Chapter 4.27
TOBACCO RETAILERS
Sections:
4.27.010 Legislative findings.
4.27.040 Requirement for tobacco retailers license.
4.27.050 Application procedure.
4.27.060 Issuance and renewal of license.
4.27.090 License nontransferable.
4.27.110 Suspension or revocation of license.
4.27.120 Denial, suspension, and revocation – Appeals.
4.27.010 Legislative findings.
The City Council finds and determines that:
A. State law prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Section 308 of the Penal Code).
B. State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under twenty-one (21) years of age (Section 22956 of the Business and Professions Code) and provides procedures for using persons under twenty-one (21) years of age to conduct on-site compliance checks of tobacco retailers (Section 22952 of the Business and Professions Code).
C. State law requires that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under twenty-one (21) years of age is illegal (Section 22952 of the Business and Professions Code). State law further provides that this twenty-one (21) year age limitation does not apply to active duty military personnel who are eighteen (18) years of age or older (Section 308 of the Penal Code).
D. State law prohibits the sale or display of cigarettes through a self-service display and prohibits public access to cigarettes without the assistance of a clerk (Section 22962 of the Business and Professions Code).
E. State law prohibits the sale of “bidis” (hand-rolled filterless cigarettes imported primarily from India and Southeast Asian countries) except at those businesses that prohibit the presence of minors (Section 308.1 of the Penal Code).
F. State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than twenty (20) and prohibits the manufacture, distribution, or sale of “roll-your-own” tobacco in packages containing less than 60/100ths (0.60) ounces of tobacco (Section 308.3 of the Penal Code).
G. State law prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees (Section 48901(a) of the Education Code).
H. EGMC Section 9.24.070 prohibits the sale or distribution of tobacco products from vending machines.
I. In May of 2004, the Sacramento County Department of Health and Human Services Tobacco Education Program found that seventeen (17%) percent of tobacco retailers sampled in the County unlawfully sold tobacco products to minors; clerks in several types of outlets, including supermarkets, convenience marts/gas stations, drug stores, and small markets, sold tobacco to minors; and less than forty-five (45%) percent of the stores surveyed displayed the STAKE Act signs required by State law.
J. Eighty-eight (88%) percent of adults who have ever smoked tried their first cigarette by the age of eighteen (18), and the average age at which smokers try their first cigarette is fourteen and one-half (14.5) years of age.
K. The City of Elk Grove has a substantial interest in promoting compliance with Federal, State, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and in protecting children from being lured into illegal activity through the misconduct of adults.
L. California courts in Cohen v. City Council, 40 Cal.3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal.App. 4th 383 (1993), have affirmed the power of local jurisdictions to regulate business activity in order to discourage violations of law.
M. State law authorizes local tobacco retailer licensing laws to provide for the suspension or revocation of the local tobacco retailer license for any violation of a State tobacco control law (Section 22971.3 of the Business and Professions Code).
N. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the City to regulate the operation of lawful businesses to discourage violations of Federal, State, and local tobacco-related laws. [Ord. 1-2018 §3, eff. 2-23-2018; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.020 Purpose.
The purpose of this chapter is to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco 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 penalty provided for violations. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.030 Definitions.
As used in this chapter, the following words and phrases shall have the meanings given them in this section, unless the context clearly requires otherwise:
A. “Itinerant tobacco retailing” means engaging in tobacco retailing at other than a fixed location.
B. “License” means a tobacco retailer special business license issued by the City pursuant to this chapter.
C. “Licensee” means any proprietor holding a license issued by the City pursuant to this chapter.
D. “Person” means any individual, firm, partnership, joint venture, limited liability company, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.
E. “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 (10%) 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 has, or can have, sole or shared control over the day-to-day operations of a business.
F. “Tobacco product” means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco.
G. “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.
H. “Tobacco retailer” means any person who sells, offers for sale, exchanges, or offers 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.
I. “Tobacco retailing” shall mean 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. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.040 Requirement for tobacco retailers license.
A. It shall be unlawful for any person to act as a tobacco retailer without first obtaining a license for each location at which tobacco retailing is to occur. No license will be issued to authorize tobacco retailing at other than a fixed location. No license will be issued for itinerant tobacco retailing or tobacco retailing from vehicles.
B. Nothing in this chapter shall be construed to grant any person obtaining a license any status or right other than the right to act as a tobacco retailer at the location in the City identified on the face of the license, subject to compliance with all other applicable laws, regulations, and ordinances. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on indoor smoking made applicable to business establishments by Section 6404.5 of the Labor Code. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.050 Application procedure.
All applications for a license shall be submitted to the City Manager in the name of each proprietor proposing to conduct tobacco retailing and shall be signed by each proprietor or an authorized agent thereof. A proprietor proposing to conduct tobacco retailing at more than one (1) location shall submit a separate application for each location. Every application shall be submitted on a form supplied by the City Manager and shall contain the following information:
A. The name, address, e-mail address, if any, and telephone number of each proprietor.
B. The business name, address, and telephone number of the fixed location for which a license is sought.
C. Whether or not any 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 dates of the suspension period or the date of revocation.
D. Such other information as the City Manager deems necessary for the administration or enforcement of this chapter. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.060 Issuance and renewal of license.
A. Upon the receipt of an application for a license and the applicable license fee, the City Manager shall issue a license or its renewal unless:
1. The application is incomplete or inaccurate;
2. The application seeks authorization for tobacco retailing at an address that appears on a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of this chapter except this subsection shall not constitute a basis for denial of a license if either or both of the following apply:
The applicant provides the City with documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm’s length transaction. For the purposes of this subsection, an “arm’s length transaction” is defined as 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 under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter that occurred at the location is presumed not to be an “arm’s length transaction”;
It has been more than five (5) years since the most recent license for that location was revoked;
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; or
4. The City Manager has information that the applicant or his or her agents or employees has violated any local, State or Federal tobacco control law at the location for which the license or renewal of the license is sought within the preceding thirty (30) day period.
B. Unless revoked on an earlier date, all licenses shall expire one (1) year after the date of issuance. Not later than forty-five (45) days prior to expiration of the term of the immediately preceding license, the City Manager shall transmit to the licensee by mail an application for renewal. The application submitted for renewal shall be in such form and include such information as is prescribed and required by the City Manager, but shall include a renewal form provided by the City, the required fee, and a copy of the license to be renewed. A license that is suspended, has been revoked, or is subject to suspension or revocation proceedings shall not be renewed. An application for renewal and license fee shall be submitted at least thirty (30) days, but not more than sixty (60) days, prior to the expiration of the current valid license. The renewal applicant shall follow all of the procedures and provide all of the information required in EGMC Section 4.27.050. The City Manager shall process the application according to the provisions of this section.
C. Where the City Manager does not approve a license or renewal of a license, the City Manager shall notify the applicant of the specific grounds for the denial in writing. The notice of denial shall be served personally or by first class certified mail, return receipt requested, not later than five (5) days after the date of the denial. If by mail, the notice shall be placed in a sealed envelope, with postage paid, addressed to the applicant at the address as it appears on the application. The giving of notice shall be deemed complete at the time of deposit of the notice in the mail without extension of time for any reason. In lieu of mailing, the notice may be served personally by delivering to the person to be served and service shall be deemed complete at the time of such delivery. Personal service to a corporation may be made by delivery of the notice to any person designated in the Code of Civil Procedure to be served for the corporation with summons and complaint in a civil action. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.070 Display of license.
Each license shall be prominently displayed in a publicly visible location at the licensed premises. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.080 License fee.
The fee for issuance or renewal of a license shall be established by resolution of the City Council and shall be in addition to the fees associated with any other license or permit fee imposed by this code upon the applicant. The license fee shall be paid to the City at the time the license application is submitted. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.090 License nontransferable.
A license is nontransferable. If a licensee changes business location, that licensee must obtain a new license prior to acting as a tobacco retailer at the new location. If a business licensed to conduct tobacco retailing is sold, the new owner must obtain a license for that location before acting as a tobacco retailer. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.100 License violation.
It shall be a violation of a license for a licensee or his or her agents or employees to violate any local, State, or Federal tobacco-related law. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.110 Suspension or revocation of license.
A. In addition to any other remedy authorized by law, a license shall be suspended or revoked as provided in this section if the City Manager finds that the licensee or his or her agents or employees has or have violated any of the provisions of this chapter except violations by a licensee at one (1) location may not be accumulated against other locations of that same licensee, nor may violations accumulated against a prior licensee at a licensed location be accumulated against a new licensee at the same licensed location.
1. Upon a finding by the City Manager of a first (1st) license violation within any five (5) year period, the license shall be suspended for thirty (30) days.
2. Upon a finding by the City Manager of a second (2nd) license violation within any five (5) year period, the license shall be suspended for ninety (90) days.
3. Upon a finding by the City Manager of a third (3rd) license violation within any five (5) year period, the license shall be suspended for one (1) year.
4. Upon a finding by the City Manager of a fourth (4th) license violation within any five (5) year period, the license shall be revoked.
B. Notwithstanding subsection (A) of this section, a license shall be revoked if the City Manager finds that either one (1) or both of the following conditions exists:
1. One or more of the bases for denial of a license under EGMC Section 4.27.060(A) existed at the time application was made or at any time before the license was issued.
2. The information contained in the license application, including supplemental information, if any, is found to be false in any material respect.
C. In the event the City Manager suspends or revokes a license, written notice of the suspension or revocation shall be served upon the licensee within five (5) days of the suspension or revocation in the manner prescribed in EGMC Section 4.27.060(C). The notice shall contain:
1. A brief statement of the specific grounds for such suspension or revocation;
2. A statement that the licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of EGMC Section 4.27.120, to the City Manager, within ten (10) days of the date of service of the notice; and
3. A statement that the failure to appeal the notice of suspension or revocation will constitute a waiver of all right to an administrative appeal hearing, and the suspension or revocation will be final.
D. A licensee for whom a license suspension is in effect must remove all tobacco products and tobacco paraphernalia from public view at the address that appears on the suspended license. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.120 Denial, suspension, and revocation – Appeals.
A. Any applicant or licensee aggrieved by the decision of the City Manager in denying, suspending, or revoking a license may appeal the decision by submitting a written appeal pursuant to EGMC Chapter 1.11 from the date of service of the notice of denial, suspension, or revocation. The written appeal shall contain:
1. A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant;
2. A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the protested action should be reversed or otherwise set aside;
3. The signatures of all parties named as appellants and their official mailing addresses; and
4. The verification (by declaration under penalty of perjury) of at least one (1) appellant as to the truth of the matters stated in the appeal.
B. The appeal hearing shall be conducted in accordance with EGMC Chapter 1.11.
C. Any suspension or revocation of a license shall be stayed during the pendency of an appeal that is properly and timely filed pursuant to this section. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]
4.27.130 Enforcement.
A. In addition to any other remedy, any person violating any provision of this chapter shall be guilty of a misdemeanor for each day such violation continues.
B. Any violation of this chapter may be remedied by a civil action brought by the City Attorney. The City may recover reasonable attorneys’ fees and costs of suit in any civil action brought by the City Attorney to remedy any violation of this chapter.
C. Any person violating the provisions of this chapter shall also be liable for civil penalties of not less than Two Hundred Fifty and no/100ths ($250.00) Dollars or more than Twenty-five Thousand and no/100ths ($25,000.00) Dollars for each day the violation continues.
D. Violations of this chapter are hereby declared to be public nuisances subject to abatement by the City.
E. In addition to criminal sanctions, civil penalties as provided in this section, and other remedies set forth in this chapter, administrative penalties of up to Five Thousand and no/100ths ($5,000.00) Dollars for each violation of this chapter may be imposed against any person violating any provision of this chapter pursuant to the procedures specified in EGMC Chapter 16.18 or pursuant to any generally applicable provisions of the Elk Grove Municipal Code concerning administrative fines and penalties. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 41-2005 §3, eff. 1-14-2006]