Bill Text: CA AB2733 | 2009-2010 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Cigarettes and tobacco products.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2010-09-30 - Chaptered by Secretary of State - Chapter 607, Statutes of 2010. [AB2733 Detail]
Download: California-2009-AB2733-Introduced.html
Bill Title: Cigarettes and tobacco products.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2010-09-30 - Chaptered by Secretary of State - Chapter 607, Statutes of 2010. [AB2733 Detail]
Download: California-2009-AB2733-Introduced.html
BILL NUMBER: AB 2733 INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Ruskin FEBRUARY 19, 2010 An act to amend Sections 22971 and 22980.3 of, and to add Sections 22980.4 and 22980.5 to, the Business and Professions Code, relating to cigarette and tobacco products. LEGISLATIVE COUNSEL'S DIGEST AB 2733, as introduced, Ruskin. Cigarettes and tobacco products. Existing law, the California Cigarette and Tobacco Products Licensing Act of 2003, provides for the licensure by the State Board of Equalization of manufacturers, distributors, wholesalers, importers, and retailers of cigarette or tobacco products that are engaged in business in California. The act prohibits retailers, manufacturers, distributors, and wholesalers from distributing or selling those cigarette and tobacco products unless they are licensed. The act authorizes the board to suspend or revoke the license of any manufacturer, distributor, wholesaler, importer, or retailer of tobacco products that is in violation of the act's provisions. Violation of the act is a misdemeanor. This bill would, among other things, prohibit the transfer of title or possession of cigarettes or tobacco products without consideration, exchange, or barter if the cigarettes or tobacco products had been purchased for resale under a license issued pursuant to the act and the transfer occurs without a license or after receipt of a notice of suspension or revocation of the license. It would also prohibit specified displays of cigarettes or tobacco products. It would impose prescribed notices to be posted when a license has been suspended or revoked by the board, and would make violation of these posting requirements subject to a civil penalty. By adding a new 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: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. 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) "Importer" means an importer as defined in Section 30019 of the Revenue and Taxation Code. (c) "Cigarette" means a cigarette as defined in Section 30003 of the Revenue and Taxation Code.(c)(d) "Distributor" means a distributor as defined in Section 30011 of the Revenue and Taxation Code. (e) "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. (f) "License" means a license issued by the board pursuant to this division. (g) "Licensee" means any person holding a license issued by the board pursuant to this division.(d)(h) "Manufacturer" means a manufacturer of cigarettes or tobacco products sold in this state. (i) "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. (j) "Package of cigarettes" means a package as defined in Section 30015 of the Revenue and Taxation Code. (k) "Person" means a person as defined in Section 30010 of the Revenue and Taxation Code.(e)( l ) "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.(f)(m) "Retail location" means both of the following: (1) Any building from which cigarettes or tobacco products are sold at retail. (2) A vending machine.(g) "Wholesaler" means a wholesaler as defined in Section 30016 of the Revenue and Taxation Code.(h) "Cigarette" means a cigarette as defined in Section 30003 of the Revenue and Taxation Code.(i) "License" means a license issued by the board pursuant to this division.(j) "Licensee" means any person holding a license issued by the board pursuant to this division.(k)(n) "Sale" or "sold" means a sale as defined in Section 30006 of the Revenue and Taxation Code.(l)(o) "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.(m)(p) "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."(n) "Person" means a person as defined in Section 30010 of the Revenue and Taxation Code.(o) "Package of cigarettes" means a package as defined in Section 30015 of the Revenue and Taxation Code.(p)(q) (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 otherwise provided; however, no individual shall be deemed to control a person solely on account of being a director, officer, or employee of such person. (2) For purposes of subparagraph (B) of this subdivision, 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 such other person. (3) For purposes of this division, the board may determine whether a person in fact controls another person.(q) "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.(r) "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.(s) The amendments made to this section by the act adding this subdivision shall become operative May 1, 2007.(s) "Wholesaler" means a wholesaler as defined in Section 30016 of the Revenue and Taxation Code. SEC. 2. 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 ofthe provisions ofthis 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 thisactdivision . 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. 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 licenseholder toimmediatelycease the sale , transfer without consideration, exchange, or barter prohibited pursuant to Section 22980.4, and display for sale prohibited pursuant to Section 22980.4, of cigarettes or tobacco products for the period of the suspension. The notice of suspension shall inform the licenseholder of the effective dates of the suspension . (c)Upon notice of suspension, the board shall serve the licensee with a notice of suspension and shall order the licensee to immediately cease the sale of cigarettes or tobacco products.Continued sales , transfers without consideration, exchange, or barter prohibited pursuant to Section 22980.4, or displays for sale prohibited pursuant to Section 22980.4 after the notification of suspension shallconstitute a violation of the licensing provisions of this division and shallresult in the revocation of a license. (d) 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 cigarette and tobacco products are paid. (e) 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 licenseholder to cease the sale, transfer without consideration, exchange, or barter prohibited pursuant to Section 22980.4, and displays for sale prohibited pursuant to Section 22980.4 of cigarettes or tobacco products on and after the effective date of the revocation. 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. (f) 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. (g) 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. (h) 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. (i) 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 towards a suspension or revocation of a license. SEC. 3. Section 22980.4 is added to the Business and Professions Code, to read: 22980.4. (a) (1) A person or entity that purchases cigarettes or tobacco products for resale under a license issued pursuant to this division and then transfers, in any manner or by any means, title or possession of cigarettes or tobacco products without consideration, exchange, or barter is guilty of a misdemeanor punishable as provided in Section 22981 if the transfer occurs without a license issued pursuant to this division or after receipt of a notice of suspension or revocation of the license. (2) Continued transfers prohibited pursuant to this subdivision shall constitute a violation punishable as provided in Section 22981 and shall result in the seizure of all cigarettes and tobacco products in the possession of the person by the board or a law enforcement agency. Any cigarettes and tobacco products seized by the board or by a law enforcement agency shall be deemed forfeited. (b) A person or entity that, after receiving a notice of suspension, continues to display for the purpose of selling or transferring without consideration, exchange, or barter cigarettes or tobacco products by placing the cigarettes or tobacco products in a vending machine or in retail stock so that the cigarettes or tobacco products are clearly and easily visible is subject, notwithstanding Section 22981, to a civil penalty of one thousand dollars ($1,000) for each offense. For purposes of this subdivision, a rebuttable presumption shall be established that cigarettes or tobacco products that are clearly and easily visible in retail stock are displayed for the purpose of selling the cigarettes or tobacco products. SEC. 4. Section 22980.5 is added to the Business and Professions Code, to read: 22980.5. (a) A licensee whose license has been suspended or revoked by order of the board shall conspicuously post a notice at both of the following locations: (1) Each public entrance to the retail location. The notice shall directly face any person who enters the retail location and shall not be obstructed from view or placed at a height of less than four feet or greater than nine feet from the floor. (2) Each cash register and other point of retail sale. The notice shall be posted so as to be readily viewable by a person standing at or approaching the cash register or other point of retail sale. The notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four feet or greater than nine feet from the floor. (b) The notices described in this section shall be in the size and form prescribed by the board. The notice shall be provided by the board and may be reproduced in the same size and form to comply with subdivision (a). (c) A licensee whose license was suspended shall post the notice at the retail location that was the subject of the suspension for the duration of the suspension. (d) A licensee whose license was revoked shall post the notice at the retail location that was the subject of the revocation for a 30-day period from the effective date of the revocation. (e) Every licensee who fails to post the notices as required by this section, who alters the notice provided by the board, or who removes the notice before the posting period required in subdivision (c) or (d) expires, shall be subject, notwithstanding Section 22981, to a civil penalty of one thousand dollars ($1,000) for each offense. SEC. 5. 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.