Alturas Municipal Code Art. I Retail License

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 police department, and any agency or person designated by the department to enforce or administer the provisions of this chapter.

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

"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 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 (weather by combustible flame or electronic ignition) tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant or other naturally occurring substance (including marijuana), or chemical compound, natural or synthetic (including a lighted pipe, cigar, hookah pipe, electronic cigarette).

"Vaping" means the possessing of a device that uses electronic manipulation of substances that give off a vapor/aerosol not caused by a combustible flame. Vaping in this context is considered the same as "smoking."

"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:

(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 smoking device.

(3) Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "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.

"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. No. 507, § 1, 2-21-2017)

(a) Tobacco Retailer License Required. It shall be unlawful for any person to act as a tobacco retailer in the City of Alturas, in Modoc County 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. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law.

(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.

(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 thirty 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 license, including, for example, a person whose license 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 license under section 30-11; 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.

(Ord. No. 507, § 1, 2-21-2017)

No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

(Ord. No. 507, § 1, 2-21-2017)

(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.

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 of Alturas 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 30-11 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.

All applications shall designate the intent on selling tobacco, and/or tobacco related items on the City of Alturas general business license application provided at the time of inquiry for such license, 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 subsection (2) above.

(4) Proof that the location for which a tobacco retailer's license 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 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 thirty 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.

(Ord. No. 507, § 1, 2-21-2017)

Upon the receipt of a complete application for a business license and the license fee required by this chapter, the City of Alturas 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 at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subparagraph shall not constitute a basis for denial of a license if the applicant provides the City of Alturas 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.

(3) The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.

(4) 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, including without limitation, the zoning ordinance, building code, and business license tax ordinance, or that is unlawful pursuant to any other law.

(Ord. No. 507, § 1, 2-21-2017)

(a) Renewal of License. A tobacco retailer's license is part of the City of Alturas Business license and 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 year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license and submit the license fee no later than thirty 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 subsection (a), the proprietor must:

(1) Submit the license fee and application renewal form; and

(2) Submit a signed letter 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 appropriate ineligibility period established for tobacco retailing without a license, as set forth in section 30-11, before seeking renewal of the license.

(Ord. No. 507, § 1, 2-21-2017)

(a) A business license may not be transferred from one person to another or from one location to another. A new business license is required whenever a business stops and/or starts selling related items at the tobacco retailing location in a change in proprietor(s).

(b) Notwithstanding 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 fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

(2) The new proprietor(s) provide the City of Alturas with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction.

(Ord. No. 507, § 1, 2-21-2017)

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 of Alturas, in Modoc County identified on the face of the permit. 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 the zoning ordinance, building codes, and business license tax ordinance, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5.

(Ord. No. 507, § 1, 2-21-2017)

The fee to issue a new license is one hundred dollars. Renewal fee is twenty-five dollars each calendar year. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter. All current tobacco retailers shall be grandfathered into this chapter and will only pay renewal fees on the date of issuance of business license and after the final signing of this chapter.

(1) Compliance checks shall be conducted so as to allow the Department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco. When the department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

(2) Compliance checks will be conducted by Modoc County Tobacco Program twice yearly and reported to the Alturas City Council on a subsequent city council meeting following each compliance check.

(Ord. No. 507, § 1, 2-21-2017)

(a) Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be 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 30-2 above.

(b) New License After Revocation.

(1) After revocation for a first violation of this chapter at a location within any sixty-month period, no new license may issue for the location until ten days have passed from the date of revocation.

(2) After revocation for a second violation of this chapter at a location within any sixty-month period, no new license may issue for the location until thirty days have passed from the date of revocation.

(3) After revocation for a third violation of this chapter at a location within any sixty-month period, no new license may issue for the location.

(c) Appeal of Revocation. A decision of the department to revoke a license is appealable to Alturas City Council and must be filed with the City Clerk of Alturas within ten days of mailing of the department's decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to Alturas City Council is not available for a revocation made pursuant to subsection (d) below.

(d) 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 30-5 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 of Alturas. Such a revocation shall be without prejudice to the filing of a new license application.

(Ord. No. 507, § 1, 2-21-2017)

(a) 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 retailing license as follows:

(1) After a first violation of this section at a location within any sixty-month period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until thirty days have passed from the date of the violation.

(2) After a second violation of this section at a location within any sixty-month period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until ninety days have passed from the date of the violation.

(b) Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the department or any peace officer and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this Chapter 30. The decision by the department may be appealed pursuant to the procedures set forth in section 30-10. Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.

(c) 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; or

(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 this chapter;

shall constitute a separate violation of this chapter.

(Ord. No. 507, § 1, 2-21-2017)

(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 eighteen 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 district attorney punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

(d) Violations of this chapter may, in the discretion of the district attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.

(e) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of said chapter.

(f) Violations of this chapter are hereby declared to be public nuisances.

(g) 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.

(Ord. No. 507, § 1, 2-21-2017)

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this chapter, or its application to any other person or circumstance. The Alturas City Council of the County of Modoc hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

(Ord. No. 507, § 1, 2-21-2017)