Chapter 8.26
TOBACCO RETAILERS
Sections:
8.26.020 Requirements and prohibitions.
8.26.030 Application procedure.
8.26.050 License renewal and expiration.
8.26.060 Licenses nontransferable.
8.26.070 License conveys a limited, conditional privilege.
8.26.090 Compliance monitoring.
8.26.100 Suspension or revocation of license for violation.
8.26.010 Definitions.
For the purpose of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:
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 violations of this chapter is not an arm’s length transaction.
B. “Department” means the City of Healdsburg police department, and any agency or person designated by the department to enforce or administer the provisions of this chapter.
C. “Electronic smoking device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. “Electronic smoking device” includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. “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.
D. “Electronic smoking device paraphernalia” means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices.
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 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 can or does have or share ultimate control over the day-to-day operations of a business.
F. “Self-service display” means the open display or storage of tobacco products or smoking 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 tobacco vending machine is a form of self-service display.
G. “Smoking paraphernalia” means tobacco paraphernalia, electronic smoking devices, and electronic smoking device paraphernalia.
H. “Tobacco paraphernalia” means cigarette papers or wrappers, pipes, cigarette rolling machines, and any other item designed for the consumption or preparation of tobacco products.
I. “Tobacco product” means any product that contains tobacco, is derived from tobacco, or contains synthetically produced nicotine and is intended for human consumption, including, but not limited to, electronic smoking devices, single packaged tobacco products and flavored products. “Tobacco product” does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.
J. “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 smoking 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 smoking paraphernalia sold, offered for sale, exchanged, or offered for exchange.
K. “Tobacco vending machine” means any electronic or mechanical device or appliance, the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases a tobacco product. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.020 Requirements and prohibitions.
A. It shall be unlawful for any person to act as a tobacco retailer in the City 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. 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, smoking paraphernalia, or tobacco retailing.
C. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
D. A tobacco retailer shall post plainly visible notices at the point of purchase of tobacco products which comply with the provisions of California Penal Code Section 308(c) and California Business and Professions Code Section 22952(b), as either or both of those statutes may be amended from time to time.
E. It shall be a violation of this chapter for any licensee or any of the licensee’s agents or employees to sell, give, or in any way furnish to another person who is under the age of 21 years any tobacco product or smoking paraphernalia.
F. No person engaged in tobacco retailing shall sell or transfer a tobacco product or smoking paraphernalia to another person who appears to be under the age of 27 years without first examining the identification of the recipient to confirm that the recipient is at least 21 years of age.
G. No person who is younger than the age of 21 years shall engage in tobacco retailing; provided, however, that a person under the age of 21 years may engage in tobacco retailing: (1) if under the continuous supervision of a person 21 years of age or older; and (2) only when directly observable by such person 21 years of age or older.
H. Tobacco retailing by means of a self-service display is prohibited.
I. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has expired or been suspended or revoked:
1. Shall keep all tobacco products and smoking paraphernalia out of public view. The public display of tobacco products or smoking paraphernalia in violation of this provision shall constitute tobacco retailing without a license in violation of subsection (A) of this section; and
2. Shall not display any advertisement relating to tobacco products or smoking 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.
J. No license 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.
K. No license may be issued to authorize tobacco retailing in a pharmacy. For the purposes of this subsection, “pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the state of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.030 Application procedure.
A. Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to engage in tobacco retailing and shall be signed by each proprietor or an authorized agent thereof. All applications shall be submitted on a form supplied by the department 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 (A)(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 or any other local, state or federal law governing tobacco products or tobacco retailers and, if so, the dates and locations of all such violations within the previous five years.
6. 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.
7. Such other information as the department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
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 HMC 8.26.100. 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. A licensed tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer’s license within 10 business days of a change. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.040 Issuance of license.
Upon the receipt of a complete application for a tobacco retailer’s license and the license fee required by this chapter, the department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
A. The application is incomplete or the information presented in the application is 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 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; provided, however, this subsection shall not constitute a basis for denial of a license if either or both of the following apply:
1. The applicant provides the department with documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm’s length transaction.
2. It has been more than five years since the most recent license for that location was revoked.
C. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending), that is unlawful pursuant to this code, or other local, state or federal law. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.050 License renewal and expiration.
A. A tobacco retailer’s license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is one year. Each tobacco retailer shall submit an application for the renewal of his or her tobacco retailer’s license and the license fee no later than 30 days prior to expiration of the term of the license.
B. A tobacco retailer’s 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 a new application form; and
2. Submit a signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product or smoking paraphernalia after the license expiration date and before the license is renewed. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.060 Licenses nontransferable.
A tobacco retailer’s license may not be transferred from one person to another or from one location to another. A new tobacco retailer’s license is required whenever a tobacco retailing location has a change in proprietor(s) or a tobacco retailer changes its business location. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.070 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, 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’s license does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.080 Fee for license.
The fee to issue or to renew a tobacco retailer’s license shall be established by resolution of the City. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the license 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 and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.090 Compliance monitoring.
A. Compliance with this chapter shall be monitored by the department. The City may designate any number of additional persons to monitor compliance with this chapter.
B. The department or other person designated to enforce the provisions of this chapter shall have the power and authority to enter any location engaging in tobacco retailing during regular business hours to inspect the premises and determine compliance with the provisions of this chapter. (Ord. 1142 § 1 (Exh. A), 2014.)
8.26.100 Suspension or revocation of license for violation.
A. In addition to any other remedies authorized by law, a tobacco retailer’s license may be suspended or revoked by the department upon any of the following grounds:
1. One or more of the grounds for denial of a license under HMC 8.26.040 existed at the time the license application was made or at any time before the license was issued;
2. The tobacco retailer’s license fee is unpaid;
3. The tobacco retailer’s license has been transferred in violation of HMC 8.26.060;
4. The tobacco retailer has violated any provision of this chapter or any other local, state or federal tobacco-related law.
B. Time Period of Suspension of License.
1. Upon a finding by the department of a first violation of this chapter at a location within any 60-month period, the license shall be suspended for 30 days.
2. Upon a finding by the department of a second violation of this chapter at a location within any 60-month period, the license shall be suspended for 60 days.
3. Upon a finding by the department of a third violation of this chapter at a location within any 60-month period, the license shall be suspended for 180 days.
4. Upon a finding by the department of four or more violations of this chapter at a location within any 60-month period, the license shall be revoked and no new license may be issued for the location or person until five years have passed from the date of revocation.
C. A decision of the department to deny, suspend or revoke a license is appealable in accordance with HMC 5.04.220. (Ord. 1142 § 1 (Exh. A), 2014.)