Utilization of any public employee during any enforcement action
after the first warning, where responding police officers determine
there is a violation of this chapter, is a public service over and
above the services generally provided within the city's jurisdiction
and, accordingly, constitutes a special public service.
(Ord. 2075 § 2, 2010)
(a)
When police officers find a violation of this chapter, the police
officers can, but are not required to, issue written notice to the
tobacco retailer stating as follows:
(1)
If police officers return to the same premises two or more times
within a six month period in response to a complaint; and
(2)
The responding police officers determine there is a violation of
this chapter; then
(3)
Such additional responses by police officers, or other public employees,
will constitute response costs the cost of which must be paid by the
tobacco retailer. Any such costs will become the tobacco retailer's
personal obligation and be a debt to the city.
(b)
Notices issued pursuant to this section must be signed by the tobacco
retailer which acknowledges receipt of the warning. A signed copy
may be left with the tobacco retailer. If a second or subsequent response
is required, police officers must have a tobacco retailer sign a response
cost invoice acknowledging the special public services and additional
invoices for any further responses.
(Ord. 2075 § 2, 2010)
If no tobacco retailer is available on the premises when the
police are present, or the tobacco retailer refuses to sign receipt
of the notice, a copy of the notice must be posted in a conspicuous
place on the premises on each occasion the police respond.
(Ord. 2075 § 2, 2010)
(a)
The police chief must provide a written response cost invoice to
the tobacco retailer by certified mail. The response cost invoice
must state the following:
(b)
The response cost invoice must also state that the tobacco retailer
may file a written appeal of the determination within ten days after
receiving the notice and describe the procedure required for such
an appeal.
(Ord. 2075 § 2, 2010)
(a)
All fees and charges levied for response costs are due and payable
upon presentation.
(b)
All response costs constitute a valid debt to the city and against
the tobacco retailer.
(c)
If a tobacco retailer does not timely appeal the response cost invoice
in accordance with this chapter, and if any amount remains unpaid
after reasonable and practical attempts have been made by the city
to obtain payment, the city manager, or designee, is authorized to
take all legal and practicable collection efforts to recover the outstanding
debt, together with any penalties, any related charges and fees accrued
due to nonpayment.
(d)
The city attorney is authorized to file an action on the city's behalf
for injunctive relief, or other appropriate civil action, to require
the tobacco retailer to comply with this chapter.
(e)
Fees and charges to be levied for recovering city costs for notification
and collection of delinquent accounts will be established by city
council resolution. Such fees and charges are part of the response
costs.
(f)
A court rendering a judgment pursuant to this section may, in addition
to any other order provided by law, require the payment of reasonable
attorneys' fees, and costs of investigation, discovery and court costs.
(Ord. 2075 § 2, 2010)
Tobacco retailers served with a response cost invoice in accordance
with this chapter may appeal the response cost invoice to the city
manager, provided:
(a)
A request for review must be commenced within ten days from the date
on which the response cost invoice is served on the tobacco retailer.
If an appeals request is untimely, the city manager may, nevertheless,
extend the time for commencing such review for good cause shown.
(b)
A request for appeal must be on a form provided by the city and contain
the following information:
(1)
The name, address and telephone number of the person making the request;
(2)
A copy of the response cost invoice or, if that document is unavailable,
the approximate date, time, address, and amount of response costs;
(3)
A brief description of all grounds for making the request;
(4)
Whether an administrative hearing is requested;
(5)
Be accompanied by an advance deposit of the response costs or a request
for a hardship waiver; and
(6)
Such other information as the city may require.
(c)
Upon receiving an appeal, the city manager must appoint an independent
hearing officer to review the request.
(d)
If a tobacco retailer requests a hearing, the city clerk will schedule
a hearing on a date not less than fifteen nor more than sixty days
from the date the hearing is requested. Written notice of the date,
time and location of the administrative hearing must be provided to
the tobacco retailer at least fifteen days before the hearing date.
(Ord. 2075 § 2, 2010)
(a)
Tobacco retailers financially unable to make an advance deposit of
the response costs may file for a hardship waiver. The request for
a hardship waiver must be filed with the city clerk's office on a
form containing information that may be required by the city clerk.
The city clerk will review the request and determine whether a waiver
is justified. A waiver may only be approved if the request for waiver
is accompanied by a sworn affidavit, together with any supporting
documents or materials, demonstrating the tobacco retailer's actual
financial inability to deposit the full amount of the fine.
(b)
The city clerk will inform the tobacco retailer in writing regarding
whether the city clerk approved the waiver. This determination must
be served upon the tobacco retailer by mail at the address provided
in the waiver application. The city clerk's determination is final.
(c)
Should the clerk determine that a waiver is unjustified, the tobacco
retailer must deposit the response cost amount with the city not later
than ten days after the date of that decision. Failure to make a deposit
within ten days after waiver denial is deemed a waiver of the tobacco
retailer's right to an administrative appeal and the response costs
will be deemed delinquent.
(Ord. 2075 § 2, 2010)
(a)
Waiver of Personal Appearance at Hearing. In lieu of personally appearing
at an administrative hearing, the tobacco retailer may request that
the hearing officer decide the matter based on the written appeal
and any other documentary evidence submitted by the tobacco retailer
or police chief, or designee, before the hearing date.
(b)
Failure to Appear at Hearing. Failure of a tobacco retailer to appear
at the hearing is deemed a waiver of the right to be personally present
at the hearing. The hearing officer must then decide the matter based
upon the written appeal, the response cost invoice, any documentary
evidence previously submitted, and any additional evidence that may
be presented at the hearing by the police chief or designee.
(c)
Continuation of Hearings. The hearing officer may continue any hearing
and request additional information from the police chief, or designee,
or tobacco retailer before issuing a written decision.
(Ord. 2075 § 2, 2010)
(a)
Within ten days of receiving the appeal or, if a hearing is requested,
after a hearing, the hearing officer must provide the tobacco retailer
with a written notification that:
(b)
The hearing officer's decision is a final determination. There is
no right of city council appeal.
(Ord. 2075 § 2, 2010)
(a)
A tobacco retailer may appeal the hearing officer's decision by filing
an appeal with the Superior Court pursuant to Government Code Section
53069.4, or any successor statute, within twenty days from service
of the hearing officer's decision.
(b)
Should the tobacco retailer file a timely appeal with the Superior
Court, the requirement to pay the response costs is suspended and
the payment of the response costs, if any, will be in accordance with
the Superior Court decision.
(Ord. 2075 § 2, 2010)
(a)
Should the hearing officer uphold the response cost invoice, then
the city can retain the deposited response costs.
(b)
Should the hearing officer vacate the response cost invoice, then
the city must promptly refund the amount of the deposited amount,
if any.
(c)
Should the hearing officer uphold the response cost invoice and a
hardship waiver was previously granted, the due date for paying the
response costs will be thirty days from the date of the notice of
the hearing officer's decision.
(Ord. 2075 § 2, 2010)
In addition to any other legal remedy, the city may place a
lien on property owned by the tobacco retailer in an amount equal
to the sum of the response costs delinquent for more than ninety days,
plus penalties and interest. If multiple tobacco retailers exist,
they will be jointly and severally liable for any payments so ordered.
(Ord. 2075 § 2, 2010)
(a)
The city manager, or designee, may initiate proceedings to record
a lien conforming with this article if the decision is not appealed.
(b)
Before recording the lien, the city manager, or designee, must submit
a report to the city clerk stating the amounts due and owing.
(c)
The city clerk will fix a time, date, and place for the city council
to consider the report and any protests or objections to it.
(d)
The city clerk must serve the tobacco retailer with a hearing notice
not less than ten days before the hearing date. The notice must set
forth the amount of the delinquent administrative fine, and any penalties
and interest that is due. Notice must be delivered first-class mail,
postage prepaid, addressed to each tobacco retailer's address as it
appears on the last equalized assessment roll or supplemental roll
of the county of Los Angeles, whichever is more current. Service by
mail is effective on the date of mailing and failure of tobacco retailer
to actually receive notice does not affect its validity.
(e)
At the conclusion of the hearing, the city council will adopt a resolution
confirming, discharging, or modifying the lien amount.
(Ord. 2075 § 2, 2010)
Within thirty days following the city council's adoption of
a resolution imposing a lien, the city clerk will file same as a judgment
lien in the Los Angeles County recorder's office.
(Ord. 2075 § 2, 2010)
Each tobacco retailer against whose property an assessment is
levied pursuant to this chapter will also be assessed an administrative
fee in an amount established by city council resolution based on the
costs incurred in levying the assessment. The administrative fee will
be included in the lien amount approved by the city council and recorded
against the tobacco retailer's property.
(Ord. 2075 § 2, 2010)
Once the city receives full payment for outstanding principal,
penalties, and costs, the city clerk will either record a notice of
satisfaction or provide the tobacco retailer with a notice of satisfaction
for recordation at the Los Angeles County recorder's office. This
notice of satisfaction will cancel the city's lien.
(Ord. 2075 § 2, 2010)
