HomeMy WebLinkAboutOrd 2026
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ORDINANCE NO. 2026
AN ORDINANCE OF THE CITY OF BURLINGAME AMENDING CHAPTER 8.18 OF
THE BURLINGAME MUNICIPAL CODE TO ALLOW ON-SITE CONSUMPTION OF
HOOKAH (SHISHA) TOBACCO AND ADDING A NEW CHAPTER 8.19 TO TITLE 8 OF
THE BURLINGAME MUNICIPAL CODE ESTABLISHING A TOBACCO RETAILER
PERMIT PROGRAM; CEQA DETERMINATION: EXEMPT PURSUANT TO STATE
CEQA GUIDELINES SECTIONS 15378 AND 15061(b)(3)
WHEREAS, on June 19, 2018, the San Mateo County Board of Supervisors
approved an Ordinance that prohibited the sale of flavored tobacco in unincorporated
areas of the County; and
WHEREAS, in 2019, the Burlingame City Council adopted Ordinance 1970, codified
in the Burlingame Municipal Code (BMC) as Chapter 8.18, “Smoking,” of Title 8, which
enacted a similar prohibition for the sale of flavored tobacco products within City limits; and
WHEREAS, in 2020, California passed Senate Bill 793, which enact ed a statewide
ban on Flavored Tobacco products effective December, 2022; and
WHEREAS, while the City of Burlingame and San Mateo County’s flavored tobacco
bans prohibited the sale of hookah (shisha) tobacco, the State’s flavored tobacco ban
allowed an exception for on-site hookah consumption if permitted by the local jurisdiction(s);
and
WHEREAS, at their regularly scheduled meeting on November 20, 2023, the
Burlingame City Council considered whether to amend the City’s flavored tobacco ban to
create an exception for on-site hookah consumption; and
WHEREAS, following public comment from members of the community and other
interested parties, the City Council directed staff to prepare an amendment to the City’s
flavored tobacco ban to permit on-site hookah consumption, but to require any hookah
retailer to offer a tobacco-free hookah alternative; and
WHEREAS, at the November 20, 2023 meeting, the City Council also considered
whether to pursue a Tobacco Retailer Permit Program; and
WHEREAS, an updated Tobacco Retailer Permit Program was recently adopted by
San Mateo County to combat youth tobacco sales through tougher enforcement measures;
and
WHEREAS, the County has encouraged its municipalities to adopt an identical
program, and has incentivized adoption by offering to perform the administration of any
identical program; and
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WHEREAS, since Burlingame anticipates permitting on-site hookah consumption
while the County considers it prohibited, the City is unable to adopt an identical permit
program and is therefore unable to avail itself of the County’s administration and
enforcement; and
WHEREAS, the City Council still wishes to pursue a Tobacco Retailer Permit
Program for the reasons stated by the County, including stronger enforcement to combat
youth tobacco sales and addiction; and
WHEREAS, understanding the City’s proposed stance on a flavored tobacco
exception for hookah, the County has still encouraged the City to adopt an identical permit
program, with the only exception being the allowance of on-site hookah consumption; and
WHEREAS, the City Council has directed staff to draft this Ordinance to create the
program as described above; and
WHEREAS, based upon the recitals above, the City Council finds that the
amendments to Chapter 18 of Title 8 of the Burlingame Municipal Code are necessary for
the protection of public health, safety, and welfare.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME
DOES ORDAIN AS FOLLOWS:
Section 1. The Recitals set forth above are true and correct, and are hereby
incorporated herein by this reference as if fully set forth in their entirety.
Section 2. The City Council hereby finds that this Ordinance is in the public
interest and are necessary for the protection of public health, safety, and welfare .
Section 3. The Ordinance is not a project within the meaning of section 15378 of
the CEQA Guidelines because it has no potential for resulting in physical change in the
environment, either directly or ultimately. In the event that this Ordinance is found to be a
project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines
section 15061(b)(3) because it can be seen with certainty to have no possibility of a
significant effect on the environment.
Section 4. If any section, subsection, clause or phrase of this Ordinance is for any
reason held to be invalid, such decision shall not affect the validity of the remaining portion
or sections of the Ordinance. The City Council of the City of Burlingame hereby declares
that it would have adopted the Ordinance and each section, subsection, sentence, clause
or phrase thereof irrespective of the fact that any one or more sections, subsections,
sentences, clauses or phrases be declared unconstitutional.
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Section 5. Chapter 8.18, “Smoking,” of Title 8 of the Burlingame Municipal Code
is amended as reflected in Exhibit A, attached hereto and incorporated herein by
reference. Exhibit A generally shows additions with underlined text and deletions with
strike out text. The Sections of the Chapter which do not include amendments are not
shown in this exhibit, and remain unchanged.
Section 6. Chapter 8.19, “Tobacco Retailer Permit,” of Title 8 is hereby added to
the Burlingame Municipal Code, as reflected in Exhibit B, attached hereto and
incorporated herein by reference.
Section 7. Sections 5 and 6 of this Ordinance shall be codified in the Burlingame
Municipal Code. Sections 1, 2, 3, 4, 7, 8 and 9 shall not be so codified.
Section 8. This Ordinance shall go into effect 30 days following its adoption.
Section 9. The City Clerk is directed to publish this Ordinance in a manner
required by law.
__________________________
Donna Colson, Mayor
I, Meaghan Hassel-Shearer, City Clerk of the City of Burlingame, certify that the
foregoing ordinance was introduced at a public hearing at a regular meeting of the
City Council held on the day of March 4, 2024, and adopted thereafter on the 18th day
of March, 2024, by the following vote:
AYES: Councilmembers: BROWNRIGG, COLSON, ORTIZ, STEVENSON
NOES: Councilmembers: BEACH
ABSENT: Councilmembers: NONE
________________________________
Meaghan Hassel-Shearer, City Clerk
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EXHIBIT A
Chapter 8.18 – Smoking
8.18.010 Findings and purpose.
8.18.020 Definitions.
8.18.030 Smoking limitations in city-owned or city-controlled facilities and vehicles.
8.18.040 Prohibition of smoking in public places.
8.18.050 Regulation of smoking in places of employment.
8.18.055 Multi-family housing.
8.18.060 Where smoking not regulated.
8.18.070 Posting of signs.
8.18.080 Violations.
8.18.090 Nondiscrimination and prohibition on retaliation.
8.18.100 Tobacco vending machines prohibited except in bars.
8.18.110 Enforcement of Labor Code Section 6404.5.
8.18.120 Sale of flavored tobacco products prohibited.
8.18.120 Sale of flavored tobacco products prohibited.
(a) Definitions. For the purposes of this section, the following definitions shall govern
unless the context clearly requires otherwise:
(1) “Characterizing flavor” means a distinguishable taste or aroma or both, other than
the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced
by the tobacco product. Characterizing flavors include, but are not limited to, tastes or
aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be
determined to have a characterizing flavor solely because of the use of additives or
flavorings or the provision of ingredient information. Rather, it is the presence of a
distinguishable taste or aroma, or both, as described in the first sentence of this definition,
that constitutes a characterizing flavor.
(2) “Constituent” means any ingredient, substance, chemical, or compound, other
than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a
tobacco product during the processing, manufacture, or packing of the tobacco product.
(3) “Distinguishable” means perceivable by either the sense of smell or taste.
(4) “Flavored tobacco product” means any tobacco product that contains a
constituent that imparts a characterizing flavor.
(5) “Labeling” means written, printed, pictorial, or graphic matter upon any tobacco
product or any of its packaging.
(6) “Packaging” means a pack, box, carton, or container of any kind or, if no other
container, any wrapping (including cellophane) in which a tobacco product is sold, or
offered for sale, to a consumer.
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(7) “Tobacco product” means any product containing, made, or derived from tobacco
or nicotine that is intended for human consumption, including any electronic device that
delivers nicotine or other substances to the person inhaling from the device, including, but
not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah
and the nicotine-containing liquids manufactured for use in such devices.
(8) “Tobacco retailer” means any store, stand, booth, concession or any other
enterprise, including an online or e-commerce vendor, that engages in the retail sale of
tobacco products, including, but not limited to, stores that engage in th e retail sale of food
items. This definition shall apply only to this Section.
(b) Sale or Offer for Sale of Flavored Tobacco Products Prohibited.
(1) The sale or offer for sale within the city of Burlingame, including a sale transacted
remotely with delivery to an address within Burlingame, by any person or tobacco retailer
of any flavored tobacco product is prohibited and no person or tobacco retailer shall sell,
or offer for sale, any flavored tobacco product.
(A) The sale of Hookah/Shisha tobacco for immediate on-site consumption by a
tobacco retailer holding a valid and unexpired City of Burlingame Tobacco Retailer Permit
that specifically permits on-site hookah sales is exempted from this prohibition, so long as
the tobacco retailer is in compliance with the permit and Chapter 8.19 of this Title, as may
be amended.
(2) There shall be a rebuttable presumption that a tobacco product is a flavored
tobacco product if a manufacturer or any of the manufacturer’s agents or employee s, in
the course of their agency or employment, has made a statement or claim directed to
consumers or to the public that the tobacco product has or produces a characterizing
flavor including, but not limited to, text, color, and/or images on the product’s labeling or
packaging that are used to explicitly or implicitly communicate that the tobacco product
has a characterizing flavor.
(c) Enforcement—Violation a Public Nuisance. The provisions of this section shall be
enforced through the mechanisms provided in Title 1 of this code, and violations may be
subject to administrative, civil, or criminal remedies as determined within the discretion of
the city attorney as prosecutor. Violation of the provisions of this section is deemed to
constitute a public nuisance and may be abated as such. Further, violation of this section
shall constitute grounds for revocation of a violator’s business license under
Section 6.04.280. These remedies are in addition to, and not in place of, all enforcement
options available to the City through Chapter 8.19 of this Title as may be amended.
(d) No Conflict with State or Federal Law. Nothing in this chapter shall be interpreted
or applied so as to create any requirement, power, or duty that is preempted by federal or
state law.
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EXHIBIT B
Title 8 HEALTH AND SANITATION
8.04 HEALTH NOTICES
8.08 ENVIRONMENTAL HEALTH
8.10 REGULATING THE USE OF DISPOSABLE FOOD SERVICE WARE
8.12 RESTRICTION OF THE USE OF SINGLE-USE CARRY-OUT BAGS BY
RETAILERS
8.15 ORGANIC WASTE DISPOSAL REDUCTION
8.16 SOLID WASTE
8.17 RECYCLING AND DIVERSION OF DEBRIS FROM CONSTRUCTION AND
DEMOLITION
8.18 SMOKING
8.19 TOBACCO RETAILER PERMIT
Chapter 8.19 - TOBACCO RETAILER PERMIT
8.19.100 - Definitions.
(a) "Characterizing Flavor" means a distinguishable taste or aroma, or both, other than
the taste or aroma of tobacco, imparted by a Tobacco Product or any byproduct
produced by the Tobacco Product. Characterizing flavors include, but are not limited to,
tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert,
alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A Tobacco Product
shall not be determined to have a Characterizing Flavor solely because of the use of
additives or flavorings or the provision of ingredient information. Rather, it is the
presence of a distinguishable taste or aroma, or both, as described in the first sentence
of this definition, that constitutes a Characterizing Flavor.
(b) "Constituent" means any ingredient, substance, chemical, or compound, other than
tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a
Tobacco Product during the processing, manufacture, or packing of the Tobacco
Product.
(c) “Consumer” means a Person who purchases a Tobacco Product for consumption.
(d) “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket,
image, or other issue, whether in paper, digital, or other form, used for commercial
purposes to obtain an article, product, service, or accommodation without charge or at
a discounted price.
(e) “Director” means the Chief of Police, or his or her designee.
(f) "Distinguishable" means perceivable by either the sense of smell or taste.
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(g) “Electronic Smoking Device” means any device that may be used to deliver any
aerosolized or vaporized substance to the person inhaling from the device, including,
but not limited to, an e-cigarette, e-cigar, e-pipe, or vape pen. Electronic Smoking
Device includes any component, part, or accessory of the device, and also includes
any substance that may be aerosolized or vaporized by such device, whether or not
the substance contains nicotine, and whether natural or synthetic. “Electronic Smoking
Device” does not include any product that has been approved by the United States
Food and Drug Administration for sale as a tobacco cessation product or for other
therapeutic purposes where such product is marketed and sold solely for such an
approved purpose.
(h) "Flavored Tobacco Product" means any Tobacco Product that contains a
Constituent that imparts a Characterizing Flavor.
(i) “Full Retail Price” means the price listed for a Tobacco Product on its Packaging or
on any related shelving, advertising, or display where the Tobacco Product is sold or
offered for Sale, plus all applicable taxes and fees if such taxes and fees are not
included in the listed price.
(j) “Hookah” means a type of waterpipe, used to smoke shisha or other Tobacco
Products, with a flexible tube for drawing aerosol through water. Components of a
Hookah may include heads, stems, bowls, and hoses.
(k) “Hookah Tobacco Retailer” means a Tobacco Retailer that is engaged in the retail
sale of shisha Tobacco products, Hookah, and Hookah smoking accessories that are
to be consumed on-site immediately after purchase. A Hookah Tobacco Retailer is a
type of Tobacco Retailer for purposes of this Chapter.
(l) “Labeling” means written, printed, pictorial, or graphic matter upon any Tobacco
Product or any of its packaging.
(m) “Packaging” means a pack, box, carton, or container of any kind or, if no other
container, any wrapping (including cellophane) in which a Tobacco Product is sold, or
offered for Sale, to a Consumer.
(n) “Permit” or “Tobacco Retailer Permit” means a valid permit issued by the Director to
a Person to act as a Tobacco Retailer.
(o) “Person” means any natural person, partnership, cooperative association,
corporation, personal representative, receiver, trustee, assignee, or any other entity.
(p) "Pharmacy" means any retail establishment in which the profession of pharmacy is
practiced by a pharmacist licensed by the State of California in accordance with the
Business and Professions Code and where prescription pharmaceuticals are offered
for Sale, regardless of whether the retail establishment Sells other retail goods in
addition to prescription pharmaceuticals.
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(q) “Sale” or “Sell” means transfer to, exchange, barter, or distribute for a commercial
purpose.
(r) “Self-Service Display” shall be defined as the open display or storage of Tobacco
Products in a manner that is physically accessible to the general public without the
assistance of the retailer or employee of the retailer and a direct face-to-face transfer
between the purchaser and the retailer or employee of the retailer. A vending machine
is a form of self-service display.
(s) “Shisha Tobacco Product” means a Tobacco Product smoked or intended to be
smoked in a Hookah. “Shisha Tobacco Product” includes, and may be referred to as,
hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. “Shisha Tobacco
Product” does not include any electronic devices, such as an electronic hookah,
electronic cigarette, or electronic Tobacco Product.
(t) “Tobacco Paraphernalia” means any item designed or marketed for the
consumption, use, or preparation of Tobacco Products.
(u) “Tobacco" or "Tobacco Product(s)" means:
(1) any product containing, made of, or derived from tobacco or nicotine,
whether natural or synthetic, that is intended for human consumption or is likely
to be consumed, whether inhaled, absorbed, or ingested by any other means,
including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco,
snuff, or snus;
(2) any Electronic Smoking Device and any substances that may be aerosolized
or vaporized by such device, whether or not the substance contains nicotine,
and whether natural or synthetic; or
(3) any component, part, or accessory of (1) or (2), whether or not any of these
contains tobacco or nicotine, whether natural or synthetic, including but not
limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces,
and pipes.
(4) “Tobacco Product” does not include any product that has been approved by
the United States Food and Drug Administration for sale as a tobacco cessation
product or for other therapeutic purposes where such product is marketed and
sold solely for such an approved purpose.
(v) “Tobacco Product Flavor Enhancer” means a product designed, manufactured,
produced, marketed or sold to produce a Characterizing Flavor when added to a
Tobacco Product.
(w) “Tobacco Retailer” means any Person who Sells, or offers for Sale, Tobacco
Products. This definition is without regard to the quantity of Tobacco Products sold or
offered for Sale.
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(x) “Youth-Populated Area” means a parcel of real property that is occupied, in whole
or in part, by any of the following:
(1) a private or public school that educates children in grades
kindergarten through high school;
(2) a library that is open to the public;
(3) a playground that is open to the public;
(4) a Youth Center, defined as a facility where children ages 6 to 17
come together for programs and activities;
(5) a Recreation Facility open to the public, defined as an area, place,
structure, or other facility that is used either permanently or temporarily
for community recreation, even though it may be used for other
purposes. “Recreation Facility” includes, but is not limited to, a
gymnasium, playing court, playing field, and swimming pool;
(6) a public or private college or university that serves as an institution
for education beyond the high school level;
(7) a licensed child-care facility or preschool, other than a small-family
day care home or a large-family daycare home as defined in California
Health & Safety Code § 1596.78.
8.19.110 - Requirement for a Permit.
(a) No Tobacco Retailer or other Person shall Sell or offer for Sale any Tobacco
Product without a current and valid Tobacco Retailer Permit from the City of
Burlingame for each location where such activities are conducted.
(b) Permits are valid for one year and must be renewed annually by the Permit holder
in order to continue to Sell or offer for Sale any Tobacco Product. A Retailer must
obtain a separate Permit for each location at which any Tobacco Product will be Sold,
offered for Sale or distributed. A Permit shall expire at the end of its term, unless
renewed prior to its expiration, and the Tobacco Retailer must obtain a new Permit
prior to any further Sale, offer for Sale, or distribution of any Tobacco Product.
(1) The City will permit no more than two (2) Hookah Tobacco Retailers within
the City limits. To become a Hookah Tobacco Retailer, the applicant must
specifically note this request upon their Tobacco Retailer Permit application,
and must otherwise comply with all other requirements of this Chapter. This
includes, but is not limited to, the additional requirements for the Sale of
Hookah tobacco located in Section 8.19.160.
(i) A Hookah Tobacco Retailer is also required to offer customers at least
one (1) non-Tobacco, non-nicotine Hookah alternative.
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(c) No Tobacco Retailer shall violate, or cause or allow the Tobacco Retailer’s agents
or employees to violate, any provision of this Chapter or any other local, state, or
federal law applicable to Tobacco Products or Tobacco Retailing.
(d) Tobacco Retailers are responsible for the actions of their employees and agents
relating to the Sale, offer to Sell, and furnishing of tobacco products at the retail
location. The Sale of any Tobacco Product by an of a Tobacco Retailer employee shall
be considered an act of the Tobacco Retailer, and the permit holder shall be
responsible for any and all penalties levied.
(e) Nothing in this Chapter shall be construed to penalize the purchase, use, or
possession of a Tobacco Product by any Person not engaged in Tobacco Retailing.
8.19.120 - Permit is Nontransferable.
(a) Tobacco Retailer Permits are nontransferable as between Persons, locations, or
otherwise. Any attempted transfer shall render the Permit null and void, and the Permit
shall automatically expire.
(b) Notwithstanding any other provision of this Chapter, prior violations of this Chapter
at a location shall continue to be counted against that location and Permit ineligibility
and suspension periods shall continue to apply to that location unless:
(1) One hundred percent (100%) of the interest in the stock, assets, or income
of the business, other than a security interest for the repayment of debt, has
been transferred to the new owner(s); and
(2) The City is provided with clear and convincing evidence, including an
affidavit, that the business has been acquired in an Arm's Length Transaction.
An Arm’s Length Transaction, for the purposes of this section, means a
transaction in which two or more unrelated and unaffiliated parties agree on the
transfer in question; the parties act independently and in their own self -interest;
and the parties have equal bargaining power and symmetric information,
leading the parties to agree upon fair-market terms.
8.19.130 - Permit Conveys a Limited, Conditional Privilege.
Nothing in this Chapter shall be construed to grant any Person or entity obtaining and
maintaining a Permit any status or right other than the limited, conditional privilege to Sell
Tobacco Products and act as a Tobacco Retailer at the location in the City identified on the
face of the Permit for the period of time shown on the Permit. All Permits are issued subject to
the City’s right to amend this Chapter from time to time, and Retailers shall comply with all
provisions of this Chapter, as amended.
8.19.140 - Application, Issuance and Renewal Procedure.
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(a) Application for a Tobacco Retailer's Permit or the renewal of a Tobacco Retailer
Permit shall be submitted in the name of the Person proposing to conduct retail Sales
of Tobacco Products, referred to herein as the “Applicant,” and shall be signed by such
Person or an authorized agent thereof. All applications shall be subm itted to the
Director on a form supplied by the Director and contain, at a minimum, the following
information:
(1) The name, address, telephone number, and email address of the Applicant;
(2) The business name, address, and telephone number of the location where
Tobacco Products are proposed to be Sold, offered for Sale or distributed by the
Applicant; and
(3) Proof that the location for which a Tobacco Retailer’s Permit is sought has
been issued a valid state license for the Sale of Tobacco Products, if the
Tobacco Retailer Sells products that require such license;
(4) A statement whether or not the Tobacco Retailer or any agent of the Retailer
has been found to have violated this Chapter or other applicable law governing
Tobacco Products or Tobacco Retailing and, if so, the dates and locations of all
such violations within the previous five years; and
(5) Such other information as the Director determines is necessary for
implementation of this Chapter.
(6) An application for a new or renewal Permit will be denied if there are any
outstanding fines or late fees issued by the Director, or during any period of
suspension.
(7) It is the responsibility of each Permit holder to be informed regarding all laws
applicable to Tobacco Retailing, including those laws affecting the issuance of a
Tobacco Retailer Permit. No Permit holder may rely on the issuance of a Permit
as a determination by the City that the Permit holder has complied with all laws
applicable to Tobacco Retailing. A Permit issued contrary to this Chapter or any
other law, or on the basis of false or misleading information supplied by the
Applicant, shall be revoked. Nothing in this Chapter shall be construed to vest in
any Person or entity obtaining or maintaining a Tobacco Retailer’s Permit any
status or right to act as a Tobacco Retailer in contravention of any provision of
law.
8.19.150 - Display of Permit.
Upon receipt of a complete application for a Tobacco Retailer Permit in compliance with the
requirements of this Chapter, the Director may issue a Permit which, if issued, must be
prominently displayed in a publicly visible location at the location where Tobacco Product
Sales are conducted and permitted.
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8.19.160 - Prohibitions Regarding Coupons, Discounts, Pharmacies, Flavored Tobacco,
and Electronic Smoking Devices.
(a) No Tobacco Retailer shall do any of the following:
(1) Honor or redeem, or offer to honor or redeem, a Coupon to allow a Consumer
to purchase a Tobacco Product for less than Full Retail Price;
(2) Sell any Tobacco Product to a Consumer through a multiple package
discount or otherwise provide any such product to a Consumer for less than the
Full Retail Price in consideration for the purchase of any Tobacco Product or
any other item; or
(3) Provide any free or discounted item to a Consumer in consideration for the
purchase of any Tobacco Product.
(b) No Person, Tobacco Retailer or other legal entity shall sell or distribute to a person
any Electronic Smoking Device that delivers natural or synthetic nicotine or any other
substance(s) to the person inhaling from the device. This includes any component,
part, or accessory intended or reasonably expected to be used with the Electronic
Smoking Device, whether or not Sold separately.
(c) No Person or Tobacco Retailer shall Sell or offer to Sell any Flavored Tobacco
Product or Tobacco Product Flavor Enhancer. There shall be a rebuttable presumption
that a Tobacco Product is a Flavored Tobacco Product if a manufacturer or any of the
manufacturer's agents or employees, in the course of their agency or employment, has
made a statement or claim directed to consumers or to the public that the Tobacco
Product has or produces a Characterizing Flavor including, but not limited to, text,
color, and/or images on the product's labeling or packaging that are used to explicitly or
implicitly communicate that the Tobacco Product has a Characterizing Flavor.
(d) Subdivision (c) does not apply to the Sale of flavored Shisha Tobacco Products for
on-site consumption by a Hookah Tobacco Retailer if all of the following conditions are
met:
(1) The Hookah Tobacco Retailer has a valid license to sell Tobacco Products
issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division
8.6 of the Business and Professions Code, and has a valid City of Burlingame
Tobacco Retailer Permit noting permission to offer on-site Hookah
consumption.
(2) The Hookah Tobacco Retailer does not permit any person under 21 years of
age to be present or enter the premises at any time.
(3) The Hookah Tobacco Retailer shall operate in accordance with all relevant
state and local laws relating to the sale of Tobacco Products.
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(4) If consumption of Tobacco Products is allowed on the premises of the Hookah
Tobacco Retailer, the Hookah Tobacco Retailer shall operate in accordance
with all state and local laws relating to the consumption of Tobacco Products
on the premises of a Tobacco Retailer, including, but not limited to, Section
6404.5 of the California Labor Code, which may be updated from time to time.
(e) No Pharmacy or Pharmacy employee or agent shall Sell or offer to Sell any
Tobacco Product. The Director shall not issue any Tobacco Retailer Permit to any
Pharmacy.
8.19.170 - Packaging and Labeling.
No Tobacco Retailer or other Person shall Sell or offer for Sale any Tobacco Product to any
Consumer unless the Tobacco Product: (1) is Sold in the original manufacturer’s Packaging
intended for Sale to Consumers; (2) conforms to all applicable federal Labeling requirements;
and (3) conforms to all applicable child-resistant packaging requirements.
8.19.180 - Self-Service Displays Prohibited; On-Site, In-Person Sales Required.
(a) Tobacco Retailing by means of a Self -Service Display is prohibited.
(b) All Sales of Tobacco Products and Tobacco Paraphernalia shall be conducted in-
person, over the counter, in the permitted location.
8.19.190 - Notice of Minimum Age for Purchase of Tobacco Products.
Tobacco Retailers shall post conspicuously, at each point of purchase, a notice stating that
Selling Tobacco Products to anyone under 21 years of age is illegal and subject to penalties.
The form and content of such notice shall be subject to the approval of the Director.
8.19.200 - Positive Identification Required.
No Tobacco Retailer or other Person shall Sell or offer to Sell a Tobacco Product to another
Person without first verifying by means of government-issued photographic identification that
the recipient is at least the minimum legal sales age required under state law to purchase a
Tobacco Product.
8.19.210 - Minimum Age for Individuals Selling Tobacco Products.
No Tobacco Retailer shall allow, at its retail location, any individual who is younger than 21
years of age to Sell or offer to Sell Tobacco Products.
8.19.220 - Display or Offers to Sell Tobacco Products Without Tobacco Retailer Permit
Prohibited.
A Tobacco Retailer without a current valid Permit:
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(a) Shall keep all Tobacco Products out of public view. The public display of Tobacco
Products in violation of this provision shall constitute Tobacco Retailing without a
Permit.
(b) Shall not display any advertisement relating to Tobacco Products that offers the
Sale of such products from the Tobacco Retailer’s location.
8.19.230 - Limits on Eligibility for a Permit.
(a) No Tobacco Retailer’s Permit may be issued to authorize Tobacco Retailing at or
from other than a fixed location. For example, Sales by Persons on foot or from
vehicles or other forms of mobile vending are prohibited.
(b) No Tobacco Retailer’s Permit may be issued to authorize Sales of Tobacco
Products at a temporary event, such as flea markets and farmers’ markets.
(c) No new Tobacco Retailer Permit may be issued to authorize Tobacco Product
Sales at any location within 1,000 feet of a Youth-Populated Area, as measured by a
straight line from the nearest point of the property line of any parcel on which a Youth-
Populated Area is located and any point along the property line of the parcel on which
the Permit applicant has or proposes to locate the business.
(d) No new Tobacco Retailer’s Permit may be issued for a location which is within 500
feet of a location already occupied by another Tobacco Retailer, as measured by a
straight line from the nearest point of the property line of the parcel on which the
applicant’s business is located to the nearest point of the property line of the parcel on
which an existing Tobacco Retailer’s business is located. A Hookah Tobacco Retailer
is exempt from this requirement solely for the sale of Hookah (shisha) tobacco, but
may not be located within 500 feet of another Hookah Tobacco Retailer.
(e) The Sale of Tobacco Products and accessories is prohibited in City owned
structures and in any area of a structure leased by the City, wherever located.
(f) For purposes of this section, any Tobacco Retailer with a valid license to sell
tobacco within the State of California will be permitted remain at their current location,
so long as they obtain a City Tobacco Retailer Permit within twelve (12) months of the
effective date of this Ordinance. To be eligible, the retailer must have a valid, unexpired
tobacco license issued by the State of California that predates the effective date of this
Ordinance, and must list the address at which the tobacco retailer wishes to continue
to conduct business.
8.19.240 - Fees for Permit.
Tobacco Retailers shall pay all applicable fees at the rates set forth in the City’s Master Fee
Schedule, which may be updated from time to time. Fees shall be used by the Director to
administer and enforce this Chapter.
8.19.250 - Enforcement.
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(a) The Director or the Director’s designee shall enforce this Chapter consistent with
the provisions herein.
(b) Violations of this Chapter may be criminally prosecuted as infraction(s) or
misdemeanor(s) at the discretion of the prosecuting attorney as the interests of justice
require.
(c) This Section shall not be interpreted to limit the applicable civil or administrative
remedies available under law.
8.19.260 - Public Nuisance.
Any violation of this Chapter is hereby declared a public nuisance, subject to all applicable
civil, administrative, and criminal remedies and penalties according to the provisions and
procedures of contained in this Code and state law, including but not limited to, an action for
abatement or injunctive relief
8.19.270 - Compliance Monitoring.
(a) Compliance with this Chapter shall be monitored by the Director. In addition, any
peace officer may enforce the provisions of this Chapter. The Director may designate
additional persons to monitor and facilitate compliance with this Chapter.
(b) Individuals designated to enforce the provisions of this Chapter shall inspect each
Tobacco Retailer at least two times during each twelve-month period to determine if
the Tobacco Retailer is complying with all applicable laws. Compliance checks shall
take place during normal business hours, with or without notice. If a violation has
occurred, the Tobacco Retailer shall be inspected again within three months. All
permitted premises must be open to inspection by designated persons during regular
business hours.
(c) Nothing in this section shall create a right of action in any Tobacco Retailer or other
person or entity against the City or its agents.
8.19.290 - Suspension or Revocation of Permit.
(a) Grounds for Suspension or Revocation.
(1) A Tobacco Retailer Permit may be suspended or revoked, as set forth below
in subdivision (b), if any court of competent jurisdiction determines, or the
Director finds, based on a preponderance of the evidence after notice and
opportunity for the Tobacco Retailer to be heard, that either of the following
violations have occurred:
i. After the Permit was issued it is determined that the application for the
Permit is incomplete or inaccurate.
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ii. The Tobacco Retailer or Tobacco Retailer’s agent has violated any of
the requirements, conditions, or prohibitions of this Chapter or any
applicable local, state, or federal tobacco-related law.
(2) Notwithstanding the foregoing, a Tobacco Retailer Permit shall be suspended
or revoked, for the maximum time periods and as set forth in subdivision (b),
if any court of competent jurisdiction determines, or the Director finds, based
on a preponderance of evidence and after notice and opportunity for the
Tobacco Retailer to be heard, that the Tobacco Retailer, or any agent or
employee of the Tobacco Retailer, has Sold Tobacco Products to any
Person(s) under the age of 21 years.
(b) Time Period of Suspension of Permit.
(1) Upon the first violation within any sixty (60) month period, the Permit to Sell
Tobacco Products may be suspended for up to 30 days.
(2) Upon the second violation within any sixty (60) month period, the Permit to
Sell Tobacco Products may be suspended for up to 90 days.
(3) Upon the third violation within any sixty (60) month period, the Permit to Sell
Tobacco Products may be suspended for up to one year.
(4) Upon the fourth violation within any sixty (60) month period, the Permit to
Sell Tobacco Products shall be revoked. If a Permit is revoked, the Retailer
shall not be eligible for a new Permit for a period of five (5) years after the
effective date of revocation.
(c) Effective Date of Suspension or Revocation.
Within ten (10) calendar days of the hearing, the Director shall issue written
findings and an order regarding the suspension or revocation, which order will
be effective ten (10) calendar days from the date such order was sent by
certified mail to the Retailer, unless a timely appeal is filed in accordance with
subsection (d).
(d) Appeal of Suspension or Revocation.
The decision of the Director is appealable to City Manager or his/her designee.
(1) An appeal must be in writing, be addressed to the Director and be hand -
delivered to Burlingame Police Department Headquarters during ordinary
business hours.
(2) An appeal must be received by the Director before the effective date of
suspension or revocation provided by subsection (c) in order to be considered.
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(3) The filing of a timely appeal will stay a suspension or revocation pending a
decision on the appeal by the City Manager.
(4) The decision of the City Manager shall be a final administrative order, with
no further administrative right of appeal.
8.19.300 - Administrative Fine.
(a) Grounds for Fine. A fine shall be imposed on a Tobacco Retailer upon findings
made by the Director, based on a preponderance of the evidence, that any Tobac co Retailer,
or any agent or employee of the Tobacco Retailer, has violated any of the requirements,
conditions, or prohibitions of this Chapter. A fine shall be imposed in the maximum amounts
set forth in subsection (b) of this section upon findings made by the Director that the Tobacco
Retailer, or any agent or employee of the Tobacco Retailer, has Sold any Tobacco Product to
any Person(s) under the age of 21 years. Any administrative fine shall be imposed solely
against the Tobacco Retailer, not the Tobacco Retailer’s employees or agents.
(b) Amount of Fine. Upon written findings made by the Director under subsection (a),
the person or entity holding the Tobacco Retailer Permit shall be subject to an administrative
fine for each such violation as follows, notwithstanding any other provisions of the Burlingame
Municipal Code:
(1) A fine not exceeding five hundred dollars ($500) for a first violation within a
sixty (60) month period; and
(2) A fine not exceeding one thousand dollars ($1,000) for each subsequent
violation within a sixty (60) month period.
(c) Each day that Tobacco Products are Sold or offered for Sale without a Permit or
otherwise in violation of this Chapter shall constitute a separate violation. A finding of "offered
for Sale" in violation of this Chapter will be made if Tobacco Products are either actually Sold
and/or displayed in the retail establishment, or if advertisements offering to Sell Tobacco
Products are visible to customers.
(d) Fine Procedures. Notice of the fine shall be served on the Tobacco Retailer by
certified mail. The notice shall contain a description of the facts upon which the asserted
violation is based and an advisement of the right to request a hearing before the Director
contesting the imposition of the fine. Said hearing must be requested within ten calendar days
of the date appearing on the notice of the fine. The decision of the Director shall be a final
administrative order, with no administrative right of appeal.
(e) Failure to Pay Fine. If a fine imposed pursuant to this Chapter is not paid within 30
calendar days from the date appearing on the notice of the fine or of the notice of
determination of the Director after the review provided for under subdivision (c) of this Section,
the fine may be referred to a collection agency within or external to the City. In addition, any
outstanding fines must be paid prior to the issuance of any new Permit or renewal of a Permit .
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8.19.310 – Administrative Regulations
The Director may promulgate regulations to administer this Chapter.
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