Tobacco Retail License Ordinance 8.75
TOBACCO RETAILERS LICENSING ORDINANCE
8.75.020 Tobacco retailer’s license required.
8.75.030 Unlawful business operation.
8.75.040 Display of license.
8.75.050 Positive identification required.
8.75.060 Minimum age for persons selling tobacco.
8.75.070 Self-service displays prohibited.
8.75.080 False and misleading advertising prohibited.
8.75.090 Packaging and labeling.
8.75.100 Display of price.
8.75.110 Minimum prices and pack sizes for cigars and cigarettes.
8.75.120 Flavored tobacco products prohibited.
8.75.130 License application.
8.75.140 Issuance of license.
8.75.150 License renewal and expiration.
8.75.160 License nontransferable.
8.75.170 License conveys a limited, conditional privilege.
8.75.180 Fee for license.
8.75.190 Compliance monitoring.
8.75.200 Tobacco retailing without a valid license.
8.75.210 Violations, suspension and or revocations.
8.75.220 Seizure of illegal products.
8.75.230 Revocation of license wrongly issued.
8.75.240 Notice and Administrative appeals.
8.75.270 Outreach and education.
8.75.280 Adoption of regulations.
ARTICLE I. General Provisions and Definitions.
SECTION 1. LEGISLATIVE FINDINGS
The City Council finds and determines the foregoing recitals to be true and correct and hereby adopts and incorporates them into this ordinance.
SECTION 2. LEGISLATIVE PURPOSE AND INTENT
This ordinance is intended to promote public health and to protect young people from harmful tobacco products. It establishes a licensing program that encourages responsible tobacco retailing and holds violators accountable for selling and distributing harmful and addictive tobacco and nicotine products to underage individuals. The ordinance is intended to supplement relevant provisions of federal and state law; it is not intended nor should it be interpreted to conflict, expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein.
SECTION 3. FMC CHAPTER 8.75 ADDED
Chapter 8.75, Tobacco Retailers License, is added to Fremont Municipal Code as follows:
Sec. 8.75.010. Definitions.
Notwithstanding any other provision of this Code, the following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
- (a) “Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction.
- (b) “Characterizing flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
- (c) “Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and includes products known as or labeled little cigars, small cigars or cigarillos.
- (d) “Cigarette” means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.
- (e) “Consumer” means a person who purchases a tobacco product for consumption and not for Sale to another.
- (f) “Department” means the department, staff or person designated by the City Manager to enforce or administer the provisions of this chapter.
- (g) “Flavored tobacco product” means any tobacco product that that imparts a characterizing flavor, including menthol cigarettes and flavored non-cigarette tobacco products such as little cigars, smokeless tobacco, and flavored components of e-cigarettes and vaping devices.
- (h) “Labeling” means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.
- (i) “Little cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand. “Little cigar” includes, but is not limited to, any tobacco product known or labeled as “small cigar” or “little cigar.”
- (j) “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.
- (k) “Package” or “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.
- (l) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
- (m) “Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a Person can or does have or share ultimate control over the day-to-day operations of a business.
- (n) “Sale” or “Sell” means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.
- (o) “Self-service display” means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
- (p) “Tobacco paraphernalia” means any item designed or marketed for the consumption, use, or preparation of tobacco products.
- (q) “Tobacco product” means:
- (1) any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff; and
- (2) any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to an electronic cigarette, a vaping device, electronic cigar, electronic pipe, or electronic hookah.
- (3) Notwithstanding any provision of subsections (1) and (2) to the contrary, “tobacco product” includes any component, part, or accessory of a tobacco product, whether or not sold separately. “Tobacco product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
- (r) “Tobacco retailer” means any person, and a person’s agents, employees, or representatives, who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
ARTICLE II. Requirements and Prohibitions.
Sec. 8.75.020 Tobacco retailer’s license required.
It is unlawful for any person to act as a tobacco retailer in the city without first obtaining and
maintaining a valid city-issued tobacco retailer’s license pursuant to this chapter for each tobacco
retailing location. No license may issue to authorize tobacco retailing at other than a fixed
location. Tobacco retailing by persons on foot or from vehicles is prohibited. Tobacco retailing
without a valid tobacco retailer’s license is illegal and a nuisance as a matter of law.
Sec. 8.75.030 Unlawful business operation.
In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it is a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing. Tobacco retailers shall also comply with the following requirements.