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LAWS REGULATING THE SALE AND DISTRIBUTION OF TOBACCO TO MINORS There
are a variety of federal, state and local laws that regulate the
sale and distribution of tobacco to minors in San Diego County: 1.
THE SYNAR AMENDMENT SCOPE: In order to receive the annual Substance Abuse Prevention and Treatment federal block grant, a state must have and enforce a law prohibiting the sale of tobacco products to individuals under the age of 18. The state must conduct annual inspections to ensure compliance with the law and must report the results of these inspections to the U.S. Department of Health and Human Services (DHHS). ENFORCEMENT: DHHS is authorized to monitor the states’ compliance and to reduce the amount of the block grant upon noncompliance. PENALTY: For a state that reports more than a 20 percent rate of illegal sales to youth, the annual Substance Abuse Prevention and Treatment federal block grant may be reduced by up to 40 percent of the amount originally allocated to the state. California state law requires that retailers must (click on the links for more information about each law):
In addition, California law:
2.
SELLING/GIVING TOBACCO PRODUCTS TO MINORS SCOPE: It is unlawful for any person, firm, or corporation to sell, give, or in any way furnish to a minor any tobacco product or paraphernalia if that person, firm, or corporation knows or should have grounds to know that the recipient is a minor. Proof that a retailer, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence of legal age (such as identification) shall be a defense to any action under section 308. Each individual franchise or location of a business shall be treated as a separate entity for purposes of determining the liability for the second and subsequent violations of section 308. Section 308 states that cities and counties may not adopt any ordinance or regulation that is inconsistent with section 308. Note: A California court has interpreted this to mean that cities and counties may not adopt ordinances or regulations that impose additional criminal or civil penalties pertaining to sales to minors. (See Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383, 402-403 (1993).) ENFORCEMENT: Local law enforcement agencies may enforce this law. The law also authorizes a civil action to enforce the law may be brought by a city attorney, county counsel, or district attorney. PENALTY: Violators are subject to either a criminal action for misdemeanor or a civil action punishable by a fine of $200 for the first offense, $500 for the second offense, and $1,000 for the third offense. Twenty-five percent of penalties collected go to the prosecuting agency. Another twenty-five percent goes to the city or county for the administration and cost of the community service work penalty provided in Section 308(b). Section 308 allows local law enforcement to cite both business owners and employees who actually sell the tobacco product or paraphernalia. 3. STAKE Act California Business and Professions Code Section 22958, 22952(f), 22957 SCOPE: Prohibits any person, firm, or corporation from selling, giving, or in any way furnishing any tobacco product or paraphernalia (including cigarettes and cigarette papers) to a person under the age of 18. EXCEPTION: Violations by one retail location will not be counted against other retail locations of the same corporation or business. Violations against a prior owner of a single franchise location shall not be counted against a new owner of the same single franchise location. ENFORCEMENT: The Food and Drug Branch (FDB) of the California Department of Health Services or delegated local law enforcement agencies may enforce this law. No local law enforcement agencies currently have this delegated authority, so this law is enforced exclusively by the FDB. (In contrast, Penal Code Section 308 is enforced exclusively by local law enforcement.) The FDB must follow the protocols specified in entry 15 in order to cite violators under section 22958 of the STAKE Act. PENALTY: Violators may be penalized under either this section or California Penal Code section 308 for a violation; they may not be penalized under both for the same incident. A civil penalty of $200-$300 for the first violation; $600-$900 for a second violation within a five-year period; $1200-$1800 for a third violation within a five-year period; $3000-$4000 for a fourth violation within a five-year period; or $5000-$6000 for a fifth and for each subsequent violation within a five year period. Any civil penalty imposed under the STAKE Act shall be enforced against the owner and not the employees of the retail establishment. 4.
ID CHECK REQUIREMENTS FOR RETAILERS SCOPE: Retailers must check the identification of tobacco purchasers who reasonably appear to be under 18 years of age. ENFORCEMENT: The Food and Drug Branch (FDB) of the California Department of Health Services or delegated local law agencies may enforce the law. No local law enforcement agencies currently have this delegated authority, so this law is enforced exclusively by the FDB. PENALTY: Not specified. See entry 2 for a discussion of the penalties for selling tobacco to minors in violation of the STAKE Act. 5.
SIGN POSTING REQUIREMENT FOR RETAILERS SCOPE: Every store that sells tobacco must post a boldly-printed, contrasting color sign in a conspicuous place at each point of purchase saying that tobacco products may not be sold to minors. The sign must state that retailers must check the identification of anyone who reasonably appears to be under 18 years of age. The sign must contain the following words: “The Sale of Tobacco Products to Persons Under 18 Years of Age Is Prohibited by Law and Subject to Penalties. Valid Identification May Be Required. To Report an Unlawful Tobacco Sale Call 1-800-5ASK-4-ID. Business and Professions Code section 22952.” The sign must be square (at least 5.5 inches by 5.5 inches) or rectangular (3.66 inches by 8.5 inches), and the required notice must meet specified font sizes. ENFORCEMENT: Local law enforcement may enforce this law under California Penal Code section 308(c). The Food and Drug Branch of the California Department of Health Services or delegated local law agencies may enforce this law under California Business and Professions Code section 22952. PENALTY: Violators who fail to post the sign are subject to a fine of $50 for the first offense, $100 for the second offense, $250 for the third offense, and $500 for the fourth offense and each subsequent violation, or by imprisonment for not more than 30 days. See entry 21 for a description of license-related penalties that attach to retailer violations of the STAKE Act. 6.
STOREFRONT ADVERTISING SCOPE: No more than 33 percent of the square footage of windows and clear doors (e.g., glass) of an alcohol retailer may have advertising signs of any sort, including tobacco. Note: This law is sometimes referred to as the “Lee Law” after its original sponsor, Assembly Member Barbara Lee. Note: This law is not preempted by the Federal Cigarette Labeling and Advertising Act because it applies generally to advertising of all types, not specifically to advertising of cigarettes. EXCEPTION: The law only applies to retailers with an off-sale premises license to sell alcoholic beverages. ENFORCEMENT: This law may be enforced by the California Department of Alcoholic Beverage Control. PENALTY: Violations are classified as misdemeanors, subject to a fine of not more than $1,000 or not more than six months’ imprisonment. 7.
SELF-SERVICE SALES OF CIGARETTES SCOPE: Prohibits the self-service sale or display of any tobacco product (including cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, and bidis) or tobacco paraphernalia (including cigarette papers, pipes, and cigarette rolling machines). The law allows local governments to pass or enforce ordinances that are stricter than state law. EXCEPTION: The law exempts the display in a tobacco store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping tobacco, provided that, in the case of the cigars, they are generally not sold or offered for sale in a sealed package of the manufacturer or importer containing less than 6 cigars. This law does not change the provision existing in state law that allows tobacco to be sold through a vending machine located in a business licensed for on-sale alcohol sales (usually a bar) so long as the vending machine is at least 15 feet away from the entrance and inside the premises. ENFORCEMENT: The Attorney General, a city attorney, a county counsel, or a district attorney may bring a civil action to enforce this law. PENALTY: Violators are subject to fines of $200-300 for the first violation; $600-$900 for the second violation within a five year period; $1200-$1800 for a third violation within a five-year period; $3000-$4000 for a fourth violation within a five year period; or $5000-$6000 for a fifth and for each subsequent violation within a five-year period. See entry 21 for a description of license-related penalties that attach to retailer violations of the STAKE Act. 8.
SINGLE CIGARETTE SALES SCOPE: No person may sell one or more cigarettes, other than in a sealed and properly labeled package. A sealed and properly labeled package means the original packaging of the manufacturer or importer which meets federal labeling requirements. ENFORCEMENT: Local law enforcement agencies may enforce this law. PENALTY: Violations are classified as infractions. 9.
MINIMUM PACK SIZE SCOPE: Cigarettes may not be manufactured, distributed, sold, or offered for sale in packages of less than 20 cigarettes. Roll-your-own tobacco may not be manufactured, distributed, sold, or offered for sale in a package containing no less than 0.60 ounces of tobacco. ENFORCEMENT: Local law enforcement agencies may enforce this law. A civil action to enforce the law may be brought by the Attorney General, a district attorney, a county counsel, or a city attorney. PENALTY: Violators are liable for an infraction or a civil penalty of $200 for the first violation, $500 for the second violation, and $1000 for each subsequent violation. 10.
BIDIS SCOPE: Prohibits the sale, distribution, or importation of “bidis” (also known as “beedies”), defined as products containing tobacco wrapped in temburni leaf or tendu leaf. Note: Bidis are hand-rolled filterless cigarettes that are imported primarily from India and some Southeast Asian countries. They are available in a variety of candy-like flavors and often are sold in packs of less than 20, which makes them more affordable. EXCEPTION: The law does not apply to businesses that prohibit minors. Examples of such a business could include a bar or a store that sells only tobacco products and has a legally valid policy denying access to minors. ENFORCEMENT: Local law enforcement agencies may enforce this law. A civil action to enforce the law may be brought by the Attorney General, a district attorney, a county counsel, or a city attorney. PENALTY: Violators are guilty of a misdemeanor or subject to a civil penalty of $2,000 per violation. 11.
TOBACCO VENDING MACHINES SCOPE: Tobacco products shall not be sold from vending machines. EXCEPTION: Vending machines may be located on a premises issued an on-sale public premises license to sell alcoholic beverages (usually a bar), provided that the machine is at least 15 feet away from the entrance and inside the premises. Local governments may pass a law completely banning tobacco vending machines. ENFORCEMENT: The Food and Drug Branch (FDB) of the California Department of Health Services or delegated local law enforcement agencies may enforce this law. No local law enforcement agencies currently have this delegated authority, so this law is enforced exclusively by the FDB. PENALTY: A civil penalty of $200-$300 for the first violation; $600-$900 for a second violation within a five-year period; $1200-$1800 for a third violation within a five-year period; $3000-$4000 for a fourth violation within a five-year period; or $5000-$6000 for a fifth or subsequent violation within a five-year period. See entry 22 for a description of license-related penalties that attach to retailer violations of the STAKE Act. 12.
HOME DELIVERY OF UNSOLICITED TOBACCO PRODUCTS SCOPE: It is unlawful for a person to knowingly deliver or cause to be delivered any unsolicited tobacco products to any residence in California. EXCEPTION: It is a defense to a violation of this section that the recipient of the tobacco products is personally known to the sender at the time of the delivery. The law does not impose liability on any U.S. Postal Service employee for actions performed in the scope of his/her employment. ENFORCEMENT: Not specified. Local law enforcement agencies may enforce this law. PENALTY: A violation of this section is a misdemeanor and shall be considered a nuisance within the meaning of California Civil Code section 3479. 13.
MAIL ORDER/INTERNET TOBACCO SALES SCOPE: Prohibits distribution or sale of tobacco products to minors via public or private postal services. Includes directives designed to ensure that people who order by mail, fax, phone, or the internet are 18 years of age or older. Distributors or sellers must either (1) match the name, address, and date of birth provided by the customer to information contained in a database of individuals verified to be 18 or older, or (2) require the customer to submit verification of age, including a copy of a valid form of government identification. Establishes a two-carton minimum on each order of cigarettes. Mandates that all applicable purchases must be made by personal check or credit card and that the distributor or seller must call purchasers to confirm their orders. EXCEPTION: The U.S. Postal Service and other common carriers are exempt from penalties when they deliver a package without any reason to know the package’s contents. ENFORCEMENT: A district attorney, city attorney, or the Attorney General may assess civil penalties against any person or entity that violates this law. PENALTY: Violators who make prohibited sales or distributions are liable for a civil penalty of $1,000-$2,000 for the first violation; $2,500-$3,500 for the second violation; $4,000-$5,000 for the third violation within a five-year period; $5,500-$6,500 for the fourth violation within a five-year period; and $10,000 for a fifth or subsequent violation within a five-year period. 14.
COMPLIANCE CHECKS FOR SALES TO MINORS SCOPE: Instructs the California Department of Health Services to use youth decoys in on-site inspections to determine if retailers are making sales of tobacco products to minors. Also authorizes the Department to use youth decoys to investigate illegal sales to minors by telephone, mail, or the internet. The Department may conduct such inspections at random, in response to public complaints (e.g., on the 1-800-5ASK-4-ID phone line), or at retail sites where violations have previously occurred. Participating youth must be 15 or 16 years old; must act under the direct supervision of a peace officer at all times during an inspection; and must show identification with their correct age if asked. However, if a retailer merely requests verbal confirmation of a youth decoy’s age, the decoy may lie. A photograph or video recording of the youth decoy must be taken prior to each inspection or shift of inspections. Following the completion of an on-site sale, the participating peace officer must reenter the retail establishment to inform the seller of the inspection, and following an attempted sale, the Department must notify the retail establishment of the inspection. EXCEPTION: A valid defense to an action under section 22952 is that the youth decoy’s appearance was not that which could be generally expected of a person under 18 years of age. ENFORCEMENT: The Food and Drug Branch (FDB) of the California Department of Health Services or delegated local law enforcement agencies may enforce the law. No local law enforcement agencies currently have this delegated authority, so this law is enforced exclusively by the FDB. PENALTY: See entry 2 for a discussion of the penalties for selling tobacco to minors in violation of the STAKE Act. 15.
PURCHASE/POSSESSION OF TOBACCO PRODUCTS BY MINORS SCOPE: It is unlawful for any person under the age of 18 years to purchase, receive, or possess any tobacco product or paraphernalia. No city or county shall adopt any ordinance or regulation inconsistent with this section. ENFORCEMENT: Local law enforcement agencies may enforce this law. A civil action to enforce the law may be brought by a city attorney, county counsel, or district attorney. PENALTY: Violators are subject to a fine of $75 or 30 hours of community service work. The addition of local court costs may increase the $75 fine. 16.
OVERVIEW OF THE CIGARETTE AND TOBACCO PRODUCTS LICENSING ACT OF
2003 SCOPE: The California Cigarette and Tobacco Products Licensing Act of 2003 (AB 71–Horton) (the Licensing Act) was passed to counter the untaxed sale and distribution of tobacco products in California by organized crime syndicates, street gangs, and international terrorist groups. The Licensing Act sets up a licensing scheme for retailers, distributors, wholesalers, manufacturers, and importers. The Licensing Act adds Division 8.6 (sections 22970 through 22995) to the California Business and Professions Code. Division 8.6 contains seven main chapters setting forth: general provisions and definitions (Chapter 1); licensing requirements for tobacco retailers (Chapter 2); licensing requirements for tobacco distributors and wholesalers (Chapter 3); licensing requirements and fees for tobacco manufacturers and importers (Chapter 4); inspection protocols, prohibitions, and penalties (Chapter 5); requirements for disposition of funds collected under the Licensing Act (Chapter 6); and a directive about the duration of the law (Chapter 7). The Licensing Act shall remain in effect until January 1, 2010, at which point it shall be automatically repealed. Along with the Licensing Act, AB 71 amended various sections of the California Health and Safety Code, the California Revenue and Taxation Code, the California Government Code, and the California Penal Code. ENFORCEMENT: The Board of Equalization is charged with administering and enforcing this law and has the authority to grant, suspend, and revoke licenses issued under this law. Other state and local law enforcement agencies may enforce several provisions of the law. PENALTIES: See entries 17 - 40 for penalties that attach to violations of the Licensing Act. 17.
DISPOSITION OF FUNDS SCOPE: All money collected pursuant to the Licensing Act shall be deposited in the Cigarette and Tobacco Products Compliance Fund. Upon appropriation by the Legislature, funds are available for expenditure solely for the purpose of implementing, enforcing, and administering the Licensing Act. ENFORCEMENT: Not applicable. PENALTY: Not applicable. 18.
TOBACCO RETAILER LICENSE REQUIREMENT SCOPE: By June 30, 2004, tobacco retailers must be licensed by the Board of Equalization (BOE) for each tobacco retail location. For the purposes of this law, a “retailer” is someone who sells tobacco products from a building or a vending machine. Each retailer must pay a one-time license fee of $100 for each retail location. The license is not assignable or transferable, and it must be renewed annually for no fee. A retailer may not obtain a license if the retailer has been issued a license that is suspended or revoked. Licenses will not be issued for any location where a license has been suspended or revoked in the last five years, unless a new owner obtained the property in an arms-length transaction. Note: Although a clerk is an agent of a retailer, clerks need not obtain licenses. ENFORCEMENT: The BOE is authorized to enforce this law. PENALTY: The BOE will suspend, revoke, or decline to grant a license if the retailer has not complied with specified license, tax, and sales to youth laws. 19.
LOCAL RETAILER LICENSING LAWS SCOPE: The Licensing Act contains anti-preemption language that explicitly allows local jurisdictions to pass their own licensing ordinances. Section 22971.3 states that nothing in the Licensing Act preempts or supersedes any local tobacco control law other than those laws related to the collection of state taxes. Moreover, local licensing laws may provide for the suspension and revocation of a local license for any violation of a state tobacco control law. Note: Local jurisdictions can pass licensing ordinances that have stronger public health provisions than the Licensing Act. For example, a local licensing law could include the following components: language making it a violation of the local license to break any local, state, or federal tobacco control law; an annual fee that funds local enforcement; an enforcement plan that requires a specific number of compliance checks per retail outlet per year; a ban on tobacco sales by mobile vendors; and a “private right of action” provision allowing any person to sue a retailer for violating the local licensing law. ENFORCEMENT: Not specified. (Note: Local law enforcement agencies are generally authorized to enforce local licensing laws.) PENALTY: Not specified. (Note: A local licensing law could impose a range of penalties for license violations, including suspension, revocation, an injunction, a fine, and imprisonment.) 20.
RETAILER DISPLAY OF LICENSE SCOPE: A retailer shall conspicuously display the license at each retail location in a manner visible to the public. ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: A retailer who fails to display the license shall be liable for a $500 fine. In addition, the penalties listed in entry 34 apply. 21.
RETAILER STAKE ACT AND PENAL CODE SECTION 308 VIOLATIONS SCOPE: Retailers convicted of either a STAKE Act violation or a Penal Code section 308 violation shall be penalized under the Licensing Act, but only if the most recent official statewide youth purchase survey conducted pursuant to Business and Professions Code section 22952 finds that 13 percent or more of youth were able to purchase cigarettes. Convictions by a retailer at one retail location shall not be accumulated against other locations owned by that retailer. Convictions of violations accumulated against a prior retail owner at a retail location shall not be accumulated against a new retail owner of the same retail location. Note: Retailers will not be subject to penalties under this section in 2004 because the 2003 official statewide rate of illegal tobacco sales to minors was 12.2 percent, which is below the 13 percent “trigger” required by the law. ENFORCEMENT: The Board of Equalization (BOE) is charged with enforcing this law. PENALTY: If the most recent official youth purchase survey conducted pursuant to Business and Professions Code section 22952 finds that 13 percent or more youth were able to purchase cigarettes, the following penalties apply:
22.
DISTRIBUTOR AND WHOLESALER LICENSE REQUIREMENTS SCOPE: By June 30, 2004, tobacco distributors and wholesalers must be licensed by the Board of Equalization (BOE). This license requirement is in addition to the license requirements in the California Revenue and Taxation Code (see below in this entry for descriptions of the applicable California Revenue and Taxation Code provisions). The distributor or wholesaler must pay an annual license fee of $1,000. The license is not assignable or transferable, and it must be renewed annually. A distributor or wholesaler may not obtain a license if that distributor or wholesaler has been issued a license that is suspended or revoked. Licenses will not be issued for any business where a license has been suspended or revoked in the last five years, unless a new owner obtained the business in an arms-length transaction. ENFORCEMENT: The BOE is authorized to enforce this law. PENALTY: The BOE will suspend, revoke, or decline to grant a license if the distributor or wholesaler has not complied with specified license and tax laws. 23. California Revenue and Taxation Code Sections 30140–30149 SCOPE: Tobacco distributors must be licensed by the Board of Equalization (BOE) for each place of business. License applicants must submit a security deposit (minimum of $1,000) to the BOE. The security is conditioned upon the lawful performance of all tobacco tax related requirements. ENFORCEMENT: The BOE is authorized to enforce this law. PENALTY: The license may be revoked for failure to comply with applicable rules and regulations. Distributing without a license is a misdemeanor. 24. California Revenue and Taxation Code Sections 30155–30159 SCOPE: Tobacco wholesalers must be licensed separately for each place of business. This free license must be prominently displayed at each place of business. ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: The license may be suspended or revoked for failure to comply with applicable rules and regulations. Engaging in wholesaling without a license is a misdemeanor. 25.
DISTRIBUTOR AND WHOLESALER REPORTING REQUIREMENTS SCOPE: Any distributor or wholesaler of tobacco products, and any cigarette vending machine operator, shall annually report to the California Department of Health Services, the names and addresses of those persons to whom they provide tobacco products, including dealers. Cigarette vending machine operators granted a seller’s permit shall annually report to the department the name and the address of each location where cigarette vending machines are placed. The data provided shall be deemed confidential by the department and shall be exempt from disclosure under the California Public Records Act. ENFORCEMENT: The Food and Drug Branch (FDB) of the California Department of Health Services or delegated local law agencies may enforce this law. Note: No local law enforcement agencies currently have this delegated authority, so this law is enforced exclusively by the FDB. PENALTY: Not specified. 26.
POSSESSION OR SALE OF UNSTAMPED PACKAGES BY RETAILERS, DISTRIBUTORS,
OR WHOLESALERS SCOPE: Retailers, distributors, wholesalers, and all other persons are prohibited from possessing, storing, owning, or selling a package of cigarettes that bears a counterfeit tax tamp or that lacks a tax stamps. ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: The unstamped packages are subject to seizure and forfeiture, and violations are misdemeanors punishable by the following:
27.
POSSESSION OR SALE OF TOBACCO PRODUCTS ON WHICH TAX IS DUE BY RETAILERS,
DISTRIBUTORS, OR WHOLESALERS SCOPE: Retailers, distributors, wholesalers, and all other persons are prohibited from possessing, storing, owning, or selling a tobacco product on which tax is due. Retailers, distributors, and wholesalers have the burden of proving that the tax has been paid. ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: The illegal packages are subject to seizure and forfeiture. 28.
REVOCATIONS FOR TAX LAW VIOLATIONS BY RETAILERS, DISTRIBUTORS, OR
WHOLESALERS SCOPE: The license of a retailer, distributor, or wholesaler shall be revoked if (1) the license-holder has been convicted of a felony pursuant to California Revenue and Taxation Code sections 30473 or 30480 (relating to counterfeiting and tax evasion); or (2) the license-holder has had any permit or license revoked under any provision of the California Revenue and Taxation Code. ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: Revocation of the license. 29.
MANUFACTURER AND IMPORTER LICENSE REQUIREMENT SCOPE: Commencing on January 1, 2004, every manufacturer and importer must be licensed by the Board of Equalization (BOE). In order to obtain and maintain a license, the manufacturer or importer must:
ENFORCEMENT: The BOE has the authority to grant, suspend, and revoke licenses issued under this law. PENALTY: The BOE will suspend, revoke, or decline to grant a license if the manufacturer or importer has not complied with specified license and reporting requirements. 30.
MANUFACTURER AND IMPORTER ADMINISTRATIVE FEE SCOPE: On or before January 1, 2004, every manufacturer and importer must pay an administrative fee of one cent per package of cigarettes manufactured or imported by the manufacturer or importer and shipped into California in 2001. This law contains special rules for manufacturers and importers that begin operations in California after the law’s enactment. ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: The penalties listed in entry 34 apply. 31.
RECORD RETENTION BY ALL LICENSEES SCOPE: Each retailer, distributor, wholesaler, manufacturer, and importer must retain purchase invoices for all tobacco products for a period of four years. Such records shall be kept at the location identified in the license for a period of one year and shall be made available for inspection upon request of the Board of Equalization (BOE) or by a law enforcement agency. ENFORCEMENT: The BOE and state and local law enforcement agencies are authorized to enforce this law. PENALTY: The penalties listed in entry 34 apply. 32.
TRANSACTIONS WITH OTHER ENTITIES SUBJECT TO THE LICENSING ACT SCOPE: No entity shall sell or purchase tobacco products to or from an entity that is required to be licensed under the Licensing Act but that does not have a license or that has a suspended or revoked license. No entity shall acquire any package of cigarettes to which the required tax stamp or meter impression may not be properly affixed or that fails to comply with the ingredient reporting provisions of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. section 1335a). ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: The penalties listed in entry 34 apply. 33.
SALES BY AN UNLICENSED ENTITY SCOPE: It is a misdemeanor to sell tobacco products without the license required by the Licensing Act. ENFORCEMENT: The Board of Equalization (BOE) is authorized to enforce this law. PENALTY: The penalties listed in entry 34 apply. Each day of continued sales without a valid license after notification by a law enforcement agency that a valid license is required shall constitute a separate violation. Continued sales after notification by the BOE that a license has been suspended or revoked shall result in the seizure and forfeiture of all tobacco products in the possession of the person making such sales. 34.
PENALTIES APPLICABLE TO ALL LICENSEES SCOPE: Except as otherwise provided, any violation of the Licensing Act is a misdemeanor. ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: Each offense shall be punished by a fine not to exceed $5,000, imprisonment not to exceed one year, or both. 35. California Business and Professions Code Sections 22974.7, 22978.7, 22979.7 SCOPE: In addition to any other penalty, the Board of Equalization (BOE) may suspend or revoke a license upon a finding that a licensed retailer, distributor, wholesaler, manufacturer, or importer has violated any provision of the Licensing Act. ENFORCEMENT: The BOE is authorized to enforce this law. PENALTY: In addition to any other penalty for violations of the Licensing Act, the BOE may (1) for a first offense, revoke or suspend a license; and (2) for a second or subsequent offense, revoke or suspend a license, and impose a civil penalty not to exceed the greater of five times the retail value of the tobacco products, or $5,000. 36. California Business and Professions Code Section 22980.3 SCOPE: In addition to any other fines or penalties for violations of the Licensing Act, the Board of Equalization (BOE) may suspend or revoke a license upon a conviction under the Licensing Act or the tobacco tax laws. ENFORCEMENT: The BOE is authorized to enforce this law. PENALTY: For a first conviction, the penalty is a written notice from the BOE detailing the suspension and revocation provisions of this law, and the BOE at its discretion may suspend the license for up to 30 days. For a econd conviction within four years, the license shall be revoked, but a previously licensed applicant may apply for a new license six months after a revocation. Violations at one location are not counted against other locations of that same licensee or against a new owner at the same licensed location. 37.
BOARD OF EQUALIZATION LICENSING DATABASE SCOPE: Upon request, the Board of Equalization shall provide its database of licenses issued to retailers, distributors, wholesalers, manufacturers, and importers to the California Department of Health Services, the office of the Attorney General, a law enforcement agency, or any agency authorized to enforce local tobacco control ordinances. The database may be used only for the purposes of enforcing tobacco control laws, and its use must adhere to all state laws, policies, and regulations governing the use of personal information and privacy. ENFORCEMENT: Not applicable. PENALTY: Not applicable. 38.
INSPECTIONS SCOPE: Any peace officer or authorized Board of Equalization (BOE) employee may enter and inspect any place where tobacco products are sold, produced, or stored or any site where evidence of activities involving evasion of tobacco product taxes may be discovered. ENFORCEMENT: State and local law enforcement agencies and the BOE are authorized to enforce this law. PENALTY: The penalties listed in entry 34 apply to anyone who fails to permit an inspection. 39. California Revenue and Taxation Code Sections 30435–30436, 30471 SCOPE: Board of Equalization (BOE) employees may enter and inspect any place where tobacco products are sold, produced, or stored or any site where there is evidence of activities involving evasion of tobacco taxes or involving Master Settlement Agreement violations. ENFORCEMENT: The BOE is authorized to enforce this law. PENALTY: Tobacco products that violate the tobacco tax laws are subject to seizure and forfeiture to the state. Refusal to allow an inspection is a misdemeanor punishable by a fine not to exceed $1,000 for each offense. 40.
TAX CONSEQUENCES OF DISTRIBUTING WITHOUT A LICENSE SCOPE: If anyone becomes a tobacco distributor without first securing a license, the tax on all distributed tobacco products becomes due immediately. ENFORCEMENT: The Board of Equalization is authorized to enforce this law. PENALTY: Unless the failure to secure a license was due to a reasonable cause, violators are liable for a penalty of 25 percent of the amount of the tax due or $500, whichever is greater. 41.
MANUFACTURER CERTIFICATION SCOPE: A manufacturer must make an annual certification to the Attorney General that it is a signatory to the Master Settlement Agreement or has complied with California law regarding non-participating manufacturers. The certification must include a complete list of brand families. For each manufacturer that has submitted the required certification, the Attorney General shall provide a written acknowledgment of receipt within seven business days. In turn, each manufacturer shall provide to each distributor to whom it sells or ships cigarettes a copy of the Attorney General’s receipt. ENFORCEMENT: The Board of Equalization and the Attorney General are authorized to enforce this law. PENALTY: False certifications knowingly made are a misdemeanor punishable by a fine of not more than $1,000, up to one year in county jail, or both. 42.
ATTORNEY GENERAL DIRECTORY OF COMPLIANT MANUFACTURERS SCOPE: Not later than June 30, 2004, the Attorney General shall publish and maintain a website directory listing manufacturers who have complied with the required certification and listing all certified brand families of the manufacturer. No one shall affix a tax stamp or meter impression to any package of cigarettes unless the brand family is included on the Attorney General’s directory. No one shall sell, offer, possess for sale, or import for personal consumption cigarettes of a brand family not included in the Attorney General’s directory. No one shall acquire, hold, own, possess, transport, or import cigarettes that the person knows or should know are intended to be distributed in violation of the requirement that tax stamps and meter impressions may only be affixed to packages of cigarettes whose brand families are included on the Attorney General’s directory. ENFORCEMENT: The Board of Equalization (BOE) and the Attorney General are authorized to enforce this law. PENALTY: A violation shall constitute a misdemeanor and unfair competition under Business and Professions Code section 17200. In addition, distributors who violate this law are subject to a license revocation or suspension for the first offense. For the second or subsequent offense, the BOE may revoke or suspend the distributor’s license and may impose a civil penalty not to exceed the greater of five times the retail value of the cigarettes or $5,000. Many cities in San Diego County have passed local ordinances further regulating the sale and distribution of tobacco to minors. For example, state law prohibits the self-service sale of cigarettes. Many cities in San Diego County have further strengthened this effort by passing local ordinances prohibiting the sale of all tobacco products, not just cigarettes. For more information about local tobacco control laws in your community, please visit our Community Profile section to find out more about the tobacco control laws in your community. The
Tobacco-Free Communities Coalition is working to pass a comprehensive
tobacco control ordinance in communities throughout San Diego County.
For more information, please go to our Take
Action page. |
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Copyright © 2004, State of California,
Department of Health Services
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