This chapter shall be known as the "Tobacco Retailer License Ordinance."
(Ord. 1072 § 1, 2017)
The city council finds that despite existing federal, state and local laws intended to regulate tobacco sales and use, local laws need to be enhanced to ensure compliance and maximize their effectiveness in protecting the public's health, especially that of the more vulnerable youth. The purpose of this chapter is to discourage violations of law which prohibit or discourage sale or distribution of tobacco products to persons less than twenty-one years of age in the city. It is not the purpose of this chapter to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed, or to alter the penalty therefor.
(Ord. 1072 § 1, 2017)
As used in this chapter, the following terms have the meanings set forth below:
means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to tor during consumption of a tobacco product or any by-product produced by the tobacco product, including, but not limited to, tastes or aromas relating to mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice. "Characterizing flavor" includes flavor in any form, mixed with, or otherwise added to, any tobacco product or nicotine delivery device, including electronic smoking devices.
means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. "Electronic smoking device" includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. "Electronic smoking device" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
means any tobacco product, as defined in this chapter, which imparts a characterizing flavor. There shall be a rebuttable presumption that a tobacco product is a "flavored tobacco product" if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has: (1) made a public statement or claim that the tobacco product imparts a characterizing flavor; (2) used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or (3) taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
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.
means any item designed or marketed for the consumption, use, or preparation of tobacco products.
means:
Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff;
Any electronic smoking device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah; or
Any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately or any of these contains tobacco or nicotine. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic smoking device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.
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.
means any item designed for the consumption, use, or preparation of tobacco products.
means any person or business that 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 products or tobacco paraphernalia sold, offered for sale, exchange, or offered for exchange.
(Ord. 1072 § 1, 2017; Ord. 1100 §§ 2, 3, 2021)
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.
In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a licensed is issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to violate any local, state or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
C.
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 5.37.090. All applications shall be submitted on a form supplied by the city 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 fixed location for which a tobacco retailer's license is sought;
3.
The name and mailing address authorized by each applicant to receive all license-related communications and notices (the "authorized address"). Failure to supply an authorized address shall be understood to consent to the provision of notice at the business address specified in subsection (C)(2) of this section;
4.
Whether any applicant 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 the revocation;
5.
Such other information as the city deems necessary for the administration or enforcement of this chapter.
(Ord. 1072 § 1, 2017)
A.
Upon receipt of an application for a tobacco retailer's license and the license fee, the city shall issue a license unless:
1.
The application is incomplete or inaccurate; or
2.
The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect or by a proprietor which or who has had a license revoked; or
3.
The application seeks authorization for tobacco retailing that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state or federal law; or
4.
The city has information that the proprietor or his or her agent or employee has violated any local, state, or federal tobacco control law, other than selling tobacco products without the license required by this chapter, within the preceding thirty-day period; or
5.
The city has information that the proprietor or his or her agent or employee has sold tobacco products without the required tobacco retailer's license, within the previous ninety-day period.
B.
A license shall be valid for one year and must be renewed no later than thirty days prior to the expiration of the payment term.
C.
If the information required in the license application pursuant to Section 5.37.040(C), subsections (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. If the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.
(Ord. 1072 § 1, 2017)
Each license shall be prominently displayed in a publicly visible location at the licensed premises.
(Ord. 1072 § 1, 2017)
The city council shall, by resolution, establish fees for the administration, enforcement and implementation of this chapter.
(Ord. 1072 § 1, 2017)
A tobacco retailer's license is nontransferable and is valid only for the person and location of license issued for the period indicated.
(Ord. 1072 § 1, 2017)
A.
In addition to any other penalty authorized by law, a tobacco retailer's license may be suspended or revoked if the city finds, after notice to the licensee and an opportunity to be heard, that the licensee or his or her agent or employee has violated the conditions of the license or the regulations of this chapter.
1.
Upon finding by the city of a first license violation, the license shall be suspended for thirty days;
2.
Upon finding by the city of a second license violation within a five-year period of the first violation, the license shall be suspended for ninety days;
3.
Upon finding by the city of a third violation within a five-year period of the first violation, the license shall be revoked.
B.
A tobacco retailer's license may be revoked if the city finds, after notice and an opportunity to be heard, that the information contained in the application, including supplemental information, if any, is found to be false or misleading in any material respect.
C.
A decision of the city to revoke or suspend a license is appealable, in writing, within ten days to the city manager, who may assign a designee to serve as hearing officer. An appeal shall stay all proceedings in furtherance of the appealed action. The decision of the city manager shall be the final decision of the city.
D.
During a period of license suspension or revocation, the tobacco retailer must remove from public view all tobacco products and tobacco-related advertising. Failure to so remove such products and advertising shall constitute tobacco retailing without a license.
(Ord. 1072 § 1, 2017)
Any tobacco retailer, who is selling tobacco products as of the effective date of the ordinance codified in this chapter, shall obtain a tobacco retailer's license by no later than July 1, 2017.
(Ord. 1072 § 1, 2017)
A.
It is unlawful for a person to engage in retail tobacco retailing at other than a fixed location. Itinerant tobacco retailing and tobacco retailing from vehicles are both expressly prohibited.
B.
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 thirty years without first examining the identification of the recipient to confirm that the tobacco retailer is selling or transferring the product to a recipient who is at least the minimum age under state law.
C.
No person who is younger than twenty-one years of age shall engage in tobacco retailing.
D.
Tobacco retailing by means of a self-service display or vending machine is prohibited.
E.
No tobacco retailer shall sell or offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco product or any component, part, or accessory intended to impart or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
1.
Made a public statement or claim that the tobacco product imparts a characterizing flavor;
2.
Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or
3.
Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
(Ord. 1072 § 1, 2017; Ord. 1100 § 4, 2021)
A.
Enforcement of this chapter shall be by the police department.
B.
Violations of this chapter may be charged as a misdemeanor or infraction in the discretion of the city prosecutor. Citations and warning notices may be utilized as determined appropriate to the circumstances by the enforcing personnel.
C.
In addition to the above remedy, a violation of this chapter may be remedied by civil action initiated by the city attorney.
D.
Violations of this chapter are hereby declared to be public nuisances.
(Ord. 1072 § 1, 2017)