Bill Text: CA SB603 | 2009-2010 | Regular Session | Amended
Bill Title: Retail cigarette and tobacco sales: licenses: violations.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Engrossed - Dead) 2010-06-30 - Set, second hearing. Hearing canceled at the request of author. [SB603 Detail]
Download: California-2009-SB603-Amended.html
BILL NUMBER: SB 603 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 1, 2009
AMENDED IN SENATE JUNE 1, 2009
AMENDED IN SENATE MAY 18, 2009
AMENDED IN SENATE APRIL 28, 2009
AMENDED IN SENATE APRIL 15, 2009
INTRODUCED BY Senator Padilla
(Principal coauthor: Assembly Member Beall)
(Coauthors: Senators DeSaulnier, Leno, Oropeza, and Romero)
FEBRUARY 27, 2009
An act to amend Sections 22972 and 22973 ,
22973, and 22974.8 of, and to add Sections 22973.3 and 22973.4
to, the Business and Professions Code, relating to retail tobacco
sales.
LEGISLATIVE COUNSEL'S DIGEST
SB 603, as amended, Padilla. Retail cigarette and
tobacco sales: licenses. licenses:
violations.
The
(1) The California 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 cigarette and tobacco products in this state, requires a retailer
to obtain a separate license for each retail location, requires
retailer licensees to pay a one-time license fee of $100, no renewal
fee, and a reinstatement fee of $100 if the license is renewed after
lapse, and authorizes the board to suspend or revoke the license of
any retailer of tobacco products that is in violation of the act.
Existing law requires all moneys collected pursuant to the act to
be deposited in the Cigarette and Tobacco Products Compliance Fund,
which is available for appropriation by the Legislature solely for
the purpose of implementing, enforcing, and administering the
California Cigarette and Tobacco Products Licensing Act of 2003.
This bill would specify that a new license may not be issued to a
retailer for a retail location that is located within 600 feet of a
school, except as specified.
This bill would prohibit the board from issuing a new license to a
retailer for a retail location in an area of overconcentration, as
defined. The bill would authorize the board to issue a new license if
the local governing body of the area in which the applicant's
premises are located, or its designated subordinate officer or body,
determines that public convenience or necessity would be served by
the issuance. The bill would require that determination to be made
within 90 days of notification of a completed application, as
specified, except that if the local governing body, or its designated
subordinate officer or body, did not make a determination within 90
days the license would be deemed denied. The board would be
authorized to issue a license if the determination is made within the
90-day period and the applicant shows that public convenience or
necessity would be served by the issuance.
The bill would set the renewal fee at $100. This bill would allow,
under specified circumstances, a retailer to transfer an existing
license to another person for continued use at the same location upon
the sale or transfer of the business holding the license, if the
business is in an area of overconcentration.
This bill would require the Department of Alcoholic Beverage
Control and the State Department of Public Health to provide
specified information to the board upon request.
(2) Existing law, the Stop Tobacco Access to Kids Enforcement Act
or STAKE Act, establishes various requirements for retailers relating
to tobacco sales to minors. Existing law also makes it a misdemeanor
for a retailer to knowingly or under circumstances in which it has
knowledge, or should otherwise have grounds for knowledge, sell,
give, or in any way furnish a minor with tobacco products or
paraphernalia. Under existing law, violation of the STAKE Act or the
misdemeanor provision result in State Board of Equalization action,
on a set schedule, relating to the licensure of the retailer when the
youth purchase survey finds that 13% or more of youth are able to
purchase cigarettes, and makes the board's authority inoperative when
a youth purchase survey shows less than 13% of youth were able to
purchase cigarettes.
This bill would allow the board to take action relating to the
licensure of retailers who have violated the STAKE Act and
misdemeanor provisions at any time, would require the enforcing
agency to notify the board of a conviction of a violation in a timely
manner, and would require the board to take appropriate action upon
that notification. This bill would delete the provision conditioning
the board's authority to take action against retailers on the results
of a youth purchase survey. This bill would also modify the schedule
of actions taken by the board for violations.
This bill would require the Department of Alcoholic Beverage
Control and the State Department of Public Health to provide
specified information to the board upon request.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 22972 of the Business and Professions Code is
amended to read:
22972. (a) Commencing June 30, 2004, a retailer shall have in
place and maintain a license to engage in the sale of cigarettes or
tobacco products. A retailer that owns or controls more than one
retail location shall obtain a separate license for each retail
location, but may submit a single application for those licenses.
(b) The retailer shall conspicuously display the license at each
retail location in a manner visible to the public.
(c) A license is not assignable or transferable. A person who
obtains a license as a retailer who ceases to do business as
specified in the license, or who never commenced business, or whose
license is suspended or revoked, shall immediately surrender the
license to the board.
(d) A license shall be valid for a 12-month period upon issuance
of the licence pursuant to Section 22973.1, unless surrendered,
suspended, or revoked prior to the end of the 12-month period, and
may be renewed annually upon payment of the fee prescribed in
subdivision (d) of Section 22973.
(e) Any subsequent license issued to a retailer that owns or
controls more than one retail location shall be valid for a partial
year period from the start date of the new license to the end of the
12-month period of the initial license. After a partial year period,
all licenses held by a retailer that owns or controls more than one
retail local shall be valid for the same 12-month period as a
retailer's initial license.
SEC. 2. Section 22973 of the Business and Professions Code is
amended to read:
22973. (a) An application for a license shall be filed on or
before April 15, 2004, on a form prescribed by the board and shall
include the following:
(1) The name, address, and telephone number of the applicant.
(2) The business name, address, and telephone number of each
retail location. For applicants who control more than one retail
location, an address for receipt of correspondence or notices from
the board, such as a headquarters or corporate office of the
retailer, shall also be included on the application and listed on the
license. Citations issued to licensees shall be forwarded to all
addressees on the license.
(3) A statement by the applicant affirming that the applicant has
not been convicted of a felony and has not violated and will not
violate or cause or permit to be violated any of the provisions of
this division or any rule of the board applicable to the applicant or
pertaining to the manufacture, sale, or distribution of cigarettes
or tobacco products. If the applicant is unable to affirm this
statement, the application shall contain a statement by the applicant
of the nature of any violation or the reasons that will prevent the
applicant from complying with the requirements with respect to the
statement.
(4) If any other licenses or permits have been issued by the board
or the Department of Alcoholic Beverage Control to the applicant,
the license or permit number of those licenses or permits then in
effect.
(5) A statement by the applicant that the contents of the
application are complete, true, and correct. Any person who signs a
statement pursuant to this subdivision that asserts the truth of any
material matter that he or she knows to be false is guilty of a
misdemeanor punishable by imprisonment of up to one year in the
county jail, or a fine of not more than one thousand dollars
($1,000), or both the imprisonment and the fine.
(6) The signature of the applicant.
(7) Any other information the board may require.
(b) The board may investigate to determine the truthfulness and
completeness of the information provided in the application. The
board may issue a license without further investigation to an
applicant for a retail location if the applicant holds a valid
license from the Department of Alcoholic Beverage Control for that
same location.
(c) The board shall provide electronic means for applicants to
download and submit applications.
(d) (1) A license fee of one hundred dollars ($100) shall be
submitted with each application and application for renewal. An
applicant that owns or controls more than one retail location shall
obtain a separate license for each retail location, but may submit a
single application or application for renewal for those licenses with
a license fee of one hundred dollars ($100) per location. The fee
shall not be prorated.
(2) If a license is reinstated after its expiration, the retailer,
as a condition precedent to its reinstatement, shall also pay a
reinstatement fee of one hundred dollars ($100).
(e) An application for renewal shall be in the form as prescribed
by the board, which may include, but not be limited to, the name,
address, and telephone number of the applicant, business name,
address, and telephone number of each retail location, and any other
information as the board deems necessary for the proper
administration of this division.
SEC. 3. Section 22973.3 is added to the Business and Professions
Code, to read:
22973.3. (a) The board shall not issue a new license to a
retailer for a retail location in an area of overconcentration.
(b) Notwithstanding subdivision (a), the board may issue a new
license if the local governing body of the area in which the
applicant's premises are located, or its designated subordinate
officer or body, determines within 90 days of notification of a
completed application that public convenience or necessity would be
served by the issuance. The 90-day period shall commence upon receipt
by the local governing body of (1) notification by the board of an
application for licensure, or (2) a completed application according
to local requirements, if any, whichever is later.
If the local governing body, or its designated subordinate officer
or body, does not make a determination within the 90-day period, the
license shall be deemed denied.
(c) For purposes of this section:
(1) "Area of overconcentration" means an area where the ratio of
retail licenses to population in the census tract is greater than the
ratio of retail licenses to population in the county overall.
(2) "Population in census tract" means the population as
determined by the most recent United States decennial or special
census. The population determination shall not operate to prevent an
applicant from establishing that an increase of resident population
has occurred within the census tract.
(3) "Population in the county" means the annual population
estimate for California counties published by the Population Research
Unit of the Department of Finance.
(d) Notwithstanding subdivision (c) of Section 22972, this section
shall not apply to the renewal or transfer of a retail license.
(e) (1) Notwithstanding any other law, subject to approval by the
board, in an area of overconcentration, a retailer may transfer an
existing license to another person only for the continued use at the
same location upon the sale or transfer of the business holding the
license, only to a person who otherwise meets the requirements for
the issuance of a new license, and only after first providing 30 days
notice to the board together with an application for transfer, all
transfer documents, and evidence that the transferee would meet the
requirements for the issuance of a new license.
(2) The application for transfer shall be in the form as
prescribed by the board and contain any information that the board
may require. A transfer fee of one hundred dollars ($100) shall be
submitted with each application.
(f) This section shall not preempt a local jurisdiction from
adopting an ordinance that is more restrictive than this section with
regard to retailers.
(g) In an area of overconcentration, the board may reinstate an
expired license within six months after its expiration.
(h) The Department of Alcoholic Beverage Control shall, upon
request, provide to the board any licensure information, including,
but not limited to, applications, license issuance, license
transfers, license denials, or any other information necessary to
administer this chapter. The State Department of Public Health shall,
upon request, provide to the board any information, including, but
not limited to, statewide information on the annual Youth Tobacco
Purchase Survey, STAKE Act compliance checks, California retailers
and youth tobacco control laws, or any other information necessary to
administer this chapter.
SEC. 4. Section 22973.4 is added to the Business and Professions
Code, to read:
22973.4. (a) The board shall not issue a new retail license to a
retailer for a retail location that is located within 600 feet of a
public or private elementary or secondary school.
(b) (1) Notwithstanding subdivision (a), the board may issue a new
retail license to a retailer for a retail location that is located
within 600 feet of a public or private elementary school if the local
governing body of the area in which the applicant's premises are
located, or its designated subordinate officer or body, determines
within 90 days of notification of a completed application that public
convenience or necessity would be served by the issuance. The 90-day
period shall commence upon receipt by the local governing body of
either of the following:
(A) Notification by the board of an application for licensure.
(B) A completed application according to local requirements, if
any, whichever is later.
(2) If the local governing body, or its designated subordinate
officer or body, does not make a determination within the 90-day
period, the license shall be deemed denied.
(c) This section shall not preempt a local jurisdiction from
adopting an ordinance that is more restrictive than this section with
regard to retailers or proximity to a school.
(d) The Department of Alcoholic Beverage Control, shall, upon
request, provide to the board any licensure information, including,
but not limited to, applications, license issuance, license
transfers, license denials, or any other information necessary to
administer this chapter. The State Department of Public Health,
shall, upon request, provide to the board any information, including,
but not limited to, statewide information on the annual Youth
Tobacco Purchase Survey, Stop Tobacco Access to Kids Enforcement Act
(STAKE ACT) (Division 8.5 (commencing with Section 229550) compliance
checks, California retailers and youth tobacco control laws, or any
other information necessary to administer this chapter.
SEC. 5. Section 22974.8 of the Business
and Professions Code is amended to read:
22974.8. (a) (1) The board shall take action against a retailer,
convicted of a violation of either the Stake
STAKE Act (Division 8.5 (commencing with Section
22950) 22950)) or Section 308 of the Penal Code,
according to the schedule set forth in subdivision (b).
(2) Convictions of violations by a retailer at one retail location
may not be accumulated against other locations of that same
retailer.
(3) Convictions of violations accumulated against a prior retail
owner at a licensed location may not be accumulated against a new
retail owner at the same retail location.
(4) Prior to suspending or revoking a retailer's license to sell
cigarette and tobacco products, the board shall notify the retailer.
The notice shall include instructions for appealing the license
suspension or revocation.
(b) (1) Upon the first conviction of a violation of either the
STAKE Act (Division 8.5 (commencing with Section 22950)
22950)) or Section 308 of the Penal Code, the
retailer shall receive a warning letter from the board that
delineates the circumstances under which a retailer's license may by
suspended or revoked and the amount of time the license may be
suspended or revoked. The retailer and its employees shall receive
training on tobacco control laws from the State Department
of Public Health Services upon a first
conviction. The retailer shall also be assessed a fine of seven
hundred fifty dollars ($750).
(2) Upon the second conviction of a violation of either the STAKE
Act (Division 8.5 (commencing with Section 22950)) or Section 308 of
the Penal Code within 12 months , the retailer
shall be subject to assessed a fine of
one thousand five hundred dollars ($500)
($1,500). The board shall suspend the retailer's
license to sell cigarette and tobacco products for 25 days .
(3) Upon the third conviction of a violation of either the STAKE
Act (Division 8.5 (commencing with Section 22950)) or Section 308 of
the Penal Code within 12 months, the retailer shall be
subject to a fine of one thousand dollars ($1,000)
Code, the board shall revoke the retailer's license to sell cigarette
and tobacco products .
(4) Upon the fourth to the seventh conviction of a violation of
either the STAKE Act (Division 8.5 (commencing with Section 22950))
or Section 308 of the Penal Code within 12 months, the board shall
suspend the retailer's license to sell cigarette and tobacco products
for 90 days.
(5) Upon the eighth conviction of a violation of the STAKE Act
(Division 8.5 (commencing with Section 22950) or Section 308 of the
Penal Code within 24 months, the board shall revoke the retailer's
license to sell cigarette and tobacco products.
(c) The decision of the board to suspend or revoke the retailer's
license may be appealed to the board within 30 days after the notice
of suspension or revocation. All appeals shall be submitted in
writing.
(d) The board's authority to take action against retailers, as set
forth in this section, commences on the date of the release of the
results from the survey undertaken by the Department of Health
Services pursuant to Section 22952 of the Business and Professions
Code Section 22952 to comply with Section 1926 of Title XIX of the
federal Public Health Service Act (42 U.S.C. 300x-26), and any
implementing regulations adopted in relation thereto by the United
States Department of Health and Human Services, showing that the
youth purchase survey finds that 13 percent or more of youth were
able to purchase cigarettes. The board's authority to take action
under this section is inoperative on or after the date of the
subsequent release of the results from the survey showing that less
than 13 percent of youth were able to purchase cigarettes.
(c) For any conviction of a violation of either the STAKE Act
(Division 8.5 (commencing with Section 22950)) or Section 308 of the
Penal Code, the State Department of Public Health or other enforcing
agency shall notify the board of the conviction in a timely manner,
and the board shall take appropriate action pursuant to that
notification. If a state or local law enforcement agency does not
timely notify the board, the board may take action against a retailer
for the violation. For purposes of this subdivision, "timely manner"
means when the conviction is obtained and all appeal rights are
exhausted.
(d) (1) Notwithstanding any other provision of this division, no
licensee may petition the board for an offer in compromise for a
third or any subsequent violation of either the STAKE Act (Division
8.5 (commencing with Section 22950)) or Section 308 of the Penal Code
that occurs within 36 months of the initial violation.
(2) Notwithstanding any other law, the board may revoke a license
for a third violation of either the STAKE Act (Division 8.5
(commencing with Section 22950)) or Section 308 of the Penal Code
that occurs within any 36-month period. This paragraph shall not be
construed to limit the board's authority and discretion to revoke a
license prior to a third violation when the circumstances warrant
that penalty.
(3) For purposes of this subdivision, no violation may be
considered for purposes of determination of the penalty until it has
become final.
(e) The Department of Alcoholic Beverage Control shall, upon
request, provide to the board any licensure information, including,
but not limited to, applications, license issuance, license
transfers, license denials, or any other information necessary to
administer this chapter. The State Department of Public Health shall,
upon request, provide to the board any information, including, but
not limited to, statewide information on the annual Youth Tobacco
Purchase Survey, STAKE compliance checks, California retailers and
youth tobacco control laws, or any other information necessary to
administer this chapter.
(f) For purposes of this section, "conviction of a violation"
includes a conviction under Section 308 of the Penal Code, or a final
administrative adjudication imposing a civil penalty under the STAKE
Act.
