Chapter 5.80 — TOBACCO RETAILER’S LICENSE

Sections:

5.80.010 Purpose

5.80.020 Definitions

5.80.030 Tobacco Retailer’s License Required

5.80.040 Limits on Eligibility for a Tobacco Retailer License

5.80.050 Application Procedure

5.80.060 Issuance of License

5.80.070 License Renewal and Expiration

5.80.080 Licenses Nontransferable

5.80.090 License Conveys a Limited, Conditional Privilege

5.80.100 Fee for License

5.80.110 Compliance Monitoring

5.80.120 Suspension or Revocation of License for Violation

5.80.130 Tobacco Retailing Without a Valid License

5.80.140 Sale of Flavored Tobacco Products Prohibited

5.80.150 Violations

The purpose of this chapter is to encourage responsible tobacco retailing and discourage violations of tobacco related laws that prohibit the sale or distribution of tobacco products, including all smoking materials as defined in Section 5.80.020, to minors. This chapter is not intended 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 therefore.

[Ord. No. 606, 12/11/19.]

The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:

A. "Arm's Length Transaction" means a sale in good faith and for valuable consideration that reflects the fair market value 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.

B. "Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three pounds per thousand.

C. "Cigarette" means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco

wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.

D. "Characterizing Flavor" means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.

E. "Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.

F. "Department" means Planning Division and any agency or person designated by the Department to enforce or administer the provisions of this chapter.

G. "Flavored Tobacco Product" means any tobacco product, as defined in this chapter, that imparts a characterizing flavor.

H. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

I. "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 (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.

J. "Sale" or "Sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

K. "Tobacco Paraphernalia" means any item designed or marketed for the consumption, use, or preparation of tobacco products.

L. "Tobacco Product" means:

1. 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, snuff; and

   2. Any electronic 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.

   3. Notwithstanding any provision of subsections (1) and (2) to the contrary, "Tobacco Product" includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. "Tobacco Product" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

M. "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.

N. "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, exchanged, or offered for exchange.

[Ord. No. 606, 12/11/19.]

A. It shall be unlawful for any person to act as a tobacco retailer in the City without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which tobacco retailing 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 license 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. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

[Ord. No. 606, 12/11/19.]

Mobile Vending. No license may be issued to authorize tobacco retailing at other than a fixed location, including, but not limited to, tobacco retailing by persons on foot or from vehicles.

[Ord. No. 606, 12/11/19.]

A. 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.

B. 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 license. No proprietor may rely on the issuance of a license as a determination by the City that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.80.120(C) of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's license any

status or right to act as a tobacco retailer in contravention of any provision of law.

C. 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 license.

2. The business name, address, and telephone number of the single fixed location for which a license 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 subparagraph (2) above.

4. Proof that the location for which a tobacco retailer's license is sought has been issued a valid state license for the sale of tobacco

products, if the tobacco retailer sells products that require such license.

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 (5) years.

D. 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.

E. A licensed tobacco retailer shall inform the Department in writing of any change in the information submitted on an application for a tobacco retailer's license within ten (10) business days of a change.

F. 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.

[Ord. No. 606, 12/11/19.]

A. Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this chapter, the Department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:

1. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be

a violation of this chapter;

2. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued;

and/or

3. The application seeks authorization for tobacco retailing that is prohibited pursuant to this Code including without limitation the

Adelanto Zoning Ordinance, Title 14 Building and Construction, and Title 5 Business Licenses and Regulations, or that is unlawful pursuant to any other state, and federal law.

B. Beginning from the effective date of this chapter, all proprietor proposing to conduct retail tobacco sales have until June 30, 2020 to obtain a tobacco retailer's license.

[Ord. No. 606, 12/11/19.]

A. Renewal of License. A tobacco retailer's license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is one (1) year. Each tobacco retailer shall apply for the renewal of their tobacco retailer's license and submit the license fee no later than thirty (30) days prior to expiration of the term.

B. Expiration of License. A tobacco retailer's license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subparagraph A., the proprietor must:

1. Submit the license fee and application renewal form; and

2. Submit a signed affidavit affirming that the proprietor:

a. Has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the

license is renewed; or

b. Has waited the period of time required by Section5.80.130 of this chapter for tobacco retailing without a valid license before

seeking renewal of the license.

[Ord. No. 606, 12/11/19.]

A. A tobacco retailer's license may not be transferred from one person to another or from one location to another. A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietor(s).

B. Any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

1. The location has been transferred to new proprietor(s) in an arm's length transaction; and

2. The new proprietor(s) provide the City with clear and convincing evidence that the new proprietor(s) have acquired or are

acquiring the location in an arm's length transaction.

[Ord. No. 606, 12/11/19.]

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 limited conditional privilege to act as a tobacco retailer at the location in the City identified on the face of the permit. 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:

A. Any provision of this Code including without limitation the Adelanto Zoning Ordinance, Title 14 Building and Construction, and Title 5 Business Licenses and Regulations; and/or

B. Any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. Obtaining a tobacco retailer's license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

[Ord. No. 606, 12/11/19.]

The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the City Council. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a 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 regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

[Ord. No. 606, 12/11/19.]

A. Compliance with this chapter shall be monitored by the Department. In addition, any peace officer may enforce the penal provisions of this chapter. The City may designate additional persons to monitor compliance with this chapter.

B. The City Council of the City of Adelanto does not intend and nothing in this chapter shall be interpreted to penalize the purchase, use, possession, or attempted purchase, use, or possession of tobacco products or tobacco paraphernalia by persons under twenty-one (21) years of age; provided, however, that persons under twenty-one (21) years of age remain subject to generally applicable laws regulating such conduct without respect to the person's age.

[Ord. No. 606, 12/11/19.]

A. Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be suspended or revoked if any court of competent jurisdiction determines, or the Department finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee'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 5.80.030 above.

1. Upon a finding by the Department of a first violation of this chapter at a location within any five-year (5) period, the license shall

be suspended for thirty (30) days.

2. Upon a finding by the Department of a second violation of this chapter at a location within any five-year (5) period, the license

shall be suspended for ninety (90) days.

3. Upon a finding by the Department of a third violation of this chapter at a location within any five-year (5) period, the license shall

be suspended for one (1) year.

4. Upon a finding by the Department of four or more violations of this chapter at a location within any five-year (5) period, the

license shall be revoked.

B. Appeal of Suspension or Revocation. A decision of the Department to suspend or revoke a license is appealable to the City Manager and any appeal must be filed in writing with City Manager's office within ten (10) days of mailing of the Department's decision. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to the City Manager is not available for a revocation made pursuant to subsection (c) below.

C. Revocation of License Wrongly Issued. A tobacco retailer's license shall be revoked if the Department finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.80.060 existed at the time application was made or at any time before the license issued. The decision by the Department shall be the final decision of the City. Such a revocation shall be without prejudice to the filing of a new license application.

[Ord. No. 606, 12/11/19.]

In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Department finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's license, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer's license after a violation of this section at a location where the violation occurred within any five-year (5) period. Unless ownership of the business at the location has been transferred in an arm's length transaction, no new license

shall be issued for the person or the location, until thirty (30) days have passed from the date of the violation.

[Ord. No. 606, 12/11/19.]

It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer's agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.

[Ord. No. 606, 12/11/19.]

A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

B. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of twenty-one (21) 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.

C. Violations of this chapter are subject to a civil action brought by the City Attorney, punishable by a civil fine as set forth in Section 1.20.010 of this Code.

D. Violations of this chapter shall be prosecuted as set forth in Section1.20.010 of this Code.

E. Violations of this chapter are hereby declared to be public nuisances.

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, including, for example, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.

G. For the purposes of the civil remedies provided in this chapter:

1. Each day on which a tobacco product or tobacco paraphernalia is offered for Sale in violation of this chapter shall constitute a

separate violation of this chapter; and

2. Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered

for sale in violation of chapter shall constitute a separate violation of this chapter.

[Ord. No. 606, 12/11/19.]