CHAPTER 2
SPECIAL BUSINESS REGULATIONS
ARTICLE 7. TOBACCO RETAILERS
SECTION:
§2356 Licenses Not Transferable
§2358 Suspension, Termination Or Revocation Of License
§2350 DEFINITIONS
The following words and phrases, whenever used in this article, shall have the meanings provided in this section unless the context clearly requires otherwise:
APPELLANT: A person who appeals a Department decision to the Hearing Officer.
CHARATERIZING FLAVOR: A distinguishable taste or smell, or both, other than the taste or smell of tobacco that is distinguishable by an ordinary consumer, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or smell, or both, as described in the first sentence of this definition, and that is distinguishable by an ordinary consumer, that constitutes a characterizing flavor.
DEPARTMENT: The City Manager and/or the duly authorized designee of the City Manager.
ELECTRONIC NICOTINE DELIVERY SYSTEMS (ENDS): An electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately and includes any such 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.
FLAVORED TOBACCO PRODUCT: Any tobacco product that contains a constituent that imparts a characterizing flavor.
PERSON: Any natural person, firm, partnership, trust, estate, association, corporation, or organization of any kind. Where a principal acts through an agent, the word "person" shall include both such principal and agent.
SALE: Any transfer of title or possession for a consideration, exchange or barter, in any manner or by any means whatever.
TOBACCO PRODUCT:
A. A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, loose leaf tobacco, hookah tobacco, shisha, or snuff;
B. Any electronic nicotine device system (ENDS) that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. Including any such 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; and
C. Any component, part, or accessory of a tobacco product, whether or not sold separately.
D. “Tobacco product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.
TOBACCO PRODUCT FLAVOR ENHANCER: A product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product.
TOBACCO RETAILER: Any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco or tobacco products. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco or tobacco products sold, offered for sale, exchanged, or offered for exchange. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2351 LICENSE REQUIREMENTS
A. It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this article for each location at which that activity is to occur. No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited.
B. The term of a license is one year from January 1 through December 31 unless earlier suspended, terminated or revoked pursuant to section 2358 of this code. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license no later than thirty (30) days prior to its expiration.
C. Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the right to act as a tobacco retailer at the location in the city of Ukiah identified on the face of the license. For example, nothing in this article shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by Labor Code section 6404.5. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2352 APPLICATION PROCEDURE
Application for a tobacco retailer’s license shall be submitted in the name of each person proposing to conduct retail tobacco sales and shall be signed by each person or an authorized agent thereof. It is the responsibility of each person to be informed of the laws affecting the issuance of a tobacco retailer’s license. A license that is issued in error or on the basis of false or misleading information supplied by a person may be revoked pursuant to section 2358 of this code. All applications shall be submitted on a form supplied by the Department and shall contain the following information:
A. The name, address, and telephone number of each person.
B. The business name, address, and telephone number of each location for which a tobacco retailer’s license is sought.
C. The name and mailing address authorized by each person to receive all license related communications and notices (the "authorized address"). If an authorized address is not supplied, each person shall be understood to consent to the provision of notice at the business address specified pursuant to subsection B of this section.
D. Whether or not any person has previously been issued a license pursuant to this article that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation.
E. Such other information as the Department deems necessary for the administration or enforcement of this article. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2353 ISSUANCE OF LICENSE
Upon the receipt of an application for a tobacco retailer’s license and the license fee, the Department shall issue a license, unless:
A. The application is incomplete or inaccurate; or
B. The application seeks authorization for tobacco retailing by a person for which or whom a suspension is in effect pursuant to section 2358 of this code, or by a person which or who has had a license revoked pursuant to section 2358 of this code. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2354 DISPLAY OF LICENSE
Each license shall be prominently displayed in a publicly visible location at the licensed premises. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2355 LICENSE FEE
The fee to issue or to renew a tobacco retailer’s license shall be established by resolution of the City Council from time to time. The fee shall be calculated so as to recover the cost of administration and enforcement of this article, including, for example, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and enforcement, but shall not exceed the cost of the regulatory program authorized by this article. Annual fees shall not be prorated or refunded during the course of the year. The City may charge a reinspection fee to offset the additional staff time required to handle noncompliant businesses. Additional inspections thereafter will be billed based on actual costs incurred. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2356 LICENSES NOT TRANSFERABLE
A tobacco retailer’s license is not transferable. If the information required in the license application pursuant to subsection 2352A, B or C of this code changes, the tobacco retailer must notify the Department within fourteen (14) days, and update all information on the license application form in order to continue to act as a tobacco retailer. For example, if a tobacco retailer to whom a license has been issued changes business location, that tobacco retailer must supply updated license information within fourteen (14) days of acting as a tobacco retailer at the new location. If a business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer. The current licensee shall notify the Department of the sale of the tobacco retailing business. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2357 LICENSE VIOLATION
A. Violation Of Tobacco Related Laws: It shall be a violation of a tobacco retailer’s license for a person or his or her agent or employee to violate any local, State, or Federal tobacco related law.
B. It is a violation of a tobacco retailer’s license for a person or his or her agent or employee to sell or offer for sale any flavored tobacco product or tobacco product flavor enhancer. There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or its agents or employees have made a public statement or claim that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, or images on the product’s labeling or packaging that are used to expressly or impliedly communicate that a tobacco product has a characterizing flavor.
C. License Compliance Monitoring: The Department, Code Enforcement Officer, or other person designated to enforce the provisions of this article shall have the power and authority to enter any tobacco retailer during regular business hours to inspect the premises and determine compliance with the provisions of this article. The City’s Code Enforcement Officer shall conduct on-site compliance checks at least once annually. The City shall not enforce any tobacco related minimum age law against a person who otherwise would be in violation of such law because of the person’s age (hereinafter "youth decoy") if the violation occurs when:
1. The youth decoy is participating in a compliance check supervised by a law enforcement official, a Code Enforcement Official, or any peace officer; or
2. The youth decoy is participating in a compliance check funded or supervised in part by the County of Mendocino, or funded or supervised in any part by the California Department of Health Services. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2358 SUSPENSION, TERMINATION OR REVOCATION OF LICENSE
A. Violation: In addition to any other penalty authorized by law, such as possible imposition of administrative fines pursuant to section 2359 of this code, a tobacco retailer’s license may be suspended or revoked if the Department determines that the person or his or her agents or employees have violated the requirements of this article or other conditions of the license imposed pursuant to section 2357 of this code. A person who loses his license for one location does not lose it for all locations, if those locations are in compliance with this article, and may renew licenses for other conforming locations. A person cannot obtain a new license for a new location so long as there is a suspension in effect for any location.
1. Notice Required: The licensee shall be served with written notice of all determinations or decisions under this section affecting his or her license. Notice shall be served by personal service, overnight courier, certified mail, return receipt requested, or U.S. mail with first class postage affixed. The notice shall be sent to the authorized address. All notices shall be deemed served, when received, except for notices sent by first class mail which shall be deemed served two (2) days after deposit in the U.S. mail if addressed to a location within Mendocino County and five (5) days if addressed to a location outside Mendocino County. The notice shall describe the legal and factual basis for the decision. A decision imposing a fine shall specify the amount of the fine. A decision to suspend or revoke a license shall specify the beginning and ending dates of the suspension or the effective date of the revocation. No decision shall become effective in less than ten (10) days from the date of service.
2. Duration Of Suspensions:
a. Upon a finding by the Department of a first license violation within any thirty-six (36) month period, the license shall be suspended for fourteen (14) days. However, if the violation in question is for sale of tobacco products to persons under the age of twenty-one (21), prior to imposing the suspension, the Department shall by letter (an "advice letter") advise the person that if person trains all sales employees at the location of the sale in the laws pertaining to the sale of tobacco products to persons under the age of twenty-one (21) and techniques to ensure future compliance with said laws, the suspension will not go into effect. Within thirty (30) days of the issuance of the advice letter, the person must file with the Department an affidavit signed by the person and the sales employees that said training has been completed. If the person fails to timely submit the affidavit, the Department shall notify the person that the permit is suspended for fourteen (14) days.
b. Upon a finding by the Department of a second license violation within any thirty-six (36) month period, the license shall be suspended for twenty-one (21) days.
c. Upon a finding by the Department of a third license violation within any thirty-six month (36) period, the license shall be suspended for thirty (30) days.
d. Upon a finding by the Department of a fourth license violation within any thirty-six (36) month period, the license shall be revoked and the person or persons who had been issued the license shall not be issued a tobacco retailer’s license pursuant to this article for a period of three (3) years from the date of revocation.
B. Failure To Pay Renewal Fees: A tobacco retailer’s license which is not timely renewed pursuant to subsection 2352B of this code is an expired license. The tobacco retailer shall not engage in tobacco retailing at the licensed location until a new license has been issued for that location.
C. License Issued In Error: A tobacco retailer’s license shall be revoked if the Department determines that one or more of the bases for denial of a license under section 2353 of this code existed at the time application was made or at any time before the license issued. The revocation shall be without prejudice to the filing of a new application for a license.
D. Removal Of All Tobacco Products From Public View: A tobacco retailer whose license is suspended must remove from public view all tobacco products and tobacco advertising for the duration of the suspension. Failure to remove such items from view will be regarded as a violation of this article equivalent to that of selling to persons under the age of twenty-one (21) or selling or offering for sale any flavored tobacco product or tobacco product flavor enhancer.
E. License Obtained Under False Pretenses: Tobacco retailers whose license is obtained under false pretenses shall have that license revoked. A licensee whose license is revoked pursuant to this subsection may not apply for a new license for a period of one year from the date the license is revoked. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2359 ADMINISTRATIVE FINE
A. Grounds For Fine: If the Department determines that any person, including a person named on a revoked or suspended license, has engaged in tobacco retailing in violation of this article, the Department shall fine that person as follows:
1. A fine not exceeding one hundred dollars ($100.00) for a first violation in any thirty-six (36) month period; or
2. A fine not exceeding two hundred dollars ($200.00) for a second violation in any thirty-six (36) month period; or
3. A fine not exceeding five hundred dollars ($500.00) for a third or subsequent violation in any thirty-six (36) month period.
Each day that such a person engages in tobacco retailing shall constitute a separate violation.
B. Imposition Of Fine: If no request for a hearing is timely received in accordance with section 2360 of this code, the Department’s determination on the violation and the imposition of a fine shall be final and payment shall be made within thirty (30) days after notice of the fine was served in accordance with subsection 2358A1 of this code. If the fine is not paid within that time, the fine may be collected, along with interest at the legal rate, in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the person or persons subject to the fine shall also be liable for the costs of the suit and attorney fees incurred by the City in collecting the fine. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2360 APPEALS
A. Appeal Of Fine, Suspension Or Revocation: A decision of the Department to impose a fine or to revoke or suspend a license may be appealed to the Hearing Officer. Within ten (10) days from the date of service of the notice of the decision, an appellant may file notice of appeal with the Department. Such appeal shall be in writing and shall identify the location subject to the notice. Failure to file a timely notice of appeal waives any right to further challenge the Department’s decision. The Department shall then cause the matter to be set for hearing before a Hearing Officer appointed by the City to hear such matters. The Hearing Officer shall be qualified by training, education and/or experience to conduct the hearing and shall be impartial. Except in his or her capacity as a Hearing Officer, he or she shall have no personal or business relationship to the appellant or the City. The Hearing Officer may reverse, modify or uphold the Department’s decision.
B. Notice Of Hearing: Notice of the date of hearing shall be given in writing. The date of the hearing shall be no sooner than fifteen (15) days from the date when notice of the hearing is given to the appellant and to the Department.
C. Hearing: At the time fixed in the notice, the Hearing Officer shall receive evidence, including the testimony of all competent persons desiring to testify respecting the violation at issue and the Department’s decision.
D. Hearing Decision: The Hearing Officer’s decision shall be by written order, which shall contain the findings of the Hearing Officer upon which such determination is based. The hearing decision shall include notice of the appellant’s right to seek review of the decision pursuant to California Code of Civil Procedure sections 1094.5 and 1094.6, including the statute of limitations for seeking review pursuant to section 1094.6.
E. Finality Of The Hearing Officer’s Decision: The decision of the Hearing Officer shall be the final decision for the City of Ukiah.
F. Appeal To Superior Court: Judicial review of the Hearing Officer’s decision shall be governed by the Code of Civil Procedure sections 1094.5 and 1094.6.
G. Enforcement Of Decision: Unless stayed by a court, any final decision of the Hearing Officer is effective immediately and may be implemented and enforced by the Department. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)
§2361 ENFORCEMENT
The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity.
A. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this article shall constitute a violation.
B. Violations of this article are hereby declared to be public nuisances.
C. Violations of this article are hereby declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates.
D. A violation of this article constitutes a misdemeanor punishable by a fine of one thousand dollars ($1,000.00) or by imprisonment in the county jail for six (6) months, or both.
E. In addition to other remedies provided by this article or by other law, any violation of this article may be remedied by a civil action brought by the City Attorney or the District Attorney, including, for example, administrative or judicial nuisance abatement proceedings, other legally authorized enforcement proceedings, and suits for injunctive relief. (Ord. 1072, §2, adopted 2005; Ord. 1232, §2, adopted 2023)