Chapter 5.35
TOBACCO RETAILER LICENSING
Sections:
5.35.01 Purpose and application.
5.35.05 Applications for license.
5.35.06 Issuance of a license.
5.35.07 License renewal and expiration.
5.35.08 License nontransferable.
5.35.10 Inspections, investigations and enforcement.
5.35.11 Suspension or revocation of license.
5.35.12 Penalties for tobacco retailing without a license.
5.35.15 Stipulated fine in lieu of hearing.
5.35.01 Purpose and application.
(a) In promoting the health, safety, and general welfare of its residents, the City has a substantial interest in encouraging compliance with Federal, State, and local laws regulating tobacco sales and use.
(b) State law permits local governments to enact ordinances regarding the local licensing of retailers of tobacco and allows for the suspension or revocation of a local license for a violation of any State tobacco control law.
(c) This chapter is adopted to:
(1) Ensure compliance with business standards and practices of the City;
(2) Encourage responsible retailing of tobacco;
(3) Limit the sale of tobacco products to those with the taste or aroma of tobacco, or no taste or aroma at all; and
(4) Discourage violations of tobacco-related laws, but not to expand or reduce the degree to which the acts regulated by Federal or State law are criminally proscribed or otherwise regulated. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.02 Definitions.
For purposes of this chapter, the terms and definitions in Section 104559.5 of the California Health and Safety Code are incorporated herein, to the extent they are not inconsistent with the below-listed definitions:
(a) “Department” refers to any City department designated by the City Manager to administer and/or enforce the provisions of this chapter.
(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) “Flavored tobacco” and “tobacco product flavor enhancer” shall have the definitions set forth in California Health and Safety Code Section 104559.5, as that section may be amended from time to time.
(d) “License” means a tobacco retailer license issued by the City pursuant to this chapter.
(e) “Licensee” means any proprietor holding a license issued by the City pursuant to this chapter.
(f) “License fee” means the charge established by resolution of the City Council, calculated to recover the reasonable regulatory costs of issuing and administering licenses, retailer education, performing investigations, inspections, and the administrative enforcement and adjudication thereof.
(g) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
(h) “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 (10%) 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.
(i) “Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed or used for the smoking or ingestion of tobacco products.
(j) “Tobacco retailer” means any person who engages in tobacco retailing.
(k) “Tobacco retailing” means selling, offering for sale, exchanging, or offering to exchange for any form of consideration tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.03 Mandatory license.
(a) Any person who is or intends to become a tobacco retailer shall obtain pursuant to this chapter a license for each fixed location at which tobacco retailing is to occur.
(b) Any person who is a tobacco retailer as of the effective date of the ordinance enacting this chapter shall obtain a license within ninety (90) days of the effective date of the ordinance that enacted this chapter.
(c) Any person who intends to act as a tobacco retailer shall obtain a license prior to acting as a tobacco retailer.
(d) Each license shall be prominently displayed in a publicly visible location at the licensed location.
(e) Nothing in this chapter shall be construed to grant any licensee any status or right other than to act as a tobacco retailer at the location identified on the face of the license, subject to compliance with all other applicable laws, regulations, or ordinances. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.04 Issuance of license.
(a) No license shall be issued to authorize tobacco retailing at other than a fixed business location. It is unlawful for any person to engage in tobacco retailing at nonfixed locations.
(b) No license shall be issued to authorize tobacco retailing at a temporary or recurring temporary event.
(c) No license shall be issued to authorize tobacco retailing at any location for which a license suspension is in effect or during a period of ineligibility following a revocation pursuant to Section 5.35.11.
(d) In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license is issued, it shall be a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, State, or Federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
(e) No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of twenty-five (25) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under State law to purchase and possess the tobacco product or tobacco paraphernalia.
(f) No person who is younger than the minimum age established by State law for the purchase or possession of tobacco products shall engage in tobacco retailing. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.05 Applications for license.
All applications for a license shall be submitted to the department in the name of each proprietor proposing to conduct tobacco retailing and signed by each prospective proprietor or an authorized agent. Each license application must be accompanied by the required license fee, which is set by resolution of the City Council. A proprietor proposing to conduct tobacco retailing at more than one location shall submit a separate application for each location. Every application shall be submitted on a form supplied by the Department and contain the following information:
(a) The name, address, and telephone number of each prospective proprietor;
(b) The business name, address, and telephone number of the fixed location for which the license is sought;
(c) Whether or not each prospective proprietor has previously been issued a license pursuant to this chapter that is, or was at any time, suspended or revoked and, if so, the date of the suspension or revocation;
(d) Proof that the location for which a license is sought has been issued a valid State cigarette and tobacco products retail license by the State of California Board of Equalization pursuant to the California Cigarette and Tobacco Products Licensing Act of 2003;
(e) A statement signed by each prospective proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought;
(f) A statement signed by each prospective proprietor that the proprietor is informed of the laws affecting licenses; and
(g) Such other information as the Department deems necessary for the administration of this chapter. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.06 Issuance of a license.
(a) Upon the receipt of a complete application for a license and the license fee required by this chapter, the Department shall issue a license unless one or more of the following grounds exists:
(1) The application is incomplete or inaccurate;
(2) The application seeks authorization for tobacco retailing at a location for which a suspension is in effect pursuant to this chapter, for which a license has been revoked pursuant to this chapter, or for which this chapter otherwise prohibits issuance of licenses;
(3) The application seeks authorization for tobacco retailing for a prospective proprietor for whom a suspension is in effect pursuant to this chapter for the subject location or another location, whose license has been revoked pursuant to this chapter for the subject location or another location, or to whom this chapter otherwise prohibits a license to be issued;
(4) The Department has information that the prospective 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 (12) months; or
(5) 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 law.
(b) Any denial of an application for a license shall be in writing, setting forth the reasons for the denial and notifying the applicant for a license that the decision to deny an application for a license shall become final unless the applicant seeks an appeal pursuant to Section 5.35.13 within fourteen (14) calendar days of the date of service of the Department’s decision. Service of the decision shall be provided in accordance with the service requirements set forth in Section 5.35.13(a).
(c) All information required to be submitted pursuant to Section 5.35.05 in order to apply for a license shall be updated whenever the information changes. A tobacco retailer shall provide the Department with any updates within ten (10) business days of a change. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.07 License renewal and expiration.
(a) A license is invalid unless the appropriate license fee has been paid in full and the term of the license has not expired. The term of a license is one year beginning each fiscal year on July 1 and ending on June 30 of the following year. Each tobacco retailer shall apply for the renewal of his or her license and submit the license fee no later than thirty (30) calendar days prior to expiration of the term.
(b) A 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; and
(2) Submit a signed affidavit affirming that the proprietor:
(i) Has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed; or
(ii) Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5.35.12, before seeking renewal of the license. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.08 License nontransferable.
(a) A 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 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 an entirely new proprietor or fully transferred to entirely new proprietors with the prior licensee retaining no ownership interest in the location or in the new proprietor; and
(2) The new proprietor(s) provides the Department 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 chapter, 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 (2) 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. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.09 Violations.
(a) It shall be a violation of this chapter for a tobacco retailer, or its agents or employees, to violate any Federal, State, or local tobacco law or regulation.
(b) It shall be a violation of this chapter to sell flavored tobacco products or tobacco product flavor enhancers in violation of the California Health and Safety Code and, as a greater restriction, such prohibition in this chapter does not exempt, but instead expressly applies to, premium cigars, shisha tobacco products, and loose-leaf tobacco.
(c) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall constitute a violation.
(d) Failure to prominently display the tobacco retail license in a publicly visible location at the licensed premises shall constitute a violation.
(e) The failure of the tobacco retailer, or its agents or employees, to allow any peace officer or other authorized government official to conduct unscheduled inspections of the licensed location or premises of the tobacco retailing business for the purpose of ensuring compliance with any Federal, State, or local tobacco law or regulations, including any provision of this chapter, at any time the business is open for business shall constitute a violation.
(f) It shall be a violation of this chapter for a tobacco retailer, or its agents or employees, to sell, or offer for sale, or possess with the intent to sell or offer for sale, any drug paraphernalia.
(g) It shall be a violation of this chapter for a tobacco retailer, or its agents or employees, to engage in any conduct prohibited by Chapter 22 of Title 5 in connection with the tobacco retailing establishment.
(h) A tobacco retailer’s possession of four (4) or more flavored tobacco items creates a rebuttable presumption the retailer possesses such flavored tobacco products with intent to sell or offer for sale.
(i) The following actions of a tobacco retailer, its employees or agents, creates a rebuttable presumption that a tobacco product is flavored:
(1) Public statements or claims that the tobacco product imparts a characterizing flavor;
(2) Text and/or images on the product’s labeling or packaging to explicitly or implicitly indicate the tobacco product imparts a characterizing flavor; or
(3) Other actions directed to consumers that would reasonably cause consumers to believe the tobacco or electronic cigarette product imparts a characterizing flavor. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.10 Inspections, investigations and enforcement.
(a) Compliance with this chapter shall be monitored by the Department or any law enforcement officer. Employees of the Department or a law enforcement officer may conduct compliance checks, including but not limited to youth decoy operations. Any law enforcement officer may enforce the penal provisions of this chapter. Compliance checks may be unannounced.
(b) The City shall not enforce any tobacco-related minimum age law against a person who otherwise might be in violation of such law because of the person’s age (hereinafter “youth decoy”) if the potential violation occurs when:
(1) The youth decoy is participating in a compliance check supervised by an employee of the Department or a law enforcement officer;
(2) The youth decoy is acting as an agent of a person designated by the Department to monitor compliance with this chapter;
(3) The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Department; or
(4) The youth decoy has an immunity letter from the District Attorney’s office.
(c) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen (18) 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. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.11 Suspension or revocation of license.
(a) In addition to any other remedy authorized by law, after notice and opportunity to be heard pursuant to Section 5.35.13, a license may be suspended or revoked as provided in this section if the Department finds by a preponderance of the evidence that the licensee, or any of the licensee’s agents or employees, has:
(1) Violated any of the requirements, conditions, or prohibitions of this chapter; or
(2) Pleaded guilty, “no contest” or its equivalent, or admitted to any of the following:
(i) The original or renewal application contained incorrect, false, or misleading information;
(ii) One or more of the grounds for denial listed in Section 5.35.06 existed before the license was issued; or
(iii) A licensee is convicted of a misdemeanor or felony violation of any tobacco retailing law or regulation, including any provision of this chapter.
(b) During any period of suspension or revocation, the licensee shall remove all tobacco products and tobacco paraphernalia from public view. Failure to do so may be considered a subsequent violation.
(c) When the Department finds a violation as set forth in subsection (a) of this section, the license may be suspended or revoked as follows:
(1) Upon a finding by the Department of a first license violation, the license shall be suspended for no more than sixty (60) days;
(2) Upon a finding by the Department of a second license violation within sixty (60) months of a first violation, the license shall be suspended for up to one hundred twenty (120) days;
(3) Upon a finding by the Department of a third license violation in any sixty (60) month period, the license shall be suspended for up to one hundred eighty (180) days; and
(4) Upon a finding by the Department of a fourth license violation within any sixty (60) month period, the license may be revoked and no new license shall issue for the location until five (5) years have passed from the date of revocation.
(d) A license may be revoked if the Department finds that one or more of the grounds for denial of an application for a license pursuant to Section 5.35.06 existed at the time the application was made or at any time before the license was issued. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.12 Penalties for tobacco retailing without a license.
(a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Department finds after notice and opportunity to be heard pursuant to Section 5.35.13, that any person has engaged in tobacco retailing at a location without a valid license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a license as follows:
(1) After a first violation of this section at a location, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction) until sixty (60) days have passed from the date of the violation.
(2) After a second violation of this section at a location within any sixty (60) month period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction) until one hundred eighty (180) days have passed from the date of the violation.
(3) After a third or subsequent violation of this section at a location within any sixty (60) month period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction) until five (5) years have passed from the date of the violation.
(b) Any imposition of a penalty pursuant to this section shall be in writing, setting forth the reasons for the imposition of a penalty and notifying the person subject to the penalty that the decision to impose the penalty shall become final unless the person seeks an appeal pursuant to Section 5.35.13 within fourteen (14) calendar days of the date of service of the Department’s decision. Service of the decision shall be provided in accordance with the service requirements set forth in Section 5.35.13(a). (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.13 Appeal procedures.
Regarding any denial of an application for a license pursuant to Section 5.35.06 or any penalty issued by the Department pursuant to Section 5.35.11, 5.35.12, or 5.35.14, the following rules apply:
(a) Appeal. Within fifteen (15) calendar days of service of a decision issued under Section 5.35.06, 5.35.11, 5.35.12, or 5.35.14 to deny, suspend or revoke a license, or to impose a penalty for any violation of this chapter, the proprietor may file an appeal of the decision and request a hearing be held in accordance with Article 2 of Chapter 28 of Title 5.
(b) Stay pending appeal. If an appeal is timely filed, the Department’s decision issued under Section 5.35.11 shall be stayed pending a decision by the hearing officer.
(c) The appellant’s failure to appear at the hearing on appeal shall constitute an abandonment of the review request and a failure to exhaust administrative remedies. (Ord. 24-06, eff. June 19 2024)
5.35.14 Other penalties.
The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
(a) Violations of this chapter may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.
(b) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall constitute a violation.
(c) Tobacco products, drug paraphernalia, and any other products or items offered for sale or exchange in violation of this chapter are subject to seizure by the Department, its agents, or any peace officer and shall be forfeited after the proprietor or any other owner of the seized property is given notice and opportunity to appeal pursuant to Section 5.35.13. Forfeited items shall be destroyed after internal appeals have been exhausted or waived and the time in which to seek judicial review pursuant to Code of Civil Procedure Section 1094.6 has expired, or, if such judicial action is filed, after judgment in that action becomes final.
(d) Violations of this chapter are hereby declared to be public nuisances. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.15 Stipulated fine in lieu of hearing.
For a first or second alleged violation of this chapter within any sixty (60) month period, the Department may allow a tobacco retailer alleged to have violated this chapter to stipulate in writing to the penalties provided in this section in lieu of the penalties that would otherwise apply pursuant to this chapter and to forgo any right the tobacco retailer may have to a hearing pursuant to Section 5.35.13. Following the stipulation, no hearing shall be held. Stipulations shall not be confidential, shall be in writing, and shall contain the following terms plus any other noncriminal provisions established by the Department in the interests of justice:
(a) After a first alleged violation of this chapter at a location:
(1) An administrative penalty of one thousand and 00/100ths dollars ($1,000);
(2) An admission by the tobacco retailer that the first alleged violation of this chapter at the location occurred; and
(3) An agreement that the first alleged violation of this chapter at the location shall be considered in determining the penalty for any future violation.
(b) After a second alleged violation of this chapter at a location within any sixty (60) month period:
(1) An administrative penalty of five thousand and 00/100ths dollars ($5,000);
(2) An admission by the tobacco retailer that the second alleged violation of this chapter at the location occurred; and
(3) An agreement by the tobacco retailer that the second alleged violation of this chapter at the location will be considered in determining the penalty for any future violations. (§ 1, Ord. 24-06, eff. June 19 2024)
5.35.16 Implementation.
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of this chapter or the application of such provision to other persons or circumstances shall not be affected thereby. (§ 1, Ord. 24-06, eff. June 19 2024)