BILL NUMBER: SBX2 7 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Hernandez
(Coauthors: Senators Leno, McGuire, and Mitchell)
JULY 16, 2015
An act to amend Sections 17537.3, 22951, 22952, 22956, 22958, and
22963 of, and to add Section 22964 to, the Business and Professions
Code, and to amend Section 308 of the Penal Code, relating to
tobacco.
LEGISLATIVE COUNSEL'S DIGEST
SB 7, as introduced, Hernandez. Tobacco products: minimum legal
age.
Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE)
Act, establishes various requirements for distributors and retailers
relating to tobacco sales to minors. Existing law prohibits the
furnishing of tobacco products to, and the purchase of tobacco
products by, a person under 18 years of age. Under existing law, a
person is prohibited from making various promotional or advertising
offers of smokeless tobacco products without taking actions to ensure
that the product is not available to persons under 18 years of age.
Existing law also requires the State Department of Public Health to
conduct random, onsite sting inspections of tobacco product retailers
with the assistance of persons under 18 years of age.
This bill would extend the applicability of those provisions to
persons under 21 years of age. The bill would authorize the State
Department of Public Health to conduct random, onsite sting
inspections of tobacco product retailers with the assistance of
persons under 21 years of age.
The bill would also provide that the STAKE Act does not invalidate
existing local government ordinances or prohibit the adoption of
local government ordinances requiring a more restrictive legal age to
purchase or possess tobacco products.
By expanding the scope of existing crimes, the 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 17537.3 of the Business and Professions Code is
amended to read:
17537.3. The following acts are prohibited:
(a) For any a person to offer as
part of an advertising plan or program, promotional offers of
smokeless tobacco products which require proof of purchase of a
smokeless tobacco product unless it carries a designation that the
offer is not available to minors. persons
under 21 years of age. Each promotional offer shall include in
any mail-in coupon a statement requesting purchasers to verify that
the purchaser is 18 21 years of age or
older.
(b) For any a person to honor
mail-in and telephone requests for promotional offers of smokeless
tobacco products unless appropriate efforts are made to ascertain
that a purchaser is over 18 21 years of
age. For purposes of this subdivision, appropriate efforts to
ascertain the age of a purchaser includes
include , but is are not limited
to, requests for a purchaser's birth date.
(c) For any a person by any means,
as part of an advertising plan or program, to distribute free samples
of smokeless tobacco products within a two block
two-block radius of any premises or facilities whose
primary purpose is directed toward persons under the age of
18 21 years of age including, but not
limited to, schools, clubhouses, and youth centers, when those
premises are being used for their primary purposes.
(d) For any a person to distribute,
as part of any advertising plan or program, unsolicited samples of
smokeless tobacco products through a mail campaign.
SEC. 2. Section 22951 of the Business and Professions Code is
amended to read:
22951. The Legislature finds and declares that reducing and
eventually eliminating the illegal purchase and consumption of
tobacco products by minors any person under
21 years of age is critical to ensuring the long-term health of
our state's citizens. Accordingly, California must fully comply with
federal regulations, particularly the "Synar Amendment," that
restrict tobacco sales to minors and require states to vigorously
enforce their laws prohibiting the sale and distribution of tobacco
products to persons under 18 years of age. Full compliance and
vigorous enforcement of the "Synar Amendment" requires the
collaboration of multiple state and local agencies that license,
inspect, or otherwise conduct business with retailers, distributors,
or wholesalers that sell tobacco.
SEC. 3. Section 22952 of the Business and Professions Code is
amended to read:
22952. On or before July 1, 1995, the The
State Department of Public Health shall do all of the
following:
(a) Establish and develop a program to reduce the availability of
tobacco products to persons under 18 21
years of age through the enforcement activities authorized by this
division.
(b) Establish requirements that retailers of tobacco products post
conspicuously, at each point of purchase, a notice stating that
selling tobacco products to anyone under 18
21 years of age is illegal and subject to penalties. The notice
shall also state that the law requires that all persons selling
tobacco products check the identification of a purchaser of tobacco
products who reasonably appears to be under 18
21 years of age. The warning signs shall include a
toll-free telephone number to the department for persons to report
unlawful sales of tobacco products to minors.
any person under 21 years of age.
(c) Provide that primary responsibility for enforcement of this
division shall be with the department. In carrying out its
enforcement responsibilities, the department shall conduct random,
onsite sting inspections at retail sites and shall enlist the
assistance of persons that are 15 and 16
under 21 years of age in conducting these enforcement
activities. The department may conduct onsite sting inspections in
response to public complaints or at retail sites where violations
have previously occurred, and investigate illegal sales of tobacco
products to minors any person under 21 years
of age by telephone, mail, or the Internet. Participation in
these enforcement activities by a person under 18
21 years of age does not constitute a violation of
subdivision (b) of Section 308 of the Penal Code for the person under
18 21 years of age, and the person
under 18 21 years of age is immune from
prosecution thereunder, or under any other provision of
law prohibiting the purchase of these products by a person
under 18 21 years of age.
(d) In accordance with Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, the
department shall adopt and publish guidelines for the use of persons
under 18 21 years of age in inspections
conducted pursuant to subdivision (c) that shall include, but not be
limited to, all of the following:
(1) An enforcing agency may use persons under 18 years of
age who are 15 or 16 21 years of age in random
inspections to determine if sales of cigarettes or other tobacco
products are being made to persons under 18
21 years of age.
(2) A photograph or video recording of the person under
18 21 years of age shall be taken prior to each
inspection or shift of inspections and retained by the enforcing
agency for purposes of verifying appearances.
(3) An enforcing agency may use video recording equipment when
conducting the inspections to record and document illegal sales or
attempted sales.
(4) The person under 18 21 years of
age, if questioned about his or her age, need not state his or her
actual age but shall present a true and correct identification if
verbally asked to present it. Any failure on the part of the person
under 18 21 years of age to provide
true and correct identification, if verbally asked for it, shall be a
defense to an action pursuant to this section.
(5) The person under 18 21 years of
age shall be under the supervision of a regularly employed peace
officer during the inspection.
(6) All persons under 18 21 years of
age used in this manner by an enforcing agency shall display the
appearance of a person under 18 21
years of age. It shall be a defense to an action under this division
that the person's appearance was not that which could be generally
expected of a person under 18 21 years
of age, under the actual circumstances presented to the seller of the
cigarettes or other tobacco products at the time of the alleged
offense.
(7) Following the completion of the sale, the peace officer
accompanying the person under 18 21
years of age shall reenter the retail establishment and shall inform
the seller of the random inspection. Following an attempted sale, the
enforcing agency shall notify the retail establishment of the
inspection.
(8) Failure to comply with the procedures set forth in this
subdivision shall be a defense to an action brought pursuant to this
section.
(e) Be responsible for ensuring and reporting the state's
compliance with Section 1926 of Title XIX of the federal Public
Health Service Act (42 U.S.C. Sec. 300x-26) and any implementing
regulations adopted in relation thereto by the United States
Department of Health and Human Services. A copy of this report shall
be made available to the Governor and the Legislature.
(f) Provide that any civil penalties imposed pursuant to Section
22958 shall be enforced against the owner or owners of the retail
business and not the employees of the business.
SEC. 4. Section 22956 of the Business and Professions Code is
amended to read:
22956. All persons engaging in the retail sale of tobacco
products shall check the identification of tobacco purchasers, to
establish the age of the purchaser, if the purchaser reasonably
appears to be under 18 21 years of age.
SEC. 5. Section 22958 of the Business and Professions Code is
amended to read:
22958. (a) An enforcing agency may assess civil penalties against
any person, firm, or corporation that sells, gives, or in any way
furnishes to another person who is under the age of 18
years, 21 years of age, any tobacco, cigarette,
cigarette papers, any other instrument or paraphernalia that is
designed for the smoking or ingestion of tobacco, products prepared
from tobacco, or any controlled substance, according to the following
schedule: (1) a civil penalty of from four
hundred dollars ($400) to six hundred dollars ($600) for the first
violation, (2) a civil penalty of from nine
hundred dollars ($900) to one thousand dollars ($1,000) for the
second violation within a five-year period, (3) a civil penalty of
from one thousand two hundred dollars ($1,200) to
one thousand eight hundred dollars ($1,800) for a third violation
within a five-year period, (4) a civil penalty of from
three thousand dollars ($3,000) to four thousand dollars
($4,000) for a fourth violation within a five-year period, or (5) a
civil penalty of from five thousand dollars
($5,000) to six thousand dollars ($6,000) for a fifth violation
within a five-year period.
(b) (1) In addition to the civil penalties described in
subdivision (a), upon the assessment of a civil penalty for the
third, fourth, or fifth violation, the department, within 60 days of
the date of service of the final administrative adjudication on the
parties or payment of the civil penalty for an uncontested violation,
shall notify the State Board of Equalization of the violation. The
State Board of Equalization shall then assess a civil penalty of two
hundred fifty dollars ($250) and suspend or revoke a license issued
pursuant to Chapter 2 (commencing with Section 22972) of Division 8.6
in accordance with the following schedule:
(A) A 45-day suspension of the license for a third violation at
the same location within a five-year period.
(B) A 90-day suspension of the license for a fourth violation at
the same location within a five-year period.
(C) Revocation of the license for a fifth violation at the same
location within a five-year period.
(2) The provisions of Chapter 4 (commencing with Section 55121) of
Part 30 of Division 2 of the Revenue and Taxation Code apply with
respect to the collection of the penalty imposed by the State Board
of Equalization pursuant to paragraph (1).
(c) (1) For each suspension or revocation pursuant to subdivision
(b), the civil penalty of two hundred fifty dollars ($250) assessed
pursuant to that subdivision, notwithstanding Section 22953, shall be
deposited into the Cigarette and Tobacco Products Compliance Fund
established pursuant to Section 22990. Moneys from that civil penalty
deposited into this fund shall be made available to the State Board
of Equalization, upon appropriation by the Legislature, for the
purposes of meeting its the board's
duties under subdivision (b).
(2) The department shall, upon request, provide to the State Board
of Equalization information concerning any person, firm, or
corporation that has been assessed a civil penalty for violation of
the STAKE Act pursuant to this section when the department has
notified the State Board of Equalization of the violation.
(d) The enforcing agency shall assess penalties pursuant to the
schedule set forth in subdivision (a) against a person, firm, or
corporation that sells, offers for sale, or distributes tobacco
products from a cigarette or tobacco products vending machine, or a
person, firm, or corporation that leases, furnishes, or services
these machines in violation of Section 22960.
(e) An enforcing agency may assess civil penalties against a
person, firm, or corporation that sells or deals in tobacco or any
preparation thereof, and fails to post conspicuously and keep posted
in the place of business at each point of purchase the notice
required pursuant to subdivision (b) of Section 22952. The civil
penalty shall be in the amount of two hundred dollars ($200) for the
first offense and five hundred dollars ($500) for each additional
violation.
(f) An enforcing agency shall assess penalties in accordance with
the schedule set forth in subdivision (a) against a person, firm, or
corporation that advertises or causes to be advertised a tobacco
product on an outdoor billboard in violation of Section 22961.
(g) If a civil penalty has been assessed pursuant to this section
against a person, firm, or corporation for a single, specific
violation of this division, the person, firm, or corporation shall
not be prosecuted under Section 308 of the Penal Code for a violation
based on the same facts or specific incident for which the civil
penalty was assessed. If a person, firm, or corporation has been
prosecuted for a single, specific violation of Section 308 of the
Penal Code, the person, firm, or corporation shall not be assessed a
civil penalty under this section based on the same facts or specific
incident upon which the prosecution under Section 308 of the Penal
Code was based.
(h) (1) In the case of a corporation or business with more than
one retail location, to determine the number of accumulated
violations for purposes of the penalty schedule set forth in
subdivision (a), violations of this division by one retail location
shall not be accumulated against other retail locations of that same
corporation or business.
(2) In the case of a retail location that operates pursuant to a
franchise as defined in Section 20001, violations of this division
accumulated and assessed against a prior owner of a single franchise
location shall not be accumulated against a new owner of the same
single franchise location for purposes of the penalty schedule set
forth in subdivision (a).
(i) Proceedings under this section shall be conducted pursuant to
Section 131071 of the Health and Safety Code, except in cases where a
civil penalty is assessed by an enforcing agency other than the
department, in which case proceedings shall be conducted pursuant to
the procedures of that agency that are consistent with Section 131071
of the Health and Safety Code.
SEC. 6. Section 22963 of the Business and Professions Code is
amended to read:
22963. (a) The sale, distribution, or nonsale distribution of
tobacco products directly or indirectly to any person under
the age of 18 21 years of age through
the United States Postal Service or through any other public or
private postal or package delivery service at locations, including,
but not limited to, public mailboxes and mailbox stores, is
prohibited.
(b) Any A person selling
or distributing, or engaging in the nonsale distribution of, tobacco
products directly to a consumer in the state through the United
States Postal Service or by any other public or private postal or
package delivery service, including orders placed by mail, telephone,
facsimile transmission, or the Internet, shall comply with the
following provisions:
(1) (A) Before enrolling a person as a customer, or distributing
or selling, or engaging in the nonsale distribution of, the tobacco
product through any of these means, the distributor or seller shall
verify that the purchaser or recipient of the product is 18
21 years of age or older. The distributor or
seller shall attempt to match the name, address, and date of birth
provided by the customer to information contained in records in a
database of individuals whose age has been verified to be 18
21 years of age or older by
reference to an appropriate database of government records kept by
the distributor, a direct marketing firm, or any other entity. In the
case of a sale, the distributor or seller shall also verify that the
billing address on the check or credit card offered for payment by
the purchaser matches the address listed in the database.
(B) If the seller, distributor, or nonsale distributor, is unable
to verify that the purchaser or recipient is 18
21 years of age or older pursuant to subparagraph (A), he
or she shall require the customer or recipient to submit an
age-verification kit consisting of an attestation signed by the
customer or recipient that he or she is 18 21
years of age or older and a copy of a valid form of government
identification. For the purposes of this section, a valid form of
government identification includes a driver's license, state
identification card, passport, an official naturalization or
immigration document, such as an alien registration receipt card
(commonly known as a "green card") or an immigrant visa, or military
identification. In the case of a sale, the distributor or seller
shall also verify that the billing address on the check or credit
card provided by the consumer matches the address listed in the form
of government identification.
(2) In the case of a sale, the distributor or seller shall impose
a two-carton minimum on each order of cigarettes, and shall require
payment for the purchase of any tobacco product to be made by
personal check of the purchaser or the purchaser's credit card. No
money order or cash payment shall be received or permitted. The
distributor or seller shall submit to each credit card acquiring
company with which it has credit card sales identification
information in an appropriate form and format so that the words
"tobacco product" may be printed in the purchaser's credit card
statement when a purchase of a tobacco product is made by credit card
payment.
(3) In the case of a sale, the distributor or seller shall make a
telephone call after 5 p.m. to the purchaser confirming the order
prior to shipping the tobacco products. The telephone call may be a
person-to-person call or a recorded message. The distributor or
seller is not required to speak directly with a person and may leave
a message on an answering machine or by voice mail.
(4) The nonsale distributor shall deliver the tobacco product to
the recipient's verified mailing address, or in the case of a sale,
the seller or distributor shall deliver the tobacco product to the
purchaser's verified billing address on the check or credit card used
for payment. No delivery described under this section shall be
permitted to any post office box.
(c) Notwithstanding subdivisions (a) and (b), if a seller,
distributor, or nonsale distributor, complies with all of the
requirements of this section and a minor
person under 21 years of age obtains a tobacco product by any
of the means described in subdivision (b), the seller, distributor,
or nonsale distributor is not in violation of this section.
(d) For the purposes of the enforcement of this section pursuant
to Section 22958, the acts of the United States Postal Service or
other common carrier when engaged in the business of transporting and
delivering packages for others, and the acts of a person, whether
compensated or not, who transports or delivers a package for another
person without any reason to know of the package's contents, are not
unlawful and are not subject to civil penalties.
(e) (1) (A) For the purposes of this section, a "distributor" is
any person or entity, within or outside the state, who agrees to
distribute tobacco products to a customer or recipient within the
state. The United States Postal Service or any other public or
private postal or package delivery service are not distributors
within the meaning of this section.
(B) A "nonsale distributor" is any person inside or outside of
this state who, directly or indirectly, knowingly provides tobacco
products to any person in this state as part of a nonsale
transaction. "Nonsale distributor" includes the person or entity who
provides the tobacco product for delivery and the person or entity
who delivers the product to the recipient as part of a nonsale
transaction.
(C) "Nonsale distribution" means to give smokeless tobacco or
cigarettes to the general public at no cost, or at nominal cost, or
to give coupons, coupon offers, gift certificates, gift cards, or
other similar offers, or rebate offers for smokeless tobacco or
cigarettes to the general public at no cost or at nominal cost.
Distribution of tobacco products, coupons, coupon offers, gift
certificates, gift cards, or other similar offers, or rebate offers
in connection with the sale of another item, including tobacco
products, cigarette lighters, magazines, or newspapers shall not
constitute nonsale distribution.
(2) For the purpose of this section, a "seller" is any person or
entity, within or outside the state, who agrees to sell tobacco
products to a customer within the state. The United States Postal
Service or any other public or private postal or package delivery
service are not sellers within the meaning of this section.
(3) For the purpose of this section, a "carton" is a package or
container that contains 200 cigarettes.
(f) A district attorney, city attorney, or the Attorney General
may assess civil penalties against any person, firm, corporation, or
other entity that violates this section, according to the following
schedule:
(1) A civil penalty of not less than one thousand dollars ($1,000)
and not more than two thousand dollars ($2,000) for the first
violation.
(2) A civil penalty of not less than two thousand five hundred
dollars ($2,500) and not more than three thousand five hundred
dollars ($3,500) for the second violation.
(3) A civil penalty of not less than four thousand dollars
($4,000) and not more than five thousand dollars ($5,000) for the
third violation within a five-year period.
(4) A civil penalty of not less than five thousand five hundred
dollars ($5,500) and not more than six thousand five hundred dollars
($6,500) for the fourth violation within a five-year period.
(5) A civil penalty of ten thousand dollars ($10,000) for a fifth
or subsequent violation within a five-year period.
SEC. 7. Section 22964 is added to the Business and Professions
Code, to read:
22964. This division sets forth minimum state restrictions with
respect to the legal age to purchase or possess tobacco products and
does not preempt or otherwise prohibit the adoption of a local
standard that imposes a more restrictive legal age to purchase or
possess tobacco products. A local standard that imposes a more
restrictive legal age to purchase or possess tobacco products shall
control in the event of any inconsistency between this division and a
local standard.
SEC. 8. Section 308 of the Penal Code is amended to read:
308. (a) (1) Every person, firm, or corporation that knowingly or
under circumstances in which it has knowledge, or should otherwise
have grounds for knowledge, sells, gives, or in any way furnishes to
another person who is under the age of 18 21
years of age any tobacco, cigarette, or cigarette
papers, or blunts blunt wraps, or any
other preparation of tobacco, or any other instrument or
paraphernalia that is designed for the smoking or ingestion of
tobacco, products prepared from tobacco, or any controlled substance,
is subject to either a criminal action for a misdemeanor or to a
civil action brought by a city attorney, a county counsel, or a
district attorney, punishable by a fine of two hundred dollars ($200)
for the first offense, five hundred dollars ($500) for the second
offense, and one thousand dollars ($1,000) for the third offense.
Notwithstanding Section 1464 or any other law, 25 percent of each
civil and criminal penalty collected pursuant to this subdivision
shall be paid to the office of the city attorney, county counsel, or
district attorney, whoever is responsible for bringing the successful
action, and 25 percent of each civil and criminal penalty collected
pursuant to this subdivision shall be paid to the city or county for
the administration and cost of the community service work component
provided in subdivision (b).
Proof that a defendant, or his or her employee or agent, demanded,
was shown, and reasonably relied upon evidence of majority shall be
defense to any action brought pursuant to this subdivision. Evidence
of majority of a person is a facsimile of or a reasonable likeness of
a document issued by a federal, state, county, or municipal
government, or subdivision or agency thereof, including, but not
limited to, a motor vehicle operator's license, a registration
certificate issued under the federal Selective Service Act, or an
identification card issued to a member of the Armed Forces.
For purposes of this section, the person liable for selling or
furnishing tobacco products to minors persons
under 21 years of age by a tobacco vending machine shall be
the person authorizing the installation or placement of the tobacco
vending machine upon premises he or she manages or otherwise controls
and under circumstances in which he or she has knowledge, or should
otherwise have grounds for knowledge, that the tobacco vending
machine will be utilized by minors. persons
under 21 years of age.
(2) For purposes of this section, "blunt wraps" means cigar papers
or cigar wrappers of all types that are designed for smoking or
ingestion of tobacco products and contain less than 50 percent
tobacco.
(b) Every person under the age of 18 21
years of age who purchases, receives, or possesses
any tobacco, cigarette, or cigarette papers, or any other preparation
of tobacco, or any other instrument or paraphernalia that is
designed for the smoking of tobacco, products prepared from tobacco,
or any controlled substance shall, upon conviction, be punished by a
fine of seventy-five dollars ($75) or 30 hours of community service
work.
(c) Every person, firm, or corporation that sells, or deals in
tobacco or any preparation thereof, shall post conspicuously and keep
so posted in his, her, or their place of business at each point of
purchase the notice required pursuant to subdivision (b) of Section
22952 of the Business and Professions Code, and any person failing to
do so shall, upon conviction, be punished by a fine of fifty dollars
($50) for the first offense, one hundred dollars ($100) for the
second offense, two hundred fifty dollars ($250) for the third
offense, and five hundred dollars ($500) for the fourth offense and
each subsequent violation of this provision, or by imprisonment in a
county jail not exceeding 30 days.
(d) For purposes of determining the liability of persons, firms,
or corporations controlling franchises or business operations in
multiple locations for the second and subsequent violations of this
section, each individual franchise or business location shall be
deemed a separate entity.
(e) Notwithstanding subdivision (b), any person under
18 21 years of age who purchases,
receives, or possesses any tobacco, cigarette, or cigarette papers,
or any other preparation of tobacco, any other instrument or
paraphernalia that is designed for the smoking of tobacco, or
products prepared from tobacco is immune from prosecution for that
purchase, receipt, or possession while participating in either of the
following:
(1) An enforcement activity that complies with the guidelines
adopted pursuant to subdivisions (c) and (d) of Section 22952 of the
Business and Professions Code.
(2) An activity conducted by the State Department of Public
Health, a local health department, or a law enforcement agency for
the purpose of determining or evaluating youth tobacco purchase
rates.
(f) It is the Legislature's intent to regulate the subject matter
of this section. As a result, a city, county, or city and county
shall not adopt any ordinance or regulation inconsistent with this
section.
SEC. 9. 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.