It is unlawful for any person to act as a tobacco retailer in
the city without a valid tobacco retailer license issued pursuant
to this division.
(Ord. No. 2020-29R, § 2, 11-8-20)
For the purpose of this division, the following words and phrases
shall have the meanings ascribed to them in this section:
means a sign, signboard, billboard, poster, banner or other
communication displayed at a business establishment, and used to call
attention or promote products. It does not include printed material
on the container of a product offered for sale at a retail establishment.
means the person applying for a license for a business to
conduct tobacco retail sales pursuant to this division.
means the city employee designated by the city manager to
serve as described in the division.
means any proprietor holding a tobacco retailer license issued
by the city pursuant to the provisions of this article.
means any of the following individuals:
shall mean any individual, firm, association, business, trust,
organization, corporation, partnership, company, or any other entity
recognized by law as the subject of rights or duties.
means the open display or storage of tobacco products or
tobacco paraphernalia in a manner that is physically accessible to
the general public without the assistance of the retailer or their
agent. A vending machine is a form of self-service display.
means any item designed for the consumption, use, or preparation
of a tobacco product.
shall have the meaning as defined in California Business
and Professions Code Section 22950.5 including electronic devices
used to deliver nicotine or other vaporized liquids to a person inhaling
from the device.
means any person who sells, offers for sale, or offers to
exchange for any form of consideration tobacco products or tobacco
paraphernalia.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
An
applicant shall submit a separate application for each physical location
seeking to sell or offer to exchange for any form of consideration
any tobacco product or tobacco paraphernalia. The owner, or an authorized
representative, shall sign the application.
(b)
All
applications shall be submitted on a form supplied by the city and
shall contain the following information:
(1)
The name, address, and telephone number of each owner.
(2)
The business name, mailing address, retail location (if different),
telephone number and email address.
(3)
Whether or not any applicant, an owner, or the business has previously
been issued a license pursuant to this division that is or was at
any time suspended or revoked and, if so, the dates of the suspension
period or the date of revocation.
(4)
Notice that owners are strictly liable for the actions of their employees
and agents when engaged in tobacco retailing.
(5)
Such other information as the city manager deems necessary for the
administration or enforcement of this division.
(c)
If
the owner is a legal entity other than a natural person, the owner
shall authorize, in writing, at least one of its officers or partners
to act as its behalf.
(d)
Upon
receipt of the completed application, the police chief or designee
shall have up to 30 days to complete a background investigation.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
A
tobacco product retailer license shall be issued by the city to any
tobacco retailer meeting the following:
(1)
The operation, as proposed by the applicant, would comply with all
applicable laws and all requirements listed in this division.
(2)
The applicant has provided all information, assurances, or documentation
required by this division, has not failed to reveal any fact material
to qualification, and has not supplied information that is not true
or misleading as to a material fact pertaining to the qualification
criteria.
(3)
Payment of a tobacco retailer license fee as authorized by the city
council.
(4)
Successful completion of a background check indicating no administrative,
civil or criminal violations of any law regulating tobacco use or
sales including any conviction obtained following the reduction of
a tobacco specific charge including, but not limited to, California
Penal Code Section 415. Investigators shall use a preponderance of
the evidence standard to assess whether a violation of any tobacco
related law occurred.
(b)
Notwithstanding subsection (a), the city shall not issue a tobacco retailer license if the owner has a suspended, or revoked license or if ongoing proceedings may result in a suspended or revoked license, or if the tobacco retailer had any violations of law related to tobacco product or tobacco paraphernalia sales to a person under 21 years of age within 12 months of the application.
(c)
The
city shall provide notice to the applicant of the decision to approve
or deny the application for a tobacco retailer license. If the city
denies an application, the city shall provide notice stating the reasons
for denial, the effective date of the decision, and the right to appeal
the decision.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
Effective July 1, 2021, a tobacco retailer license renewal shall
align with the renewal date for the business' city business license.
(b)
A tobacco retail license that is not timely renewed pursuant to this
division shall be automatically suspended by operation of law. Automatic
reinstatement shall occur upon payment of the license fee so long
as no violations of this division have occurred during the suspension
period.
(c)
A tobacco product retailer license shall automatically renew upon
payment of the annual license fee, unless the city has grounds to
deny license renewal.
(d)
The city has the authority to deny license renewal license for any
of the following reasons:
(1)
Any of the grounds for suspension or revocation exist.
(2)
The license is suspended or revoked at the time of the application.
(3)
The tobacco product retailer has not been in regular and continuous
operation in the four months prior to the renewal application.
(4)
The tobacco product retailer fails to or is unable to renew any required
state licenses.
(5)
The tobacco product retailer has failed to pay the renewal fee established
pursuant this division prior to the date on which the license is to
be automatically renewed.
(6)
The tobacco product retailer fails to ensure that all city records
generated pursuant to this division are accurate and up to date prior
to the automatic renewal.
(e)
The chief of police is authorized to make all decisions concerning
the issuance of a renewal license. In making the decision, the chief
of police is authorized to impose additional conditions on a renewal
license if it is determined to be necessary to ensure compliance with
state or local laws and regulations or to preserve the public health,
safety or welfare. Any appeals shall in accordance with the procedure
included in this division.
(Ord. No. 2020-29R, § 2, 11-8-20)
A tobacco product retailer license is nontransferable.
(Ord. No. 2020-29R, § 2, 11-8-20)
The fee to issue or to renew a tobacco product retailer license
shall be established from time to time by resolution of the city council.
The fee shall be calculated to recover the cost of administration
and enforcement of this division. Fees are nonrefundable except as
may be required by law.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
Compliance with all laws required. In the course of tobacco product
retailing or in the operation of the tobacco product retailing establishment
for which a license is issued, it shall be a violation of this division
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 product retailing.
(b)
Fixed location required. No person shall engage in tobacco product
retailing at other than a fixed location. A separate tobacco retail
license is required at each business location.
(c)
Display of license. Each tobacco product retailer license shall be
prominently displayed in a publicly visible location at the tobacco
retailing location.
(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 21 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)
Self-service displays prohibited. Tobacco retailing by means of a
self-service display is prohibited.
(f)
Location of tobacco product advertising displays. Tobacco product
retailers shall be prohibited from placing or maintaining, or causing
to be placed or maintained, any advertising display containing tobacco
products below four feet from the floor. This prohibition shall not
apply to commercial establishments where access to the premises by
persons under 21 years of age is prohibited by law.
(g)
Drug paraphernalia. It shall be a violation of this division 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, except that conduct authorized pursuant to
state law shall not be a violation of this division.
(h)
Change in information. A tobacco retailer shall immediately inform
the city in writing of any change in the information submitted on
an application for a tobacco retailer license within 10 days of a
change. Any change in ownership shall require a new application.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
Suspension or revocation of license for violation. In addition to
any other penalty authorized by law, a tobacco product retailer license
may be suspended or revoked if any court of competent jurisdiction
determines, or the chief of police finds, based on a preponderance
of the evidence that the licensee, or any of the licensee's agents,
officers, partners, representatives, managers, or employees, has violated
any of the requirements, conditions, or prohibitions of this division,
or has pleaded guilty, "no contest" or its equivalent, or admitted
to a violation of any law in any way associated with tobacco retail
sales.
(1)
Upon a finding by the chief of police of a first violation of this
division, the licensee may receive a warning by the department.
(2)
Upon a finding by the chief of police of a second violation of this
division, within any 60 month period, the license may be suspended
for 90 days.
(3)
Upon a finding by the chief of police of a third violation of this
division, within any 60 month period, the license may be suspended
for one year.
(4)
Upon a finding by the chief of police of a fourth violation of this
division, within any 60 month period, the license shall be revoked.
(b)
Notwithstanding subsection (a)(1), the chief of police need not issue a warning when multiple violations occur within a 30 day period or for any unauthorized tobacco product or tobacco paraphernalia sales.
(c)
Any appeal shall be made in accordance with the procedures included
in this division.
(d)
If a license issued under this division is suspended or revoked,
all tobacco products and tobacco paraphernalia at the suspended or
revoked tobacco product retailer's location shall be removed from
public view for the duration of the suspension or revocation. The
tobacco product retailer additionally shall not display any advertisement
relating to tobacco products or tobacco paraphernalia that promotes
the sale or distribution of such products from the tobacco product
retailer's location.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
In addition to any other remedy, any person violating any provision
of this division shall be guilty of a misdemeanor for each day a violation
continues.
(b)
Any violation of this division may be remedied by a civil action
brought by the city attorney. The city may recover reasonable attorney
fees and costs of suit in any civil action brought by the city attorney
to remedy any violation of this chapter.
(c)
Violations of this division are hereby declared to be public nuisances
subject to abatement by the city.
(d)
In addition to criminal sanctions and other remedies set forth in
this division, administrative penalties may be imposed pursuant to
Chapter 1A of this code against any person violating any provision
of this division.
(e)
Tobacco product retailing without a valid license; ineligibility
for license. In addition to any other penalty authorized by law, if
the chief of police finds based on a preponderance of evidence, after
notice and an opportunity to be heard, that any person has engaged
in tobacco product retailing at a location without a valid tobacco
product retailer 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 product retailer license for up to 60 months.
(f)
The remedies specified in this section are cumulative and in addition
to any other remedies available under state or local law for a violation
of this code.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
A tobacco retailer license applicant or licensee aggrieved by the
decision of the city in denying, suspending, or revoking a tobacco
retailer license may appeal the decision by submitting a written appeal
to the city clerk within 10 calendar days from the date of service
of the notice of denial, suspension, or revocation. Service is complete
upon mailing a notice by the chief of police. The written appeal shall
contain:
(1)
A brief statement in ordinary and concise language of the specific
action protested, together with any material facts claimed to support
the contentions of the appellant;
(2)
A brief statement in ordinary and concise language of the relief
sought, and the reasons why it is claimed the protested action should
be reversed or otherwise set aside;
(3)
The signatures of all parties named as appellants and their official
mailing addresses; and
(4)
The verification (by declaration under penalty of perjury) of at
least one appellant as to the truth of the matters stated in the appeal.
(b)
The appeal hearing shall be conducted by a hearing officer.
(c)
Upon receipt of any appeal filed pursuant to this section, the city
clerk shall transmit said appeal to the hearing officer who shall
calendar it for a hearing. The hearing officer shall give the parties
at least 15 calendar days written notice of the time and place of
the hearing either by causing a copy of such notice to be delivered
to the appellant personally or by mailing a copy thereof, postage
prepaid, addressed to the appellant at the address shown on the appeal.
Upon good cause, the hearing officer may grant one extension for the
date of the hearing not to exceed 15 days from the original date set
for the hearing.
(d)
Only those matters or issues specifically raised by the appellant
in the notice of appeal shall be considered in the hearing of the
appeal.
(e)
Failure of any person to file a timely appeal in accordance with
the provisions of this section shall constitute an irrevocable waiver
of the right to an administrative hearing and a final adjudication
of the notice and order, or any portion thereof.
(f)
Following the hearing on the appeal by the hearing officer, the decision
of the hearing officer may be appealed to the city manager or his
or her designee. A decision of the city manager or his or her designee
shall be the final decision of the city.
(g)
During a period of license suspension or revocation appeal, the tobacco
retailer licensee shall remove from public view all tobacco products
and tobacco paraphernalia at the tobacco retail location.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
At the time set for hearing, the hearing officer shall proceed to
hear the testimony of material witnesses, the appellant, and other
competent persons, including members of the public, respecting those
matters or issues specifically listed by the appellant in the notice
of appeal.
(b)
The proceedings at the hearing shall be recorded. Either party may
provide a certified shorthand reporter to maintain a record of the
proceedings at the party's own expense.
(c)
The hearing officer may, upon the request of the appellant or upon
the request of the city, grant continuances from time to time for
good cause shown, or upon his or her own motion.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
Hearings need not be conducted in accordance to the technical rules relating to evidence and witnesses. California Government Code Section 11513, subsections (a), (b) and (c), or as such section may be amended from time to time, shall apply to hearings under this division.
(b)
Oral evidence shall be taken only upon oath or affirmation.
(c)
Irrelevant and unduly repetitious evidence shall be excluded.
(d)
Each party shall have these rights, among others:
(1)
To call and examine witnesses on any matter relevant to the issues
of the hearing.
(2)
To introduce documentary and physical evidence.
(3)
To cross-examine opposing witnesses on any matter relevant to the
issues of the hearing.
(4)
To impeach any witness regardless of which party first called the
witness to testify.
(5)
To rebut evidence presented against the party.
(Ord. No. 2020-29R, § 2, 11-8-20)
(a)
If it is shown, by a preponderance of the evidence, that one or more
bases exist to deny, suspend, or revoke the tobacco retailer license,
the hearing officer shall affirm the city's decision to deny, suspend,
or revoke the tobacco retailer license. The decision of the hearing
officer shall be in writing and shall contain findings of fact and
a determination of the issues presented.
(b)
The decision of the hearing officer shall inform the appellant that
the decision may be appealed to the city manager by filing a written
appeal with the hearing officer within 10 days of receipt of the decision
of the hearing officer. The written appeal shall be forwarded to the
city manager upon receipt.
(c)
Within 15 days of receipt of the written appeal, the city manager
shall review the record of the hearing and issue a written decision
to grant or deny the appeal. A decision of the city manager shall
be final. The city manager shall provide appellant with a copy of
his or her decision and that the time for judicial review is governed
by California Code of Civil Procedure Section 1094.6, or as such section
may be amended from time to time. Copies of the decision shall be
delivered to the parties personally or sent by certified mail to the
address shown on the appeal. The decision shall be final when signed
by city manager and served as provided in this division.
(Ord. No. 2020-29R, § 2, 11-8-20)
