Chapter 4.40
TOBACCO RETAILERS
Sections:
4.40.030 Tobacco retailer license required—General requirements and prohibitions.
4.40.040 Tobacco retailer license application procedure.
4.40.060 License renewal and expiration.
4.40.070 Licenses nontransferable.
4.40.080 Compliance monitoring.
4.40.090 Denial or revocation of license.
4.40.100 Tobacco retailing without a license.
4.40.010 Purpose.
The purpose of this chapter is to ensure compliance with the business standards and practices of the city and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein. (Ord. 20-12 § 10 (part))
4.40.020 Definitions.
“Arm’s length transaction” means 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 for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction.
“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 flavorings or the provision of ingredient information.
“Chief of Police” means the Chief of the Dublin Police Department or his or her designee.
“Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three (3) pounds per thousand (1,000).
“Cigarette” means (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.
“Electronic smoking device” or “e-cigarette” means any device or delivery system sold in combination with nicotine which can be used to deliver to a person nicotine in aerosolized or vaporized form, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic cigarettes include any component, part, or accessory of such a device that is used during the operation of the device when sold in combination with any liquid or substance containing nicotine. Electronic cigarettes also include any liquid or substance containing nicotine, whether sold separately or sold in combination with any device that could be used to deliver to a person nicotine in aerosolized or vaporized form. Electronic cigarettes do not include any device not sold in combination with any liquid or substance containing nicotine, or any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold separately. “Electronic smoking device” does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.
“Flavored tobacco product” means any tobacco product that imparts a characterizing flavor.
“Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
“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.
“Self-service display” means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
“Smoking” means: (1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind) or (2) the use of an electronic smoking device.
“Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, electronic smoking device cartridges, electronic smoking device liquids, and any other item designed for the smoking, preparation, storing, consumption, or use of tobacco products or electronic smoking devices.
“Tobacco product” means:
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 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.
3. Notwithstanding any provision of subsections (1) and (2) of this definition 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, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
“Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, 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. 1-20 § 2 (part): Ord. 13-14 § 1: Ord. 20-12 § 10 (part))
4.40.030 Tobacco retailer license required—General requirements and prohibitions.
A. It shall be unlawful for any person to act as a tobacco retailer in the city of Dublin 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. Tobacco retailing without a valid tobacco retailer’s license is a nuisance as a matter of law.
B. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
C. Positive Identification Required. 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-seven (27) 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.
D. False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been revoked:
1. Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under Section 4.40.100; and
2. Shall not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer’s location or that could lead a reasonable consumer to believe that such products can be obtained at that location.
E. License may be issued only to a business that will engage in tobacco retail activities at a fixed location.
F. License Conveys a Limited, Conditional Privilege. Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, but not limited to, any provision of this code, including without limitation the zoning ordinance, building codes, and business license tax ordinance, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5.
G. Fee for License. The fee for the issuance and renewal of a tobacco retailer’s license shall be established from time to time by resolution of the City Council, and shall be due and payable at the time a license application is submitted to the city. The fee shall be calculated so as to include, but not exceed, the cost of administration and enforcement of this chapter, including the administration of the license program, retailer inspection and compliance checks.
1. In any year where grant funding has been obtained to recover the cost of administration and enforcement of this chapter, or a portion thereof, the amount of the license fee charged for the twelve (12) months following receipt of the grant funding shall be reduced based on the amount of grant funding received and on the total number of tobacco retailers operating in the city.
H. Sale of Flavored Tobacco Products Prohibited. 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 (4) 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 favor; or
c. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
I. Sale of Electronic Smoking Devices Prohibited. 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, an electronic smoking device. (Ord. 1-20* § 2 (part): Ord. 20-12 § 10 (part))
* Code reviser’s note: Ordinance 1-20, Section 4, states “This Ordinance shall take effect and be enforced thirty (30) days following its adoption. However, until July 1, 2020 City will not enforce those portions of the Ordinance prohibiting the sale the flavored tobacco products or electronic smoking devices.”
4.40.040 Tobacco retailer license 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.
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. 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. 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 4.40.090(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.
C. All applications shall be submitted on a form supplied by the Chief of Police and shall contain the following information:
1. The name, address, and telephone number of each proprietor of the business 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 (C)(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 Board of Equalization.
5. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five (5) years.
6. Such other information as the Chief of Police deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
D. A licensed tobacco retailer shall inform the Chief of Police in writing of any change in the information submitted on an application for a tobacco retailer’s license within ten (10) business days of a change.
E. The intentional provision of inaccurate or false information shall be a violation of this chapter.
F. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law, subject to the laws’ exemptions. (Ord. 20-12 § 10 (part))
4.40.050 Issuance of license.
A. Upon the receipt of a complete application for a tobacco retailer’s license and the application fee required by this chapter, the Chief of Police shall issue a license unless substantial evidence demonstrates that one (1) or more of the following bases for denial exists:
1. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.
2. The application seeks authorization for tobacco retailing at a location where tobacco retailing is prohibited pursuant to Chapter 8.43.
3. The application seeks a license for the conduct of sales at a location that, at the time the application is submitted, is ineligible for a new permit pursuant to Section 4.40.090(F).
B. A denial of a license application shall be in writing, citing the reasons for such denial, and shall be appealable to the City Manager, or his or her designee, per the appeal provisions set forth in Section 4.40.090(D).
C. A tobacco retail license shall be valid for one (1) year from the date of issuance. (Ord. 20-12 § 10 (part))
4.40.060 License renewal and expiration.
A. Each tobacco retailer shall submit a tobacco retailer’s license renewal application and the license fee on or before the end of the license term.
B. Expiration of License. A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subsection A of this section, the proprietor must:
1. Submit the license fee and application renewal form; and
2. Submit a signed affidavit affirming that the proprietor either:
a. 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
b. Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 4.40.100(A), before seeking renewal of the license. (Ord. 20-12 § 10 (part))
4.40.070 Licenses nontransferable.
A tobacco retailer’s license may not be transferred from one (1) person to another or from one (1) location to another. A new tobacco retailer’s license is required whenever a tobacco retailing location has a change in proprietor(s). (Ord. 20-12 § 10 (part))
4.40.080 Compliance monitoring.
A. Compliance with this chapter shall be monitored by the Chief of Police. In addition, any peace officer may enforce the penal provisions of this chapter. The city may designate any number of additional persons to monitor compliance with this chapter.
B. The city shall not enforce any law establishing a minimum age for tobacco purchases or possession 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 a peace officer or a code enforcement official of the city;
2. The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this chapter; or
3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Alameda County Public Health Department or the California Department of Health Services. (Ord. 20-12 § 10 (part))
4.40.090 Denial or revocation of license.
A. Revocation of License. In addition to any other penalty authorized by law or this chapter, a tobacco retailer’s license shall be revoked if any court of competent jurisdiction determines, or the Chief of Police finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, 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 violated any law designated in Section 4.40.030.
1. The penalty for a first violation of this chapter at a location within any thirty-six (36) month period shall constitute a warning, and the tobacco retailer cited for such violation shall stipulate that the violation will be considered in determining the penalty for any future violation.
B. Administrative Hearing. An investigation, inquiry, or hearing may be undertaken or held by the City Manager or his or her designee or assignee. The person to whom a matter is assigned shall be deemed a “Hearing Officer.” In any matter so assigned to the Hearing Officer conducting the investigation, inquiry, or hearing, the Hearing Officer shall report within thirty (30) days his or her order, findings, decision, or award based on the record of the case.
1. In such hearings, investigations, and inquiries by the Hearing Officer, he or she shall not be bound in the conduct thereof by the common law or statutory rules of evidence and procedure but inquiry shall be made in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the public parties and carry out justly the spirit and provisions of this chapter.
2. No formality in any proceeding or the manner of taking testimony shall invalidate any other decision, award, or rule made as specified in this chapter. No order, decision, award, or rule shall be invalidated because of the admission into the record and the use as any proof of fact in dispute or any evidence not admissible under the common law or statutory rules of evidence and procedure.
C. Settlement in Lieu of Hearing. For a second or third alleged violation of this chapter within any thirty-six (36) month period, the City Manager, or his or her designee, may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter, without approval of the City Council, to stipulate the penalties provided in this section in lieu of the penalties that would otherwise apply under this chapter and to forego a hearing on the allegations. Notice of any settlement shall be provided to the Chief of Police and no hearing shall be held. Settlements shall not be confidential and shall contain the following minimum terms:
1. Upon a second alleged violation of this chapter at a location within any thirty-six (36) month period:
a. An administrative penalty of seven hundred fifty dollars ($750); and
b. An admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violation.
2. Upon a third alleged violation of this chapter at a location within any thirty-six (36) month period:
a. An agreement to stop acting as a tobacco retailer for at least seven (7) days;
b. An administrative penalty of one thousand dollars ($1,000); and
c. An admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violations.
D. Appeal of Denial or Revocation. A decision of the Chief of Police or Hearing Officer to deny or revoke a license is appealable to the City Manager, or his or her designee, and must be filed with the City Clerk within ten (10) days of mailing of the Chief of Police’s or Hearing Officer’s decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager is not available for a revocation made pursuant to subsection E of this section.
E. Revocation of License Wrongly Issued. A tobacco retailer’s license shall be revoked if the Chief of Police or Hearing Officer finds, after the licensee is afforded notice and an opportunity to be heard, that one (1) or more of the bases for denial of a license under Section 4.40.050 existed at the time application was made or at any time before the license issued. The decision by the Chief of Police or Hearing Officer shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new license application.
F. New License after Revocation.
1. 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 said location unless:
a. The business at the location has been transferred to a new proprietor or proprietors; and
b. The new proprietor(s) provides the city with evidence that the new proprietor(s) has acquired or is acquiring the location in an arm’s length transaction.
2. Issuance of a new license for a location at which a violation of this chapter has occurred shall not be issued except as follows:
a. After revocation for a second violation of this chapter at a location within any thirty-six (36) month period, no new license may issue for the location until thirty (30) days have passed from the date of revocation.
b. After revocation for a third violation of this chapter at a location within any thirty-six (36) month period, no new license may issue for the location until ninety (90) days have passed from the date of revocation.
c. After revocation for a fourth violation of this chapter at a location within any thirty-six (36) month period, no new license may issue for the location until one hundred eighty (180) days have passed from the date of revocation.
d. After revocation for five (5) or more violations of this chapter at a location within any thirty-six (36) month period, no new license may issue for the location until one (1) year has passed from the date of revocation. (Ord. 20-12 § 10 (part))
4.40.100 Tobacco retailing without a license.
A. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Chief of Police or a Hearing Officer finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer’s license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailing license as follows:
1. After a first 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 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 of 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 two (2) years have passed from the date of the violation. (Ord. 20-12 § 10 (part))
4.40.110 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 youth decoy 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.
C. Violations of this chapter may, in the discretion of the District Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.
D. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
E. Violations of this chapter are hereby declared to be public nuisances.
F. 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, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. 20-12 § 10 (part))