-to-person call or a
recorded message. The distributor or seller is not required to speak
directly with a person and may leave a message on an answering
machine or by voice mail.
(4) The nonsale distributor shall deliver the tobacco product
or electronic cigarette to the recipient's verified mailing
address, or in the case of a sale, the seller or distributor shall
deliver the tobacco product or electronic cigarette to the
purchaser's verified billing address on the check or credit card
used for payment. No delivery described under this section shall be
permitted to any post office box.
(c) Notwithstanding subdivisions (a) and (b), if a seller,
distributor, or nonsale distributor, complies with all of the
requirements of this section and a minor obtains a tobacco product
or electronic cigarette by any of the means described in
subdivision (b), the seller, distributor, or nonsale distributor is
not in violation of this section.
(d) For the purposes of the enforcement of this section pursuant
to Section 22958, the acts of the United States Postal Service or
other common carrier when engaged in the business of transporting and
delivering packages for others, and the acts of a person, whether
compensated or not, who transports or delivers a package for another
person without any reason to know of the package's contents, are not
unlawful and are not subject to civil penalties.
(e) (1) (A) For the purposes of this section, a "distributor" is
any person or entity, within or outside the state, who agrees to
distribute tobacco products or electronic cigarettes to a
customer or recipient within the
state. The United States Postal Service or any other public or
private postal or package delivery service are not distributors
within the meaning of this section.
(B) A "nonsale distributor" is any person inside or outside of
this state who, directly or indirectly, knowingly provides tobacco
products or electronic cigarettes to any person in this
state as part of a nonsale transaction. "Nonsale distributor"
includes the person or entity who provides the tobacco product
or elec tronic cigarette for delivery and the person
or entity who delivers the product to the recipient as part of a
nonsale transaction.
(C) "Nonsale distribution" means to give electronic
cigarettes, smokeless tobacco tobacco,
or cigarettes to the general public at no cost, or at nominal
cost, or to give coupons, coupon offers, gift certificates, gift
cards, or other similar offers, or rebate offers for electronic
cigarettes, smokeless tobacco tobacco,
or cigarettes to the general public at no cost or at nominal
cost. Distribution of electronic cigarettes, tobacco
products, coupons, coupon offers, gift certificates, gift cards, or
other similar offers, or rebate offers in connection with the sale of
another item, including electronic cigarettes, tobacco
products, cigarette lighters, magazines, or newspapers shall not
constitute nonsale distribution.
(2) For the purpose of this section, a "seller" is any person or
entity, within or outside the state, who agrees to sell tobacco
products or electronic cigarettes to a customer within the
state. The United States Postal Service or any other public or
private postal or package delivery service are not sellers within the
meaning of this section.
(3) For the purpose of this section, a "carton" is a package or
container that contains 200 cigarettes.
(f) A district attorney, city attorney, or the Attorney General
may assess civil penalties against any person, firm, corporation, or
other entity that violates this section, according to the following
schedule:
(1) A civil penalty of not less than one thousand dollars ($1,000)
and not more than two thousand dollars ($2,000) for the first
violation.
(2) A civil penalty of not less than two thousand five hundred
dollars ($2,500) and not more than three thousand five hundred
dollars ($3,500) for the second violation.
(3) A civil penalty of not less than four thousand dollars
($4,000) and not more than five thousand dollars ($5,000) for the
third violation within a five-year period.
(4) A civil penalty of not less than five thousand five hundred
dollars ($5,500) and not more than six thousand five hundred dollars
($6,500) for the fourth violation within a five-year period.
(5) A civil penalty of ten thousand dollars ($10,000) for a fifth
or subsequent violation within a five-year period.
SEC. 11. Section 22970.2 of the Business and Professions Code is
amended to read:
22970.2. The board shall administer a statewide program to
license manufacturers, importers, distributors, wholesalers, and
retailers of cigarettes and tobacco products , and retailers of
electronic cigarettes .
SEC. 12. Section 22971 of the Business and Professions Code is
amended to read:
22971. For purposes of this division, the following terms shall
have the following meanings:
(a) "Board" means the State Board of Equalization.
(b) "Brand family" has the same meaning as that term is defined in
paragraph (2) of subdivision (a) of Section 30165.1 of the Revenue
and Taxation Code.
(c) (1) "Cigarette" means a cigarette as
defined in Section 30003 of the Revenue and Taxation Code.
(2) "Electronic cigarette" means a device as defined in
subdivision (d) of Section 22950.5.
(d) (1) "Control" or "controlling" means possession, direct or
indirect, of the power:
(A) To vote 25 percent or more of any class of the voting
securities issued by a person.
(B) To direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract, other than a commercial contract for goods
or nonmanagement services, or as otherwise provided; however, no
individual shall be deemed to control a person solely on account of
being a director, officer, or employee of that person.
(2) For purposes of subparagraph (B) of paragraph (1), a person
who, directly or indirectly, owns, controls, holds, with the power to
vote, or holds proxies representing 10 percent or more of the then
outstanding voting securities issued by another person, is presumed
to control that other person.
(3) For purposes of this division, the board may determine whether
a person in fact controls another person.
(e) "Display for sale" means the placement of cigarettes ,
electronic cigarettes, or tobacco products in a vending machine
or in retail stock for the purpose of selling or gifting the
cigarettes , electronic cigarettes, or tobacco products.
For purposes of this definition, the clear and easily visible display
of cigarettes , electronic cigarettes, or tobacco
products shall create a rebuttable presumption that either
the products were displayed for sale.
(f) "Distributor" means a distributor as defined in Section 30011
of the Revenue and Taxation Code.
(g) "Gifting" means any transfer of title or possession without
consideration, exchange, or barter, in any manner or by any means, of
cigarettes , electronic cigarettes, or tobacco products
that have been purchased for resale under a license issued pursuant
to this division if the transfer occurs while the license is
suspended or after the effective date of its revocation.
(h) "Importer" means an importer as defined in Section 30019 of
the Revenue and Taxation Code.
(i) "Law enforcement agency" means a sheriff, a police department,
or a city, county, or city and county agency or department
designated by the governing body of that agency to enforce this
chapter or to enforce local smoking and tobacco ordinances and
regulations.
(j) "License" means a license issued by the board pursuant to this
division.
(k) "Licensee" means any person holding a license issued by the
board pursuant to this division.
(l) "Manufacturer" means a manufacturer of cigarettes ,
electronic cigarettes, or tobacco products sold in this state.
(m) "Notice" or "notification" means, unless as otherwise
provided, the written notice or notification provided to a licensee
by the board by either actual delivery to the licensee or by
first-class mail addressed to the licensee at the address on the
license.
(n) "Package of cigarettes" means a package as defined in Section
30015 of the Revenue and Taxation Code.
(o) "Person" means a person as defined in Section 30010 of the
Revenue and Taxation Code.
(p) "Retailer" means a person who engages in this state in the
sale of cigarettes , electronic cigarettes, or tobacco
products directly to the public from a retail location. Retailer
includes a person who operates vending machines from which cigarettes
, electronic cigarettes, or tobacco products are sold in
this state.
(q) "Retail location" means both of the following:
(1) Any building from which cigarettes , electronic
cigarettes, or tobacco products are sold at retail.
(2) A vending machine.
(r) "Sale" or "sold" means a sale as defined in Section 30006 of
the Revenue and Taxation Code.
(s) "Tobacco products" means tobacco products as defined in
subdivision (b) of Section 30121 and subdivision (b) of Section
30131.1 of the Revenue and Taxation Code.
(t) "Unstamped package of cigarettes" means a package of
cigarettes that does not bear a tax stamp as required under Part 13
(commencing with Section 30001) of Division 2 of the Revenue and
Taxation Code, including a package of cigarettes that bears a tax
stamp of another state or taxing jurisdiction, a package of
cigarettes that bears a counterfeit tax stamp, or a stamped or
unstamped package of cigarettes that is marked "Not for sale in the
United States."
(u) "Wholesaler" means a wholesaler as defined in Section 30016 of
the Revenue and Taxation Code.
SEC. 13. Section 22972 of the Business and Professions Code is
amended to read:
22972. (a) Commencing June 30, 2004, a A
retailer shall have in place and maintain a license to engage
in the sale of cigarettes , electronic cigarettes, or
tobacco products. A retailer that owns or controls more than one
retail location shall obtain a separate license for each retail
location, but may submit a single application for those licenses.
(b) The retailer shall conspicuously display the license at each
retail location in a manner visible to the public.
(c) A license is not assignable or transferable. A person who
obtains a license as a retailer who ceases to do business as
specified in the license, or who never commenced business, or whose
license is suspended or revoked, shall immediately surrender the
license to the board.
(d) A license shall be valid for a 12-month period, and shall be
renewed annually.
(e) The amendments made to this section by the act adding this
subdivision shall become operative on June 30, 2016.
SEC. 14. Section 22973 of the Business and Professions Code is
amended to read:
22973. (a) An application for a license shall be filed
on or before April 15, 2004, on a form prescribed by the
board and shall include the following:
(1) The name, address, and telephone number of the applicant.
(2) The business name, address, and telephone number of each
retail location. For applicants who control more than one retail
location, an address for receipt of correspondence or notices from
the board, such as a headquarters or corporate office of the
retailer, shall also be included on the application and listed on the
license. Citations issued to licensees shall be forwarded to all
addressees on the license.
(3) A statement by the applicant affirming that the applicant has
not been convicted of a felony and has not violated and will not
violate or cause or permit to be violated any of the provisions of
this division or any rule of the board applicable to the applicant or
pertaining to the manufacture, sale, or distribution of cigarettes
, electronic cigarettes, or tobacco products. If the
applicant is unable to affirm this statement, the application shall
contain a statement by the applicant of the nature of any violation
or the reasons that will prevent the applicant from complying with
the requirements with respect to the statement.
(4) If any other licenses or permits have been issued by the board
or the Department of Alcoholic Beverage Control to the applicant,
the license or permit number of those licenses or permits then in
effect.
(5) A statement by the applicant that the contents of the
application are complete, true, and correct. Any person who signs a
statement pursuant to this subdivision that asserts the truth of any
material matter that he or she knows to be false is guilty of a
misdemeanor punishable by imprisonment of up to one year in the
county jail, or a fine of not more than one thousand dollars
($1,000), or both the imprisonment and the fine.
(6) The signature of the applicant.
(7) Any other information the board may require.
(b) The board may investigate to determine the truthfulness and
completeness of the information provided in the application. The
board may issue a license without further investigation to an
applicant for a retail location if the applicant holds a valid
license from the Department of Alcoholic Beverage Control for that
same location.
(c) The board shall provide electronic means for applicants to
download and submit applications.
(d) (1) A one-time license fee of one hundred dollars ($100) shall
be submitted with each application. An applicant that owns or
controls more than one retail location shall obtain a separate
license for each retail location, but may submit a single application
for those licenses with a one-time license fee of one hundred
dollars ($100) per location.
(2) The one-time fee required by this subdivision does not apply
to an application for renewal of a license for a retail location for
which the one-time license fee has already been paid. If a license is
reinstated after its expiration, the retailer, as a condition
precedent to its reinstatement, shall pay a reinstatement fee of one
hundred dollars ($100).
(3) The one-time fee required by this subdivision does not apply
to a retail location selling electronic cigarettes if the retail
location has already obtained a license to sell cigarettes or tobacco
products.
(e) The amendments made to this section by the act adding this
subdivision shall become operative on April 15, 2016.
SEC. 15. Section 22974 of the Business and Professions Code is
amended to read:
22974. A retailer shall retain purchase invoices that meet the
requirements set forth in Section 22978.4 for all cigarettes ,
electronic cigarettes, or tobacco products the retailer
purchased for a period of four years. The records shall be kept at
the retail location for at least one year after the purchase.
Invoices shall be made available upon request during normal business
hours for review inspection and copying by the board or by a law
enforcement agency. Any retailer found in violation of these
requirements or any person who fails, refuses, or neglects to retain
or make available invoices for inspection and copying in accordance
with this section shall be subject to penalties pursuant to Section
22981.
SEC. 16. Section 22974.7 of the Business and Professions Code is
amended to read:
22974.7. In addition to any other civil or criminal penalty
provided by law, upon a finding that a retailer has violated any
provision of this division, the board may take the following actions:
(a) In the case of the first offense, the board may revoke or
suspend the license or licenses of the retailer pursuant to the
procedures applicable to the revocation of a license set forth in
Section 30148 of the Revenue and Taxation Code.
(b) In the case of a second or any subsequent offense, in addition
to the action authorized under subdivision (a), the board may impose
a civil penalty in an amount not to exceed the greater of either of
the following:
(1) Five times the retail value of the seized cigarettes ,
electronic cigarettes, or tobacco products.
(2) Five thousand dollars ($5,000).
SEC. 17. Section 22980 of the Business and Professions Code is
amended to read:
22980. (a) (1) Any peace officer, or board employee granted
limited peace officer status pursuant to paragraph (6) of subdivision
(a) of Section 830.11 of the Penal Code, upon presenting appropriate
credentials, is authorized to enter any place as described in
paragraph (3) and to conduct inspections in accordance with the
following paragraphs, inclusive.
(2) Inspections shall be performed in a reasonable manner and at
times that are reasonable under the circumstances, taking into
consideration the normal business hours of the place to be entered.
(3) Inspections may be at any place at which cigarettes ,
electronic cigarettes, or tobacco products are sold,
produced, or stored or at any site where evidence of activities
involving evasion of cigarette or tobacco products tax and violations
of Section 30165.1 of the Revenue and Taxation Code may be
discovered.
(4) Inspections shall be requested or conducted no more than once
in a 24-hour period.
(b) Any person that refuses to allow an inspection shall be
subject to the penalties imposed pursuant to Section 22981.
SEC. 18. Section 22980.1 of the Business and Professions Code is
amended to read:
22980.1. (a) No manufacturer or importer shall sell cigarettes
, electronic cigarettes, or tobacco products to a
distributor, wholesaler, retailer, or any other person who is not
licensed pursuant to this division or whose license has been
suspended or revoked.
(b) (1) Except as provided in paragraph (2), no distributor or
wholesaler shall sell cigarettes , electronic cigarettes,
or tobacco products to a retailer, wholesaler, distributor, or any
other person who is not licensed pursuant to this division or whose
license has been suspended or revoked.
(2) This subdivision does not apply to any sale of cigarettes
, electronic cigarettes, or tobacco products by a distributor,
wholesaler, or any other person to a retailer, wholesaler,
distributor, or any other person that the state, pursuant to the
United States Constitution, the laws of the United States, or the
California Constitution, is prohibited from regulating.
(c) No retailer, distributor, or wholesaler shall purchase
packages of cigarettes or tobacco products from a manufacturer or
importer who is not licensed pursuant to this division or whose
license has been suspended or revoked.
(d) (1) No retailer, or wholesaler shall purchase cigarettes
, electronic cigarettes, or tobacco products from
any person who is not licensed pursuant to this division or whose
license has been suspended or revoked.
(2) Notwithstanding subdivision (c), no distributor shall purchase
cigarettes , electronic cigarettes, or tobacco products
from any person who is required to be licensed pursuant to this
division but who is not licensed or whose license has been suspended
or revoked.
(e) Each separate sale to, or by, a retailer, wholesaler,
distributor, importer, manufacturer, or any other person who is not
licensed pursuant to this division shall constitute a separate
violation.
(f) No manufacturer, distributor, wholesaler, or importer may sell
cigarettes , electronic cigarettes, or tobacco products
to any retailer or wholesaler whose license has been suspended or
revoked unless all outstanding debts of that retailer or wholesaler
that are owed to a wholesaler or distributor for cigarettes ,
electronic cigarettes, or tobacco products are paid and the
license of that retailer or wholesaler has been reinstated by the
board. Any payment received from a retailer or wholesaler shall be
credited first to the outstanding debt for cigarettes ,
electronic cigarettes, or tobacco products and must be
immediately reported to the board. The board shall determine the debt
status of a suspended retailer or wholesaler licensee 25 days prior
to the reinstatement of the license.
(g) No importer, distributor, or wholesaler, or distributor
functioning as a wholesaler, or retailer, shall purchase, obtain, or
otherwise acquire any package of cigarettes to which a stamp or meter
impression may not be affixed in accordance with subdivision (b) of
Section 30163 or subdivision (e) of Section 30165.1 of the Revenue
and Taxation Code, or any cigarettes obtained from a manufacturer or
importer that cannot demonstrate full compliance with all
requirements of the federal Cigarette Labeling and Advertising Act
(15 U.S.C. Sec. 13335a et seq.) for the reporting of ingredients
added to cigarettes.
(h) (1) Failure to comply with the provisions of this section
shall be a misdemeanor subject to penalties pursuant to Section
22981.
(2) Notwithstanding paragraph (1), a manufacturer or importer who
uses the most up-to-date licensing information provided by the board
on the board's Internet Web site to determine a person's
licensing status is presumed to be in compliance with this section.
(i) The amendments that are made to this section by the act adding
this subdivision shall become operative May 1, 2007.
SEC. 19. Section 22980.2 of the Business and Professions Code is
amended to read:
22980.2. (a) A person or entity that engages in the business of
selling cigarettes , electronic cigarettes, or tobacco
products in this state either without a valid license or after a
license has been suspended or revoked, and each officer of any
corporation that so engages in this business, is guilty of a
misdemeanor punishable as provided in Section 22981.
(b) Each day after notification by the board or by a law
enforcement agency that a manufacturer, wholesaler, distributor,
importer, retailer, or any other person required to be licensed under
this division offers cigarettes , electronic
cigarettes, and tobacco products for sale or exchange without a
valid license for the location from which they are offered for sale
shall constitute a separate violation.
(c) Continued sales or gifting of cigarettes , electronic
cigarettes, and tobacco products either without a valid license
or after a notification of suspension or revocation shall constitute
a violation punishable as provided in Section 22981, and shall
result in the seizure of all cigarettes , electronic cigarettes,
and tobacco products in the possession of the person by the
board or a law enforcement agency. Any cigarettes , electronic
cigarettes, and tobacco products seized by the board or by a
law enforcement agency shall be deemed forfeited.
SEC. 20. Section 22980.3 of the Business and Professions Code is
amended to read:
22980.3. (a) Licenses issued pursuant to this division shall be
subject to suspension or revocation for violations of this division
or the Revenue and Taxation Code as provided in this section.
(1) In addition to any applicable fines or penalties for a
violation, upon first conviction of a violation, a licensee shall
receive a written notice from the board detailing the suspension and
revocation provisions of this division. At its discretion, the board
may also suspend a license for up to 30 days.
(2) In addition to any applicable fines or penalties for a
violation, upon a second conviction of a violation within four years
of a previous violation, the license shall be revoked.
(b) The date of the occurrence of a violation shall be used to
calculate the duration between subsequent violations. A violation
shall be noted in the license record at the board only after judicial
conviction or final adjudication of a violation.
(c) Upon updating a record for a violation triggering a
suspension, the board shall serve the licensee with a notice of
suspension and shall order the licensee to cease the sale, gifting,
or displaying for sale of cigarettes , electronic cigarettes,
or tobacco products for the period of the suspension. The
notice of suspension shall inform the licensee of the effective dates
of the suspension.
(d) Continued sales or gifting of cigarettes ,
electronic cigarettes, or tobacco products after the effective
date of the suspension shall constitute a violation of this division
and result in the revocation of a license.
(e) Upon completion of a suspension period, a license shall be
reinstated by the board upon certification that all outstanding debts
of that retailer or wholesaler that are owed to a wholesaler or
distributor for the purchase of cigarettes , electronic
cigarettes, and tobacco products are paid.
(f) Upon updating a record for a violation triggering a
revocation, the board shall serve the licensee with a notice of
revocation and shall order the licensee to cease the sale, gifting,
or displaying for sale of cigarettes , electronic
cigarettes, or tobacco products on and after the effective date
of the revocation. The notice of revocation shall inform the
licensee of the effective date of the revocation.
(g) After a revocation, a previously licensed applicant may apply
for a new license after six months. The board may, at its discretion,
issue a new license.
(h) Upon updating a license record for a violation, suspension, or
revocation to a license of a person or entity that owns or controls
more than one location, the board shall send notice in writing of the
violations, suspensions, or revocations within 15 days of the board'
s action to the address included in the application and listed on the
license for receipt of correspondence or notices from the board.
(i) Upon suspension or revocation of a license pursuant to this
section, the board shall notify all licensed distributors and
wholesalers by electronic mail within 48 hours of the suspension or
revocation of that license. All licensed distributors and wholesalers
shall provide the board and shall update, as necessary, an
electronic mail address that the board can use for purposes of making
the notifications required by this subdivision.
(j) Violations by a licensee at one location may not be
accumulated against other locations of that same licensee. Violations
accumulated against a prior owner at a licensed location may not be
accumulated against a new owner at the same licensed location.
(k) For purposes of this section, a violation includes violations
of the Revenue and Taxation Code relating to cigarettes and tobacco
products, and violations of this division. Only one violation per
discrete action shall be counted toward a suspension or revocation of
a license.
SEC. 21. Section 22980.4 of the Business and Professions Code is
amended to read:
22980.4. A person who, after receiving a notice of suspension or
revocation, continues to display for sale cigarettes ,
electronic cigarettes, or tobacco products shall be subject to
a civil penalty of one thousand dollars ($1,000) for each offense,
and shall not be subject to Section 22981.
SEC. 22. Section 119406 is added to the Health and Safety Code, to
read:
119406. (a) All cartridges for electronic cigarettes and
solutions for filling or refilling an electronic cigarette shall be
in child-proof packaging.
(b) "Child-proof packaging" means packaging that contains
elements, including, but not limited to, safety caps or blister
packs, designed to protect children from being able to open and
ingest the contents.
SEC. 23. 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 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, and, on and after July 1,
2016, every person, firm, or corporation that sells or deals in
electronic cigarettes, 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,
electronic cigarette, or cigarette papers, or any other
preparation of tobacco, any other instrument or paraphernalia that is
designed for the smoking of tobacco, or products prepared from
tobacco is immune from prosecution for that purchase, receipt, or
possession while participating in either of the following:
(1) An enforcement activity that complies with the guidelines
adopted pursuant to subdivisions (c) and (d) of Section 22952 of the
Business and Professions Code.
(2) An activity conducted by the State Department of Public
Health, a local health department, or a law enforcement agency for
the purpose of determining or evaluating youth tobacco purchase
rates.
(f) It is the Legislature's intent to regulate the subject matter
of this section. As a result, a city, county, or city and county
shall not adopt any ordinance or regulation inconsistent with this
section.
SEC. 24. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.