Bill Text: CA SB1400 | 2015-2016 | Regular Session | Amended
Bill Title: Tobacco.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-11-30 - From Assembly without further action. [SB1400 Detail]
Download: California-2015-SB1400-Amended.html
BILL NUMBER: SB 1400 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 21, 2016
AMENDED IN SENATE MAY 31, 2016
INTRODUCED BY Senator Wieckowski
FEBRUARY 19, 2016
An act to amend Section 22962 of, and to amend, repeal,
and add Section 22971 of of, the
Business and Professions Code, relating to cigarette and tobacco
products.
LEGISLATIVE COUNSEL'S DIGEST
SB 1400, as amended, Wieckowski. Retail tobacco licenses.
Tobacco.
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.
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.
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. 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% , tobacco, but does not include cigarettes. A
violation of these provisions is a crime.
This bill would, 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, 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. By expanding the
definition of a crime, this bill would impose a state-mandated local
program.
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: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 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 18 21
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.
SECTION 1. SEC. 2. 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
subdivision (d) of Section 22950.5 and 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.
SEC. 2. SEC. 3. 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
subdivision (d) of Section 22950.5 and 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.
SEC. 4. 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.
