4-33
TOBACCO RETAILER LICENSE:
4-33.01 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 (2) informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction.
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. Coupon means anything except cash that can be exchanged for or used to acquire a tobacco product, such as a printed piece of paper, voucher, ticket, rebate, rebate offer, check, credit, token, code, password, or anything labeled "coupon" or "coupon offer."
d. Department means the development services department, or any enforcement department or enforcement officer designated to enforce or administer the provisions of this chapter.
e. Drug paraphernalia shall have the definition set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time.
f. Edible means any substance or thing designed, intended, or prepared to be eaten, drunk, chewed, or otherwise ingested by humans or that is, in fact, commonly eaten, drunk, chewed, or otherwise ingested by humans.
g. Nominal cost means the cost of any item that is transferred from one person to another for less than the total of: (1) twenty-five percent (25%) of the full retail value of the item exclusive of taxes and fees; plus (2) all taxes and fees previously paid and all taxes and fees still due on the item at the time of transfer.
h. Non-sale distribution means to give, within the jurisdictional limits of the city, a tobacco product or coupon at no cost or at nominal cost to a person who is not a tobacco seller.
i. Person means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
j. 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.
k. Public place means any place within the city, public or private, that is open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses.
l. Reasonable distance means a distance of twenty feet (20') in any direction from an area in which smoking is prohibited and twenty-five feet (25') in any direction of playgrounds and tot lots.
m. 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.
n. Significant tobacco retailer means any tobacco retailer for which the principal or core business is selling tobacco products, tobacco paraphernalia, or both, as evidenced by any of the following: twenty percent (20%) or more of the floor or display area is devoted to tobacco products, tobacco paraphernalia, or both; sixty-seven percent (67%) or more of gross sales receipts are derived from tobacco products, tobacco paraphernalia, or both; or fifty percent (50%) or more of completed sales transactions include tobacco products or tobacco paraphernalia.
o. Tobacco look-alike product means any product other than an image that is not a tobacco product but is designed so that it readily appears similar to a tobacco product as judged by a reasonable consumer.
p. Tobacco paraphernalia means cigarette papers or wrappers, pipes, 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.
q. Tobacco product means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any 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 cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.
r. 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. #1653, §2)
4-33.02 REQUIREMENTS AND PROHIBITIONS
a. Tobacco Retailer License Required: 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. Lawful Business Operation: In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license is issued, it shall be a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
c. Display of License: Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location. Failure to properly display license shall result in the issuance of a citation.
d. 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.
e. 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.
f. Self-Service Displays Prohibited: Tobacco retailing by means of a self-service display is prohibited, except for significant tobacco retailers where minors are not permitted to be present and the licensee enforces such restricted access.
g. Violation Of Age-Verification Laws: No licensee may violate any local, state, or federal law that requires a seller to verify that a purchaser of any product sold by the licensee be a specified age or older.
h. Edible Tobacco Look-Alike Products Prohibited: No person shall sell, offer for sale, or exchange for any form of consideration any edible tobacco look-alike product within the city, including, without limitation, candy cigarettes, bubble gum cigars, and chewing gum packaged to resemble tobacco products.
i. Signage Violations: It shall be a violation of this chapter for any licensee to violate any of the provisions of chapter 25 in relation to signage, as well as any state or federal law regulating exterior, storefront, window, or door signage.
j. Drug Paraphernalia: It shall be a violation of this chapter for any licensee, or any of the licensee’s agents or employees, to violate any local, state, or federal law regulating controlled substances or drug paraphernalia.
k. On-Site Smoking Prohibited: No person engaged in tobacco retailing shall permit smoking inside the licensed premises or in any adjacent outdoor area owned, leased, or operated by the person engaged in tobacco retailing. In addition, no person engaged in tobacco retailing shall permit smoking within twenty-five feet (25') of any doorway, window, opening, or other vent into the licensed premises; and no person engaged in tobacco retailing shall permit the presence or placement of usable ash receptacles, such as, for example, ash trays or ash cans, on the licensed premises, including all inside areas and outside areas. This section does not apply to significant tobacco retailers where smoking inside the licensed premises is otherwise authorized per state law.
l. Non-Sale Distribution Of Tobacco Products Prohibited:
1. No tobacco retailer nor any agent or employee of a tobacco retailer shall engage in the non-sale distribution of any tobacco product or coupon in any public place.
2. No tobacco retailer, motivated by an economic or a business purpose, shall knowingly permit the non-sale distribution of any tobacco product or coupon: (a) anywhere in any public place under the legal or de facto control of the tobacco retailer; or (b) through any agent or employee of the tobacco retailer. This provision shall not apply to coupons provided by the manufacturer and contained in a tobacco product sold for value or incidentally distributed in connection with a printed or electronic publication, such as, for example, magazines, newspapers, and websites, so long as that person’s distribution of a publication containing coupons is not primarily motivated by an economic or a business purpose to distribute coupons.
m. 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 suspended or 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 subsection 4-33.02a; 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. (Ord. #1653, §2)
4-33.03 Limits On Eligibility For A Tobacco Retailer License:
a. No license may be issued to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.
b. No license may be issued to authorize tobacco retailing at any location that is not licensed under state law to sell alcoholic beverages for consumption off the premises (e.g., an "off-sale" license issued by the California Department of Alcoholic Beverage Control).
c. No license may be issued to authorize tobacco retailing at any location where smoking is permitted inside the premises or in any adjacent outdoor area owned, leased, or operated by the person applying for a license to engage in tobacco retailing. In addition, no license may be issued to authorize tobacco retailing at any location where smoking is permitted within twenty-five feet (25') of any doorway, window, opening, or other vent into the licensed premises.
d. No license may be issued to authorize tobacco retailing at any location that is exclusively zoned for residential use.
e. No license may be issued to authorize tobacco retailing within five hundred feet (500') of a youth-populated area as measured by a straight line from the nearest point of the property line of the site of a youth-populated area to the nearest point of the property line of the site of the applicant’s business premises. For the purposes of this subsection, a youth-populated area means a parcel in the city that is:
1. Occupied by a private or public kindergarten, elementary, middle, junior high, or high school;
2. Occupied by a licensed child-care facility or preschool as defined in California Health and Safety Code Section 1596.78;
3. Occupied by a library open to the public;
4. Occupied by a playground open to the public;
5. Occupied by a youth center;
6. Occupied by a religious institution;
7. Occupied by a recreational facility open to the public;
8. Occupied by an arcade open to the public; or
9. Occupied by a park open to the public or to all the residents of a residential area.
f. No license may be issued to authorize tobacco retailing within two hundred feet (200') of another tobacco retailer location as measured by a straight line from the nearest point of the property line on which the license applicant’s business premises are located to the nearest point of the property line on which another tobacco retailer’s business premises are located.
g. The issuing of tobacco retailer licenses is limited as follows:
1. The total number of tobacco retailer licenses within the city shall be limited to one for each one thousand (1,000), or fraction thereof, inhabitants of the city. Except as provided in article 25-165 of the Lynwood Municipal Code regarding nonconforming uses, so long as the number of tobacco retailer licenses issued (or license applications received) equals or exceeds the total number authorized pursuant to this subsection, no new licenses may be issued.
2. For the purposes of this section, the total population of the city shall be determined by the most current published total available from the U.S. Census Bureau or the California State Department of Finance, whichever has been more recently updated, as of the date the license application is filed.
h. Notwithstanding the eligibility restrictions of this section 4-33.03, any tobacco retailer or significant tobacco retailer operating legally as of the effective date of this chapter and that would otherwise be entitled to receive a license may continue to operate as a nonconforming use subject to termination pursuant to article 25-165 of the Lynwood Municipal Code, as that article may be amended from time to time, so long as the use is not deemed discontinued or abandoned for a period of six (6) months. (Ord. #1653, §2)
4-33.04 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. A written zoning approval from the city’s planning division is required in order to submit a business license application pursuant to this chapter.
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 4-9.1 of this chapter. 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.
All applications shall be submitted on a form supplied by the business license division 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 4-33.04a2.
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. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought.
7. Such other information as the enforcement director deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
b. A licensed tobacco retailer shall inform the business license division 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.
c. 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 law’s exemptions. (Ord. #1653, §2)
4-33.05 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 business license division shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
a. 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 a license for tobacco retailing at a location or for a business for which this chapter prohibits issuance of tobacco retailer licenses. However, if a location or business is ineligible for a license based solely on previous violations at that location, this subsection shall not constitute a basis for denial of a license 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 a license for tobacco retailing by a proprietor to whom this chapter prohibits a license to be issued.
d. The application seeks authorization for tobacco retailing that is:
1. Prohibited pursuant to this chapter, including the eligibility requirements of section 4-33.03 (e.g., no more than one tobacco retailer per one thousand (1,000) residents or fraction thereof);
2. Unlawful pursuant to this code, including without limitation: the zoning ordinance, building code, and business license tax ordinance; or
3. Unlawful pursuant to any other law. (Ord. #1653, §2)
4-33.06 License Renewal And Expiration:
a. Renewal Of License: 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, and shall expire at the same time as the tobacco retailer’s business license issued pursuant to chapter 4 of the Lynwood Municipal Code. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license and submit the license fee no later than thirty (30) days prior to expiration of the 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 4-33.06a, the proprietor must:
1. Submit the license fee and application renewal form; and
2. Submit a signed affidavit affirming that the proprietor:
(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 subsection 4-33.12a of this chapter, before seeking renewal of the license. (Ord. #1653, §2)
4-33.07 Licenses Nontransferable:
a. 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).
b. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless the location has been fully transferred to a new proprietor(s) in an arm’s length transaction. (Ord. #1653, §2)
4-33.08 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, subject to the terms and conditions of this chapter. (Ord. #1653, §2)
4-33.09 Fee For License:
The fee to issue or to renew a tobacco retailer’s license shall be established from time to time by resolution of the city council. 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 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. Fees are nonrefundable except as may be required by law. (Ord. #1653, §2)
4-33.10 Compliance Monitoring:
a. Compliance with this chapter shall be monitored by the business license or code enforcement divisions. The city may designate any number of additional personnel to monitor compliance with this chapter.
b. Compliance checks shall be conducted so as to allow the department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco. The department shall check the compliance of each tobacco retailer at least two (2) times per twelve (12) month period. The department may check the compliance of tobacco retailers previously found to be in compliance a fewer number of times so that the department may check the compliance of new licensees and tobacco retailers previously found in violation of the licensing law more frequently. Nothing in this subsection shall create a right of action in any licensee or other person against the city or its agents.
c. 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 the Los Angeles County Department of Public Health or any other county or state agency;
2. The youth decoy is acting as an agent of a person designated by the sheriff’s department 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 Los Angeles County Department of Health or the California Department of Public Health. (Ord. #1653, §2)
4-33.11 Suspension Or Revocation Of License:
a. Suspension Or Revocation Of License For Violation: In addition to any other penalty authorized by law, a tobacco retailer’s license shall be suspended or revoked if any court of competent jurisdiction or the city council, as provided in section 4-9 of the code, determines 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 admitted to a violation of any law or condition designated in section 4-33.02.
b. Suspension Periods: Notwithstanding the suspension periods listed under subsections 4-9.4(c) and 4-9.5(h) of the code, which shall not be applicable to licenses issued under this chapter, the suspension periods for a tobacco retailer’s license shall be as follows:
1. For a first violation of this chapter at a location within any sixty (60) month period, a tobacco retailer’s license shall be suspended for thirty (30) days.
2. For a second violation of this chapter at a location within any sixty (60) month period, a tobacco retailer’s license shall be suspended for sixty (60) days.
3. For a third violation of this chapter at a location within any sixty (60) month period, a tobacco retailer’s license shall be revoked.
c. Appeal Of Suspension Or Revocation: Except as provided in subsection 4-33.11d, a decision by the city council under section 4-9 of the code to suspend or revoke a license may be appealed pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law.
d. Revocation Of License Wrongly Issued: A tobacco retailer’s license shall be revoked if the city council finds, as provided in section 4-9 of the code, that one or more of the bases for denial of a license under section 4-33.05 existed at the time application was made or at any time before the license was issued. The decision by the city council shall be the final decision of the city.
e. Service Of Notices: All notices and other communications required or permitted to be given pursuant to this chapter shall be in writing and be given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. (Ord. #1653, §2)
4-33.12 Tobacco Retailing Without A License:
a. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the development services department or any enforcement department 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 be issued 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 year has 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 be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until five (5) years have passed from the date of the violation.
3. After of a third or subsequent violation of this section at a location within any sixty (60) month period, no new license may be issued for the person or the location, unless ownership of the business at the location has been transferred in an arm’s length transaction.
b. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the city’s business license or code enforcement divisions or any peace officer and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized are 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. Within ten (10) working days, the decision by the department may be appealed to the city council, which shall review the decision at a public hearing. The fee for appeals shall be set by resolution of the city council. Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.
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;
shall constitute a separate violation of this chapter. (Ord. #1653, §2)
4-33.13 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 person under the age of eighteen (18) years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
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 of one thousand dollars ($1,000.00) per violation.
d. Violations of this chapter may, in the discretion of the city attorney or city prosecutor, be prosecuted as infractions or misdemeanors when the interests of justice so require.
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 any enforcement procedure authorized under the Lynwood Municipal Code, or 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.
h. Any person or entity, acting for the interests of itself, its members, or the general public (hereinafter "the private enforcer") may bring a civil action to enforce this chapter by way of a conditional judgment in small claims court or an injunction issued in the unlimited jurisdiction of the superior court. (Ord. #1653, §2)