Chapter 5.35
TOBACCO RETAIL LICENSING REGULATIONS
Sections:
5.35.020 Requirement for tobacco retail license.
5.35.040 Issuance and renewal of license.
5.35.050 Licenses nontransferable.
5.35.055 Additional requirements and prohibitions.
5.35.057 One-time hardship exemption for electronic cigarette sales.
5.35.060 Suspension or revocation of license.
5.35.010 Definitions.
As used in this chapter, the following terms have the meanings set forth below:
(a) “Electronic cigarette” shall have the same meaning as set forth in Section 30121 of the California Revenue and Taxation Code, as may be amended from time to time.
(b) “Proprietor” means 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 can or does share, ultimate control over the day-to-day operations of a business.
(c) “Tobacco product” means any manufactured substance made from the tobacco plant, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and smokeless tobacco, or products prepared from tobacco and designed for smoking or ingestion.
(d) “Tobacco paraphernalia” includes cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco or products prepared from tobacco.
(e) “Tobacco retailer” or “tobacco retailing” means any person or business that operates a store, stand, booth, concession or other place at which the sales of tobacco products are made to purchasers for personal consumption or use.
(f) “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. A vending machine is a form of self-service display. (Ord. 1028 § 2 (part), 2019: Ord. 999 §§ 1, 2, 2015; Ord. 933 § 1 (part), 2008)
5.35.020 Requirement for tobacco retail license.
It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this chapter, for each location at which that activity is to occur.
(a) It shall be a violation of a tobacco retailer’s license for a licensee or his or her agent or employee to violate any local, state, or federal tobacco-related law.
(b) Except as preempted by state or federal law or as provided in this chapter, beginning July 1, 2020, it shall be a violation of a city-issued business license and/or tobacco retailer’s license for a retailer and/or licensee or his or her agent or employee to display, sell, offer for sale, or possess with the intent to sell or offer for sale, electronic cigarettes or electronic cigarette paraphernalia pursuant to Section 22.40.320. (Ord. 1028 § 2 (part), 2019: Ord. 933 § 1 (part), 2008)
5.35.030 Application process.
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. An application is required for each location where retail tobacco sales are to occur.
(a) It is the responsibility of each proprietor to be informed of the laws affecting the issuance of a tobacco retailer’s license.
(b) A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section 5.35.060. All applications shall be submitted on a form supplied by the city and shall contain the following information:
(1) The name, address, and telephone number of each proprietor;
(2) The business name, address, and telephone number of the fixed location for which a tobacco retailer’s license is sought;
(3) The name and mailing address authorized by each applicant to receive all license-related communications and notices (the “authorized address”). Failure to supply an authorized address shall be understood to consent to the provision of notice at the business address specified in subsection (b)(2) of this section;
(4) Whether any applicant has previously been issued a license pursuant to this chapter that is or was at any time suspended or revoked and, if so, the dates of the suspension period or the date of revocation;
(5) Such other information as the city deems necessary for the administration or enforcement of this chapter. (Ord. 1028 § 2 (part), 2019: Ord. 999 § 3, 2015; Ord. 933 § 1 (part), 2008)
5.35.035 License fees.
The city council may by resolution establish fees for the administration of this chapter. (Ord. 1028 § 2 (part), 2019: Ord. 933 § 1 (part), 2008)
5.35.040 Issuance and renewal of license.
(a) Upon receipt of an application for a tobacco retailer’s license and the license fee, the city shall issue a license unless:
(1) The application is incomplete or inaccurate; or
(2) The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect or by a proprietor which or who has had a license revoked, pursuant to Section 5.35.060; or
(3) The application seeks authorization for tobacco retailing that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state or federal law, including the sale of electronic cigarettes or electronic cigarette paraphernalia pursuant to Section 22.40.320; or
(4) The city has information that the proprietor or his or her agent or employee has violated any local, state or federal tobacco control law within the preceding thirty-day period.
(b) A license shall be valid for one year and must be renewed prior to the expiration of the payment term.
(c) If the information required in the license application pursuant to Section 5.35.030(b)(1), (2) or (3) changes, a new tobacco retailer’s license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. If the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer. (Ord. 1028 § 2 (part), 2019: Ord. 999 § 4, 2015; Ord. 933 § 1 (part), 2008)
5.35.045 Display of license.
Each license shall be prominently displayed in a publicly visible location at the licensed premises. (Ord. 1028 § 2 (part), 2019: Ord. 933 § 1 (part), 2008)
5.35.050 Licenses nontransferable.
A tobacco retailer’s license is nontransferable and is valid only for the person and location of license issued for the period indicated, unless it is suspended or revoked for cause. (Ord. 1028 § 2 (part), 2019: Ord. 933 § 1 (part), 2008)
5.35.055 Additional requirements and prohibitions.
(a) Positive Identification Required. No person shall engage in tobacco retailing without first examining the identification of the purchaser if the purchaser reasonably appears under the age of thirty years old, and confirming that the proposed sale is to a purchaser who is at least the minimum age established by state law for being sold the tobacco product or tobacco paraphernalia.
(b) Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of any tobacco product shall engage in tobacco retailing.
(c) Sale of Electronic Cigarettes Prohibited. Except as preempted by state or federal law or as provided in this chapter, beginning July 1, 2020, no retailer or licensed tobacco retailer, or a tobacco retailer’s agents or employees, shall display, sell, offer for sale, or possess with the intent to sell or offer for sale, electronic cigarettes or electronic cigarette paraphernalia pursuant to Section 22.40.320.
(d) Self-Service Displays Prohibited. No person shall display tobacco products or tobacco paraphernalia by means of a self-service display or engage in tobacco retailing by means of a self-service display. A tobacco retailer who chooses to display tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times. (Ord. 1028 § 2 (part), 2019: Ord. 999 § 5, 2015: Ord. 933 § 1 (part), 2008)
5.35.057 One-time hardship exemption for electronic cigarette sales.
(a) Any tobacco retailer with a valid license as of June 30, 2020, that wishes to distribute, furnish, display, sell, offer for sale, or possess with the intent to sell electronic cigarettes on or after July 1, 2020, may apply for one hardship exemption as provided for in this section.
(b) A tobacco retailer must submit a complete application for a hardship exemption at least ninety days before the license is set to expire, but no sooner than six months before the license is set to expire. Such application shall be made in writing on a form prescribed by the city and shall be accompanied by the filing fee established by resolution of the city council. The retailer shall bear the burden of proof in establishing, by a preponderance of the evidence, that the application of Sections 5.35.055(c) and 22.40.320 to the retailer’s business is unreasonable, and will cause significant hardship to the retailer by not allowing the retailer to recover his or her investment backed expectations. The retailer applying for the exemption shall furthermore be required, in order to meet its burden of proof, to submit the documents set forth in this section.
(c) A complete application for a hardship exemption shall include the following:
(1) The retailer’s name and street address of business;
(2) The address to which notice is to be mailed and, at the retailer’s option, a telephone number and/or email address;
(3) The retailer’s signature;
(4) A declaration, under penalty of perjury, that all the information in the application is true and correct;
(5) The term of the requested extension;
(6) Documentation relevant to the information requested in subsection (d) of this section; and
(7) The required filing fee.
(d) In determining whether to grant a hardship exemption to the retailer, and in determining the appropriate length of time that the retailer will be authorized to continue to operate as a retailer for electronic cigarettes and related paraphernalia, the department of community development, or city council on appeal by the applicant, may consider, among other factors:
(1) The percentage of the retail sales over the last three years that have been derived from electronic cigarettes and related paraphernalia;
(2) The amount of investment in the business;
(3) The present actual and depreciated value of any business improvements dedicated to the retail sale of electronic cigarettes and related paraphernalia;
(4) The applicable Internal Revenue Service depreciation schedule or functional non-confidential equivalent;
(5) The remaining useful life of the business improvements that are dedicated to the sale of electronic cigarettes and related paraphernalia;
(6) The remaining lease term of the business, if any;
(7) The ability of the retailer to sell other products;
(8) The opportunity for relocation of the business and the cost of relocation; and
(9) A business plan demonstrating how long the business will need to sell electronic cigarettes and related paraphernalia to recoup any investment backed expectations and a plan for phasing out the sale of those products.
(e) A hardship exemption hearing shall be conducted by the director of community development, or a designee, as the hearing officer. Written notice of the time and place of the hearing shall be given at least ten calendar days prior to the date of the hearing to the retailer by the city either by causing a copy of such notice to be delivered to the retailer personally or by mailing a copy thereof, postage prepaid, addressed to the retailer at the address shown on the hardship exemption application.
(f) Within forty-five days after a completed application is filed, the hearing officer shall open the hearing on the hardship exemption. The hearing officer shall receive and consider evidence presented by the retailer, and shall determine whether to grant or deny the hardship exemption, and if granting the hardship exemption, the length of time that the tobacco and electronic cigarette retailer will be permitted to operate. The hearing officer shall make written findings in support of the decision. The decision of the hearing officer shall be final and conclusive, unless a timely and complete appeal is filed by the applicant with the city clerk pursuant to subsection (g) of this section.
(g) Any decision of the hearing officer may be appealed to the city council by the applicant by filing a complete notice of appeal with the city clerk within fifteen days after notice of the decision was mailed to the applicant. To be deemed complete, the notice of appeal shall be signed by the applicant, shall state the grounds for disagreement with the decision of the hearing officer, and shall be accompanied by the filing fee established by resolution of the city council.
(h) The decision of the hearing officer, or city council if appealed, shall constitute a final adjudication of the hardship exemption. Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the hardship exemption.
(i) A retailer may continue to sell tobacco, tobacco products, and electronic cigarettes and related paraphernalia while a hardship exemption application is pending before a hearing officer or on appeal to the city council.
(j) Only those matters or issues specifically raised by the appellant in the appeal notice shall be considered in the hearing of the appeal. (Ord. 1028 § 2 (part), 2019)
5.35.060 Suspension or revocation of license.
(a) In addition to any other penalty authorized by law, a tobacco retailer’s license may be suspended or revoked if the city finds, after notice to the licensee and opportunity to be heard, that the licensee, or his or her agents or employees, has violated the conditions of the license imposed pursuant to Section 5.35.020.
(1) Upon a finding by the city of a first license violation, a written warning will be issued.
(2) Upon a finding by the city of a second license violation within a three-year period of the first violation, the license may be suspended for up to thirty days.
(3) If the second offense occurs within twelve months of the first, the license may be suspended for up to ninety days.
(4) Upon a finding by the city of a third violation within three years of the first violation, the license may be suspended for up to ninety days.
(5) Upon a finding by the city of a fourth violation within three years, the license may be revoked.
(b) A tobacco retailer’s license may be revoked if the city finds, after notice and opportunity to be heard, that one of the following conditions exist. The revocation for one of the following conditions shall be without prejudice to the filing of a new application for a license:
(1) The application is incomplete for failure to provide the information required by Section 5.35.030;
(2) The information contained in the application, including supplemental information, if any, is found to be false in any material respect;
(3) The application seeks authorization for a license that is wholly or partially unlawful as specified in Section 5.35.040(a)(3).
(c) During a period of license suspension or revocation, the tobacco retailer must remove from public view all tobacco products and tobacco-related advertising. (Ord. 1028 § 2 (part), 2019: Ord. 933 § 1 (part), 2008)
5.35.065 Appeal.
Any licensee aggrieved by any decision of the city with respect to the suspension or revocation of such license may appeal to the city council by filing a written notice of appeal with the city clerk within ten days of the date of suspension or revocation. The city clerk shall thereupon fix a time and place for hearing such appeal. The city clerk shall give notice to such person of time and place of hearing by serving it personally or by depositing it in a United States Post Office in Los Angeles County, California, postage prepaid, addressed to the authorized address. The council shall have the authority to rule on all questions raised during such appeal. (Ord. 1028 § 2 (part), 2019: Ord. 933 § 1 (part), 2008)
5.35.070 Penalty.
Every person who violates any of the terms or conditions of a permit issued pursuant to this chapter or any of the regulations or provisions within this chapter shall be guilty of a misdemeanor. Each and every day such violation or violations occur or continue shall be a separate offense. (Ord. 1028 § 2 (part), 2019: Ord. 933 § 1 (part), 2008)
5.35.075 Severability.
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this chapter, or its application to any other person or circumstance. The city council declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. (Ord. 1028 § 2 (part), 2019: Ord. 933 § 1 (part), 2008)