The purpose of this chapter is to encourage responsible tobacco
retailing and to discourage violations of tobacco-related laws, especially
those that prohibit or discourage the sale or distribution of tobacco
products to minors, but not to expand or reduce the degree to which
the acts regulated by Federal and State law are criminally proscribed
or to alter the penalties provided by such laws.
(Ord. 2023-06-20-1502 C.S. § 3)
The following words and phrases, whenever used in this chapter,
shall be construed as defined in this section:
means and includes any person or entity who submits an application
for a tobacco retail license.
means the application submitted under SMC Section 5.104.040 for a tobacco retail license allowing the person or entity to engage in tobacco retailing at the designated premises.
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 under any compulsion to participate
in the transaction. A sale between relatives, related companies or
partners, or a sale for the primary purpose of avoiding the effect
of the violations of this chapter that occurred at the location, is
presumed not to be an "arm's length transaction."
means a change of 50 percent or more of the ownership of
the business within a 12-month period.
means a taste or aroma, other than the taste or aroma of
tobacco, imparted either prior to or during consumption of a tobacco
product or any byproduct produced by the tobacco product, including,
but not limited to, tastes or aromas relating to menthol, mint, wintergreen,
fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcohol beverage,
herb, or spice.
means any tobacco product that imparts a characterizing flavor.
means and includes the holder of a tobacco retail license
and any person required to have a tobacco retail license under this
chapter, whether or not such person is actually so licensed.
means the act of remaining upon posted property without the
permission of the owner or person in lawful possession.
means and includes any individual, partnership, cooperative
association, private corporation, personal representative, receiver,
trustee, assignee, or other legal entity.
means an active recreational area with a variety of facilities,
including equipment for younger children, as well as court and field
games. Playground does not include play areas located on the site
of residential homes or private facilities.
means any building or portion of any building where tobacco
retailing occurs.
means a person with an ownership or managerial interest in
a business. An ownership interest shall be 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 shall be deemed to exist when a person
has, or can have, sole or shared control over the day-to-day operations
of a business.
means any public or private academic school for students
in kindergarten through 12th grade, nursery school, preschool, or
daycare facility.
means: (1) any product containing, made, or derived from
tobacco or nicotine that is intended for human consumption, whether
smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed,
aerosolized, vaporized, or ingested by any other means, including,
but not limited to, cigarettes, cigars, little cigars, chewing tobacco,
pipe tobacco, bidis, kreteks, snuff, e-liquids, or vape juice; (2)
any device or component, part, or accessory that delivers nicotine
alone or combined with other substances to the person using the device,
including, but not limited, to electronic cigarette (or "e-cigarette"),
electronic cigar (or "e-cigar''), electronic pipe (or "e-pipe"), vape
pen, electronic hookah (or "e-hookah"), cigars, or pipes, whether
or not the device or component is sold separately. "Tobacco product"
does not include any product that has been approved by the United
States Food and Drug Administration for use as a tobacco cessation
product where such product is marketed and sold solely for such an
approved purpose.
means any item designed or marketed for the consumption,
use, or preparation of a tobacco product.
means any person who sells, offers for sale, exchanges, or
offers to exchange for any form of consideration, tobacco, tobacco
products, or tobacco paraphernalia without regard to the quantity
sold, offered for sale, exchanged, or offered for exchange.
means engaging in any of those activities of a tobacco retailer.
(Ord. 2023-06-20-1502 C.S. § 3)
A.
It
shall be unlawful for any person to act as a tobacco retailer, engage
in tobacco retailing, or allow tobacco retailing in the City without
first obtaining and maintaining a valid tobacco retail license pursuant
to the provisions of this chapter for each location at which tobacco
retailing is to occur. No license will be issued to authorize tobacco
retailing at other than a fixed location.
B.
Nothing
in this chapter shall be construed to grant any person or entity obtaining
a tobacco retail license any status other than the right to act as
a tobacco retailer at the location in the City identified on the face
of the tobacco retail license, subject to compliance with all other
applicable laws, regulations, and ordinances. Nothing in this chapter
shall be construed to render inapplicable, supersede, or apply in
lieu of any other provision of applicable law, including, without
limitation, any condition of limitation on indoor smoking made applicable
to business establishments by Section 6404.5 of the Labor Code.
(Ord. 2023-06-20-1502 C.S. § 3)
A.
Every
person who proposes to act as a tobacco retailer, engage in tobacco
retailing, or allow tobacco retailing in the City shall submit an
application for a license to the City in writing on forms provided
by the City. An applicant proposing to conduct tobacco retailing at
more than one location shall submit a separate application for each
location. Each application shall be submitted under oath, in duplicate,
and shall contain such information pertinent to the business as the
City may require. Such information to be provided shall include, but
not be limited to, the following:
1.
The
true name, address, and telephone number of each proprietor;
2.
The
business name, address, and telephone number of the fixed location
for which a license is sought;
3.
Whether
or not any proprietor has previously been issued a license pursuant
to this chapter that is, or was at any time, suspended, revoked, or
cited for violation of any part of this chapter, and, if so, the dates
of the suspension period, the date of revocation, or date of the violation;
and
4.
Such
other information as any department director deems necessary for the
administration or enforcement of this chapter.
B.
The
applicant shall pay a nonrefundable application fee in an amount as
may be fixed and established from time to time by resolution of the
City Council. Thereafter, if a tobacco retail license is granted,
the licensee shall pay an annual fee in an amount as may be fixed
and established by City Council resolution.
C.
The
applicant must provide a statement to the City to the effect that
the applicant understands and agrees that any business or activity
conducted or operated under any license issued under such application
shall be operated in full conformity with all applicable laws of the
United States of America, the State of California, the County of San
Joaquin, and the laws and regulations of the City applicable thereto,
and that any violation of any such laws or regulations in such place
of business, or in connection therewith, may render any tobacco retail
license therefor subject to immediate suspension or revocation.
D.
The
applicant must provide a copy of any valid current permit or license
from the California Board of Equalization or any other applicable
tobacco retail licensing agency, where the applicant is required to
obtain any such permit or license in order to lawfully engage in tobacco
retailing in the State of California and/or in the County of San Joaquin.
E.
The
applicant hereunder is seeking the granting of a privilege. Therefore,
the burden of proving qualifications to receive such a license is
at all times on the applicant. An applicant must accept all risks
of adverse public notice, publicity, embarrassment, criticism, financial
loss, or all other actions and consequences which may result from
activities with respect to reviewing, processing, and approving or
disapproving any application. A waiver of any claims for damages against
the City or its agents resulting therefrom shall be presumed upon
the filing of an application for a tobacco retail license.
F.
Each
applicant shall be responsible for providing truthful, complete, and
accurate information and for signing the license application.
G.
The
applicant shall submit written documentation stating that the property
owner of the real property upon which the tobacco retailing is to
be conducted is fully aware of the property's intended use. Documentation
is to include the name, address, and contact telephone number for
the property owner.
H.
The
applicant must provide a statement to the City that the applicant
will hold harmless, indemnify, and defend the City against all claims
and litigation arising from the issuance of the tobacco retail license,
including, without limitation, any claims and litigation arising from
the establishment, operation, or ownership of the tobacco retailer.
J.
The application for a license pursuant to this chapter shall not authorize the maintenance, operation, or conduct of tobacco retailing until such license has been granted. The issuance of a business license pursuant to Title 5 of the Stockton Municipal Code shall not authorize the maintenance, operation, or conduct of a tobacco retailer until the license required by this chapter has been lawfully granted.
(Ord. 2023-06-20-1502 C.S. § 3)
Nothing herein shall constitute a waiver of the requirements
of Title 5 of the Stockton Municipal Code requiring issuance and possession
of a valid business license.
(Ord. 2023-06-20-1502 C.S. § 3)
A.
Upon the receipt of an application for a license and the applicable
fee, the City shall issue a license unless any of the following exist:
1.
The application is incomplete or inaccurate.
2.
The application seeks authorization for tobacco retailing at
an address that appears on a license that is suspended, has been revoked,
or is subject to suspension or revocation proceedings for violation
of any of the provisions of this chapter; provided, however, this
subsection shall not constitute a basis for denial of a license if
either or both of the following apply:
3.
The application seeks authorization for tobacco retailing that
is unlawful pursuant to this code, or that is unlawful pursuant to
any other local, State, or Federal law.
4.
Making any false statements in the application or as to any
other information presented as part of the application process.
5.
Evidence of current or prior unlawful or nuisance-creating operation
in this or another jurisdiction.
6.
The application seeks authorization for tobacco retailing at any location within 600 feet of a school, public park, public playground, public recreational area, or youth facility, as measured in a straight line from the parcel boundary of these locations to the boundary lines of the parcel of the tobacco retail license applicant's proposed business location. However, the prohibition contained in this subsection (A)(6) shall not apply to the following:
a.
Any tobacco retailer operating lawfully on the day before the
effective date of City of Stockton Ordinance 2023-06-20-1502.
b.
Any lawfully operating tobacco retailer that would otherwise
become ineligible to receive a new license due to the creation or
relocation of a school, public park, public playground, public recreational
area, or youth facility.
c.
Any location that satisfies both of the following:
i.
A tobacco retailer was lawfully operating at the location on the day before the effective date of City of Stockton Ordinance 2023-06-20-1502, or a tobacco retailer was lawfully operating at the location pursuant to subsection d of this section, and
ii.
Either: (a) The location has since been a licensed tobacco retail
location, without interruption, except that the most recently issued
license for the location may have expired no more than six months
from the date of the present application, or (b) the present application
has been submitted less than one year since the effective date of
City of Stockton Ordinance 2023-06-20-1502.
d.
Any location that was a qualified development project, as defined below, before the effective date of City of Stockton Ordinance 2023-06-20-1502. A "qualified development project" for purposes of this section is one where a land use permit or entitlement application has been determined by the Community Development Department to be complete before the effective date of City of Stockton Ordinance 2023-06-20-1502, and said land use permit or entitlement application has not expired pursuant to SMC Section 16.96.020(B).
7.
The application seeks authorization for tobacco retailing at any location within 600 feet of a location occupied by another tobacco retailer, as measured in a straight line from the parcel boundary of an existing tobacco retailer's business location to the boundary lines of the parcel of the tobacco retailer license applicant's proposed business location. However, the prohibition contained in this subsection (A)(7) shall not apply to the following:
a.
Any tobacco retailer operating lawfully on the day before the
effective date of City of Stockton Ordinance 2023-06-20-1502; or
b.
Any location that satisfies both of the following:
i.
A tobacco retailer was lawfully operating at the location on the day before the effective date of City of Stockton Ordinance 2023-06-20-1502, or a tobacco retailer was lawfully operating at the location pursuant to subsection c of this section, and
ii.
Either: (a) The location has since been a licensed tobacco retail
location, without interruption, except that the most recently issued
license for the location may have expired no more than six months
from the date of the present application, or (b) the present application
has been submitted less than one year since the effective date of
City of Stockton Ordinance 2023-06-20-1502.
c.
Any location that was a qualified development project, as defined below, before the effective date of City of Stockton Ordinance 2023-06-20-1502. A "qualified development project" for purposes of this section is one where a land use permit or entitlement application has been determined by the Community Development Department to be complete before the effective date of City of Stockton Ordinance 2023-06-20-1502, and said land use permit or entitlement application has not expired pursuant to SMC Section 16.96.020(B).
8.
Any exemption granted to a tobacco retailer pursuant to subsections (A)(6)(a)-(d) and (A)(7)(a)-(c) of this section shall cease to apply if a tobacco retailer fails to timely renew the tobacco retail license pursuant to this chapter or shall cease to apply if the tobacco retail license is revoked pursuant to this chapter.
9.
The City is in possession of information that the applicant
or his agents or employees has violated any local, State, or Federal
tobacco control law within the preceding 30-day period.
10.
The applicant does not have a valid current permit or license
from the California Board of Equalization or any other applicable
tobacco retail licensing agency, where the applicant is required to
obtain any such permit or license in order to lawfully engage in tobacco
retailing in the State of California and/or in the County of San Joaquin.
B.
If the City does not approve a license or renewal of a license, the
City shall notify the applicant of the specific grounds for the denial
in writing. The notice shall be served personally, by regular mail,
or by certified mail not later than five days after the denial. If
notice is delivered by mail, it shall be addressed to the applicant
at the address as it appears on the application. The giving of notice
shall be deemed complete at the time of deposit of the notice in the
United States mail without extension of time for any reason. In lieu
of mailing, the notice may be served personally by delivering to the
person to be served and service shall be deemed complete at the time
of such delivery. Personal service to a corporation may be made by
delivery of the notice to any person designated in the California
Code of Civil Procedure to be served for the corporation with summons
and complaint in a civil action.
C.
The denial of a tobacco retail license or renewal of a license may be appealed. Notice of such appeal, in writing stating the grounds for such appeal, and admitting or denying those determinations of the City included in the denial notice, shall be filed with the Chief of Police, or designee, within 10 days of the giving of the denial notice as specified in subsection B above. Upon failure to file the notice of appeal within the 10-day period, the action of the City in denying such tobacco retail license or renewal of such license shall be final and conclusive. If the notice of appeal is filed in timely order, accompanied by payment of an appeal fee in an amount as may be established from time to time by resolution of the City Council, the Chief of Police, or designee, shall refer the matter to the City Attorney for scheduling of an administrative appeal hearing in accordance with the provisions of Chapter 1.44 of this code.
D.
Notwithstanding Section 5.104.070, in the event a tobacco retailer files a timely appeal from the denial of the renewal of a license pursuant to subsection C above, the tobacco retailer may continue to operate under the existing license pending the appeal decision. The determination of the administrative hearing officer shall be final.
(Ord. 2023-06-20-1502 C.S. § 3; Ord. 2024-01-23-1212, 1/23/2024)
A tobacco retail license shall be valid for one year from the date of issuance, unless earlier suspended or revoked. Any person that holds a tobacco retail license may obtain a new license for the succeeding year by applying for said new license and paying the required fees, in accordance with Section 5.104.040 of this chapter, no later than 30 days prior to the expiration date of the current tobacco retail license, but no earlier than 60 days prior to the expiration of the license. However, a license that has been revoked or is subject to revocation proceedings shall not be renewed.
(Ord. 2023-06-20-1502 C.S. § 3)
A license is nontransferable. If a licensee changes business
location, that licensee must obtain a new license prior to acting
as a tobacco retailer at the new location. If a business licensed
to conduct tobacco retailing experiences a change of ownership, the
business must obtain a new license for that location before acting
as a tobacco retailer.
(Ord. 2023-06-20-1502 C.S. § 3)
Each license shall be prominently displayed in a publicly visible
location at the licensed premises.
(Ord. 2023-06-20-1502 C.S. § 3)
In addition to any other remedy authorized by law, a license
shall be suspended or revoked as provided in this section.
A.
A license may be suspended or revoked pursuant to this subsection A if the Chief of Police, or designee, finds that the licensee, or his or her agents or employees, has or have violated any State or local law relating to the sale of tobacco products to a minor, including without limitation California Penal Code Section 308 and this chapter, or any State or local law relating to the sale of flavored tobacco products, including, without limitation, California Health and Safety Code Section 104559.5 and this chapter; provided, however, violations by a licensee at one location may not be accumulated against other locations of that same licensee, nor may violations accumulated against a prior licensee at a licensed location be accumulated against a new licensee at the same licensed location. The Chief of Police, or designee, may concurrently make multiple findings of prior violations within any five year period; in which case, suspensions provided for in this subsection A shall run concurrently.
1.
Upon
a finding by the Chief of Police, or designee, of a first violation
within any five year period, the license may be suspended for up to
30 days.
2.
Upon
a finding by the Chief of Police, or designee, of a second violation
within any five year period, the license may be suspended for up to
60 days.
3.
Upon
a finding by the Chief of Police, or designee, of each additional
violation within any five year period, the license may be suspended
for up to 90 days for each violation, or be revoked.
B.
A license
may be suspended by the Chief of Police, or designee, if the Chief
of Police, or designee, find that, based on ascertainable facts, the
operation of the tobacco retailer substantially aggravates the crime
problems in the City, makes law enforcement unduly difficult, or is
detrimental to the public health, safety, or welfare of the City.
C.
A license
may be revoked if the Chief of Police, or designee, finds that:
1.
A
tobacco retailer has failed to pay, when due and payable, any of the
fees or taxes required within 10 days after written notice of such
failure;
2.
A
tobacco retailer has made any fraudulent statements as to a material
fact on an application form or as to any other information presented
as part of the application process; or
3.
A
tobacco retailer commits any act which would have constituted grounds
for denial of an application for a tobacco retail license.
D.
If the Chief of Police, or designee, suspends or revokes a license, written notice of the suspension or revocation shall be served upon the licensee within five days of the suspension or revocation in the manner prescribed in Section 5.104.060(B). The notice shall contain:
1.
A
brief statement of the specific grounds for such suspension or revocation;
2.
A statement that the licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of Section 5.104.110, within 10 days of the date of service of the notice; and
3.
A
statement that the failure to appeal the notice of suspension or revocation
will constitute a waiver of all right to an administrative appeal
hearing, and the suspension or revocation will be final.
E.
A licensee
for whom a license suspension is in effect, or whose license has been
revoked, must cease all tobacco retailing and remove all tobacco products
and tobacco paraphernalia from public view at the address that appears
on the suspended or revoked license.
(Ord. 2023-06-20-1502 C.S. § 3)
A.
The action of the Chief of Police, or designee, in revoking or suspending a tobacco retail license may be appealed. Notice of such appeal, in writing stating the grounds for such appeal, and admitting or denying those determinations of the Chief of Police, or designee, included in the notice, shall be filed with the Chief of Police, or designee, within 10 days after the revocation or suspension of the license. Upon failure to file the notice within the 10-day period, the action of the City in revoking or suspending such tobacco retail license shall be final and conclusive. If the notice of appeal is filed in timely order, accompanied by payment of an appeal fee in an amount as may be established from time to time by resolution of the City Council, the Chief of Police, or designee, shall refer the matter to the City Attorney for scheduling of an administrative appeal hearing in accordance with the provisions of Chapter 1.44 of this code.
B.
In
the event a tobacco retailer files a timely appeal pursuant to this
section, the effective date of the decision shall be stayed pending
the appeal decision. The determination of the administrative hearing
officer shall be final.
(Ord. 2023-06-20-1502 C.S. § 3)
A.
The
provisions of this section shall constitute terms and conditions applicable
to each tobacco retail license issued under this chapter.
B.
The
provisions of this section shall also constitute operating regulations
that are applicable to each holder of a tobacco retail license issued
pursuant to this chapter.
C.
It
shall be unlawful for any tobacco retailer required to be licensed
under this chapter, whether or not such tobacco retailer is actually
so licensed under this chapter, to violate any of the provisions of
this chapter.
D.
All
tobacco retailers shall remain in compliance with the Stockton Municipal
Code and all other local, State, and Federal laws at all times.
E.
Tobacco
retail licenses are for a specific, fixed location that shall serve
as the licensed premises and shall not deviate from the premises that
was described in the application. A tobacco retail license shall maintain
legal possession of the premises (e.g., ownership, lease) that was
approved by the City with the application for the tobacco retail license.
F.
No
more than 20 percent of windows or clear doors at the premises where
tobacco retailing occurs shall bear advertising or other signage of
any sort.
G.
A tobacco
retailer shall:
1.
Pay
all City-imposed fines, penalties, and fees by the deadlines provided
for by City officials;
2.
Allow
for immediate access to a City, county, or State official that is
authorized to regulate tobacco control ordinances under this chapter
or any State, county, or City law or regulation to the premises and
on-premises records during regular business hours or hours of apparent
operation;
3.
Prevent
loitering, public drinking, and public use of cannabis or other criminal
behavior on and around the premises, including parking areas. "No
Loitering" signs shall be prominently posted in a readily visible
manner on no less than one exterior wall. The tobacco retailer's operators
or employees shall ask persons loitering for longer than 15 minutes
to leave the area and contact law enforcement officials for enforcement
of applicable trespassing and loitering laws if persons requested
to leave fail to do so;
4.
Prevent
any condition constituting a nuisance on the premises, including parking
areas;
5.
Remove
all graffiti or other signs of vandalism within 48 hours of knowledge
of the graffiti or vandalism;
6.
Maintain
a clean and orderly premises to ensure public health and safety meet
the highest standards.
H.
The
provisions of this chapter are intended to provide a minimum level
of public health, safety, and welfare protection at businesses engaging
in tobacco retailing. Nothing in this chapter is intended nor shall
prevent the City from imposing more stringent, site-specific operating
requirements and conditions through other applicable permitting and
approval processes. In the event of a conflict between an operating
regulation set forth in this chapter and a requirement or condition
contained in any other applicable permit or approval, the more stringent
or restrictive requirement shall apply.
(Ord. 2023-06-20-1502 C.S. § 3)
In the course of tobacco retailing or in the operation of the
business or maintenance of the premises for which a tobacco retail
license is issued, it shall be a violation of this chapter for any
tobacco retailer to violate any Federal, State, or local law applicable
to tobacco products, tobacco paraphernalia, or tobacco retailing.
(Ord. 2023-06-20-1502 C.S. § 3)
It is unlawful and a violation of a license for a licensee or
his or her agents or employees to sell, offer for sale, or possess
with the intent to sell or offer for sale, any flavored tobacco product.
It is unlawful for any person to sell, offer for sale, or possess
with the intent to sell or offer for sale, any flavored tobacco product.
There is a rebuttable presumption that a tobacco product is a flavored
tobacco product if a manufacturer or its agents or employees has 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.
(Ord. 2023-06-20-1502 C.S. § 3)
A.
It
is unlawful for any tobacco retailer, employee, or other person to
violate any provision of this chapter.
B.
A violation
of any of the provisions of this chapter shall be charged as a misdemeanor
for each day such violation continues.
C.
Any
violation of this chapter may also be remedied by a civil action brought
by the City Attorney. The City may recover for reasonable attorneys'
fees and costs of suit in any civil litigation brought by the City
Attorney to remedy any violation of this chapter.
D.
A violation of any of the provisions of this chapter may also result in the issuance of civil penalties pursuant to Chapter 1.40 for each day the violation continues.
E.
F.
A violation of any of the provisions of this chapter may also result in the suspension or revocation of the tobacco retail license pursuant to Section 5.104.100 of this chapter.
G.
Any
use or condition caused or permitted to exist in violation of any
of the provisions of this chapter is hereby declared a public nuisance
and may be summarily abated by the City.
(Ord. 2023-06-20-1502 C.S. § 3)
