Chapter 5.35
TOBACCO RETAIL LICENSING
Sections:
5.35.020 Requirements and prohibitions.
5.35.030 Limits on eligibility for a tobacco retailer license.
5.35.050 Application procedure.
5.35.070 License renewal and expiration.
5.35.080 Licenses nontransferable.
5.35.090 License conveys a limited, conditional privilege.
5.35.110 Compliance monitoring.
5.35.120 Suspension or revocation of license.
5.35.130 Tobacco retailing without a valid license.
5.35.140 Penalties and additional remedies.
5.35.010 Definitions.
For the purposes of this chapter, the following words and phrases shall have the following meanings:
“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 these regulations is not an arm’s length transaction.
“Business” means any sole proprietorship, partnership, joint venture, corporation, company, association, or other entity formed for purposes that include profit-making.
“City of Creswell” or “city” means all of the city of Creswell included within city limits.
“Department” means the Lane County health and human services department, and any agency or person designated by the department to enforce or administer the provisions of the Creswell Municipal Code.
“Electronic smoking device” means any device that can be used to deliver aerosolized or vaporized nicotine, cannabinoids, or other substances to the person inhaling from the device, including but not limited to an electronic cigarette, e-cigar, e-pipe, vape pen or e-hookah. “Electronic smoking device” includes any component, part, or accessory of such a device, whether or not sold separately, and includes any substance intended to be aerosolized or vaporized during the use of the device. “Electronic smoking device” does not include drugs, devices, or combination products approved for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
“Employee” means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers services for an employer.
“Employer” means any business or nonprofit entity that retains the service of one or more employees.
“Independent contractor” means any person who is retained with a contract by any employer in consideration for direct or indirect monetary wages or profit.
“Nominal cost” means the cost of any item imposed for the transfer from one person to another for less than the total of: (1) 25 percent of the fair market value of the item exclusive of taxes and government fees; plus (2) all taxes and government fees previously paid and all taxes and government fees still due on the item at the time of transfer.
“Nonsale distribution” means to give, furnish, or cause or allow to be given or furnished, wholly or for sampling, within the city of Creswell, a tobacco product at no cost or at nominal cost to a person who is not a tobacco retailer.
“Person” means any natural person, business, employer, nonprofit entity, personal representative, receiver, trustee, assignee, or any other legal entity, including a government agency.
“Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest is 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 is deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.
“Self-service display” means the open display or storage of tobacco products in a manner that is physically accessible in any way to the general public without the assistance of the tobacco retailer or employee of the tobacco retailer and a direct person-to-person transfer between the purchaser and the tobacco retailer or employee of the tobacco retailer. A vending machine is a form of self-service display.
“Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, or other lighted or heated tobacco or plant product intended for inhalation, including hookahs and marijuana, whether natural or synthetic, in any manner or in any form. “Smoking” also includes the use of an electronic smoking device.
“Tobacco product” means any product that is made from or derived from tobacco, or which contains nicotine or a similar substance, and is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus. “Tobacco product” also means an electronic smoking device and any component or accessory used in the preparation or consumption of tobacco products, such as filters, rolling papers, pipes, and substances used in electronic smoking devices, whether or not they contain nicotine. “Tobacco product” does not include drugs, devices, or combination products approved for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
“Tobacco retailer” means any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco products. “Tobacco retailing” means the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products sold, offered for sale, exchanged, or offered for exchange. [Ord. 518 § 1, 2018].
5.35.020 Requirements and prohibitions.
A. A person commits a violation of these tobacco retail licensing and sale regulations if the person knowingly engages in the following conduct:
1. Selling, offering for sale, or exchanging or offering to exchange for any form of consideration tobacco products without first obtaining and maintaining a valid tobacco retailer license under this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer license is a nuisance as a matter of law.
2. Violating any local, state, or federal law applicable to tobacco products, or tobacco retailing in the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license was issued.
3. Failing to ensure that employees know how to comply with tobacco control laws. Tobacco retailers can be held responsible for violations committed by employees.
4. Failing to prominently display a tobacco retailer license in a publicly visible location at the licensed location.
5. Failing to examine the identification and confirm that the holder is at least 21 years of age, before selling or transferring tobacco products to a natural person who appears to be under 30 years of age.
6. Selling, giving, or furnishing, or causing to be sold, given or furnished, a tobacco product to a natural person who is younger than 21 years of age.
7. Permitting a natural person who is younger than 18 years of age to sell, offer for sale, or exchange or offer to exchange for any form of consideration, tobacco products.
8. Engaging in tobacco retailing by means of a self-service display.
9. Displaying tobacco products to public view without a valid tobacco retailer license. The public display of tobacco products in violation of this subsection constitutes tobacco retailing without a valid license under CMC 5.35.130.
10. Displaying any advertisement relating to tobacco products 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 without a valid tobacco retailer license.
11. Engaging in the nonsale distribution of tobacco products.
12. Failing to conspicuously post an approved tobacco health warning in an area visible to all customers.
13. Failing to conspicuously post signage provided by the city that discloses current referral information about the Oregon Tobacco Quitline, 1-800-QUIT-NOW.
14. Engaging in tobacco retailing within 1,000 feet of any school, except as permitted by CMC 5.35.030.
B. By resolution, the council may provide for an incentive program reducing the annual license fee if a tobacco retailer: (1) has no tobacco retail violations in the previous year and (2) uses a cash register that reads the magnetic strip on drivers’ licenses to verify age. [Ord. 518 § 1, 2018].
5.35.030 Limits on eligibility for a tobacco retailer license.
A. No license will be issued to a tobacco retailer located within 1,000 feet of any school as follows:
1. Except as provided in subsection (A)(2) of this section, no tobacco retailer license will be issued to a tobacco retailer located within 1,000 feet of a school as measured by a straight line from the nearest point of the property line of the lot or parcel on which the school is located to the nearest point of the property line of the parcel on which the applicant’s business is located. For the purposes of this chapter, “school” means a public kindergarten, elementary, middle, junior high or high school.
2. A tobacco retailer that has been in operation at a location consistently since the effective date of the ordinance codified in this chapter is exempt from the requirements of subsection (A)(1) of this section.
B. No license will be issued to a tobacco retailer not located at a fixed location. For example, tobacco retailing by persons on foot or from vehicles or mobile units is prohibited. [Ord. 518 § 1, 2018].
5.35.040 Nonretaliation.
Persons, tobacco retailers, and employers are prohibited from intimidating, threatening any reprisal, or effecting any reprisal for the purpose of retaliating against another person that seeks to attain compliance with this chapter. [Ord. 518 § 1, 2018].
5.35.050 Application procedure.
Application for a tobacco retailer license must be submitted in the name of each proprietor proposing to conduct retail tobacco sales and will be signed by each proprietor or an authorized agent thereof.
A. 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 license. The proprietor will also train all employees in the applicable laws, and is required to provide proof of training with annual recertification.
B. No proprietor may rely on the issuance of a license as a determination that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to CMC 5.35.060, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor will be revoked pursuant to CMC 5.35.120. Nothing in this chapter will be construed to vest in any person obtaining and maintaining a tobacco retailer license any status or right to act as a tobacco retailer in contravention of any provision of law.
C. All applications will be submitted on a form supplied by the city and will 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 will be understood to consent to the provision of notice at the business address specified in subsection (C)(2) of this section.
4. 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 years.
5. Such other information as the city deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
D. A licensed tobacco retailer must inform the city in writing of any change in the information submitted on an application for a tobacco retailer license within 10 business days of a change.
E. All information specified in an application pursuant to this section is subject to disclosure under the Oregon Public Records Act or any other applicable law, subject to the law’s exemptions. [Ord. 518 § 1, 2018].
5.35.060 Issuance of license.
Upon the receipt of a complete application for a tobacco retailer license and the license fee required by CMC 5.35.100, the city will issue a license to the applicant unless:
A. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information will be a violation punishable under the provisions of this chapter.
B. The application seeks authorization for tobacco retailing at a location for which CMC 5.35.030 prohibits issuance of tobacco retailer licenses.
C. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.
D. The application seeks authorization for tobacco retailing that is prohibited or unlawful pursuant to this code or that is unlawful pursuant to any other law. [Ord. 518 § 1, 2018].
5.35.070 License renewal and expiration.
A. A tobacco retailer license is invalid if the appropriate fee is not 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 will apply for the renewal of the tobacco retailer license and submit the license fee no later than 30 days prior to expiration of the term.
B. A tobacco retailer license that is not timely renewed expires at the end of its term. To renew a license not timely renewed pursuant to subsection (A) of this section, 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 or display any tobacco product after the license expiration date and before the license is renewed; or
b. Has waited the period of time required by CMC 5.35.130 for tobacco retailing without a valid license before seeking renewal of the license. [Ord. 518 § 1, 2018].
5.35.080 Licenses nontransferable.
A. A tobacco retailer license may not be transferred from one person to another or from one location to another. A new tobacco retailer 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 will continue to be counted against a location and license ineligibility periods will continue to apply to a location unless:
1. The location has been transferred to new proprietor(s) in an arm’s length transaction; 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. 518 § 1, 2018].
5.35.090 License conveys a limited, conditional privilege.
Nothing in this chapter grants any person obtaining and maintaining a tobacco retailer 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 license. Nothing in this chapter renders inapplicable, supersedes, or applies 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 under ORS 433.847 and OAR 333-015-0068 or other federal or local ordinances. Obtaining a tobacco retailer license does not make the tobacco retailer a certified smoke shop under ORS 433.847 and OAR 333-015-0068. [Ord. 518 § 1, 2018].
5.35.100 Fee for license.
The fee to issue or to renew a tobacco retailer license will be set by resolution of the city council. The fee will be calculated so as to recover the cost of both the administration and enforcement of this code, including the cost of issuing the license, administering the license program, tobacco retailer education, tobacco retailer inspection and compliance checks, documentation of violations, adjudications, convictions, and prosecution of violators. All fees are nonrefundable except as required by law and are permitted to be used exclusively to fund the costs outlined in this chapter. Fees will not be prorated. [Ord. 518 § 1, 2018].
5.35.110 Compliance monitoring.
A. The city will monitor compliance with this chapter and may designate any number of additional persons to assist monitoring compliance. In addition, any peace officer may enforce the penal provisions of this chapter.
B. The city will endeavor to inspect each licensed tobacco retailer at least one time per 12-month period. Nothing in this section creates a right of action in any licensee or other person against the city or its agents.
C. The city will not enforce any law establishing a minimum age for tobacco purchases or possession against a natural person serving as a youth decoy. A youth decoy is a natural person under the age of 21 who:
1. Is participating in an inspection supervised by a peace officer, code enforcement official, or the person designated by the city to monitor compliance with CMC 5.35.020;
2. Is acting as an agent of a person designated by the city to monitor compliance with CMC 5.35.020; or
3. Is participating in an inspection funded in part, either directly or indirectly through subcontracting, by the city or the Oregon Health Authority. [Ord. 518 § 1, 2018].
5.35.120 Suspension or revocation of license.
A. In addition to any other penalty authorized by law, a tobacco retailer license will be suspended or revoked if any court of competent jurisdiction determines, or the city finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, 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 designated in this chapter.
1. Upon a finding by a court or the city of a first violation of this chapter at a location within any 24-month period, the license will be suspended for 10 days or a $1,650 fine imposed.
2. Upon a finding by a court or the city of a second violation of this chapter at a location within any 24-month period, the license will be suspended for 30 days or a $4,950 fine imposed.
3. Upon a finding by a court or the city of a third violation of this chapter at a location within any 24-month period, the license will be suspended for 30 days.
4. Upon a finding by a court or the city of four or more violations of this chapter at a location within any 24-month period, the license will be revoked.
B. A decision of the city to suspend or revoke a license is appealable to the city manager and any appeal must be filed in writing with the city manager within 10 days of mailing of the city’s decision. If such an appeal is timely made, it will stay enforcement of the appealed action. An appeal to the city manager is not available for a revocation made pursuant to subsection (C) of this section.
C. A tobacco retailer license will be revoked if the city finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under CMC 5.35.060 existed at the time application was made or at any time before the license issued. The decision by the city will be final. Such a revocation will be without prejudice to the filing of a new license application. [Ord. 519 § 3, 2018; Ord. 518 § 1, 2018].
5.35.130 Tobacco retailing without a valid license.
A. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the city 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 license, either directly or through the person’s agents or employees, the person will be ineligible to apply for, or to be issued, a tobacco retailer license as follows:
1. After a first violation of this section at a location within any 24-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 30 days have passed from the date of the violation.
2. After a second violation of this section at a location within any 24-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 90 days have passed from the date of the violation.
3. After a third or subsequent violation of this section at a location within any 24-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 two years have passed from the date of the violation.
B. Tobacco products offered for sale or exchange in violation of this chapter are subject to seizure by the city or any peace officer and will be forfeited after the licensee and any other owner of the tobacco products seized are given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale or exchange in violation of this chapter. The decision by the city may be appealed under CMC 5.35.120. Forfeited tobacco products will be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to Oregon 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 CMC 5.35.140, the following constitute separate violations:
1. Each day on which a tobacco product is offered for sale in violation of this chapter; or
2. Each instance in which an individual retail tobacco product is distributed, sold, or offered for sale in violation of this chapter. [Ord. 518 § 1, 2018].
5.35.140 Penalties and additional remedies.
A. The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity.
B. Violations of this chapter are punishable by a fine per violation as follows:
1. After a first violation, a $1,650 fine or suspension of license;
2. After a second violation, a $4,950 fine or suspension of license; and
3. After a third violation, a suspension of license as described in CMC 5.35.120.
Persons found in violation of this chapter will be responsible for all costs associated with the prosecution of those violations.
C. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter is punishable in accordance with subsection (B) of this section.
D. Violations of this chapter are hereby declared to be public nuisances.
E. 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, including, for example, through administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. [Ord. 518 § 1, 2018].