Amended in Assembly June 21, 2016

Amended in Senate May 31, 2016

Senate Bill No. 1400

Introduced by Senator Wieckowski

February 19, 2016

An act to begin insert amend Section 22962 of, and to end insert amend, repeal, and add Section 22971 begin delete of end delete begin insert of, end insert the Business and Professions Code, relating to cigarette and tobacco products.

LEGISLATIVE COUNSEL’S DIGEST

SB 1400, as amended, Wieckowski. begin delete Retail tobacco licenses. end delete begin insert Tobacco. end insert

begin insert

Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, imposes civil penalties for a person engaged in the retail sale of tobacco products who sells, offers for sale, or displays for sale any tobacco product or tobacco paraphernalia by self-service display, except as specified. Existing law makes these penalties inapplicable to the display in a tobacco store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping tobacco, as provided, and defines “tobacco store” to mean a retail business that meets specified requirements, including that it 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.

end insert begin insert

This bill would revise the definition of “tobacco store” by raising the age of persons not permitted to be present or enter the premises at any time, unless accompanied by the person’s parent or legal guardian, from 18 to 21 years of age.

end insert

Existing law, the Cigarette and Tobacco Products Licensing Act of 2003, requires a retailer to obtain a license from the State Board of Equalization to engage in the sale of cigarettes and tobacco products in this state and defines a retailer as a person who engages in this state in the sale of cigarettes or tobacco products directly to the public from a retail location. The act defines a “retail location” as both any building from which cigarettes or tobacco products are sold at retail and a vending machine. begin insert The act also defines “tobacco products” to include, but not be limited to, all forms of cigars, smoking tobacco, chewing tobacco, snuff, and any other articles or products made of, or containing at least 50% end insert begin insert , tobacco, but does not include cigarettes. A violation of these provisions is a crime. end insert

This bill begin delete would, end delete begin insert would expand the definition of “tobacco products” to include a product containing, made, or derived from tobacco or nicotine, as specified, an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, and any component, part, or accessory of a tobacco product. The bill would, end insert beginning January 1, 2019, revise the definition of a “retail location” to mean a tobacco store that is a retail business that, among other things, generates more than 60% of its gross revenues annually from the sale of tobacco products and tobacco paraphernalia. begin insert By expanding the definition of a crime, this bill would impose a state-mandated local program. end insert

begin insert

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.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 22962 of the end insert begin insert Business and Professions
Code end insert begin insert is amended to read: end insert

22962.  

(a) For purposes of this section, the following terms
have the following meanings:

(1) “Self-service display” means the open display of 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 a product or device as defined in
subdivision (d) of Section 22950.5 of the Business and Professions
Code.

(4) “Tobacco store” means a retail business that meets all of the
following requirements:

(A) Primarily sells tobacco products.

(B) Generates more than 60 percent of its gross revenues
annually from the sale of tobacco products and tobacco
paraphernalia.

(C) Does not permit any person under begin delete 18 end delete begin insert 21 end insert 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 to sell, offer for sale, or display for sale any
tobacco 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 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, the greater restriction on the
access to tobacco products in the local standard shall prevail.

begin delete SECTION 1. end delete

begin insert SEC. 2. end insert   

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) “Cigarette” means a cigarette as defined in Section 30003
of the Revenue and Taxation Code.

(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 or
tobacco products in a vending machine or in retail stock for the
purpose of selling or gifting the cigarettes or tobacco products.
For purposes of this definition, the clear and easily visible display
of cigarettes or tobacco products shall create a rebuttable
presumption that either 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 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 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 or tobacco products directly to the public from
a retail location. Retailer includes a person who operates vending
machines from which cigarettes or tobacco products are sold in
this state.

(q) “Retail location” means both of the following:

(1) Any building from which 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
begin insert subdivision (d) of Section 22950.5 and end insert 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.

(v) This section shall remain in effect only until January 1, 2019,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2019, deletes or extends that date.

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

Section 22971 is added to the Business and Professions
Code, to read:

22971.  

(a) For purposes of this division, the following terms
shall have the following meanings:

(1) “Board” means the State Board of Equalization.

(2) “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.

(3) “Cigarette” means a cigarette as defined in Section 30003
of the Revenue and Taxation Code.

(4) (A)   “Control” or “controlling” means possession, direct or
indirect, of the power:

(i) To vote 25 percent or more of any class of the voting
securities issued by a person.

(ii) 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.

(B) For purposes of clause (ii) of subparagraph (A), 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.

(C) For purposes of this division, the board may determine
whether a person in fact controls another person.

(5) “Display for sale” means the placement of cigarettes or
tobacco products in a vending machine or in retail stock for the
purpose of selling or gifting the cigarettes or tobacco products.
For purposes of this definition, the clear and easily visible display
of cigarettes or tobacco products shall create a rebuttable
presumption that either were displayed for sale.

(6) “Distributor” means a distributor as defined in Section 30011
of the Revenue and Taxation Code.

(7) “Gifting” means any transfer of title or possession without
consideration, exchange, or barter, in any manner or by any means,
of 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.

(8) “Importer” means an importer as defined in Section 30019
of the Revenue and Taxation Code.

(9) “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.

(10) “License” means a license issued by the board pursuant to
this division.

(11) “Licensee” means any person holding a license issued by
the board pursuant to this division.

(12) “Manufacturer” means a manufacturer of cigarettes or
tobacco products sold in this state.

(13) “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.

(14) “Package of cigarettes” means a package as defined in
Section 30015 of the Revenue and Taxation Code.

(15) “Person” means a person as defined in Section 30010 of
the Revenue and Taxation Code.

(16) “Retailer” means a person who engages in this state in the
sale of cigarettes or tobacco products directly to the public from
a retail location. Retailer includes a person who operates vending
machines from which cigarettes or tobacco products are sold in
this state.

(17) “Retail location” means a tobacco store as defined in
Section 22962.

(18) “Sale” or “sold” means a sale as defined in Section 30006
of the Revenue and Taxation Code.

(19) “Tobacco products” means tobacco products as defined in
begin insert subdivision (d) of Section 22950.5 and end insert subdivision (b) of Section
30121 and subdivision (b) of Section 30131.1 of the Revenue and
Taxation Code.

(20) “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.”

(21) “Wholesaler” means a wholesaler as defined in Section
30016 of the Revenue and Taxation Code.

(b) This section shall become operative on January 1, 2019.

begin insert

begin insert SEC. 4. end insert   

end insert begin insert

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.

end insert