Chapter 5.38
TOBACCO RETAILER LICENSE
Sections:
5.38.020 Tobacco retailer license – Violations.
5.38.030 Limits on tobacco retail license.
5.38.040 Application procedure.
5.38.050 Issuance of tobacco retail license.
5.38.060 License renewal and expiration.
5.38.070 License nontransferable.
5.38.090 Penalty assessment, suspension, and license revocation by chief of police.
5.38.100 Notice of intended decision.
5.38.110 Procedure for appeal hearing before the city manager.
5.38.120 Decision of the city manager.
5.38.140 Tobacco retailing without a license – Seizure.
5.38.010 Definitions.
The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
A. “Characterizing flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or the provision of ingredient information.
B. “Drug paraphernalia” shall have the definitions set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time.
C. “Electronic smoking device” means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. “Electronic smoking device” includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.
D. “Flavored tobacco product” means any tobacco product or tobacco paraphernalia that imparts a characterizing flavor.
E. “Person” shall mean any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
F. “Proprietor” shall mean a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.
G. “Tobacco paraphernalia” shall mean cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.
H. “Tobacco product” shall mean:
1. Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff; and
2. Any electronic smoking device.
3. Notwithstanding any provision of subsections (H)(1) and (2) of this section to the contrary, “tobacco product” includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. “Tobacco product” does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration.
I. “Tobacco retailer” shall mean any person or business who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, or who distributes free or low-cost samples of tobacco products or tobacco paraphernalia. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. (Ord. 1031 § 3 (part), 2019)
5.38.020 Tobacco retailer license – Violations.
A. It shall be unlawful for any person to act as a tobacco retailer, or to display or advertise the sale of tobacco products or tobacco paraphernalia, without obtaining and maintaining a valid tobacco retailer’s license pursuant to this chapter for each location at which that activity is to occur.
B. Tobacco retailing by persons on foot or from vehicles is prohibited.
C. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location. (Ord. 1031 § 3 (part), 2019)
5.38.030 Limits on tobacco retail license.
A. No license shall be issued to authorize tobacco retailing at other than a fixed business place.
B. No license shall be issued to authorize tobacco retailing at any location during a period of ineligibility following a revocation.
C. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.
1. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.
2. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
a. Made a public statement or claim that the tobacco product imparts a characterizing flavor;
b. Used text and/or images on the tobacco product’s labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or
c. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
d. No tobacco retailer shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser’s age as twenty-one years or greater unless the seller has some other clear and convincing basis for knowing the buyer’s age.
e. No tobacco retailer shall be permitted to sell tobacco products from a location within one thousand feet of a school and/or a public library, as measured by the shortest distance traveled from any entrance of the proposed location for tobacco retailing to the parcel boundary of the school; provided, however, that the prohibition contained in this subsection shall not apply to the following:
i. A tobacco retailer selling tobacco products that was in operation lawfully on the date immediately prior to the ordinance codified in this chapter becoming effective; and
ii. Any lawfully operating business that sells tobacco products that would otherwise become ineligible to receive or renew a tobacco retailer permit due to the creation or relocation of a school. (Ord. 1031 § 3 (part), 2019)
5.38.040 Application procedure.
A. Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof.
1. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought.
B. It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer’s license.
C. No proprietor may rely on the issuance of a license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing.
D. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.38.090.
E. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any provision of law.
F. All applications shall be submitted on a form supplied by the chief of police or designee and shall contain the following information:
1. The name, address, and telephone number of each proprietor of the business that is seeking a license.
2. The business name, address, and telephone number of the single fixed location for which a license is sought.
3. A single name and mailing address authorized by each proprietor to receive all communications and notices (the “authorized address”) required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (F)(2) of this section.
4. Proof that the location for which a tobacco retailer’s license is sought has been issued a valid state tobacco retailer’s license by the California State Board of Equalization.
5. Whether a proprietor has previously been issued a license pursuant to this chapter that was revoked and, if so, the dates and locations of all such revocations.
6. Such other information as the chief of police or designee deems reasonably necessary for the administration or enforcement of this chapter.
7. All information required to be submitted to apply for a tobacco retailer’s license shall be updated with the chief of police or designee whenever the information changes. A tobacco retailer shall provide the chief of police or designee with any updates within ten business days of a change. (Ord. 1031 § 3 (part), 2019)
5.38.050 Issuance of tobacco retail license.
Upon the receipt of a complete application for a tobacco retailer’s license and the license fee required by this chapter, the chief of police or designee shall issue a tobacco retail license unless one or more of the following exists:
A. The application seeks authorization for tobacco retailing at a location for which a license has been revoked pursuant to this chapter, or for which this chapter otherwise prohibits issuance of tobacco retailer licenses;
B. The application seeks authorization for tobacco retailing for a proprietor whose license has been revoked pursuant to this chapter for the subject location or another location, or to whom this chapter otherwise prohibits a tobacco retailer license to be issued;
C. The city has information that the proprietor or his or her agent or employee has violated any local, state or federal tobacco control law, including this chapter, within the preceding twelve months; or
D. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is otherwise unlawful pursuant to this code, or that is unlawful pursuant to any other local, state, or federal law.
E. Any denial of an application shall be in writing setting forth the reasons for denial of the permit. Such denial shall be subject to appeal in accordance with Section 5.38.130. (Ord. 1031 § 3 (part), 2019)
5.38.060 License renewal and expiration.
A. A tobacco retailer license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a tobacco retailer license is one year beginning each calendar year on January 1st and ending on December 31st of the following year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license and submit the license fee no later than thirty days prior to expiration of the term.
B. A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To reinstate a license that has expired, or to renew a license not timely renewed pursuant to subsection A of this section, the proprietor must:
1. Submit the license fee plus a reinstatement fee of ten percent of the license fee; and
2. Submit a signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed. (Ord. 1031 § 3 (part), 2019)
5.38.070 License nontransferable.
A. A tobacco retailer’s license may not be transferred from one person to another or from one location to another. Whenever a tobacco retailing location has a change in proprietors a new tobacco retailer’s license is required.
B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:
1. The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and
2. The new proprietor(s) provides the city with clear and convincing evidence that the new proprietor(s) has acquired or is acquiring the location in an arm’s length transaction. As used in this section, the term “arm’s length transaction” shall mean a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction. (Ord. 1031 § 3 (part), 2019)
5.38.080 License fee.
The fee to issue or to renew a tobacco retailer’s license shall be set by resolution of the city council from time to time. The fee shall be calculated so as not to exceed that amount which would recover the total cost of both license administration and license enforcement, including, for example, issuing the license, administering the license program, retailer education, retailer inspection, and compliance checks, documentation of violations, and prosecution of violators. All fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. (Ord. 1031 § 3 (part), 2019)
5.38.090 Penalty assessment, suspension, and license revocation by chief of police.
A. In addition to any other remedy authorized by law, penalties will be assessed and licenses will be suspended if the chief of police or designee finds pursuant to this chapter that the licensee, or any of the licensee’s agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in Section 5.38.020.
B. Suspension.
1. Upon the first finding, as determined by the chief of police or designee, as set forth in subsection A of this section, the tobacco retailer’s license shall be suspended for up to thirty days.
2. Upon the second finding, as set forth in subsection A of this section and within six months of the first determination, the tobacco retailer’s license shall be suspended for ninety days.
3. Upon the third finding, as set forth in subsection A of this section and within six months of the prior determination, the tobacco retailer’s license shall be revoked and no new license issued for the location until one year has passed from the date of revocation.
C. Penalties.
1. Upon the first time that the chief of police or designee makes a finding as set forth in subsection A of this section, a fine of one hundred dollars;
2. Upon the second time that the chief of police or designee makes a finding as set forth in subsection A of this section within six months of the first determination, a fine of two hundred dollars;
3. Upon the third time that the chief of police or designee makes a finding as set forth in subsection A of this section within six months of the prior determination, a fine of four hundred dollars;
4. Upon the fourth and each subsequent time that the chief of police or designee makes a finding as set forth in subsection A of this section within six months of the prior determination, a fine of eight hundred dollars.
D. Revocation of License Issued in Error. A tobacco retailer’s license shall be revoked if the chief of police or designee finds, after written notice and opportunity to be heard, that one or more of the bases for denial of a license under Section 5.38.050 existed at the time the application was made or at any time before the license was issued. The decision by the chief of police or designee shall be final. The revocation shall be without prejudice to the filing of a new application for license. (Ord. 1031 § 3 (part), 2019)
5.38.100 Notice of intended decision.
A. Upon determining the existence of any of the grounds for revocation of a license, the chief of police or designee shall issue to the license holder a notice of intended decision.
B. The notice of intended decision shall state all the grounds upon which the revocation is based.
C. The notice of intended decision shall advise the licensee that the revocation shall become final unless the licensee files a written request for appeal before the city manager or designee within ten calendar days of the date of service of the notice of intended decision.
D. The notice of intended decision shall specify the effective date of the revocation. (Ord. 1031 § 3 (part), 2019)
5.38.110 Procedure for appeal hearing before the city manager.
A. The written request for a hearing before the city manager or designee must be received by the city manager’s office within ten calendar days of the date of service of the notice of intended decision.
B. Upon timely receipt of a written request for a hearing, the city manager or designee shall schedule a hearing which shall be held no later than thirty calendar days after receipt of a timely request for hearing.
C. The city manager or designee shall serve a notice of hearing on the licensee at least ten calendar days prior to the scheduled date of the hearing.
D. At the appeal hearing before the city manager or designee, or before a hearing officer at the city manager’s option, the licensee shall be given the opportunity to present witnesses and relevant documentary evidence.
E. The hearing will be conducted informally, and the technical rules of evidence shall not apply. Any and all evidence which the city manager, designee or hearing officer deems reliable, relevant and not unduly repetitious may be considered. (Ord. 1031 § 3 (part), 2019)
5.38.120 Decision of the city manager.
A. The city manager, designee or hearing officer shall serve on the licensee a written decision sustaining, reversing or modifying the intended decision.
B. The decision by the city manager, designee or hearing officer after appeal shall become final unless the licensee files an appeal within the time period specified in Section 5.38.130. (Ord. 1031 § 3 (part), 2019)
5.38.130 City council appeal.
A licensee whose appeal is denied by the city manager may appeal to the city council in accordance with Chapter 2.52 of this code. The city council’s decision with regard to the appeal shall be final. (Ord. 1031 § 3 (part), 2019)
5.38.140 Tobacco retailing without a license – Seizure.
A. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this chapter are subject to seizure by the chief of police, designee or any peace officer and shall be forfeited after the owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this chapter.
B. Forfeited tobacco products and tobacco paraphernalia shall be maintained and destroyed pursuant to the chief’s or designee’s policy for seized evidence. (Ord. 1031 § 3 (part), 2019)
5.38.150 Enforcement.
A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
B. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
C. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
D. Violations of this chapter are hereby declared to be public nuisances.
E. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney. (Ord. 1031 § 3 (part), 2019)
5.38.160 Notice.
Whenever a notice is required to be given under this chapter, it shall be made as provided in this code, and addressed to such person to be notified at the authorized address provided in the application for a tobacco retail license pursuant to Section 5.38.040(F)(3) or, if an authorized address is not supplied, to the business address provided pursuant to Section 5.38.040(F)(2). (Ord. 1031 § 3 (part), 2019)