Artesia Municipal Code Art. 5 Tobacco and Electronic Cigarette Retail Permitting Regulations

For purposes of this article, the following words and terms shall be defined as follows:

"Electronic cigarette"

shall mean an electronic or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances, including any such device that is manufactured, distributed, marketed or sold as an electronic cigarette, e-cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah or by any other product name or descriptor. "Electronic cigarette" does not include any inhaler prescribed by a licensed physician.

"Person"

shall mean any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

"Proprietor"

shall mean 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 can or does share ultimate control over the day-to-day operations of a business.

"Self-service display"

shall have the same meaning as such term is defined in Section 5-17.01(c).

"Tobacco and electronic cigarette paraphernalia"

includes cigarette papers or wrappers, pipes, electronic cigarettes and their component parts, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco or tobacco products.

"Tobacco product"

shall mean any manufactured substance made from the tobacco plant, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and smokeless tobacco, or products prepared from tobacco and designed for smoking or ingestion, including nicotine.

"Tobacco and electronic cigarette retailer"

shall mean any person or business that operates a store, stand, booth, concession or other place at which the person or business sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco products or tobacco and electronic cigarette paraphernalia, or both.

"Tobacco and electronic cigarette retailing"

shall mean the selling, offering for sale, exchanging or offering to exchange for any form of consideration tobacco products or tobacco and electronic cigarette paraphernalia products for personal consumption or use.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

(a) It is unlawful for any person to act as a tobacco and electronic cigarette retailer without first obtaining and maintaining a valid tobacco and electronic cigarette retail permit pursuant to this article, for each location at which that activity is to occur.

(b) No permit may issue to authorize tobacco and electronic cigarette retailing at other than a fixed location. For example, tobacco and electronic cigarette retailing by persons on foot or from vehicles is prohibited.

(c) It shall be a violation of a tobacco and electronic cigarette retail permit for a permittee or his or her agent or employee to violate any local, State, or Federal tobacco or electronic cigarette-related law.

(d) It is the responsibility of each proprietor to be informed of the laws affecting the issuance of a tobacco and electronic cigarette retail permit.

(e) Notwithstanding the provisions of Article 1 ("General Provisions") of this chapter, the issuance, suspension, and revocation of a tobacco and electronic cigarette retail permit, and all related procedures, shall be governed solely by this article.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

(a) Application for a tobacco and electronic cigarette retail permit shall be submitted in the name of each proprietor proposing to conduct retail tobacco or electronic cigarette sales, or both, and shall be signed by each proprietor or an authorized agent thereof. An application is required for each location where retail tobacco or electronic cigarette sales, or both, are to occur.

(b) A permit that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section 3-2.509. 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 and electronic cigarette retail permit is sought;

(3) The name and mailing address authorized by each applicant to receive all permit-related communications and notices (the "authorized address"). Failure to supply an authorized address shall be understood to be consent to the provision of notice at the business address specified in Subsection (b)(2) of this section;

(4) Whether any applicant has previously been issued a permit pursuant to this article that is or was at any time suspended or revoked and, if so, the dates of the suspension period or the date of revocation;

(5) Such other information as the City deems necessary for the administration or enforcement of this article.

(c) All information required to be submitted in order to apply for a tobacco and electronic cigarette retail permit shall be updated whenever the information changes. A tobacco and electronic cigarette retailer shall provide the city in writing with any updates within 10 business days of a change.

(d) The information specified in Subsections (b)(2) and (b)(3) shall be available to the public for all currently permitted tobacco and electronic cigarette retailers. Upon request, the City shall provide a compilation of this information to any person within a reasonable time and subject to a fee approximating the actual cost of compiling and presenting the information.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

The City Council may by resolution establish fees to cover the cost of administering this article. The fee shall be calculated so as to recover the total cost of both permit administration and permit enforcement, including, for example, issuing the permit, administering the permit program, retailer education, retailer inspection and compliance checks, documentation of violations and prosecution of violators. All fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. Fees required by this article shall be in addition to any required under any other article of the Artesia Municipal Code.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

(a) Upon receipt of both the application for a tobacco and electronic cigarette retail permit and the permit fee, the City Manager or designee, shall issue a tobacco and electronic cigarette retail permit unless:

(1) The application is incomplete or inaccurate;

(2) The application seeks authorization for tobacco and electronic cigarette retailing by a proprietor who, pursuant to Section 3-2.509, has a suspended or revoked tobacco and electronic cigarette retail permit;

(3) The application seeks authorization for tobacco and electronic cigarette retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, State or Federal law;

(4) The City has information that the proprietor or his or her agent or employee has violated any local, State or Federal tobacco or electronic cigarette control law within the preceding 30 day period.

(b) A permit shall be valid for one year and must be renewed prior to the expiration of the previous term. Each tobacco and electronic cigarette retailer shall apply for the renewal of his, her or its tobacco and electronic cigarette retail permit no later than 30 days prior to the expiration of the then current permit.

(c) If the information required in the permit application pursuant to Section 3-2.503(b) changes, a new tobacco and electronic cigarette retail permit is required before the business may continue to act as a tobacco and electronic cigarette retailer. For example, if a proprietor to whom a permit has been issued changes business locations, the proprietor must apply for a new permit prior to acting as a tobacco and electronic cigarette retailer at the new location. If the business is sold, the new owner must apply for a permit for that location before acting as a tobacco and electronic cigarette retailer.

(d) A tobacco and electronic cigarette retail permit that is not timely renewed shall expire at the end of its term. To reinstate a permit that has expired, or to renew a permit not timely renewed pursuant to Subsection (b), the proprietor must:

(1) Submit the permit fee plus a reinstatement fee of 10% of the permit fee; and

(2) Submit a signed affidavit affirming that the proprietor has not sold and will not sell any tobacco and electronic cigarette product or tobacco and electronic cigarette paraphernalia after the permit expiration date and before the permit is renewed.

(e) Any person with an existing tobacco retailer permit shall be allowed to sell electronic cigarettes. No new tobacco retailer permit is required. If the tobacco retailer permit is renewed, at that time, a tobacco and electronic cigarette retailer permit shall be required.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

A tobacco and electronic cigarette retail permit is nontransferable and is valid only for the person(s) and location specified in the permit application. If a proprietor to whom a permit has been issued changes business locations, that proprietor must apply for a new permit prior to acting as a tobacco and electronic cigarette retailer at the new location. Similarly, if the proprietor to whom a permit has been issued sells the business, the new owner must apply for a permit before acting as a tobacco and electronic cigarette retailer.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

(a) Display of Permit Required. Each permit shall be prominently displayed in a publicly and readily visible location at the permitted location.

(b) Positive Identification Required. No person shall engage in tobacco and electronic cigarette retailing without first examining the identification of the purchaser if the purchaser reasonably appears under the age of 30 years old. No person shall engage in tobacco and electronic cigarette retailing without confirming that the proposed sale is to a purchaser who is at least the minimum age established by state law for being sold the tobacco and electronic cigarette product or tobacco and electronic cigarette paraphernalia.

(c) Minimum Age for Persons Selling Tobacco and Electronic Cigarettes. No person who is younger than the minimum age established by State law for the purchase or possession of any tobacco and electronic cigarette product shall engage in tobacco and electronic cigarette retailing.

(d) Self-Service Displays Prohibited. In accordance with Chapter 5-17 of this Code ("Self-Service Tobacco and Electronic Cigarette Sales Prohibited"), no person shall display, offer for sale, dispense or allow to be sold any tobacco and electronic cigarette product by means other than vendor-assisted sales.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

(a) Compliance with this article shall be monitored by the Sheriff's Department, or the City Manager or designee. Any peace officer or code enforcement officials may enforce the penal provisions of this article.

(b) The Sheriff's Department or code enforcement officials should endeavor to check the compliance of each tobacco and electronic cigarette retailer at least one time per 12 month period. The Sheriff's Department or code enforcement officials may check the compliance of tobacco and electronic cigarette retailers previously found to be in compliance a fewer number of times so that the enforcement agency may check the compliance of tobacco and electronic cigarette retailers previously found in violation of the permitting law a greater number of times. Nothing in this subsection shall create a right of action in any permittee or other person against the City or its agents by reason of such compliance checks.

(c) Compliance checks shall determine, at a minimum, if the tobacco and electronic cigarette retailer is conducting business in a manner that complies with tobacco and electronic cigarette laws regulating youth access to tobacco and electronic cigarettes. When appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco and electronic cigarette retailing.

(d) The City shall not enforce any law establishing a minimum age for tobacco and electronic cigarette purchases or possession against a person who otherwise might be in violation of such law because of the person's age (hereinafter "youth decoy") if the potential violation occurs when:

(1) The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the City; or

(2) The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Los Angeles County Health Department or the California Department of Health Services.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

(a) Suspension. In addition to any other penalty authorized by law, a tobacco and electronic cigarette retail permit may be suspended if the City Manager or designee finds, after notice to the permittee and opportunity to be heard, that the permittee or his or her agents or employees has violated the conditions of the permit imposed pursuant to Section 3-2.506 or 3-2.507.

(1) Upon a finding by the City of a first permit violation, a written warning will be issued.

(2) Upon a finding by the City of a second permit violation within a three year period of the first violation, the permit may be suspended for up to 30 days.

(3) If the second offense occurs within 12 months of the first, the permit may be suspended for up to 90 days.

(4) Upon a finding by the City of a third violation within three years of the first violation, the permit may be suspended for up to 90 days.

(b) Revocation. A tobacco and electronic cigarette retail permit may be revoked if the City Manager or designee finds, after notice to the permittee and opportunity to be heard, that one of the following conditions exist:

(1) The occurrence of four violations of the provisions in Section 3-2.506 or 3-2.507 within three years;

(2) The application is incomplete for failure to provide the information required by Section 3-2.503(b);

(3) The information contained in the application, including supplemental information, if any, is found to be false in any material respect;

(4) The application seeks authorization for a permit that is unlawful under other provisions of this Code, State or Federal law.

(c) During a period of permit suspension or revocation, the tobacco and electronic cigarette retailer must remove from public view all tobacco and electronic cigarette products and tobacco-and electronic cigarette-related advertising.

(d) Issuance After Revocation. A person whose permit has been revoked may be issued a new permit in accordance with the following:

(1) After revocation for a first violation of this article, no new permit may issue under this article for the location until three months have passed from the date of revocation.

(2) After revocation for a second violation of this article at a location within any 60 month period, no new permit may issue for the location until six months have passed from the date of revocation.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

Any permittee aggrieved by any decision of the City Manager or designee, with respect to the suspension or revocation of such permit, may appeal to the City Council by filing a written notice of appeal with the City Clerk within 10 days of the date of suspension or revocation. The City Clerk shall thereupon fix a time and place for hearing such appeal. The City Clerk shall give notice to such person of time and place of hearing by serving it personally or by depositing it in a United States Post Office in Los Angeles County, California, postage prepaid, addressed to the authorized address. The City Council shall have the authority to rule on all questions raised during such appeal.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

In addition to any other penalty authorized by law, if the City finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco and electronic cigarette retailing at a location without a valid tobacco and electronic cigarette retailer's permit, either directly or through the person's agents or employees, the person shall be ineligible to apply for or be issued a tobacco and electronic cigarette retailing permit for that location as follows:

(a) After a first violation of this section within a 60 month period, no new permit may issue for the person at the location until 30 days have passed from the date of the violation.

(b) After a second violation of this section within any 60 month period, no new permit may issue for the person at the location until six months have passed from the date of the violation.

(c) After a third or subsequent violation of this section within any 60 month period, no new permit may issue for the person at the location until one year has passed from the date of the violation.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

For a first or second alleged violation of this article within any 60 month period, the City Prosecutor may engage in settlement negotiations and may enter into a settlement agreement with a tobacco and electronic cigarette retailer alleged to have violated this article without approval from the City Council. Notice of any settlement shall be provided to the Sheriff's Department and no hearing shall be held. Settlements shall not be confidential.

(Ord. 08-739, § 3; Ord. 14-807, § 3)

(a) Violations of this article may, in the discretion of the City Prosecutor, be prosecuted as infractions or misdemeanors.

(b) The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity.

(c) Violations of this article are hereby declared to be public nuisances.

(d) Violations of this article are subject to a civil action brought by the City Prosecutor punishable by a civil fine payable to the City not less than $100 and not exceeding $500. For the purposes of the civil remedies provided in this article, each day such violation or violations occur or continue shall be a separate offense.

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

(f) Whenever evidence of a violation of this article is obtained in any part through the participation of a person under the age of 18 years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this article and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

(g) In addition to other remedies provided by this article or by other law, any violation of this article may be enforced by a civil action brought by the City Prosecutor, including for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Ord. 08-739, § 3; Ord. 14-807, § 3)