Chapter 5.52
TOBACCO RETAILERS – PERMIT PROCEDURES
Sections:
5.52.020 Tobacco retailer permit required.
5.52.030 Fixed location required for tobacco retailer permits.
5.52.040 Application procedure and fee proration.
5.52.060 Permit renewal, delinquencies and expiration.
5.52.070 Permits nontransferable.
5.52.080 Permit fee cost recovery.
5.52.090 Other requirements and prohibitions.
5.52.100 Compliance monitoring.
5.52.110 Revocation of permit.
5.52.120 Tobacco retailing without a permit.
5.52.130 Settlement in lieu of hearing.
5.52.010 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. “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 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.
B. “Cigar” means any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco, and includes all of the component parts of the cigar (including but not limited to tobacco, filters, or wrapping). For the purposes of this section, “cigar” includes, but is not limited to, tobacco products labeled “cigar,” “cigarillo,” “tiparillo,” “little cigar,” “blunt,” or “blunt wrap.”
C. “Cigar lounge” shall have the same meaning as that set forth in Chapter 18.04.
D. “Hookah lounge” shall have the same meaning as that set forth in Chapter 18.04.
E. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
F. “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 fifty 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. “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.
H. “Significant tobacco retailer” shall have the same meaning as that set forth in Chapter 18.04.
I. “Smoking” means 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), 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 the use of an electronic cigarette.
J. “Tobacco paraphernalia” means cigarette papers or wrappers, pipes, electronic cigarettes, 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.
K. “Tobacco product” means: (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) electronic cigarette cartridges and any other product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence.
L. “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, 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. “Tobacco retailer” includes cigar and hookah lounges.
M. “Vending machine” means a machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.
N. “Electronic cigarette” or “e-cigarette” means a device, often shaped like a cigarette, cigar or pipe, that is designed to deliver nicotine or other substances to a user in the form of a vapor. Typically, e-cigarettes consist of battery-powered heating elements and replaceable cartridges that contain nicotine or other chemicals, and an atomizer that, when heated, converts the contents of the cartridge into a vapor that a user inhales. (Ord. 1871 § 1, 2024; Ord. 1753 § 1, 2014; Ord. 1740 § 1, 2012; Ord. 1707 § 2 (part), 2008)
5.52.020 Tobacco retailer permit required.
A. It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer permit pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer permit is a public nuisance.
B. A tobacco retailer without a valid tobacco retailer permit, including, for example, a person whose permit 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 permit and the tobacco retailer shall not be eligible to apply for or be issued a permit as set forth in Section 5.52.120.
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.
C. Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer permit 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 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 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 permit does not make the retailer a retail or wholesale tobacco shop for the purposes of California Labor Code Section 6404.5.
D. As of June 14, 2024, no tobacco retailer permit shall be issued for a significant tobacco retailer. Significant tobacco retailers may continue to renew their permit on an annual basis for as long as there is a significant tobacco retailer business in existence at the given location. (Ord. 1871 § 1, 2024; Ord. 1707 § 2 (part), 2008)
5.52.030 Fixed location required for tobacco retailer permits.
No permit may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited. (Ord. 1707 § 2 (part), 2008)
5.52.040 Application procedure and fee proration.
A. The designated proprietor of the business proposing to conduct tobacco retail sales shall file a permit application with the community development department that shall be accompanied by a nonrefundable permit fee in an amount set by resolution of the city council. The application shall be dated and signed under penalty of perjury by the designated proprietor or an authorized agent thereof.
B. In cases where a portion of the annual permit period has elapsed prior to the filing of the permit application, the fee amount shall be apportioned as follows:
1. If an application is filed in the first half of the calendar year, the entire annual permit fee shall be paid; and
2. If an application is filed in the second half of the calendar year, one-half of the permit fee shall be paid.
C. 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 permit. No proprietor may rely on the issuance of a permit as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A permit 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 5.52.110(D). Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer permit any status or right to act as a tobacco retailer in contravention of any provision of law.
D. All applications shall be submitted on a form supplied by the community development department and shall contain the following information:
1. The name, address, and telephone number of each proprietor of the business that is seeking a permit.
2. The business name, address, and telephone number of the single fixed location for which a permit 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 (D)(2) of this section.
4. Proof that the location for which a tobacco retailer permit is sought has been issued a valid state tobacco retailer license by the California Board of Equalization.
5. Whether or not any proprietor has admitted violating, or has been found to have violated, this chapter or whose proprietorship 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 six years.
6. Proof of maintaining a current city of Gardena business license.
7. Such other information as the city deems necessary for the administration or enforcement of this chapter.
E. All information contained in the tobacco retailer permit application shall be updated by the proprietor during the life of the permit whenever the information changes. A tobacco retailer shall provide the community development department with any updates within thirty days of a change.
F. The information specified in subsections (D)(1) and (D)(3) of this section shall be subject to public disclosure pursuant to the California Public Records Act and all city policies adopted in accordance therewith. (Ord. 1707 § 2 (part), 2008)
5.52.050 Issuance of permit.
Upon the receipt of an application for a tobacco retailer permit and the permit fee required by this chapter, the community development department shall issue a permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:
A. The information presented in the application is incomplete, inaccurate, or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.
B. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer permits. However, this subsection shall not constitute a basis for denial of a permit if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm’s length transaction.
C. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a permit to be issued.
D. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful pursuant to this code including without limitation the zoning ordinance, building codes, and business license tax ordinance, or that is unlawful pursuant to any other law. (Ord. 1707 § 2 (part), 2008)
5.52.060 Permit renewal, delinquencies and expiration.
A. Renewal of Permit. A tobacco retailer permit shall expire concurrently with the expiration of the business license for the permit location and shall be subject to annual renewal, unless otherwise noted. The renewal application shall be filed with the community development department accompanied by a renewal fee in an amount set by resolution of the city council. Renewals shall be processed in the same manner as the original application. However, if there is no change in operations, no record of violations, and no conditions requested by any city department, the renewal application shall be processed for permit issuance by the community development director or designee. A tobacco retailer permit is due and payable on the first day of January of each year.
B. Delinquent or Expired Permit.
1. A tobacco retailer permit is invalid unless the renewal fee is paid in full prior to March 1st of each year.
2. A renewal fee unpaid on or after March 1st of the renewal year shall be delinquent and must be reinstated. A reinstatement fee of ten percent shall be added to the renewal fee and collected by the community development department. For each calendar month of delinquency following March of the renewal year, an additional ten percent of the original permit fee shall be added to the reinstatement fee, provided the total reinstatement fee does not exceed fifty percent of the original permit fee.
3. To reinstate a permit that has expired, or to renew a permit not timely renewed pursuant to subsection (A) of this section, the proprietor must:
a. Submit the renewal fee and the reinstatement fee due pursuant to subsection (B)(2) of this section.
b. Submit a signed affidavit affirming that the proprietor:
i. Has not sold and will not sell any tobacco product or tobacco paraphernalia after the permit expiration date and before the permit is renewed; or
ii. Has waited the appropriate ineligibility period established for tobacco retailing without a permit, as set forth in Section 5.52.120(A), before seeking renewal of the permit. (Ord. 1738 § 63 (part), 2012; Ord. 1726 § 28 (part), 2011; Ord. 1707 § 2 (part), 2008)
5.52.070 Permits nontransferable.
A. A tobacco retailer permit may not be transferred from one person to another or from one location to another. Whenever a tobacco retailing establishment has a change in ownership or location a new tobacco retailer permit is required.
B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and permit 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) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm’s length transaction. (Ord. 1707 § 2 (part), 2008)
5.52.080 Permit fee cost recovery.
The fee to issue or to renew a tobacco retailer permit that is established by resolution of the city council shall be calculated so as to recover the total cost of both permit administration and permit enforcement, including, for example, issuing the permit, administering the permit program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. (Ord. 1707 § 2 (part), 2008)
5.52.090 Other requirements and prohibitions.
A. Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a permit has been issued, it shall be a violation of this chapter for a permittee, or any of the permittee’s agents or employees, to:
1. Violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
2. Violate any local, state, or federal law regulating exterior, storefront, window, or door signage.
B. Display of Permit. Each tobacco retailer permit shall be prominently displayed in a publicly visible location at the permitted 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 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. 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 tobacco products shall engage in tobacco retailing.
E. Self-Service Displays Prohibited. No tobacco retailer 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.
F. Sale of Single Cigars Prohibited.
1. Notwithstanding any other provision of this chapter, no tobacco retailer shall sell, offer for sale, or exchange for any form of consideration:
a. Any single cigar, whether or not packaged for individual sale;
b. Any number of cigars fewer than the number contained in the manufacturer’s original consumer packaging designed for retail sale to a consumer; or
c. Any package of cigars containing fewer than five cigars.
2. This section does not apply to the sale or offer for sale of a single cigar or multiple individual cigars by a significant tobacco retailer or by a cigar lounge. (Ord. 1871 § 1, 2024; Ord. 1740 § 2, 2012: Ord. 1707 § 2 (part), 2008)
5.52.100 Compliance monitoring.
A. Compliance with this chapter shall be monitored by the police and community development departments. Any peace officer may enforce the penal provisions of this chapter.
B. The police department shall conduct compliance checks of at least fifty percent of permitted tobacco retailers at least once per twelve-month period. The police department may check the compliance of tobacco retailers previously found to be in compliance a fewer number of times so that the police department may check the compliance of tobacco retailers previously found in violation of this chapter a greater number of times. Nothing in this subsection shall create a right of action in any permittee or other person against the city or its agents.
C. Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.
D. 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; or
2. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Los Angeles County Department of Public Health or the California Department of Health Services. (Ord. 1738 § 63 (part), 2012; Ord. 1707 § 2 (part), 2008)
5.52.110 Revocation of permit.
A. Revocation of Permit for Violation. In addition to any other penalty authorized by law, a tobacco retailer permit shall be revoked if the police department finds or any court of competent jurisdiction determines, after the permittee is afforded notice and an opportunity to be heard, that the permittee, or any of the permittee’s agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or, in a different legal proceeding, has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in Section 5.52.090(A).
B. New Permit After Revocation.
1. After revocation for a first violation of this chapter at a location within any sixty-month period, no new permit may be issued for the location until thirty days have passed from the date of revocation.
2. After revocation for a second violation of this chapter at a location within any sixty-month period, no new permit may be issued for the location until sixty days have passed from the date of revocation.
3. After revocation for a third violation of this chapter at a location within any sixty-month period, no new permit may be issued for the location until ninety days have passed from the date of revocation.
4. After revocation for four or more violations of this chapter at a location within any sixty-month period, no new permit may be issued for the location until five years have passed from the date of revocation.
C. Appeal of Revocation. A decision of the police department to revoke a permit is appealable to the city manager or designee and must be filed with the city clerk within ten days of mailing of the police department’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 (D) of this section. The appeal fee shall be established by resolution of the city council.
D. Revocation of Permit Issued in Error. A tobacco retailer permit shall be revoked if the police department finds, after the permittee is afforded reasonable notice and an opportunity to be heard, that one or more of the bases for denial of a permit under Section 5.52.050 existed at the time application was made or at any time before the permit issued. The decision by the police department shall be the final decision of the city. The revocation shall be without prejudice to the filing of a new permit application. (Ord. 1707 § 2 (part), 2008)
5.52.120 Tobacco retailing without a permit.
A. In addition to any other penalty authorized by law, if the police department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer permit, either directly or through the person’s agents or employees, the person shall be ineligible to apply for or be issued a tobacco retailing permit for that location as follows:
1. After a first violation of this chapter at a location within any sixty-month period, no new permit may be issued for the person at the location until thirty days have passed from the date of the violation.
2. After a second violation of this chapter at a location within any sixty-month period, no new permit may be issued for the person at the location until ninety days have passed from the date of the violation.
3. After of a third or subsequent violation of this chapter at a location within any sixty-month period, no new permit may be issued for the person at the location until five years have passed from the date of the violation.
B. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this chapter are subject to seizure by any peace officer and shall be forfeited after the permittee and any other 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. The decision by the police department may be appealed pursuant to the procedures set forth in Section 5.52.110(C). Forfeited tobacco products and tobacco paraphernalia shall be destroyed.
C. For the purposes of the civil remedies provided in this chapter:
1. Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter; or
2. Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter;
whichever is greater, shall constitute a separate violation of this chapter. (Ord. 1707 § 2 (part), 2008)
5.52.130 Settlement in lieu of hearing.
For a first or second alleged violation of this chapter within any sixty-month period, the city attorney may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter without approval from the city council. Notice of any settlement shall be provided to the police and community development departments and no hearing shall be held. Settlements shall not be confidential and shall contain the following minimum terms:
A. After a first alleged violation of this chapter at a location within any sixty-month period:
1. An agreement to stop acting as a tobacco retailer for at least one day;
2. A settlement payment to the city of at least one thousand dollars; and
3. An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.
B. After a second alleged violation of this chapter at a location within any sixty-month period:
1. An agreement to stop acting as a tobacco retailer for at least ten days;
2. A settlement payment to the city of at least five thousand dollars; and
3. An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations. (Ord. 1738 § 63 (part), 2012; Ord. 1707 § 2 (part), 2008)
5.52.140 Nuisance/remedies.
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. Violations of this chapter are subject to a civil action brought by the city prosecutor or the city attorney, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.
D. Violations of this chapter may, in the discretion of the city prosecutor, be prosecuted as misdemeanors.
E. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
F. Violations of this chapter are hereby declared to be public nuisances.
G. 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, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. 1707 § 2 (part), 2008)