Chapter 5.68
TOBACCO RETAILER LICENSE
Sections:
Article I. General Provisions
Article II. License Requirements
5.68.040 License requirements generally.
5.68.050 Enforcement of state law.
5.68.060 Application procedure.
5.68.070 Issuance and display of license.
5.68.090 License nontransferable.
5.68.100 Suspension of license.
Article III. Restriction on Advertising of Tobacco Products
5.68.120 Restriction on advertising of tobacco products generally.
5.68.130 Sale and distribution of tobacco-related promotional items.
5.68.140 Self-service displays.
5.68.150 Administration and implementation.
Article I. General Provisions
5.68.010 Purpose.
The purpose of this chapter is to promote the welfare of minors by discouraging the commercial exploitation of potential underage tobacco users and by discouraging actions that promote the unlawful sale of tobacco products to minors as well as the unlawful purchase or possession of tobacco products to minors. [Ord. 1157 § 3, 1999.]
5.68.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it is apparent that they have a different meaning:
A. “Advertising display sign” means a sign, signboard, billboard, poster, freestanding sign, balloon, pennant, or banner, that is temporarily or permanently placed on or affixed to the ground, the sidewalk, a pole or post, a fence, or a building, or is displayed in the windows or doors of a commercial establishment, and that is used to advertise or promote products.
B. “City manager” means the city of Pittsburg city manager or his or her designee.
C. “Director” means the individual designated by the city manager in writing to administer this chapter, who may be the city’s health officer, a city department head, or other city staff person.
D. “Mobile billboard” means any sign, placard, billboard, or other display advertisement upon or affixed to a vehicle which is used primarily to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right-of-way or on private property and visible to the public for a duration of time and in a manner which clearly indicates that the sign is for advertising products illegal to sell to minors or which carry a specific brand name, logo, indicia of a product illegal to sell to minors. For the purposes of this division, mobile billboard shall not include any advertisement on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products.
E. “Person” means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or other legal entity.
F. “Promote” or “promotion” means a display of any logo, brand name, character, graphics, colors, scenes, designs, or recognizable color or pattern of colors, or any other indicia or product identification with, or similar to, or identifiable with, those used for any particular brand of tobacco product.
G. “Publicly visible location” means any outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or any location inside a commercial establishment immediately adjacent to a window or door where such location is visible from any street, sidewalk, or other public thoroughfare.
H. “Tobacco product” means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipes, tobacco, snuff, chewing tobacco and dipping tobacco.
I. “Tobacco retailer” means any person who sells, offers for sale, or exchanges or offers to exchange, for any form of consideration, tobacco, tobacco products or tobacco paraphernalia; “tobacco retailing” means the doing of any of these things. [Ord. 1157 § 3, 1999.]
5.68.030 Guidelines.
The city manager may develop guidelines, as appropriate, to ensure implementation of this chapter. [Ord. 1157 § 3, 1999.]
Article II. License Requirements
5.68.040 License requirements generally.
It is unlawful for any retailer, individual, or entity who has been found to be in violation of one or more of the provisions of this chapter or other provision of this code or any applicable state or federal laws governing the sale and distribution of tobacco within the last 12 months, to sell or offer for sale any tobacco products within the city without first obtaining and maintaining a valid tobacco retailer’s license from the city for each location where such sales are conducted. Licenses are valid for one year and licensees must apply for renewal annually for a total of five years. If there are no further violations of the provisions of this chapter or applicable state or federal laws regulating the sale and distribution of tobacco in that five-year period, a tobacco retailer’s license will no longer be required in order to sell tobacco products in the city. [Ord. 1157 § 3, 1999.]
5.68.050 Enforcement of state law.
If a clerk or employee sells a tobacco product to a minor, the retailer shall immediately notify the chief of police of the violation of Penal Code Section 308 for enforcement under that statute. [Ord. 1157 § 3, 1999.]
5.68.060 Application procedure.
An application for a tobacco retailer’s license shall be submitted in the name of the retailer, individual or entity, who, following a finding of violation as specified in PMC 5.68.040, proposes to conduct retail tobacco sales on the business premises, and shall be signed by such retailer, individual or entity or agent with written authority to act for same. All applications shall be submitted on a form supplied by the director, or his or her designee, and shall contain the following information:
A. The name, address, and telephone number of the applicant;
B. The business name, address, and telephone number of each establishment where tobacco is to be sold; and
C. Any other information as the director determines is necessary for implementation of this article. [Ord. 1157 § 3, 1999.]
5.68.070 Issuance and display of license.
Upon receipt of a completed application for a tobacco retailer’s license, including payment of the license fee, the director, or his or her designee, will issue a license, which each licensee must prominently display at the location where tobacco retail sales are conducted. [Ord. 1157 § 3, 1999.]
5.68.080 Fees for license.
The fee for a tobacco retailer’s license shall reflect the actual cost of processing the license, including inspection of the tobacco retailer’s business premises and implementation of the licensing program, and shall not exceed $500.00 annually as determined by the city council. [Ord. 1157 § 3, 1999.]
5.68.090 License nontransferable.
The tobacco retailer’s license is nontransferable. If there is a change in location, a new tobacco retail license will be issued for the new address upon receipt of an application for change of location. The new license will retain the same expiration date as the previous license. [Ord. 1157 § 3, 1999.]
5.68.100 Suspension of license.
A. Grounds for Suspension. In order to discourage violations of law, a tobacco retailer’s license may be suspended, as set forth in subsection (B) of this section, by the director upon a finding, after giving the licensee notice and opportunity to be heard, that the licensee or his or her employee, following the issuance of a tobacco retailer’s license, has violated any of the provisions of this chapter, this code or any applicable state or federal laws as otherwise allowed by law.
B. Time Period of Suspension of License.
1. Upon the first time that the director makes a finding as set forth in subsection (A) of this section, the license to sell tobacco products may be suspended for up to 60 days;
2. Upon the second time that the director makes a finding as set forth in subsection (A) of this section within 12 months of the first determination, the license to sell tobacco products may be suspended for up to 120 days;
3. Upon the third and each subsequent time that the director makes a finding as set forth in subsection (A) of this section within 12 months of the prior determination, the license to sell tobacco products may be suspended for up to one year.
C. Appeal of Suspension. The decision of the director to suspend a tobacco retailer’s license is appealable to the city manager as provided in Chapter 1.08 PMC. [Ord. 1157 § 3, 1999.]
5.68.110 Administrative fine.
A. Grounds for Fine. If the director, after giving notice and an opportunity to be heard to the person who is the owner of a tobacco retail establishment, finds that such person is required to have a tobacco retailer’s license and does not have a valid tobacco retailer’s license and is selling or offering tobacco products for sale, the owner of the retail establishment may be subject to an administrative fine, as permitted under Government Code Section 53069.4, or applicable city ordinance, as follows:
1. Up to a maximum $100.00 for a first violation;
2. Up to a maximum $200.00 for a second violation within one year;
3. Up to a maximum $500.00 for the third and subsequent violations within one year.
Each day that tobacco products are offered for sale without a license by a tobacco retailer required to have such a license pursuant to PMC 5.68.040 shall constitute a separate violation as set forth in PMC 1.12.040. A finding of “offering for sale” will be made if tobacco products are actually sold and/or displayed in the retail establishment.
B. Fine Procedures. Notice of the fine shall be served on the tobacco retailer or person who is the owner of the establishment by certified mail. The notice shall contain an advisement of the right to request a hearing before the city manager contesting the imposition of the fine. The hearing must be requested within 10 days of the date of the notice of the fine.
C. Appeal to Municipal Court. Any fine imposed by the director may be appealed to the municipal court.
D. Failure to Pay Fine. If the fine is not paid within 30 days from the date of mailing the notice of the fine or of the notice of determination of the director after the hearing, the fine shall be referred to the city of Pittsburg finance department. In addition, any outstanding fines must be paid prior to the issuance of any license by the director. [Ord. 1157 § 3, 1999.]
Article III. Restriction on Advertising of Tobacco Products
5.68.120 Restriction on advertising of tobacco products generally.
A. No person shall place or maintain, or cause or allow to be placed or maintained, in any manner any advertising or promotion of cigarettes or tobacco products on an advertising display sign in a publicly visible location within 1,600 feet of the perimeter of an elementary or secondary school, public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts).
B. Exceptions. Subsection (A) of this section shall not apply to advertising or promotions for tobacco products:
1. Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare;
2. On vehicles, other than mobile billboards;
3. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product;
4. On billboard signs covered or exempted by voluntary agreements between the city and billboard companies in effect on the effective date of the ordinance codified in this chapter; or
5. On tobacco product packaging. [Ord. 1157 § 3, 1999.]
5.68.130 Sale and distribution of tobacco-related promotional items.
No manufacturer, distributor, or retailer of tobacco products may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item (other than tobacco products) or service to a minor, which bears the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product. [Ord. 1157 § 3, 1999.]
5.68.140 Self-service displays.
A. Prohibition. It is unlawful for any person or tobacco retailer within the city to sell, permit to be sold, offer for sale, or display for sale any tobacco product by means of self-service display, rack, counter top or shelf that allows self-service sales for any tobacco product other than vendor-assisted sales.
B. Vendor Assistance. All tobacco products shall be offered for sale exclusively by means of vendor/employee assistance, with tobacco products in a locked case requiring employee assistance to retrieve the tobacco products. [Ord. 1157 § 3, 1999.]
5.68.150 Administration and implementation.
A. General. Except as otherwise provided, this article shall be administered by the city manager.
B. Violations.
1. The city manager will review and, if determined appropriate, act upon any written complaint submitted by any private citizen or city officer or employee concerning any advertising or promotion prohibited by this article in a timely manner. The city manager may serve written notice requiring correction of any violation of this article upon the person responsible for the advertising display sign or promotion or self-service display prohibited by this article. Any notice issued shall specify a date by which the violation shall be corrected.
2. Failure to correct specified violations after written notice has been served may result in enforcement by any remedy allowed by this code. If three notices requiring the correction of any violation of this article (whether the violation involves the same or different displays or promotions) are served on the same person within a 30-day period, an enforcement action may be initiated against that person without the serving of another notice, if the additional violation occurs within 90 days of the serving of the third notice.
3. Each separate display of tobacco advertising or promotion prohibited by this article shall be considered a separate violation.
4. For purposes of determining liability of persons, firms or corporations, controlling franchises or business operations in multiple locations, each individual franchise or business location shall be deemed a separate entity.
C. Intent as to Additional Legal Restrictions and Remedies. Nothing in this article is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards, tobacco advertising or any other matter covered by this article. The remedies set forth in this article are not exclusive. If any action prohibited by this article is also unlawful under any other law, the penalties and remedies under other laws may be pursued in addition to those provided in this article.
D. Disclaimers. By prohibiting the advertising or promotion of tobacco products in outdoor or publicly visible locations, prohibiting the distribution of tobacco-related promotional items and self-service displays of tobacco products, the city is only promoting the general welfare. It is not assuming, nor is it imposing upon its officers and employees, an obligation for breach of which it is liable in money any person who claims that such breach proximately caused injury. [Ord. 1157 § 3, 1999.]