The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly required otherwise:
"Authorized address"
means the name and mailing address authorized by each proprietor to receive all license-related communications and notices.
"Department"
means the community development department.
"Electronic vapor device"
means any device with a heating element, a battery, or an electronic circuit that provides nicotine or other vaporized liquids to the user in a manner that simulates smoking tobacco products, shisha, herbs, or any other product that produces smoke.
"Electronic vapor inhalation substance products"
means cartridges, cartomizers, e-liquid, smoke juice, tanks, tips, atomizers, vaporizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic vapor devices.
"Electronic vapor device retailers"
means any establishment that sells electronic cigarettes or any products used in conjunction with electronic cigarettes, including, but not limited to, kits, e-liquids and "juice."
"Hookah"
means a pipe commonly, but not always, made of glass, used for vaporizing and smoking tobacco, flavored tobacco, non-flavored tobacco, shisha, dried fruits, or other substances in which vapor or smoke is passed through a water basin before inhalation.
"Person"
shall have the definition set forth in Section 1.04.020 of the El Cajon Municipal Code.
"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.
"Tobacco product"
means: (1) any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, dipping tobacco, bidis or any other preparation of tobacco; (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 lungs or mouth; (3) any electronic vapor device, electronic vapor inhalation substance, and hookahs; and (4) any plant, weed, or plant product that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human lungs or mouth in smoke or vapor form, using any tobacco paraphernalia, 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 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 or ingestion of tobacco products, hookahs, electronic vapor devices and electronic vapor inhalation substances.
"Tobacco retailer"
means any person or proprietor who – personally or through an agent, employee, contractor, or other intermediary – sells, offers for sale or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia, hookahs, electronic vapor devices and electronic vapor inhalation substances. "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. 5098 § 2, 2020)
A. 
It shall be 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 license may only issue to authorize tobacco retailing at a specified, fixed, address, legally zoned for commercial activities at the location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited.
C. 
No license may be issued to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g., an "on-sale" license issued by the California Department of Alcoholic Beverage Control) and no license may be issued to authorize tobacco retailing at any location offering food for sale for consumption by guests on the premises. For example, tobacco retailing in bars and restaurants is prohibited.
D. 
The license fee established pursuant to Section 8.33.060 confers paid status upon a license for a term of one 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 payment term.
E. 
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, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code Section 6404.5.
(Ord. 5098 § 2, 2020)
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 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 may be revoked pursuant to Section 8.33.090(C) of this chapter. All applications shall be submitted on a form supplied by the department and shall contain the following information:
A. 
The name, address and telephone number of each proprietor.
B. 
The business name, address and telephone number of the single fixed location for which a tobacco retailer's license is sought.
C. 
The authorized address for each proprietor. 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 B above.
D. 
Whether any proprietor has previously been issued a license pursuant to this chapter that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation.
E. 
Such other information as the department deems necessary for the administration or enforcement of the ordinance codified in this chapter.
(Ord. 5098 § 2, 2020)
Upon the receipt of an application for a tobacco retailer's license and the license fee, the department shall issue a license unless reasonable evidence in the record demonstrates one of the following basis for denial:
A. 
The application is incomplete or inaccurate; or
B. 
The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect pursuant to Section 8.33.090 of this chapter; or
C. 
The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect pursuant to Section 8.33.090 of this chapter; or at a location which has had a license revoked pursuant to Section 8.33.090(A)(4) of this chapter provided; 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: (1) was not a proprietor at the time that: (a) a violation of this chapter occurred, or (b) an appeal of a citation for a violation of this chapter was pending; and (2) has acquired or is acquiring the premises or business in an arm's length transaction. For the purposes of this subsection, an "arm's length transaction" is defined as a third-party 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, proprietors, or a sale for the primary purpose of avoiding the effect of the violation of this chapter that occurred at the location, is presumed not to be an "arm's length transaction;" or
D. 
The application seeks authorization for tobacco retailing that is prohibited pursuant to Chapter 12.06 and Section 8.33.020 of this chapter (e.g., mobile vending), or that is unlawful pursuant to Title 17 of this code (i.e., the zoning code), or that is unlawful pursuant to any other local, state or federal law.
(Ord. 5098 § 2, 2020)
A. 
Display of License. Each license shall be prominently displayed in a publicly visible location at the licensed premises.
B. 
Positive Identification Required. No person shall engage in tobacco retailing without first examining the identification of each purchaser 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. 
It shall be unlawful for any tobacco retailer to sell, permit to be sold, offer for sale, or display for sale or distribution whether on-site or off-site, any vaping or electronic smoking device that is disguised as another product, including, but not limited to, a pen, markers, stapler, eraser, pencil, USB drive, watch, hoodies, beverage container, or any other item not traditionally associated with tobacco or vaping products, within the city limits.
1. 
Upon discovery that a tobacco retailer possesses, stores, owns, or offers for sale vaping or electronic smoking devices prohibited by this subsection, authorized personnel from the department or police department may seize the prohibited products and hold seized items as evidence in the prosecution of violations.
2. 
The possession of six (6) or more vaping or electronic smoking devices prohibited under this subsection at a single tobacco retailer location shall create a rebuttable presumption that the devices were intended for sale or distribution.
3. 
In addition to any other penalty authorized by law, a violation of this subsection shall be subject to a $2,500 fine and the revocation of the Tobacco Retailers License, following notice and an opportunity to be heard. Violations of this subsection are not subject to the escalating penalty structure outlined in subsections (A)(1), (2), (3), and (4) of Section 8.33.090 for general license violations.
(Ord. 5098 § 2, 2020; Ord. 5150, 3/25/2025)
A. 
The fee to issue or to renew a tobacco retailer's license shall be established by resolution of the city council. The fee shall be calculated so as to recover the total cost of both license administration and license enforcement, including, for example, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the total program. All fees shall be used to fund the program. Fees are nonrefundable except as may be required by law.
B. 
A proprietor, in possession of a tobacco retailer's license, who has not been found to be in violation of this chapter for a period of thirty-six months immediately preceding the issuance or renewal of a tobacco retailer's license, shall receive a 20% discount on the annual tobacco retailer's license fee. This discounted fee will be applied to the annual license fee following a proprietor's compliance after thirty-six consecutive months.
(Ord. 5098 § 2, 2020)
A tobacco retailer's license is nontransferable except between existing proprietors holding a license at the same location. If the information required in the license application pursuant to Section 8.33.030, subsections (A) (1), (2) or (3) 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. Also, if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.
(Ord. 5098 § 2, 2020)
A. 
Violation of Tobacco-Related Laws. It shall be a violation of a tobacco retailer's license for a licensee or his or her agent or employee to violate any local, state or federal tobacco-related law.
B. 
License Compliance Monitoring.
1. 
Compliance with this chapter shall be monitored by the department. Any peace officer or code enforcement official also may enforce this chapter.
2. 
The department shall check the compliance of each tobacco retailer at least one time during a twelve-month period and shall conduct additional compliance checks within that period as warranted. The compliance checks shall be conducted to determine, at a minimum, if the tobacco retailer is complying with tobacco laws regulating underage sales. The department, or the police department, in assisting the department in performing compliance checks, shall use underage decoys and comply with the city's protocols for the compliance checks developed in consultation with the San Diego County Department of Health and Human Services, the San Diego County District Attorney, and the City Attorney's Office. 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 (the "underage decoy") if the potential violation occurs when:
a. 
The underage decoy is participating in a compliance check supervised by a peace officer or a code enforcement official; or
b. 
The underage decoy is participating in a compliance check funded in part by the San Diego County Department of Health and Human Services, funded in part, either directly or indirectly through sub-contracting, by the California Department of Health Services, or funded in part directly by fees or fines collected from tobacco retailers under this chapter.
(Ord. 5098 § 2, 2020)
A. 
Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, an administrative fine shall be paid, and a tobacco retailer's license may be suspended or revoked if the department finds, after notice to the licensee and opportunity to be heard, that the licensee, or his or her agents or employees, has or have violated the requirements or prohibitions of this chapter including the conditions of the license imposed pursuant to Section 8.33.080 of this chapter.
1. 
Except as otherwise provided in subsection (D) of Section 8.33.050, upon a finding by the department of a first license violation within any thirty-six month period, the tobacco retailer shall pay an administrative fine in the amount of two thousand five hundred dollars. The city may also conduct up to two compliance checks within twelve months of the first violation.
2. 
Except as otherwise provided in subsection (D) of Section 8.33.050, upon a finding by the department of a second license violation within any thirty-six-month period, the tobacco retailer shall pay an administrative fine in the amount of two thousand five hundred dollars and the license shall be suspended for sixty days. The city may also conduct up to two compliance checks within twelve months of the second violation.
3. 
Except as otherwise provided in subsection (D) of Section 8.33.050, upon a finding by the department of a third license violation within any thirty-six month period, the tobacco retailer shall pay an administrative fine in the amount of two thousand five hundred dollars and the license shall be suspended for one hundred twenty days. The city may also conduct up to two compliance checks within twelve months of the third violation.
4. 
Except as otherwise provided in subsection (D) of Section 8.33.050, upon a finding by the department of a fourth license violation within any thirty-six month period, the license shall be revoked, and the tobacco retailer shall pay an administrative fine in the amount of two thousand five hundred dollars. Further, the proprietor or proprietors who had been issued the license shall never again be issued a tobacco retailer's license pursuant to this chapter.
5. 
A tobacco retailer with a suspended or revoked license:
a. 
Shall remove all tobacco products and tobacco paraphernalia from public view; and
b. 
Shall not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products at the tobacco retailer location or that would lead a reasonable consumer to believe that such products can be obtained at the tobacco retailer location, including any use of the terms, "tobacco," or "smoke shop," or similar references in the name of the business operated by the tobacco retailer.
Provided, however, that instead of complying with subsections (a) and (b) of this section, the tobacco retailer may elect to post a clear and legible sign at each point of sale and at every public entrance stating in seventy-two point type or larger: "TOBACCO PRODUCTS NOT FOR SALE because this store has violated a public health law regulating tobacco" and such signs must be present and remain free of obstructions for the entire duration of the suspension period.
6. 
Any tobacco retailer who has paid a two thousand five hundred dollar administrative fine as required by subsections (A)(1), (2), (3) or (4) of this section will be eligible for a refund of five hundred dollars if, within ninety days following the payment of the fine, that person, and each proprietor and employee of that person, shall attend a one hour responsible vendor class, training, or other course of instruction approved by the department. "Responsible vendor" courses must include training related to the laws that restrict the sales of alcohol, tobacco products, tobacco paraphernalia, and electronic vapor devices, and other such products, including restrictions in this chapter. To be eligible for the refund the instructor must produce to the department a list of attendees and certificates for each person that successfully attends the training.
B. 
Suspension of License for Failure to Pay Renewal Fee. A tobacco retailer's license that is not timely renewed pursuant to Section 8.33.020(D) shall automatically be suspended by operation of law. If not renewed, a license shall be automatically revoked two years after the renewal date. To reinstate the paid status of a license that has been suspended 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; and
2. 
Submit a signed affidavit affirming that the proprietor has not sold any tobacco product or tobacco paraphernalia during the period the license was suspended for failure to pay the renewal fee.
C. 
Revocation of License Issued in Error. A tobacco retailer's license shall be revoked if the department finds, after notice and opportunity to be heard, that one or more of the basis for denial of a license under Section 8.33.040 of this chapter existed at the time application was made or at any time before the license issued. The revocation shall be without prejudice to the filing of a new application for a license.
D. 
Appeal of Suspension or Revocation. A decision of the department to revoke or suspend a license may be appealed by a proprietor or a tobacco retailer by means of an administrative hearing before an independent fact finder, including, but not limited to, an administrative law judge from the State Office of Administrative Hearings, other private service providing retired judges for arbitration, or city-appointed administrative hearing officer. The appeal may also include a challenge to any fine accompanying the suspension or revocation. Any appeal must be filed with the city clerk within ten calendar days of mailing of the department's decision and be accompanied by the full amount of any applicable fine as provided in Section 1.14.100 (except as provided in Section 1.14.090). An appeal shall stay all proceedings in furtherance of the appealed action. A suspension or revocation pursuant to Section 8.33.090(B) of this chapter is not subject to appeal.
E. 
Appeal of Fine. Any appeal of a fine not involving a suspension or revocation must be conducted pursuant to Sections 1.14.080 – 1.14.110, each inclusive.
F. 
An administrative hearing to appeal a decision of the department to issue a fine and revoke or suspend a license held pursuant to subdivision (A) paragraphs (2) through (4) of this section, and subdivision (D) of this section is civil in nature and therefore the burden of proof required is a preponderance of the evidence. In such an appeal the administrative hearing officer shall only determine whether the violations of this chapter occurred in the time periods set forth in subdivision (A), paragraphs (2), (3) or (4), or subdivision (D) of this section. The administrative hearing officer shall not consider the appropriateness of the amount of the fine or whether the length of suspension of a license, or revocation of the license, creates a financial hardship on the tobacco retailer; nor shall the administrative hearing officer grant the applicant any stay of execution or delay of enforcement of a suspension or revocation sustained following the hearing.
G. 
The rules of evidence in an administrative hearing to appeal a decision of the department to revoke or suspend a license held pursuant to Section 8.33.090(A) or (D) shall be in accordance with California Government Code Sections 11513 and 11514 as those sections are amended from time to time. Except as provided in this subdivision (F), the provisions of administrative adjudication for the State of California (Chapter 5 of Part 1 of Division 3 of Title 2 of the California Government Code) shall not apply to any administrative hearing under this chapter.
(Ord. 5098 § 2, 2020; Ord. 5144, 12/10/2024; Ord. 5150, 3/25/2025)
A. 
Grounds for Fine. In addition to any other remedies available at law or in equity, if the department finds, based on substantial evidence, that any unlicensed person, including a person named on a revoked or suspended license, has engaged in tobacco retailing in violation of Section 8.33.020 of this chapter, the department shall impose an administrative fine on that person pursuant to Section 8.33.110(C) of this chapter.
B. 
Appeal to Superior Court of Limited Jurisdiction. Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, and in accordance with Section 1.14.150 of this code, within twenty days after mailing or personal service of the hearing officer's decision and findings, any person subject to a fine may seek review of the hearing officer's decision and findings by the superior court of limited jurisdiction. A copy of the notice of appeal to the superior court shall be timely served in person or by first-class mail upon the department by the contestant. The appeal shall be heard de novo, except that the contents of the department's file in the case shall be received in evidence. A copy of the records of the department of the notices of the violation and of the hearing officer's decision and findings shall be admitted into evidence as prima facie evidence of the facts stated therein.
C. 
Failure to Pay Fine. If no timely notice of appeal to the superior court is filed, or the department is not timely served with a copy of a notice of appeal, the hearing officer's decision and findings shall be deemed confirmed and the fine shall be collected pursuant to Section 1.14.130 of this code.
(Ord. 5098 § 2, 2020)
The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
A. 
Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall constitute a violation.
B. 
Violations of this chapter shall constitute a misdemeanor except that notwithstanding any provision of this subdivision any violation may, in the discretion of the city attorney, be charged and prosecuted as an infraction in accordance with Section 1.24.010 of this code.
C. 
Any person violating this chapter is subject to a civil action brought by the city attorney, punishable by a fine of two thousand five hundred dollars for each violation. Any continuing violation shall constitute a separate offense for each day of the violation.
D. 
Violations of this chapter are hereby declared to be public nuisances.
E. 
Violations of this chapter are hereby declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates.
F. 
In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings and suits for injunctive relief.
G. 
Any person acting for the interests of itself, its members, or the general public may bring an action for injunctive relief to prevent future such violations or to recover such actual damages as he or she may prove.
(Ord. 5098 § 2, 2020)