The city council finds, determines, and declares that:
A. 
Minors obtain cigarettes and other tobacco products at alarming rates. Each year, an estimated nine hundred twenty-four million packs of cigarettes are consumed by minors twelve to seventeen years of age, yielding the tobacco industry four hundred eighty million dollars in profits from underage smokers nationwide. In Riverside County, ten thousand teens light up for the first time and purchase five million packs of cigarettes a year.
B. 
In a 2004 California youth-buying survey, twelve percent of retailers surveyed unlawfully sold tobacco product to minors.
C. 
The rate of tobacco sales to minors in Riverside County is one of the highest in the state at fortyfour percent.
D. 
Eighty-eight percent of adults who have ever smoked tried their first cigarette by the age of eighteen, and the average age at which smokers try their first cigarette is fourteen and one-half.
E. 
A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the city to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws.
F. 
Sixty-five percent of California's key opinion leaders surveyed support implementation of tobaccolicensing requirements.
(Ord. 06-08 § 1)
The city of Temecula has a substantial interest in: (1) promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; (2) discouraging the illegal purchase of tobacco products by minors; (3) in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and (4) finally, and most importantly, protecting children from being lured into illegal activity through the misconduct of adults. It is the intent of this chapter 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 or state law are criminally proscribed or to alter the penalty provided therefor.
(Ord. 06-08 § 1)
For the purposes of this chapter, the following words and terms 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 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 is presumed not to be an arm's length transaction.
"Chief of police"
means the head of the agency or division which at the time involved has responsibility for performing the police function for, or within, the city, or his or her designee.
"City manager"
means the city manager of the city of Temecula or his or her designee.
"Person"
means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
"Proprietor"
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 ten 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 can or does have, or can or does share, ultimate control over the day-to-day operations of a business.
"Self-service display"
means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A vending machine is a form of self-service display.
"Smoking"
means possessing a lighted tobacco product, tobacco paraphernalia, or any other weed or plant (including a lighted pipe, lighted cigar, or lighted cigarette of any kind), the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, or cigarette of any kind).
"Tobacco paraphernalia"
means cigarette papers or wrappers, pipes, electronic cigarette or vaping devices, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.
"Tobacco product"
means:
1. 
Any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, electronic cigarette or vaping device to include liquid, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and
2. 
Any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body but does not include any product specifically approved by the Federal Food and Drug Administration for use in treating nicotine or tobacco product dependence.
"Tobacco retailer"
means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia. "Tobacco retailing" means the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
"Tobacco shop"
means any premises dedicated to the display, sale, distribution, delivery, offering, furnishing, or marketing of tobacco, tobacco products, tobacco accessories, or tobacco paraphernalia, including all non-tobacco products that contain nicotine. Any premises that dedicates more than ten percent of its floor space (excluding bathrooms, kitchens, breakrooms, and other exclusive employee use common areas) to tobacco products, tobacco accessories or tobacco paraphernalia shall be considered a "tobacco shop" for purposes of this chapter. If a premises dedicates less than ten percent of its floor space (excluding bathrooms, kitchens, breakrooms, and other exclusive employee use common areas) to tobacco products, tobacco accessories or tobacco paraphernalia, then it shall be considered a "tobacco retailer" as defined in this section, and is not governed by this chapter.
"Tobacco shop permit" or "TSP"
means a tobacco shop permit issued pursuant to this chapter.
(Ord. 06-08 § 1; Ord. 23-07, 9/12/2023)
A. 
It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which that activity is to occur.
B. 
A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a revoked license:
1. 
Shall keep all tobacco products and tobacco paraphernalia from public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute an "offer for sale" for the purposes of Section 5.24.050(C) of this chapter;
2. 
Shall not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer's location or that would lead a reasonable consumer to believe that such products can be obtained at the tobacco retailer's location.
C. 
Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the right to act as a tobacco retailer at the location in the city identified on the face of the license. For example, 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, zoning regulations or any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code Section 6404.5.
D. 
Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. It is the responsibility of each proprietor to be informed of all applicable federal, state and local statutes, laws, regulations and ordinances, including, without limitation, the laws affecting the issuance of a tobacco retailer's license. A license that is issued in error or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.24.100(D) of this chapter.
E. 
All applications shall be submitted on a form supplied by the chief of police and shall contain the following information:
1. 
The name, address, and telephone number of each proprietor;
2. 
The business name, address, and telephone number of the single fixed location for which a tobacco retailer's license is sought;
3. 
The name and mailing address authorized by each proprietor to receive all license-related communications and notices (the "authorized address"). If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (E)(2) of this section;
4. 
Proof that the location for which a tobacco retailer's license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization;
5. 
Whether or not any proprietor is a person who has been determined to have violated this chapter or has been a proprietor at a location that has been determined to have violated this chapter and, if so, the dates and locations of all such violations;
6. 
Such other information as the chief of police deems necessary for the administration or enforcement of this chapter;
7. 
The information required by subsection E of this section shall be a public record available for public review pursuant to the California Public Records Act.
(Ord. 06-08 § 1; Ord. 23-07, 9/12/2023)
A. 
No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited.
B. 
Upon the receipt of an application for a tobacco retailer's license and the license fee, the chief of police shall issue a license unless substantial record evidence demonstrates that one of the following bases for denial exists:
1. 
The application is incomplete or inaccurate.
2. 
The application seeks authorization for tobacco retailing at a location for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.100(B) of this chapter. However, this subsection shall not constitute a basis for denial of a license if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction.
3. 
The application seeks authorization for tobacco retailing for a proprietor for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.100(B) of this chapter.
4. 
The application seeks authorization for tobacco retailing that is prohibited pursuant to subsection A of this section, that is unlawful pursuant to any other city chapter, or that is unlawful pursuant to any other local, state, or federal law.
(Ord. 06-08 § 1; Ord. 23-07, 9/12/2023)
A. 
A tobacco retailer's license is nontransferable. If the information required in the license application pursuant to Section 5.24.040(E)(1), (E)(2), or (E)(3) of this chapter changes, a new tobacco retailer's license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. Or, if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.
B. 
Notwithstanding any other provision of this chapter violations accumulated against a location or business shall continue to be counted against the location or business unless the location or business has been transferred to a new proprietor and the new proprietor provides the city with documentation demonstrating by clear and convincing evidence that the new proprietor has acquired or is acquiring the location or business in an arm's length transaction.
(Ord. 06-08 § 1)
A. 
The term of a tobacco retailer license is one year expiring on January 31st of the next year, except for licenses issued in 2006 which shall expire on January 31, 2007. Licenses issued during a year shall expire on January 31st of the next year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license no later than thirty days prior to expiration of the term.
B. 
The city council, may, but shall not be required to, set a license fee for a tobacco retailer license. If the council elects to enact a tobacco retailer license fee, the fee shall be set by city council resolution based upon the costs to the city of administering and enforcing this chapter. Tobacco retailer license shall not be issued until such time as the appropriate license fee has been paid in full.
(Ord. 06-08 § 1)
A. 
Display of License. Each license shall be prominently displayed in a publicly and readily visible location at the licensed location.
B. 
Positive Identification Required. No person shall engage in tobacco retailing without first examining the identification of the purchaser, if the purchaser reasonably appears under the age of twenty-seven years old, and confirming that the proposed sale is to a purchaser who is at least the minimum age in state law for being sold the tobacco product or tobacco paraphernalia.
C. 
Minimum Age for Persons Selling Tobacco. No person shall engage in tobacco retailing if the person is younger than the minimum age in state law for being sold or for possessing any tobacco product.
D. 
Self-Service Displays Prohibited. No person shall display tobacco products or tobacco paraphernalia by means of a self-service display or to engage in tobacco retailing by means of a self-service display. A tobacco retailer who chooses to display tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times.
E. 
Locked Items. All items listed in Section 9.08.040 and all containers of nitrous oxide shall be required to be stored in an area that is not viewable by, nor accessible to (locked), the public in the regular course of business without employee assistance. The size, quantity, and intended or marketed purpose of the items does not modify these requirements.
(Ord. 06-08 § 1; Ord. 2024-06, 10/8/2024)
A. 
Violation of Tobacco-Related Laws. It shall be a violation of a tobacco retailer's license for a licensee, including his or her agent or employee, to violate any of the following laws:
1. 
Any local, state, or federal tobacco-related law;
2. 
Local, state, or federal sign laws;
3. 
Local, state, or federal laws restricting the age of purchase for any product.
B. 
License Compliance Monitoring.
1. 
Compliance with this chapter shall be monitored by the chief of police. Any peace officer may enforce the provisions of this chapter.
2. 
Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance checks shall determine compliance with other tobacco-related laws.
3. 
The city shall not enforce any tobacco-related minimum-age law against a person who otherwise might be in violation of such law because of the person's age (hereinafter "youth decoy") if the potential violation occurs when:
a. 
The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official; or
b. 
The youth decoy is participating in a compliance check funded in part, either directly or indirectly through sub-contracting, by the city manager or funded in part, either directly or indirectly through sub-contracting, by the California Department of Health Services.
C. 
No Contest Plea. A plea of "no contest" or its equivalent by a tobacco retailer for a violation of any law designated in subsection A of this section shall operate as an admission that this chapter has been violated for the purposes of license revocation.
(Ord. 06-08 § 1; Ord. 23-07, 9/12/2023)
A. 
Settlement of Initial License Violations.
1. 
If the city manager determines that a tobacco retailer has that the licensee, including his or her agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter ("license violation"), the city manager may engage in settlement discussions to try to resolve the violations and prevent their reoccurrence.
2. 
For a first or second alleged license violation within any sixty-month period, the city manager may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter without approval from the city council. Settlements shall not be confidential and shall contain the following minimum terms:
a. 
After an alleged first license violation at a location within any sixty-month period:
i. 
An agreement to stop acting as a tobacco retailer for at least one day;
ii. 
A settlement payment to the city of at least one thousand dollars; and
iii. 
An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.
b. 
After an alleged second license violation at a location within any sixty-month period:
i. 
An agreement to stop acting as a tobacco retailer for at least ten days;
ii. 
A settlement payment to the city of at least five thousand dollars; and
iii. 
An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.
B. 
Revocation or Suspension of License.
1. 
If the city manager has cause to believe that: (1) a tobacco retailer, including his or her agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter, or (2) that one or more of the bases for denial of a license under Section 5.24.050(B) of this chapter existed at the time application was made or at anytime before the license issued, he or she may initiate proceedings for the revocation or suspension of the tobacco retailer's license pursuant to this section in addition to any of the other remedies provided for violations of this chapter.
2. 
The city manager shall provide written notice to the tobacco retailer and the city clerk of the alleged violations of this chapter and the date, time and location of the revocation hearing not less than twenty-one calendar days prior to the hearing.
3. 
The city clerk shall make arrangements for the selection of a hearing officer to conduct the revocation hearing. Not less than fifteen calendar days prior to the revocation hearing, the city clerk shall notify the city manager and the tobacco retailer of the names of three qualified attorneys or retired superior court or appellate court judges submitted to the city clerk by a reputable firm providing mediators and arbitrators to serve as a panel from which the hearing officer will be selected. Within five calendar days of the date of mailing the notice of the panel, the city manager and the tobacco retailer may notify the city clerk in writing that he or she elects to remove one of the three potential hearing officers. The city clerk shall then request the mediation and arbitration firm to select one of the remaining names on the list as the designated hearing officer for the revocation hearing. The hearing officer shall be fair and impartial and shall have no bias for or against the city manager or the tobacco retailer.
4. 
At the revocation hearing, the hearing officer shall receive oral and written evidence from the city manager and the tobacco retailer. The hearing officer shall have authority to administer oaths to those persons who will provide oral testimony. The evidence presented need not comply with the strict rules of evidence set forth in the California Evidence Code but shall be the type of evidence upon which reasonable and prudent people rely upon in the conduct of serious affairs. The hearing officer shall have broad authority to control the proceedings and to provide for cross examination of witness in a fair and impartial manner. The city manager shall have the burden of proof to establish by clear and convincing evidence that license violations occurred. The revocation hearing shall be recorded by audio recording. Any party may, at its sole cost and expense, utilize the services of a certified court reporter to prepare the verbatim record of the hearing. If a court reporter is used, the transcript prepared shall be made available to both parties. The hearing officer may continue the revocation hearing from time to time, but only upon written motion of a party showing good cause for the continuance.
5. 
In addition to any other penalty authorized by law, a tobacco retailer's license shall be suspended or revoked if the hearing officer finds, following the revocation hearing, that: (1) a tobacco retailer, including his or her agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter, or (2) that one or more of the bases for denial of a license under Section 5.24.050(B) of this chapter existed at the time application was made or at anytime before the license issued.
a. 
The hearing officer shall suspend the tobacco retailer's license in accordance with the following schedule if he or she finds that the violations established can be corrected with increased diligence on the part of the tobacco retailer: (1) for one license violation at a location within a sixty-month period, a suspension of not less than ten calendar days; (2) for two license violations at a location within any sixty-month period, as suspension of not less than thirty days; and (3) for three license violations at a location within any sixty-month, a suspension of not less than ninety days.
b. 
The hearing officer shall revoke the tobacco retailer's license if he or she finds that: (1) one or more of the bases for denial of a license under Section 5.24.050(B) of this chapter existed at the time application was made or at anytime before the license issued; or (2) the license violations established are of a serious nature which the tobacco retailer is unable or unwilling to correct in a timely fashion or there are four or more license violations at the location within a sixty-month period.
6. 
Within ten calendar days of the revocation hearing, the hearing officer shall render his or her decision and make written findings supporting the decision. He or she shall send the decision to the city clerk. Upon receipt of the hearing officer's decision, the city clerk shall send a copy of it to the city manager and the tobacco retailer along with a proof of mailing.
7. 
Within ten calendar days from date of the city clerk's mailing of the decision, either party may appeal the decision to the city council. The appeal shall be in writing and shall state the grounds of the appeal and specify the errors in the decision. Upon receipt of the appeal, the city clerk shall schedule the appeal for review by the city council at the next council meeting not less than fifteen calendar days after receipt of the appeal.
8. 
The council review of the appeal shall be limited to determining whether the evidence received at the revocation hearing supports the findings and decision of the hearing officer. The council shall be limited to the evidence presented at the revocation hearing. No new evidence shall be taken by the city council. The council's decision on the appeal shall be by resolution. Upon adoption of the resolution, the city clerk shall mail a copy of the resolution to the city manager and the tobacco retailer along with a proof of service. Any legal action challenging the council's decision shall be filed within ninety days of the date of the proof of service of mailing the council's resolution pursuant to Section 1094.5 et seq. of the California Code of Civil Procedure. If the council upholds the revocation of a tobacco retailer's license, the revocation shall be effective upon adoption of the council resolution.
C. 
New License Following Revocation. If a license has been revoked pursuant to subsection B of this section, the tobacco retailer shall not be entitled to apply for a new license for a period of five years following the order of revocation.
D. 
New License Following Violations. In addition to any other penalty under this chapter a person found to have engaged in tobacco retailing without a valid tobacco retailers license shall be ineligible to apply for or be issued a tobacco retailing license according to the following:
1. 
After a first violation for a person within any sixty-month period, no new license may issue for the person as a proprietor until thirty days have passed from the date of last violation.
2. 
After a second violation for a person within any sixty-month period, no new license may issue for the person as a proprietor until ninety days have passed from the date of last violation.
3. 
After three or more violations for a person within any sixty-month period, no new license may issue for the person as a proprietor until five years have passed from the date of last violation.
E. 
Expiration of License. A tobacco retailer's license that is not timely renewed pursuant to Section 5.24.070(A) of this chapter shall expire at the end of its term. To reinstate a license that has expired due to the failure to timely pay the renewal fee, the proprietor must:
1. 
Submit the renewal fee plus a reinstatement fee of ten percent of the renewal fee;
2. 
Submit a signed affidavit affirming that the proprietor has not sold any tobacco product or tobacco paraphernalia during any period that the license was expired.
(Ord. 06-08 § 1)
The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
A. 
Whenever evidence of a violation of this chapter is obtained in part through the participation of a person under the age of eighteen years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
B. 
Violations of this chapter shall also be subject to administrative action pursuant to Chapter 1.21 of the Temecula Municipal Code, Administrative Penalties, and Chapter 1.24 of the Temecula Municipal Code, Community Standards Preservation.
C. 
Violations of this chapter may, in the discretion of the district attorney or city counsel, be prosecuted as infractions or misdemeanors.
D. 
Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall constitute a violation.
E. 
Violations of this chapter are declared to be public nuisances.
F. 
Violations of this chapter are subject to a civil action brought by the city attorney to enjoin violations of this chapter.
G. 
Each day that a person engages in tobacco retailing without a valid tobacco retailer's license shall constitute a separate violation.
H. 
Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this chapter are subject to seizure and forfeiture. Forfeited tobacco products and tobacco paraphernalia shall be destroyed.
(Ord. 06-08 § 1)
A. 
Tobacco Shop Permit (TSP) Required.
1. 
It is unlawful for any person to engage in, operate, conduct or carry on, in or upon any premises, a tobacco shop without first obtaining a permit pursuant to this chapter, securing the necessary business license as required by this code, and complying with Title 5 of this code. A separate permit shall be obtained for each separate tobacco shop operated by such person.
2. 
A permit to operate a tobacco shop shall be valid for a period of one year and shall expire in conjunction with the business license.
B. 
Maximum Number of Tobacco Shops.
1. 
The maximum number of tobacco shops within the city shall not exceed one tobacco shop per every ten thousand inhabitants of the city, with any fraction of that ratio being rounded down to the nearest whole number. For purposes of this section, the total number of inhabitants of the city shall be determined by the most current published data available from the California State Department of Finances, as of the date an application for a tobacco shop permit is filed.
2. 
If there is no lapse in the timely renewal of a city business license and tobacco retailers license as required under this chapter, tobacco shops operating with a valid and current business license and current and valid tobacco retailers license no later than sixty days after the effective date of the ordinance codified in this section and that operate in compliance with all local, state and federal laws, ordinances, rules and regulations, may continue to operate in the city even if the number of tobacco shops exceed the maximum number of tobacco shops permitted in the city pursuant to subsection (B)(1) above and separation requirements pursuant to subsection (E)(1)(a) of this chapter.
3. 
Any owner that meets the requirements of subsection (B)(2) above may sell or transfer the tobacco shop, but the new owner of the tobacco shop shall apply and obtain a tobacco shop permit before the new owner or operator begins operating the tobacco shop. If the tobacco shop that is sold or transferred does not have a history of violating any provisions of the chapter for at least one year preceding the date of sale or transfer of the business, the business may obtain a tobacco shop permit to operate in the city even if the number of tobacco shops exceed the maximum number of tobacco shops permitted in the city pursuant to subsection (B)(1) above, as long as the business meets all the requirements of subsection D.
C. 
Application for Tobacco Shop Permit. All persons desiring a tobacco shop permit shall file a written application on the required form available at the city's planning department. The application, to be signed under penalty of perjury, shall be accompanied by the appropriate filing fee established by resolution of the city council. The applicant must be at least twenty-one years of age at the time of application. The application shall be completed and signed by the operator of the proposed tobacco shop, if a sole proprietorship; one general partner, if the operator is a partnership; one officer or one director, if the operator is a corporation; and one participant, if the operator is a joint venture. The application for a tobacco shop permit does not authorize operation of a tobacco shop unless and until such permit has been properly granted. The application shall contain or be accompanied by the following information:
1. 
The type of ownership of the business; for example, whether an individual, partnership, or corporation. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners. If the business is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply;
2. 
The precise name under which the tobacco shop is to be conducted;
3. 
The complete address, all telephone numbers, and email address of the tobacco shop;
4. 
The following personal information concerning the applicant:
a. 
Full complete name and all aliases used by the applicant,
b. 
Current address and all previous residential addresses for eight years immediately preceding the present address of the applicant,
c. 
Acceptable proof that the applicant is at least twenty-one years of age,
d. 
Proof of legal residency and/or the ability to legally work in the United States,
e. 
The applicant's complete business, occupation and employment history for eight years preceding the date of application, including, but not limited to, the tobacco shop or similar business history and experience of the applicant,
f. 
The complete tobacco shop license history of the applicant, whether such person has ever had any permit, license, or certification to conduct sales of tobacco products issued or denied by any governmental authority; the date of issuance of such a permit or license, whether the permit or license was denied, revoked or suspended; and the reason therefor,
g. 
Whether the applicant has ever had a tobacco retailers license, tobacco shop permit, or any permit/license required for the operation of a tobacco shop denied, revoked or suspended by any government authority, and the reason therefor,
h. 
All criminal convictions occurring in any state or country, including convictions resulting from any plea of nolo contendere (no contest), within the last ten years, including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding infraction traffic violations, and the date and place of each such conviction and reason therefor,
i. 
Information regarding any pending criminal charges against the applicant, and
j. 
A complete set of fingerprints taken by the police department;
5. 
The name and address of the owner and lessor of the premises upon or in which the tobacco shop is to be located. In the event the applicant is not the legal owner of the premises, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the premises that a tobacco shop will be located on the premises, and that the tobacco shop must operate in compliance with the requirements of this chapter;
6. 
Such other identification and information as the chief of police may require in order to discover the truth of the matters required to be set forth in the application;
7. 
A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct;
8. 
Statements in writing and dated by the applicant and the applicant's designated manager(s) certifying under penalty of perjury that they:
a. 
Have reviewed Chapter 5.24 and Chapter 8.56 of the Temecula Municipal Code,
b. 
Understand its contents,
c. 
Understand the duties of a manager,
d. 
Will only employ persons of legal age to sell tobacco products,
e. 
Authorize the chief of police to investigate the truth of the information contained in the application, and
f. 
Will be responsible for the conduct of all tobacco shop operators, employees, agents, independent contractors, or other representatives while such persons are on the premises of the tobacco shop, and that failure to comply with the provisions of this chapter and any federal, state, or local law, may result in the revocation of the tobacco shop permit;
9. 
If, during the term of a tobacco shop permit, the permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the police department of such change, within ten business days thereafter, in writing;
10. 
A floor plan of the proposed tobacco shop showing all interior areas, including areas where tobacco products are stored or sold, all doors, display cases, restrooms, plumbing, and any other physical features required by the chief of police;
11. 
The applicant, if a corporation or partnership, shall designate one or more of its officers or partners to act as manager during business hours. If the applicant is an individual, then that individual, or designee thereof shall act as manager. Each person who shall serve as manager shall complete and sign all application forms required of an individual applicant for a tobacco shop permit;
12. 
Notwithstanding the fact that an application filed under this section may be a "public record" under Government Code Section 6250 et seq., certain portions of such application contain information vital to the effective administration and enforcement of the licensing and/or permit scheme established herein which is personal, private, confidential, or the disclosure of which could expose the applicant to a risk of harm. Those portions of the application which are not subject to disclosure are: the applicant's residence address and telephone number, the applicant's date of birth and/or age, the applicant's driver's permit and/or social security number, and/or personal financial data. The city council in adopting the application or permitting system set forth herein has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentially or security interests are protected. The city Clerk shall cause to be redacted from any copy of a completed permit application made available to any member of the public, the information set forth above.
D. 
Tobacco Shop Permit Issuance and Denial.
1. 
Upon receipt of a written application for a tobacco shop permit, the chief of police shall conduct an investigation to ascertain whether the applicant satisfies the requirements of this chapter. The chief of police shall, within thirty days of receipt of an application, and on a first-come first-served basis, approve, conditionally approve or deny the application. The thirty-day period may be extended for up to thirty additional days, if necessary, to complete the investigation at the discretion of the chief of police or their designee.
2. 
The chief of police shall deny all tobacco shop permit application(s) if the maximum number of tobacco shops under subsection (B)(1) has been met.
3. 
The chief of police shall deny all tobacco shop permit application(s) if they make any of the following findings:
a. 
The applicant, if an individual, or any of the officers or directors of the corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership, or any person directly engaged or employed in the tobacco shop, including if any of the above listed parties, has within ten years preceding the date of application:
i. 
Been convicted of a violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058;
ii. 
Engaged in conduct in another jurisdiction which, if it had occurred within the city, would constitute grounds for denial or revocation under this chapter;
iii. 
Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Penal Code Sections 11225 through 11235 or any similar provisions of law in a jurisdiction outside the state of California;
iv. 
Engaged in conduct in any state or country which would constitute an offense as described in subsection (D)(3)(i) or (ii) of this section;
v. 
The applicant has had a tobacco retailers license revoked from any jurisdiction authorized to issue such license(s);
vi. 
The applicant or any of the applicant's proposed employees, after a full hearing by administrative proceeding or state court, has aided and abetted any of the offenses listed in this section;
vii. 
The applicant has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application;
viii. 
The application does not contain all of the information required by this section;
ix. 
The tobacco shop, as proposed by the applicant, does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements, regulations and standards;
x. 
The applicant has not satisfied the requirements of this chapter in the time specified;
xi. 
The location of the proposed tobacco shop has within a twelve-month period prior to the submittal of the application:
(A) 
Been the site of a violation of this chapter, or any similar criminal or civil ordinance, law, rule, or regulation of the state of California or any other public agency related to the operation of a tobacco shop.
(B) 
Been the site of a tobacco shop that was closed due to criminal activity. For purposes of this subsection, closure due to criminal activity includes voluntary closure of a tobacco shop after there have been arrests at the location or other notices relating to criminal activity.
(C) 
Been the site of a tobacco shop where violations have not been addressed in the time specified in the notice of violation or administrative citation.
(D) 
Been the site of a tobacco shop that has been revoked pursuant to this chapter,
(E) 
Been the site of a tobacco shop that has received a notice of revocation or fine issued pursuant to the Temecula Municipal Code, while any appeal of the revocation or fine is pending, or
(F) 
Been the site of a tobacco shop that has outstanding fines issued pursuant to the Temecula Municipal Code that have not been paid.
b. 
If the application is denied for failure to comply with this chapter, the applicant, owner and operator of the tobacco shop may not reapply for a period of one year from the date the application was denied.
c. 
An appeal of the denial of a tobacco shop establishment permit shall be governed by procedures set forth in subsection J.
E. 
Tobacco Shop Requirements.
1. 
Facilities.
a. 
Location. No tobacco shop shall be located within five hundred feet of a sensitive receptor(s), as defined in Section 9.20.020 of this code or from another tobacco shop. This shall be measured in a straight line from any entrance of the tobacco shop to the property line of a sensitive receptor or another tobacco shop. A radius map package shall be required at the time of submittal when there is concern about the proposed tobacco shop location in relation to sensitive receptors, this shall be at the discretion of the chief of police or the director of community development.
b. 
Structure. Tobacco shops shall be located in a zoning district which permits such use. No tobacco shop located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area, shall, during business hours, block visibility into the interior area through the use of curtains, closed blinds, or any other material that obstructs, blurs or darkens the view into the premises.
c. 
Display of Permits. Tobacco shops shall at all times display in a conspicuous and prominent manner, visible upon entrance to the tobacco shop all permits, licenses, or any other approval required for the operation of a tobacco shop. Expired permits do not satisfy this requirement.
d. 
Signs. All tobacco shop signs shall comply with all provisions of Chapter 17.28 (Sign Standards) or the appropriate specific plan or planned development overlay (PDO). When there is a conflict between standards, the more restrictive standard shall be followed. Tobacco shops shall not have signage on doors, windows or storefronts except as provided for in Section 17.28.050(I) and (J). No signs shall be closer than eighteen inches from all exterior doors, windows and storefront. No signs depicting tobacco use shall be able to be seen from the public right-of-way. Each sign violating this section shall be counted as a violation.
e. 
Lighting. Tobacco shops shall be internally illuminated with white or soft white lights only. No lighting for any purpose shall be placed around or on windows or doors, to include frames.
f. 
Accessory Uses. Lounges, arcades, and similar accessory activities prohibited. No tobacco shop shall allow or provide an area either indoor or outdoor that is for a customer lounge, arcade, or similar use(s).
g. 
Bathroom Facilities. Customers shall be prohibited from utilizing any bathroom facilities on site.
2. 
Operations.
a. 
Business License. Each tobacco shop shall hold a valid business license issued by the city of Temecula.
b. 
State Tobacco Retailers License. Each tobacco shop shall hold a valid California cigarette and tobacco products retailer's license issued by the State Board of Equalization, in accordance with state law.
c. 
City Tobacco Retailers License. Each tobacco shop shall hold a valid tobacco retailers license issued by the city of Temecula.
d. 
Tobacco Shop Permit. Each tobacco shop shall hold a valid tobacco shop permit (TSP) issued by the city of Temecula.
e. 
Hours of Operation. The owner must advise the city, in writing, at the time of application for a permit of the business hours, and any change in hours occurring thereafter. No person shall operate a tobacco shop between the hours of nine p.m. and seven a.m.
f. 
Employee Age. No person under the age of twenty-one years, at the time of application, shall operate or be employed by a tobacco shop.
g. 
Living Prohibited. No person or persons shall be allowed to live inside the tobacco shop at any time. Beds, mattresses, waterbeds, futons, sofa beds, or any type of portable or convertible beds are not permitted on the premises.
h. 
Alcoholic Beverages/Drugs — Prohibited Materials. No person shall enter, be in or remain in any part of a tobacco shop while in possession of, consuming, using or under the influence of any alcoholic beverage, recreational drugs (including cannabis) or a controlled substance. The operator and on-duty manager shall be responsible to ensure that no such person shall enter or remain upon the tobacco shop. Service of alcoholic beverages or recreational drugs shall not be allowed to include all substances located in Chapter 8.56 (Psychoactive Bath Salts, Psychoactive Herbal Incense, and Other Synthetic Drugs). A tobacco shop is not permitted to sell, store, distribute, trade or give for no charge alcohol.
i. 
Tobacco Use. There shall be no tobacco use or consumption (including "tastings") at any tobacco shop.
j. 
Samples. Tobacco shops are prohibited from providing samples or tastings of any tobacco product or accessory whether free or for charge.
k. 
Entrances. Tobacco shops cater specifically to adult customers over the age of twenty-one to purchase tobacco products, accessories, etc. not the general public. As such, entrances/exits shall remain closed, not locked, during the hours of operation and employees shall not congregate, gather, or loiter in such areas.
l. 
Tobacco Products, and Paraphernalia. Tobacco products, and tobacco paraphernalia shall not be kept within ten linear feet from any building entrance or check-out counter. This prohibition shall not apply if the display is not physically accessible to customers.
m. 
Tobacco Flavors. A tobacco shop, or any of the tobacco shop's agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer as defined in Health and Safety Code Section 104559.5. This includes the storage, and/or online sales to include pickup or delivery services of flavored tobacco products.
n. 
Single Cigarettes. No tobacco shop shall sell single or individual cigarettes sometimes referred to as "loosies."
o. 
Self-Service Displays Prohibited. No person shall display tobacco products or tobacco paraphernalia by means of a self-service display or to engage in tobacco retailing by means of a self-service display. A tobacco retailer who chooses to display tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times.
p. 
Compliance With All Laws. Each operator or manager shall at all times comply with all provisions of this chapter and all other applicable provisions of the Temecula Municipal Code, all conditions of any required zoning approvals, conditions imposed by the chief of police, and all state and federal laws, statutes and regulations, and shall provide proof of compliance upon request by the police department.
q. 
Underage Sale Prohibited. Sale of any tobacco product(s) to a person(s) under the age of twenty-one years of age is prohibited and shall be considered a Class 1 violation in accordance with the provisions of this chapter.
r. 
Entry of Minors Prohibited. No person under the age of eighteen years of age (minor) shall be permitted in a tobacco shop. An owner, manager, or employee of a tobacco shop shall check the identification of persons who enter the tobacco shop to ensure they are eighteen years of age or older.
3. 
Inspections.
a. 
A tobacco shop may be inspected twice a year for the purpose of determining that the provisions of this chapter are met. Such inspections may be made by the police department, persons employed by the city whose job descriptions require the person to enforce the provisions of this code, including, but not limited to, code enforcement officers, and such other enforcement officials as described in Sections 1.16.020 and 1.21.020 of the Temecula Municipal Code or its successor sections.
b. 
Complaints or violations related to this chapter reported to the city may result in additional inspections at the discretion of the chief of police.
F. 
Transfer and Changes of Business. No tobacco shop permit may be sold, transferred or assigned by a permit holder, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void; provided and excepting, however, that if the permit holder is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit, and in such case, the permit, upon notification to the chief of police, shall be placed in the name of the surviving partners.
G. 
Fees. The city council shall establish by resolution, and from time to time may amend, the fees for the administration of this chapter. Fees required by this chapter shall be in addition to any required under any other chapter of this code.
H. 
Duration and Renewal of Permits.
1. 
Tobacco shop permits may be renewed on the first business day in February 2024, and on a year-to-year basis thereafter on the first business day in February, provided the permit holder continues to meet the requirements of this chapter. "Business day" as used in this subsection shall mean the days that Temecula City Hall is open for business.
2. 
No permit granted herein shall confer any vested right to any person for more than the permit period.
3. 
Applications for a permit renewal shall be filed with the chief of police at least sixty days prior to expiration of the existing permit, otherwise the permit will lapse. At the discretion of the chief of police, a conditional permit pending satisfactory completion of the renewal application process may be issued to renewal applicants who have no permit revocation proceedings pending at the time of filing of the renewal application.
4. 
Renewal applications shall set forth such information as may be required by the chief of police to update and verify the information contained in the original permit application. The applicant shall pay an application fee when applying for renewal.
5. 
If an application for renewal of permit and all required information is not timely received and the permit expires, no right or privilege to operate a tobacco shop shall exist.
I. 
Violation and Penalty.
1. 
Violations of this section are broken down into two levels of severity as they relate to the tobacco shop permit (TSP):
a. 
Level 1 violations are violations of such significance that a single violation of such provisions would cause the immediate revocation of the tobacco shop permit (TSP).
b. 
Level 2 violations are violations of this chapter that do not rise to the severity of Level 1 violations. Any three Level 2 violations in a twelve-month period is grounds for revocation of the TSP by the chief of police.
2. 
Table 5.24.120 — Violation Summary Table.
Table 5.24.120 Violation Summary1
Level 1 Violations
Code Section
Per TMC § 5.24.120.H(I)(1)(a) - Any violation of the provisions below are grounds to revoke a Tobacco Shop Permit
5.24.120(E)(1)(a)
No tobacco shop shall be located within one thousand feet of a sensitive receptor(s), as defined in Section 9.20.020 of this code or from another tobacco shop. This shall be measured in a straight line from any entrance of the facility to the property line of a sensitive receptor or another tobacco shop.
5.24.120(E)(1)(b)
Tobacco shops shall be located in a zoning district which permits such use. No tobacco shop located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area, shall, during business hours, block visibility into the interior area through the use of curtains, closed blinds, or any other material that obstructs, blurs or darkens the view into the premises.
5.24.120(E)(1)(f)
Lounge, arcade and similar accessory activities prohibited. No tobacco shop shall allow or provide an area either indoor or outdoor that is for customer lounge, arcade or similar use(s).
5.24.120(E)(2)(a)
Each tobacco shop shall hold a valid business license issued by the city of Temecula.
5.24.120(E)(2)(b)
Each tobacco shop shall hold a valid California cigarette and tobacco products retailer's license issued by the State Board of Equalization, in accordance with state law.
5.24.120(E)(2)(c)
Each tobacco shop shall hold a valid tobacco retailers license issued by the city of Temecula.
5.24.120(E)(2)(d)
Each tobacco shop shall hold a valid tobacco shop permit issued by the city of Temecula.
5.24.120(E)(2)(g)
No person or persons shall be allowed to live inside the tobacco shop at any time. Beds, mattresses, waterbeds, futons, sofa beds, or any type of portable or convertible beds are not permitted on the premises.
5.24.120(E)(2)(h)
No person shall enter, be in or remain in any part of a tobacco shop while in possession of, consuming, using or under the influence of any alcoholic beverage, recreational drugs or controlled substance. The operator and on-duty manager shall be responsible to ensure that no such person shall enter or remain upon the tobacco shop. Service of alcoholic beverages or recreational drugs shall not be allowed to include all substances located in Chapter 8.56 (Psychoactive Bath Salts, Psychoactive Herbal Incense, and Other Synthetic Drugs). A tobacco shop is not permitted to sell, store, distribute, trade or give for no charge alcohol.
1
This is a summary of violations only. Please see the referenced code sections for complete details. An omission from this table does not remove the burden of compliance.
Level 2 VIOLATIONS
Code Section
Per TMC § 5.24.120.H(I)(1)(b) - Any three violations in a 12-month period of the provisions below are grounds to revoke a Tobacco Shop Permit
5.24.120(E)(1)(c)
Tobacco shops shall at all times display in a conspicuous and prominent manner, visible upon entrance to the tobacco shop all permits, licenses, or any other approval required for the operation of a tobacco shop. Expired permits do not satisfy this requirement.
5.24.120(E)(1)(d)
All tobacco shop signs shall comply with all provisions of Chapter 17.28 (Sign Standards) or the appropriate specific plan or planned development overlay (PDO). When there is a conflict between standards, the more restrictive standard shall be followed. Tobacco shops shall not have signage on doors, windows or storefronts except as provided for in Section 17.28.050(I) and (J). No signs shall be closer than eighteen inches from all exterior doors, windows and storefront. No signs depicting tobacco use shall be able to be seen from the public right-of-way. Each sign violating this section shall be counted as a violation.
5.24.120(E)(1)(e)
Tobacco shops shall be internally illuminated with white or soft white lights only. No lighting for any purpose shall be placed around or on windows or doors, to include frames.
5.24.120(E)(1)(g)
Customers shall be prohibited from utilizing any bathroom facilities on site.
5.24.120(E)(2)(e)
The owner must advise the city, in writing, at the time of application for a permit of the business hours, and any change in hours occurring thereafter. No person shall operate a tobacco shop between the hours of nine p.m. and seven a.m.
5.24.120(E)(2)(f)
No person under the age of twenty-one years, at the time of application, shall operate or be employed by a tobacco shop.
5.24.120(E)(2)(i)
There shall be no tobacco use or consumption at any tobacco shop.
5.24.120(E)(2)(j)
Tobacco shops are prohibited from providing samples of any tobacco product or accessory whether free or for charge.
5.24.120(E)(2)(k)
Tobacco shops cater specifically to adult customers over the age of twenty-one to purchase tobacco products, accessories, etc. not the general public. As such, entrances/exits shall remain closed, not locked, during the hours of operation and employees shall not congregate, gather or loiter in such areas.
5.24.120(E)(2)(l)
Tobacco products, and paraphernalia shall not be kept within ten linear feet from any building entrance or check-out counter. This prohibition shall not apply if the display is not physically accessible to customers.
5.24.120(E)(2)(m)
A tobacco shop, or any of the tobacco shops agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer as defined in Health and Safety Code § 104559.5. This includes the storage of flavored tobacco products.
5.24.120(E)(2)(n)
No tobacco shop shall sell single or individual cigarettes sometimes referred to as "loosies."
5.24.120(E)(2)(o)
No person shall display tobacco products or tobacco paraphernalia by means of a self-service display or to engage in tobacco retailing by means of a self-service display. A tobacco retailer who chooses to display tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times.
1
This is a summary of violations only. Please see the referenced code sections for complete details. An omission from this table does not remove the burden of compliance.
3. 
Violations that are not specifically identified in this section such as subsection (E)(2)(p) shall be classified at the sole discretion of the chief of police on a case-by-case basis.
J. 
Revocation, Permit Denial and Appeal.
1. 
Violation and Noncompliance. The chief of police may refuse to issue a permit, renew a permit, or may revoke an existing permit, on the grounds that the applicant or permit holder has failed to comply with the permit conditions or other requirements of this chapter, or any requirement of state law. In any such case, the applicant or permit holder shall have the right to appeal in the time and manner set forth in this section.
For purposes of this section, if an administrative citation is contested, and is held to be invalid or rescinded by an independent hearing officer appointed pursuant to this chapter, or by any court of law, the violations identified in the administrative citation shall not form the basis for revoking or refusing to renew a tobacco shop permit. If any administrative citation is contested, and is upheld by an independent hearing officer appointed pursuant to this chapter, or by any court of law, that administrative citation can form the basis for the revocation or refusal to renew a tobacco shop permit.
2. 
Notice. When the chief of police concludes that grounds for denial of a new permit or permit renewal, or permit revocation exist, the chief of police shall serve the applicant or permit holder, either personally or by certified mail, addressed to the business or residence address of applicant or permit holder, with a notice of denial of permit, or notice of intent to revoke or deny renewal. This notice shall state the reasons for the decision, the effective date of the decision, the right of the applicant or permit holder to appeal the decision to a hearing officer, and that the decision will be final if no written appeal is filed within the time permitted.
3. 
Appeal.
a. 
The right to file a written appeal of a revocation or denial of new permit or renewal of a permit shall terminate upon the expiration of fifteen days of the date of mailing by the chief of police of the notice specified in subsection (J)(2) of this section. The written appeal shall be filed with the city Clerk of the city of Temecula and shall be accompanied by an appeal fee in an amount as set by city council resolution, and the city Clerk shall promptly forward a copy of the appeal to the chief of police.
b. 
In the event an appeal is timely filed, the denial of the permit, or renewal or revocation of the permit, shall not be effective until a final decision has been made on the appeal. Notwithstanding the foregoing, if the chief of police finds and determines that permitting a tobacco shop to continue to operate, pending the appeal hearing, would present an unreasonable and immediate risk to the public health and safety, the denial of renewal or revocation may take effect immediately. If no timely appeal is filed, the denial of renewal or revocation shall become effective upon expiration of the period for filing appeals.
c. 
Upon receipt of a timely appeal, the city Clerk shall refer the appeal to the California Office of Administrative Hearings ("OAH") for the assignment of an administrative law judge to serve as the hearing officer.
i. 
Not less than fifteen days prior to the appeal hearing, the city Clerk shall notify the chief of police and the appellant of the names of three qualified attorneys or retired Superior Court or Appellate Court judges submitted to the city Clerk by a reputable firm providing mediators and arbitrators to serve as a panel from which the hearing officer will be selected.
ii. 
Within five days of the date of mailing the notice of the available panel, the chief of police and the appellant may notify the city Clerk in writing that he or she elects to remove one of the three potential hearing officers.
iii. 
The city Clerk shall then request the mediation and arbitration firm to select one of the remaining names on the list as the designated hearing officer for the appeal hearing.
iv. 
The hearing officer shall be fair and impartial and shall have no bias for or against the chief of police or the appellant.
d. 
At the appeal hearing, the hearing officer shall receive oral and written evidence from the chief of police and the appellant. The hearing officer shall have authority to administer oaths to those persons who will provide oral testimony. The evidence presented need not comply with the strict rules of evidence set forth in the California Evidence Code, but shall be the type of evidence upon which reasonable and prudent people rely upon in the conduct of serious affairs. The hearing officer shall have broad authority to control the proceedings and to provide for cross examination of witness in a fair and impartial manner. The chief of police shall have the burden of proof to establish by clear and convincing evidence the facts upon which his or her decision is based. The appeal hearing shall be recorded by audio recording. Any party may, at its sole cost and expense, utilize the services of a certified court reporter to prepare the verbatim record of the hearing. If a court reporter is used, the transcript prepared shall be made available for purchase to both parties. The hearing officer may continue the appeal hearing from time to time, but only upon written motion of a party showing good cause for the continuance.
e. 
The hearing officer may uphold, modify or reverse the decision of the chief of police. Within thirty days or as otherwise determined by OAH, of the conclusion of the appeal hearing, the hearing officer shall render his or her decision and make written findings supporting the decision. He or she shall send the decision to the city Clerk. Upon receipt of the hearing officer's decision, the city Clerk shall send a copy of it to the chief of police and the appellant, along with a proof of mailing.
f. 
Within ten days from date of the city Clerk's mailing of the decision, either party may appeal the decision to the city manager. The appeal shall be in writing and filed with the city Clerk, and shall state the grounds of the appeal and specify the errors in the hearing officer's decision. Upon receipt of the appeal, the city Clerk shall schedule the appeal for review by the city manager to occur within thirty days.
g. 
The city manager's review of the appeal shall be limited to determining whether the evidence received at the appeal hearing supports the findings and decision of the hearing officer. The city manager shall be limited to considering the evidence presented at the appeal hearing. No public hearing shall be required and no new evidence shall be taken by the city manager. The city manager's decision on the appeal shall be set forth in a written opinion. The city Clerk shall mail a copy of the city manager's opinion to the chief of police and the appellant along with a proof of service. Any legal action challenging the city manager's decision shall be filed within ninety days of the date of the proof of service of mailing of the city manager's opinion, pursuant to Section 1094.5 et seq., of the California Code of Civil Procedure. The city manager's decision shall be final and effective upon mailing of the opinion. If the appellant prevails following a final decision, the appeal fee shall be returned.
K. 
Application to Existing Businesses. All requirements set forth in this chapter are deemed to be necessary for the protection of the public health, safety, and welfare and shall be applicable to and govern all existing and proposed tobacco shops immediately upon the date the ordinance is codified in this chapter, and shall become effective.
(Ord. 23-07, 9/12/2023; Ord. 2024-06, 10/8/2024)