Chapter 9.35 REGULATING OF TOBACCO SALES

The City of Mountlake Terrace finds that the use of tobacco products, and in particular cigarette smoking by minors, is a continuing problem with grave social consequences. In recognition of the Surgeon General’s recent report finding cigarette smoking is as addictive as cocaine and heroin, it is the consensus of the medical and public health community and the Surgeon General of the United States that the use of tobacco, especially in the form of cigarette smoking, is a public health problem of the highest priority, resulting in the premature death of more than 300,000 persons annually in this nation through cancer, heart disease and other causes. It is imperative to take more vigorous enforcement action to implement the existing prohibition of sales to minors. We seek to act now to avoid public and private cost of future health care for youths who develop the habit of smoking in adolescence. Tobacco products, and especially cigarettes, are often available to persons under the age of 18. The City further finds that decades of experience with the present system of prohibiting sales of tobacco products to minors has proven significantly defective. The City seeks to develop a strict, comprehensive, effective, and enforceable system to control the sale of tobacco products to minors. (Ord. 1821 § 1, 1989).

9.35.020 Definitions.

A. “Retailer” means any person, firm, association, company, partnership, or corporation who operates a store, stand, booth, concession, or other place at which sales are made to purchasers for consumption or use of tobacco products.

B. “Tobacco vending machine” means and includes any machine or device designated for or used for the vending of cigarettes, cigars, tobacco, or tobacco products upon the insertion of coins, trade checks, or slugs.

C. “Tobacco vending machine distributor” means any person who leases to or places with others any tobacco vending machine.

D. “Tobacco vending machine operator” means any person who operates, rents, or possesses one or more tobacco vending machines.

E. “The licensing authority” means the City of Mountlake Terrace.

F. “Minor” means an individual who is less than 18 years of age.

G. “Sales conducted in person” means payment for the purchase of the tobacco item is received directly and in person from the purchaser by the seller or his employee. Tobacco vending machines which are located in plain view of the seller or his employee and controlled by an electronic device activated by the seller or his employee, upon the buyer’s presentation of acceptable identification as required in MTMC 9.35.040, shall be deemed “sales conducted in person”. (Ord. 1821 § 2, 1989).

9.35.030 Tobacco vending machines.

A. No person shall distribute, operate, lease, sell, rent, or possess any tobacco vending machine without first securing and maintaining a distributor’s or operator’s license as required by this chapter.

B. Each distributor’s or operator’s license shall specify the number of machines at the location. It shall be a violation of this chapter to increase or decrease the number of tobacco vending machines at a location without notifying the licensing authority and securing a revised license.

C. All tobacco vending machines shall have the name and address of the distributor and owner indelibly printed, painted, or impressed upon it. It shall be unlawful for any tobacco vending machine distributor or tobacco vending machine operator to possess any tobacco vending machine not so identified.

D. It is unlawful to install, place, or permit the use of any tobacco vending machine in any establishment or portion thereof which is open to minors, except in a place therein where the machine is not accessible to or cannot be used by minors; provided, that this section shall not apply to the installation and use by the proprietor, his agents, or employees, of tobacco vending machines behind a counter or in some place in any such establishment or portion thereof to which access by minors is prohibited by law; provided, further, this regulation shall not apply to the installation and use of a tobacco vending machine in commercial buildings or industrial plants or portions thereof where the public is not usually admitted and where such machines are for the use of employees therein. (Ord. 1821 § 3, 1989).

9.35.040 Requirement for production of identification.

No retailer or employee of a retailer shall sell or permit to be sold, by vending machine or otherwise, cigarettes or other tobacco products to any minor. The retailer or retailer’s employee is required to request and examine identification from the purchaser and positively establish the purchaser’s age as 18 years or greater before allowing the purchase of any tobacco item to occur.

In addition to any civil penalty imposed herein, any person selling any tobacco product to a minor shall be prosecuted under the criminal provisions of Ordinance No. 1137* prohibiting the sale of tobacco products to minors. (Ord. 1821 § 4, 1989).

*Code reviser’s note: Ord. 1137 was repealed by Ord. 2035.

9.35.050 Posting of tobacco products required.

No retailer shall sell or permit to be sold, cigarettes or other tobacco products, unless the tobacco vending machine or other location at which the cigarettes or other tobacco products are available for purchase is posted with a notice which is clearly visible to anyone purchasing the products, and which states:

IT IS ILLEGAL TO SELL OR PERMIT
TO BE SOLD ANY TOBACCO PRODUCTS TO ANY PERSON UNDER THE AGE OF EIGHTEEN (18) – RCW 26.28.080

The notice must be black letters at least one inch in height on a white background, and will be made available through the City of Mountlake Terrace at the time of issuing of the license described in this regulation. (Ord. 1821 § 5, 1989).

9.35.060 License requirement for retailers.

It shall be unlawful for any retailer to sell cigarettes or any tobacco products unless the retailer first obtains and maintains a valid license from the City of Mountlake Terrace for each location where cigarettes sales, or any other tobacco product sales, occur. Exception: Any tobacco retailer who sells the product in premises from which minors are prohibited by state law shall not be required to obtain a City license. (Ord. 1821 § 6, 1989).

9.35.070 Suspension and revocation of license.

The license to sell cigarettes and tobacco products by use of tobacco vending machines, or the license to sell cigarettes and any other tobacco products by a retailer, shall be suspended upon finding that the licensee has failed to comply with any provisions of this regulation.

A. In the case of a first and single violation, the license holder shall be subject to a civil penalty not exceeding $500.00.

B. In the case of a second violation within the same 12 months, the license holder shall be subject to a civil penalty not exceeding $1,000 and a license suspension of not more than 10 days.

C. In the case of three or more violations within the same 12 months, the license shall be revoked and shall not be reinstated for a 30-day period from the date of revocation.

Each sale of cigarettes or other tobacco items to a minor shall constitute a separate violation. (Ord. 1821 § 7, 1989).

9.35.080 Authority and duties of the licensing authority.

A. The licensing authority is authorized to make and enforce rules and regulations, necessary for the performance of the purposes stated in this chapter.

B. The licensing authority shall have the authority to suspend or revoke any license issued upon a showing of violation of any of the provisions of any license ordinance; provided, however, that such suspension or revocation shall not relieve the licensee of the other penalties provided for in this chapter. (Ord. 1821 § 8, 1989).

9.35.090 Application – Procedures – General.

A. No license required by this title shall be issued unless written application has been made with the licensing authority. The licensing authority shall provide application forms for each license.

B. The applicant must complete and sign the application. If the application is for a partnership, a partner must sign and the names of the partners in full shall be given with their current residences. If the application is for a corporation, an authorized officer thereof must sign and the names of the current residences of all of the officers and directors or trustees of the corporation shall be given together with the location of the principal office or place of business of such corporation.

C. The licensing authority shall approve or deny all applications for licenses required hereunder.

D. No license shall be issued pursuant to the provisions of this chapter to the following persons:

1. Any person who is under 18 years of age at the time of application except as may specifically otherwise be provided in this title.

2. Any person who has been convicted of a felony or misdemeanor, excluding minor traffic violations, if the felony or misdemeanor for which he was convicted directly relates to the license sought or any activity to be conducted hereunder, and

a. The time elapsed from the felony is less than 10 years from date of application, or;

b. The time elapsed since the misdemeanor is less than three years from date of application.

This subsection shall not preclude the consideration of any prior conviction of a felony or misdemeanor as a factor in determining whether or not a license should be issued.

E. The filing of an application for a license shall not give the applicant any right to engage in the activity covered prior to the issuance of a license.

F. All license applicants must present one of the following pieces of identification to the licensing authority:

1. Driver’s license of any state or “identicard” issued by the Washington State Department of Licensing pursuant to RCW 46.20.117;

2. United States military identification;

3. Passport. (Ord. 1821 § 9, 1989).

9.35.100 Application – Form and content.

Such applications shall contain at the minimum the following required items:

A. The true name, home address, telephone number, and age of the applicant;

B. The name, address, and telephone number of the business premises or proposed business premises if different than the response given in subsection A of this section;

C. Whether the applicant is a sole proprietorship, partnership or corporation. If a partnership, the application shall set forth names, residence addresses and telephone numbers of all persons, whether general or limited partners, sharing in the profits of said business and the respective ownership share of each. If a corporation, it shall set forth the name, residence address and telephone number of each of its officers, directors and the name, address and telephone number of the registered agent. Further as to a corporation, the date and place of incorporation. It shall set forth all persons having any interest in the real or personal property at the premises, and any persons sharing in the proceeds of the business;

D. Whether the applicant or anyone owning an interest in the business or proposed business has ever been convicted or forfeited bail to any crime, the name of the court in which the case was filed, the circumstances and the disposition of the case;

E. If the applicant is a sole proprietorship or a partnership, stating whether the proprietor or the partners are of legal age;

F. The principal occupation of the proprietor of the proposed business if a sole proprietorship; if a partnership, the principal occupation of all partners; and if a corporation, the principal business enterprises of such corporation;

G. All assumed names or aliases which have been or are used by any person whose name appears on the application;

H. Such other information as the licensing authority may reasonably require in connection with the application. (Ord. 1821 § 10, 1989).

9.35.110 Fees and costs.

A. A fee shall be paid in full at the time of application as set out in this section. An applicant who proposes to conduct activities at more than one location shall pay a separate fee for each location for which a license may be issued. A fee is not refundable and may not be prorated.

B. Fees for the following licenses are established as follows:

1. Tobacco Vending Machine License Fee: $25.00/year per tobacco vending machine;

2. Retailer Tobacco Product License Fee: $25.00/year.

C. Retailers may purchase signs as required by MTMC 9.35.050 at the cost of $1.00 per sign. (Ord. 1821 § 11, 1989).

9.35.120 Renewal.

A. A license issued under this title, except as otherwise provided, may be renewed by the licensing authority if, upon application, it appears that the applicant continues to meet the requirements of this chapter.

B. The licensing authority shall notify each license holder by mail of the requirements of this section not less than 30 days prior to expiration of the outstanding license.

C. Failure to submit a renewal application and pay the appropriate fee prior to expiration of a license shall, as a condition of renewal, result in assessment of a penalty in the amount of 25 percent of the regular license fee.

D. The penalty set out in this section is in addition to any civil or criminal sanctions that may be imposed for any activity, act, or conduct undertaken without a license required by this title. (Ord. 1821 § 12, 1989).

9.35.130 Display, change of name.

A. The licenses required hereunder shall be posted in a conspicuous place; and in the case of tobacco vending machine license, adjacent to such vending machines.

B. A license holder shall notify the licensing authority of any change in his address, business name, within 14 days of any such change. (Ord. 1821 § 13, 1989).

9.35.140 Disclaimer.

No license issued pursuant to this chapter shall be construed as an endorsement including any endorsement of any licensee or activity incidental to any licensed activity. The City of Mountlake Terrace assumes no liability or responsibility of any sort as a result of the issuance of any license. (Ord. 1821 § 14, 1989).

9.35.150 Inspections – Right of entry.

A. Whenever necessary to enforce any of the provisions of this title, or whenever the licensing authority and/or law enforcement personnel has reasonable cause to believe that a licensee is operating in violation of any provisions of this title, the licensing authority and/or law enforcement personnel may enter the place of business at all reasonable times to carry out an inspection or perform any other duty imposed by this title.

B. The licensing authority and/or law enforcement personnel shall take the following steps in conducting an inspection:

1. If the place of business or other activity is occupied, the licensing authority and/or law enforcement personnel shall first present proper credentials to the licensee, or other person having control of the place of business or other activity and demand entry.

2. If the place of business or other activity is unoccupied, the licensing authority and/or law enforcement personnel shall first make reasonable effort to locate the licensee or other person having control of the place of business or other activity and demand entry.

C. No licensee or person having control of the place of business or other activity shall fail, after proper demand, to admit the licensing authority and/or law enforcement personnel while acting within the scope of his employment to any place of business or other activity licensed or permitted under this title. No person shall interfere with the licensing authority and/or law enforcement personnel in the performance of his duty. (Ord. 1821 § 15, 1989).

9.35.160 Enforcement.

A. The licensing authority and/or law enforcement personnel is authorized and directed to enforce the terms and provisions of all license ordinances. If it is determined, through investigation, inspection, or other means that any person has failed to comply with any provision of this license ordinance, then the licensing authority may issue a notice and order under this title.

B. The licensing authority and the law enforcement personnel shall have the right to pick up a license when a license has been suspended or revoked. (Ord. 1821 § 16, 1989).

9.35.170 Additional enforcement.

Notwithstanding the existence or use of any other remedy, the licensing authority may seek legal or equitable relief to enjoin any acts or practices which constitute a violation of this chapter. (Ord. 1821 § 17, 1989).

9.35.180 Notice and order.

A. When a violation occurs, the licensing authority shall issue a notice and order. The notice and order shall contain:

1. The street address, sufficient for identification of the premises upon which the violation occurred.

2. A statement that the licensing authority has found a violation with a brief and concise description of the conditions found to be a violation.

3. A statement of any action taken or required to be taken as determined by the licensing authority. If the licensing authority has determined to assess a civil penalty, the order shall so state and require that the penalty be paid within a certain time from the date of the order as determined by the licensing authority to be reasonable.

4. A written statement of any action taken by the licensing authority.

5. A statement that failure to comply with the instructions or remedies outlined in the notice and order will constitute sufficient grounds for suspension or revocation of the license by the licensing authority.

6. A statement advising the licensee of his/her appeal rights.

B. The notice and order, any amended or supplemental notice and order, shall be served upon the person either personally or by mailing a copy of such notice and order by certified mail with return receipt requested to such person at his address as it appears on the license. Service by certified mail in the manner herein provided shall be effective on the date of the mailing. Proof of service of the notice and order shall be made at the time of service by a notarized verification or a written declaration under penalty of perjury executed by the person effecting service, declaring the time, date, and manner in which service was made. (Ord. 1821 § 18, 1989).

9.35.190 Procedure for suspension, revocation.

A. To suspend or revoke any license, the licensing authority must issue a notice and order as prescribed in MTMC 9.35.180.

B. Failure to comply with any notice and order or the failure to appeal such action as described in this chapter automatically forfeits the right of the license holder to further administrative appeals as described in this chapter.

C. Licensing authority may rely on statements filed by the fire marshal, prosecuting attorney, law enforcement personnel or other public officials alleging facts exist which constitute grounds for suspension or revocation of a license.

The licensing authority may also rely on facts and circumstances otherwise brought to its attention in determining whether or not to suspend or revoke a license. (Ord. 1821 § 19, 1989).

9.35.200 Appeals procedure.

Any retailer who has had a license suspended or revoked under this regulation may appeal the suspension or revocation in writing by filing with the licensing authority, within seven calendar days of the date of the notification of suspension, a notice of appeal. Thereafter, the licensing authority shall hold a hearing on such suspension within 20 days of the date of receiving the request. The decision of the City Manager will be issued in writing within 15 days of said hearing and shall be final and conclusive. (Ord. 1821 § 20, 1989).

9.35.210 Death or incapacity of licensee.

In the event of the incapacity, death, receivership, bankruptcy, or assignment for benefit of creditors or any licensee, then his guardian, executor, administrator, receiver, trustee in bankruptcy or assignee for benefit of creditors may, upon written authority from the licensing authority, continue the business of the licensee on the premises for the duration of the license, unless sooner terminated. Any such successor wishing to continue the license shall provide information as requested by the licensing authority. (Ord. 1821 § 21, 1989).

9.35.220 Civil penalty.

In addition to or as an alternative to any other penalty provided herein or by law, any person who engages in any activity for which a license is required pursuant to the provisions of this title while his or her license is suspended or revoked, or who fails to obtain a license prior to engaging in the activity for which a license is required, shall pay a civil penalty of $10.00 per day for the first violation or $20.00 per day for the second violation and $50.00 for subsequent violations for each day of operation without a license or in violation of law, and shall be subject to such further penalties as set forth herein. The civil penalty may be assessed and collected by use of all appropriate legal remedies. (Ord. 1821 § 22, 1989).

9.35.230 Public nuisance.

Any activity, act, or conduct undertaken without a license required by this title constitutes a public nuisance and such activity, act, or conduct may be abated by the licensing authority or law enforcement personnel by securing an appropriate order from the court. (Ord. 1821 § 23, 1989).

9.35.240 Applicability of amendments.

The adequacy of applications for licenses filed before the effective date of any amendments to this title shall be determined by the provisions in effect on the date of filing such application. All applications filed after the effective date shall be processed in accordance with the terms of the amendments. (Ord. 1821 § 24, 1989).