This chapter shall be known as the "Tobacco Retailer Registration
Ordinance" of the city of Malibu.
(Ord. 363 § 2, 2011)
The following words and phrases, whenever used in this chapter,
shall have the meanings defined in this section unless the context
clearly requires otherwise:
"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 of which is under any compulsion
to participate in the transaction. A sale between relatives, related
companies or partners, or a sale for which a significant purpose is
avoiding the effect of the violations of this chapter is not an arm's
length transaction.
"Department"
means planning department, and any other agency or person
tasked by the city manager with enforcement of this chapter.
"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 10% 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 share ultimate control over the day-to-day operations
of a business.
"Self-service display"
means the open display or storage of tobacco products or
tobacco paraphernalia in a manner that is physically accessible in
any way to the general public without the assistance of the retailer
or employee of the retailer and a direct person-to-person transfer
between the purchaser and the retailer or employee of the retailer.
A vending machine is a form of self-service display.
"Smoking"
means possessing a lighted tobacco product, lighted tobacco
paraphernalia, or any other lighted weed or plant (including a lighted
pipe, cigar, hookah pipe, or cigarette of any kind) and means the
lighting of a tobacco product, tobacco paraphernalia, or any other
weed or plant (including a pipe, cigar, hookah pipe, or cigarette
of any kind).
"Tobacco paraphernalia"
means cigarette papers or wrappers, pipes, 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 any substance containing tobacco leaf, including, but
not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco,
snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other
preparation of tobacco; and 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 cessation product specifically approved by the
United States Food and Drug Administration for use in treating nicotine
or tobacco 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" shall mean 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.
(Ord. 363 § 2, 2011)
A. Tobacco
Retailer Registration Required. It is unlawful for any person to act
as a tobacco retailer in the city without first obtaining and maintaining
a valid tobacco retailer's registration pursuant to this chapter for
each location at which that activity is to occur.
B. Lawful
Business Operation. In the course of tobacco retailing or in the operation
of the business or maintenance of the location for which a registration
issued, it shall be a violation of this chapter for a registered tobacco
retailer, or any of the registered tobacco retailer's agents or employees,
to violate any local, state, or federal law applicable to tobacco
products, tobacco paraphernalia, or tobacco retailing.
C. Display
of Registration. Each tobacco retailer registration shall be prominently
displayed in a publicly visible location at the registered location.
D. Positive
Identification Required. No person engaged in tobacco retailing shall
sell or transfer a tobacco product or tobacco paraphernalia to another
person who appears to be under the age of 27 years without first examining
the identification of the recipient to confirm that the recipient
is at least the minimum age under state law to purchase and possess
the tobacco product or tobacco paraphernalia.
E. Minimum
Age for Persons Selling Tobacco. No person who is younger than the
minimum age established by state law for the purchase or possession
of tobacco products shall engage in tobacco retailing.
F. Self-Service
Displays Prohibited. Tobacco retailing by means of a self-service
display is prohibited.
G. False
and Misleading Advertising Prohibited. A tobacco retailer or proprietor
without a valid tobacco retailer registration, including, for example,
a person whose registration has been revoked:
1. Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a registration under Section
5.42.120; and
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 could lead a reasonable
consumer to believe that such products can be obtained at that location.
H. Requirements are Conditions of Registration. The operating requirements of this section shall be deemed conditions of any tobacco retailer registration issued pursuant to the provisions of this chapter. Sufficient evidence of failure to comply with any such requirement may be grounds for suspension, revocation, and/or the imposition of administrative fines in accordance with Section
5.42.110 of this chapter. 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, including, without limitation, environmental or land use approvals or permits. 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 or condition shall apply.
(Ord. 363 § 2, 2011; Ord. 374 § 2, 2013)
No registration may be issued to authorize tobacco retailing
at other than a fixed location. For example, tobacco retailing by
persons on foot or from vehicles is prohibited.
(Ord. 363 § 2, 2011)
A. Application
for a tobacco retailer's registration shall be submitted in the name
of each proprietor proposing to conduct retail tobacco sales for each
location at which retail tobacco sales are being proposed and shall
be signed by each proprietor or an authorized agent thereof.
It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's registration. No person may rely on the issuance of a registration as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A registration issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section
5.42.110(D) of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's registration any status or right to act as a tobacco retailer in contravention of any provision of law.
All applications shall be submitted on a form supplied by the
department and shall contain the following information:
1. The
name, address, and telephone number of each proprietor of the business
seeking a registration;
2. The
business name, address, and telephone number of the single, fixed
location for which a registration is sought;
3. A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") required by, authorized by or convenient to the enforcement of this chapter. 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
(A)(2);
4. Proof
that the location for which a tobacco retailer's registration is sought
has been issued a valid state tobacco retailer's license by the California
Board of Equalization;
5. Whether
or not any proprietor or any agent of the proprietor has admitted
violating, or has been found to have violated, this chapter and, if
so, the dates and locations of all such violations within the previous
five years;
6. Such
other information as the department deems necessary for the administration
or enforcement of this chapter as specified on the application form
required by this section.
B. A registered
tobacco retailer shall inform the department in writing of any change
in the information submitted on an application for a tobacco retailer's
registration within 10 business days of a change.
C. All
information specified in an application pursuant to this section shall
be subject to disclosure under the California Public Records Act (California
Government Code Section 6250 et seq.) or any other applicable law,
subject to the laws' exemptions.
D. The
city council may establish by resolution the amount of an application
fee for the tobacco retailer's registration in an amount not to exceed
the city's reasonable cost of providing the services required by this
chapter, in which case no application shall be accepted by the city
unless accompanied by payment of such fee.
(Ord. 363 § 2, 2011; Ord. 374 §§ 3, 4, 2013)
Upon the receipt of a complete application for a tobacco retailer's
registration, the department shall issue a registration unless substantial
evidence demonstrates that one or more of the following bases for
denial exists:
A. The
information presented in the application is inaccurate or false. Intentionally
supplying inaccurate or false information shall be a violation of
this chapter.
B. The
application seeks authorization for tobacco retailing at a location
for which this chapter prohibits issuance of tobacco retailer registrations.
However, this subsection shall not constitute a basis for denial of
a registration 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.
C. The
application seeks authorization for tobacco retailing for a proprietor
to whom this chapter prohibits a registration to be issued.
D. The
application seeks authorization for tobacco retailing that is prohibited
pursuant to this chapter (e.g., mobile vending), that is unlawful
pursuant to this code, or that is unlawful pursuant to any other law.
(Ord. 363 § 2, 2011)
Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's registration any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the registration. 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, but not limited to, any provision of this code, including without limitation Chapter
8.12 and Title
17 and any condition or limitation on smoking in an enclosed place of employment pursuant to California
Labor Code Section 6404.5 (e.g., obtaining a tobacco retailer registration does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California
Labor Code Section 6404.5).
(Ord. 363 § 2, 2011)
A. Revocation or Suspension of Registration for Violation. In addition to any other penalty authorized by law, a tobacco retailer's registration shall be revoked or, where circumstances warrant, suspended if any court of competent jurisdiction determines, or the department finds based on a preponderance of the evidence, after the registered tobacco retailer is afforded notice and an opportunity to be heard, that the registered tobacco retailer, or any of the registered tobacco retailer's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, "no contest" or its equivalent, or admitted to, a violation of any law designated in Section
5.42.030.
B. Administrative
Penalties. The remedies provided by these provisions are cumulative
and in addition to any other remedies available at law or in equity.
Upon a determination by the department that a tobacco retailer has
engaged in any conduct that violates the provisions of this chapter,
the department may impose the following administrative penalties:
1. Upon
a finding by the department of a first license violation within any
36 month period, the licensed tobacco retailer shall receive a letter
of reprimand from the department which shall advise the tobacco retailer
that if the tobacco retailer trains all sales employees at the location
of the sale in the laws pertaining to the sale of tobacco products
to minors and techniques to ensure future compliance with said laws,
no penalty will be imposed. The tobacco retailer must file with the
department, within 30 days of receipt of the letter of reprimand,
an affidavit signed by the tobacco retailer and each of its sales
employees, affirming that said training has been completed. If tobacco
retailer fails to timely submit the affidavit, the department shall
impose a fine not less than $250 and not exceeding $1,000 for a first
violation in any 36 month period.
2. Upon
a finding by the department of a second violation of this chapter
at a location within any 60 month period, the tobacco retailer license
shall be revoked or suspended up to 30 days.
3. Upon
a finding by the department of a third violation of this chapter at
a location within any 60 month period, the tobacco retailer license
shall be revoked or suspended for up to 60 days.
4. Upon
a finding by the department of four or more violations of this chapter
at a location within any 60 month period, the tobacco retailer license
shall be revoked or suspended for up to 180 days.
C. Appeal of Revocation or Suspension. A decision of the department to revoke a registration is appealable to the director and must be filed with city clerk within 10 days of mailing of the department's decision. If such an appeal is made, it shall stay enforcement of the appealed action. Appeals to the director shall be based on the record and any evidence that could not have been produced at the evidentiary appeal hearing. The planning director shall consider the appeal de novo, considering all evidence presented to him or her. An appeal to the director is not available for a revocation made pursuant to subsection
D.
D. Revocation of Registration Wrongly Issued. A tobacco retailer's registration shall be revoked if the department finds, after the registered tobacco retailer is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a registration under Section
5.42.060 existed at the time application was made or at any time before the registration issued. The decision by the department shall be the final decision of the city not subject to administrative appeal. Such a revocation shall be without prejudice to the filing of a new registration application.
(Ord. 363 § 2, 2011; Ord. 374 § 5, 2013)
The city manager is hereby authorized to make and promulgate
any rules and regulations necessary to implement the requirements
of this chapter. The rules and regulations shall be in addition to
the requirements set forth in this chapter.
(Ord. 374 § 6, 2013)