2005 California Business and Professions Code Sections 22950-22963 DIVISION 8.5. STOP TOBACCO ACCESS TO KIDS ENFORCEMENT ACT

22950.  This Division shall be known and may be referred to as the
Stop Tobacco Access to Kids Enforcement Act or the STAKE Act.
22951.  The Legislature finds and declares that reducing and
eventually eliminating the illegal purchase and consumption of
tobacco products by minors 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.
22952.  On or before July 1, 1995, the State Department of Health
Services shall do all of the following:
   (a) Establish and develop a program to reduce the availability of
tobacco products to persons under 18 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 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 any purchaser of tobacco products who reasonably
appears to be under 18 years of age.  The warning signs shall include
a toll-free telephone number to the state department for persons to
report unlawful sales of tobacco products to minors.
   (c) Provide that primary responsibility for enforcement of this
division shall be with the state department.  In carrying out its
enforcement responsibilities, the state department shall conduct
random, onsite sting inspections at retail sites and shall enlist the
assistance of persons that are 15 and 16 years of age in conducting
these enforcement activities.  The state 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 by telephone,
mail, or the Internet.  Participation in these enforcement
activities by a person under 18 years of age shall not constitute a
violation of subdivision (b) of Section 308 of the Penal Code for the
person under 18 years of age, and the person under 18 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 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 state
department shall adopt and publish guidelines for the use of persons
under 18 years of age in inspections conducted pursuant to
subdivision (c) that shall include, but not be limited to, all of the
following:
   (1) The state department and any local law enforcement agency
under an enforcement delegation contract with the department may use
persons under 18 years of age who are 15 or 16 years of age in random
inspections to determine if sales of cigarettes or other tobacco
products are being made to persons under 18 years of age.
   (2) A photograph or video recording of the person under 18 years
of age shall be taken prior to each inspection or shift of
inspections and retained by the department or the local law
enforcement agency under an enforcement delegation contract with the
department for purposes of verifying appearances.
   (3) The state department or a local law enforcement agency under
an enforcement delegation contract with the department may use video
recording equipment when conducting the inspections to record and
document illegal sales or attempted sales.
   (4) The person under 18 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 years of age to provide
true and correct identification, if verbally asked for it, shall be a
defense to any action pursuant to this section.
   (5) The person under 18 years of age shall be under the
supervision of a regularly employed peace officer during the
inspection.
   (6) All persons under 18 years of age used in this manner by the
department or a local law enforcement agency under an enforcement
delegation contract with the department shall display the appearance
of a person under 18 years of age.  It shall be a defense to any
action under this division that the person's appearance was not that
which could be generally expected of a person under 18 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 years of age shall reenter the
retail establishment and inform the seller of the random inspection
and following an attempted sale, the department 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 any 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. 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.
22953.  (a) Except as provided in subdivision (b), all moneys
collected as civil penalties pursuant to this division shall be
deposited in the State Treasury to the credit of the Sale of Tobacco
to Minors Control Account that is hereby established.
   (b) Notwithstanding subdivision (a), all funds collected within
any one fiscal year as civil penalties pursuant to this division that
exceed the sum of three hundred thousand dollars ($300,000) shall be
deposited in the General Fund.
22954.  Any cigarette or tobacco products distributor or wholesaler
as defined in Sections 30011 and 30016 of the Revenue and Taxation
Code, and licensed under Article 1 (commencing with Section 30140) of
Chapter 3 of Part 13 of Division 2 of the Revenue and Taxation Code
or Article 3 (commencing with Section 30155) of Chapter 3 of Part 13
of Division 2 of the Revenue and Taxation Code, and any cigarette
vending machine operator granted a seller's permit under the Sales
and Use Tax Law (Part 1 (commencing with Section 6001) of Division 2
of the Revenue and Taxation Code), shall annually provide to the
State Department of Health Services, the names and addresses of those
persons to whom they provide tobacco products, including, but not
limited to, dealers as defined in Section 30012 of the Revenue and
Taxation Code, for the purpose of identifying retailers of tobacco to
ensure compliance with this division.
   Cigarette vending machine operators granted a seller's permit
under the Sales and Use Tax Law (Part 1 (commencing with Section
6001) of Division 2 of the Revenue and Taxation Code), shall annually
provide to the department their name and the address of each
location where cigarette vending machines are placed, in order to
ensure compliance with this division.
   The data provided, pursuant to this section, shall be deemed
confidential official information by the department and shall be
exempt from disclosure under the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code).
22955.  Agents of the state department, while conducting enforcement
activities pursuant to this division, are peace officers and are
subject to all of the powers and immunities granted to Food and Drug
Section inspectors pursuant to Section 106500 of the Health and
Safety Code in the same manner as are any Food and Drug Section
inspectors of the state department.
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 years of age.
22957.  (a) The state department may enter into an agreement with
local law enforcement agencies for delegation of the enforcement of
this division within their local jurisdictions.  The contract shall
require the enforcement activities of the local law enforcement
agencies to comply with this division and with all applicable laws
and the guidelines developed pursuant to Section 22951.
   (b) In cases where enforcement has been delegated to local law
enforcement agencies pursuant to this section, any enforcement by the
state department in those jurisdictions shall be coordinated with
the local law enforcement agencies and the state department may not
duplicate enforcement activities, so as to result in a duplication of
civil penalties or assessments under this division.
   (c) The state department shall reimburse local law enforcement
agencies for enforcement costs pursuant to delegation contracts, not
to exceed the projected costs to the department for enforcement of
this division in those jurisdictions.  Reimbursements shall be made
from the Sale of Tobacco to Minors Control Account.
22958.  (a) The state department 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, any
tobacco, cigarette, or cigarette papers, or 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
two hundred dollars ($200) to three hundred dollars ($300) for the
first violation, (2) a civil penalty of from six hundred dollars
($600) to nine hundred dollars ($900) 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 or subsequent violation within
a five-year period.
   (b) The state department shall assess penalties in accordance with
the schedule set forth in subdivision (a) against any person, firm,
or corporation that sells, offers for sale, or distributes tobacco
products from a cigarette or tobacco products vending machine, or any
person, firm, or corporation that leases, furnishes, or services
these machines in violation of Section 22960.
   (c) The state department shall assess penalties in accordance with
the schedule set forth in subdivision (a) against any person, firm,
or corporation that advertises or causes to be advertised any tobacco
product on any outdoor billboard in violation of Section 22961.
   (d) If a civil penalty has been assessed pursuant to this section
against any 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 any 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.
   (e) (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).
   (f) Proceedings under this section shall be conducted in
accordance with Section 100171 of the Health and Safety Code.
22959.  (a) The sum of two million dollars ($2,000,000) shall be
transferred annually from the portion of the federal Substance Abuse
Prevention and Treatment block grant moneys allocated to the State
Department of Alcohol and Drug Programs for administrative purposes
related to substance abuse programs, to the Sale of Tobacco to Minors
Control Account.
   (b) Upon appropriation by the Legislature, moneys in the Sale of
Tobacco to Minors Control Account shall be expended by the state
department to administer and enforce this division.
22960.  (a) Except as provided in subdivision (b), no cigarette or
tobacco product shall be sold, offered for sale, or distributed from
a vending machine or appliance, or any other coin or token operated
mechanical device designed or used for vending purposes, including,
but not limited to, machines or devices that use remote control
locking mechanisms.
   (b) (1) Commencing January 1, 1996, cigarette or tobacco product
vending machines or appliances may be located at least 15 feet away
from the entrance of a premise issued an on-sale public premises
license as defined in Section 23039 by the Department of Alcoholic
Beverage Control to sell alcoholic beverages.
   (2) As used in this subdivision "at least 15 feet away from the
entrance" means within the premises of the licensed establishment and
not outside those premises.
   (c) This section and subdivision (b) of Section 22958 set forth
minimum state restrictions on the sale of cigarettes or tobacco
products from vending machines or devices and do not preempt or
otherwise prohibit the adoption of a local standard that further
restricts access to and reduces the availability of cigarette or
tobacco products from vending machines or devices or that imposes a
complete ban on the sale of cigarettes or tobacco products from
vending machines or devices.  A local standard that further restricts
or imposes a complete ban on the sale of cigarettes or tobacco
products from vending machines or devices shall control in the event
of an inconsistency between this section and a local standard.
22961.  (a) No person, firm, corporation, partnership, or other
organization shall advertise or cause to be advertised any tobacco
products on any outdoor billboard located within 1,000 feet of any
public or private elementary school, junior high school, or high
school, or public playground.
   (b) This section sets forth minimum state restrictions on the
advertisement of any tobacco products on outdoor billboards near
schools and public playgrounds and does not preempt or otherwise
prohibit the adoption of a local standard that imposes a more
restrictive or complete ban on billboard advertising or on
tobacco-related billboard advertising.  A local standard that imposes
a more restrictive or complete ban on billboard advertising or on
tobacco-related billboard advertising shall control in the event of
any inconsistency between this section and a local standard.
   (c) This section shall not be construed to prohibit the display of
a message or advertisement opposing the use of tobacco products.
However, this subdivision shall not be construed to permit an
advertisement promoting the use of tobacco products by including a
message opposing the use of tobacco products within that
advertisement.
22962.  (a) For purposes of this section, the following terms have
the following meanings:
   (1) "Self-service display" means the open display of tobacco
products or tobacco paraphernalia in a manner that is accessible to
the general public without the assistance of the retailer or employee
of the retailer.
   (2) "Tobacco paraphernalia" means cigarette papers or wrappers,
pipes, holders of smoking materials of all types, cigarette rolling
machines, or other instruments or things designed for the smoking or
ingestion of tobacco products.
   (3) "Tobacco product" means any product containing tobacco leaf,
including, but not limited to, cigarettes, cigars, pipe tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or any other
preparation of tobacco.
   (4) "Tobacco store" means a retail business that meets all of the
following requirements:
   (A) Primarily sells tobacco products.
   (B) Generates more than 60 percent of its gross revenues annually
from the sale of tobacco products and tobacco paraphernalia.
   (C) Does not permit any person under 18 years of age to be present
or enter the premises at any time, unless accompanied by the person'
s parent or legal guardian, as defined in Section 6903 of the Family
Code.
   (D) Does not sell alcoholic beverages or food for consumption on
the premises.
   (b) Except as permitted in subdivision (b) of Section 22960, it is
unlawful for a person engaged in the retail sale of tobacco products
to sell, offer for sale, or display for sale any tobacco product or
tobacco paraphernalia by self-service display.  A person who violates
this section is subject to those civil penalties specified in the
schedule in subdivision (a) of Section 22958.
   (c) Subdivision (b) shall not apply to the display in a tobacco
store of cigars, pipe tobacco, snuff, chewing tobacco, or dipping
tobacco, provided that in the case of cigars they are generally not
sold or offered for sale in a sealed package of the manufacturer or
importer containing less than six cigars.  In any enforcement action
brought pursuant to this division, the retail business that displays
any of the items described in this subdivision in a self-service
display shall have the burden of proving that it qualifies for the
exemption established in this subdivision.
   (d) The Attorney General, a city attorney, a county counsel, or a
district attorney may bring a civil action to enforce this section.
   (e) This section does not preempt or otherwise prohibit the
adoption of a local standard that imposes greater restrictions on the
access to tobacco products than the restrictions imposed by this
section.  To the extent that there is an inconsistency between this
section and a local standard that imposes greater restrictions on the
access to tobacco products, the greater restriction on the access to
tobacco products in the local standard shall prevail.
22963.  (a) The distribution or sale of tobacco products directly or
indirectly to any person under the age of 18 years 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 person selling or distributing 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 the tobacco product through any of these means, the
distributor or seller shall verify that the purchaser is 18 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 years or older by reference to an
appropriate database of government records kept by the distributor, a
direct marketing firm, or any other entity.  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 distributor or seller is unable to verify that the
purchaser is 18 years of age or older pursuant to subparagraph (A),
he or she shall require the customer to submit an age-verification
kit consisting of an attestation signed by the customer that he or
she is 18 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.  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) 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) 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 distributor or seller 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 distributor or
seller complies with all of the requirements of this section and a
minor obtains a tobacco product by any of the means described in
subdivision (b), the seller or 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) 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 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.
   (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.