Beverly Hills Municipal Code Art. 21 Tobacco and Electronic Cigarette Retailer Permitting Regulations

The City Council recognizes the inherent danger of tobacco products and that the use of tobacco products has devastating health and economic consequences. The City Council further recognizes that tobacco use is the leading cause of preventable illness and death in the United States, and that tobacco product use is started and established primarily during adolescence.

Allowing tobacco products to be sold in the City increases access to these harmful and dangerous products and does not promote the City's image as a healthy city. To that end, no tobacco products shall be sold in the City except as specifically enumerated below.

For those limited number of tobacco and electronic cigarette retailers that will be permitted to operate in the City, the City Council seeks to encourage responsible tobacco and electronic cigarette retailing and to discourage violations of tobacco and electronic cigarette related laws, especially those that discourage the sale or distribution of electronic cigarettes, tobacco and nicotine products to minors. (Ord. 19-O-2783, eff. 7-5-2019)

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

CHARACTERIZING FLAVOR: 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.

CIGAR LOUNGE: A retail or wholesale tobacco shop that: a) contains an enclosed area in or attached to the retail or wholesale tobacco shop that is dedicated to the use of cigars and pipes, b) does not sell cigarettes, e-cigarettes, vaping products or flavored tobacco products, and c) only permits patrons who are twenty one (21) years of age or older to enter the premises.

ELECTRONIC CIGARETTE: An electronic and/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. The term includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an e-cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. The term does not include any inhaler prescribed by a licensed doctor.

FLAVORED TOBACCO PRODUCT: Any tobacco product that imparts a characterizing flavor. A public statement or claim made or disseminated by the manufacture of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.

PERMITTEE: Any proprietor holding a permit issued by the City pursuant to this article.

PERSON: Any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

PROPRIETOR: 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 can or does share ultimate control over the day to day operations of a business.

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 products prepared from tobacco.

TOBACCO AND ELECTRONIC CIGARETTE RETAILER (Sometimes Referred To As RETAILER): Any person or business that operates a store, stand, booth, concession or other place at which the person or business sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco and electronic cigarette paraphernalia.

TOBACCO AND ELECTRONIC CIGARETTE RETAILER PERMIT: A permit issued by the City authorizing a proprietor to engage in tobacco and electronic cigarette retailing.

TOBACCO AND ELECTRONIC CIGARETTE RETAILING: The selling, offering for sale or exchanging or offering to exchange for any form of consideration tobacco, tobacco products, or tobacco or electronic cigarette paraphernalia products.

TOBACCO PRODUCT: Includes: a) any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, including, but not limited to, cigarettes, cigars, cigarillo, pipe tobacco, snuff, chewing tobacco, and smokeless tobacco; and b) any electronic cigarette. "Tobacco product" does not include a drug, device, or combination product authorized for sale by the United States Food and Drug Administration as a tobacco use cessation product. (Ord. 14-O-2657, eff. 6-1-2014; amd. Ord. 18-O-2758, eff. 9-21-2018; Ord. 19-O-2783, eff. 7-5-2019)

A. It shall be unlawful for any person to sell a tobacco product or tobacco and electronic cigarette paraphernalia in the City without first obtaining a tobacco and electronic cigarette retailer permit.

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

C. Notwithstanding the provisions of chapter 1, article 1 of this title ("general provisions"), the issuance, suspension, and revocation of a tobacco and electronic cigarette retailer permit, and all related procedures, shall be governed solely by this article.

D. Failure to obtain a tobacco and electronic cigarette retailer permit prior to commencing the sale of tobacco products, or tobacco or electronic cigarette paraphernalia, shall constitute a separate violation of this section for each day such business is carried on without a permit.

E. Beginning May 21, 2019, the City shall not issue any new tobacco and electronic cigarette retailer permits except as set forth in sections 4-2-2115 and 4-2-2116 of this article. (Ord. 19-O-2783, eff. 7-5-2019)

A. An application for a tobacco and electronic cigarette retailer permit shall be submitted in the name of each proprietor proposing to conduct tobacco and electronic cigarette retailing and shall be signed by each proprietor or an authorized agent thereof. An application is required for each location where retail tobacco or electronic cigarettes or tobacco and electronic cigarette paraphernalia sales are to occur.

B. All applications shall be submitted to the Finance Department 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 retailer 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 consent to the provision of notice at the business address specified in subsection B2 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. Proof that the location for which a tobacco and electronic cigarette retailer permit is sought has been issued a valid State tobacco and/or electronic cigarette retailer permit, as applicable, by the California Board of Equalization; if such permits are not issued by the California Board of Equalization for electronic cigarette retailers, this proof of permit shall not be required for electronic cigarette sales;

6. 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 retailer permit shall be updated whenever the information changes. A tobacco and electronic cigarette retailer shall provide the City in writing with any updates within ten (10) business days of a change.

D. Beginning May 21, 2019, the City shall not accept or process an application for a tobacco and electronic cigarette retailer permit, except in compliance with section 4-2-2115 or 4-2-2116 of this article. (Ord. 14-O-2657, eff. 6-1-2014; amd. Ord. 18-O-2750, eff. 4-6-2018; Ord. 19-O-2783, eff. 7-5-2019)

The annual fee for a tobacco and electronic cigarette retailer permit shall be established by resolution of the City Council. A tobacco and electronic cigarette retailer permit is invalid if the appropriate fee has not been timely paid in full. (Ord. 14-O-2657, eff. 6-1-2014)

A. Upon receipt of both the application for a tobacco and electronic cigarette retailer permit and the permit fee, the Director of Finance or his or her designee, shall issue a tobacco and electronic cigarette retailer permit to the extent allowed pursuant to section 4-2-2115 or 4-2-2116 of this article unless:

1. The application is incomplete or the information presented in the application is inaccurate or false;

2. The application seeks authorization for tobacco and electronic cigarette retailing by a proprietor who has a suspended or revoked tobacco and electronic cigarette retailer permit;

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

4. The proprietor has not obtained a valid State tobacco and/or electronic cigarette retailer permit, as applicable, from the California Board of Equalization. If such permits are not issued by the California Board of Equalization for electronic cigarette retailers, then failure to obtain a permit from the California Board of Equalization shall not be grounds for denial of an application to sell electronic cigarettes pursuant to a tobacco and electronic cigarette permit from the City;

5. The City has information that the applicant or his or her agents or employee(s) has violated any local, State or Federal tobacco or electronic cigarette control law at the location for which the permit or renewal of the permit is sought within the preceding thirty (30) day period.

B. A tobacco and electronic cigarette retailer permit shall be valid for one year and must be renewed not later than thirty (30) days prior to the expiration of the permit, but no earlier than sixty (60) days prior to the expiration of the permit. Unless revoked on an earlier date, all permits shall expire one year after the date of issuance, or December 31, 2020, whichever is earliest.

C. A tobacco and electronic cigarette retailer 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, the proprietor must:

1. Submit the permit fee plus a reinstatement fee and the application renewal form; and

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

D. Where the permit is not approved or renewed, the Director of Finance shall notify the applicant of the specific grounds for the denial in writing. The notice of denial shall be served personally or by mail not later than five (5) calendar days after the date of the denial. If by mail, the notice shall be placed in a sealed envelope, with postage paid, addressed to the applicant at the address as it appears on the application. The giving of notice shall be deemed complete at the time of deposit of the notice in the United States mail without extension of time for any reason. In lieu of mailing, the notice may be served personally by delivering to the person to be served and service shall be deemed complete at the time of such delivery. Personal service to a corporation may be made by delivery of the notice to any person designated pursuant to the Code of Civil Procedure to be served for the corporation with summons and complaint in a civil action. (Ord. 19-O-2783, eff. 7-5-2019)

A. A tobacco and electronic cigarette retailer permit is nontransferable and is valid only for the person(s) and location specified in the permit application. If a permittee changes business location, that permittee must obtain a new permit prior to acting as a tobacco and electronic cigarette retailer at the new location. If a business permitted to conduct tobacco and electronic cigarette retailing is sold, the new owner must obtain a permit for that location before acting as a tobacco and electronic cigarette retailer.

B. Notwithstanding subsection A of this section, a person may apply for a hardship exemption allowing for the transfer of a permit. Applications shall be submitted to the Finance Department on the form supplied by the City and shall contain, at minimum, the following information:

• 1. Name of applicant;
• 2. Relationship of applicant to the permittee (if applicable);
• 3. Explanation of why the transfer request is being requested;

4. Explanation of why the applicant will suffer undue hardship if the transfer request is denied;

5. Any supporting document;

6. Any additional information requested by the Director of Finance.

The Director of Finance shall approve the transfer request if the applicant can demonstrate the applicability of the non-transferability clause would constitute an undue hardship on the applicant. Examples of undue hardship include, but are not limited to, death of a family member whose name was originally listed on the permit application. The Director of Finance shall act upon the application within thirty (30) days of receipt of the transfer request and shall provide notice to the applicant of the decision. If the request is denied, the Director of Finance shall notify the applicant of the specific grounds for the denial in writing. The Director of Finance's decision on the transfer request shall be final. The notice of denial shall be served personally or by mail not later than five (5) calendar days after the date of the denial. If by mail, the notice shall be placed in a sealed envelope, with postage paid, addressed to the applicant at the address as it appears on the application. The giving of notice shall be deemed complete at the time of deposit of the notice in the United States mail without extension of time for any reason. In lieu of mailing, the notice may be served personally by delivering to the person to be served and service shall be deemed complete at the time of such delivery. Personal service to a corporation may be made by delivery of the notice to any person designated pursuant to the Code of Civil Procedure to be served for the corporation with summons and complaint in a civil action. (Ord. 19-O-2783, eff. 7-5-2019)

Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco and electronic cigarette retailer permit any status or right other than the limited conditional privilege to act as a tobacco and electronic cigarette retailer at the location identified on the face of the permit. A tobacco and electronic cigarette retailer permit does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5. (Ord. 14-O-2657, eff. 6-1-2014)

A. It is the responsibility of each tobacco and electronic cigarette retailer to be informed of the laws affecting the issuance of a tobacco and electronic cigarette retailer's permit.

B. The sale of tobacco products and tobacco and electronic cigarette paraphernalia from other than a fixed location, including, but not limited to, tobacco and electronic cigarette retailing by persons on foot or from vehicles is prohibited and no permit shall be issued under this article for any such activity.

C. The display of an advertisement relating to tobacco products or tobacco and electronic cigarette paraphernalia that promotes the same or distribution of such products from the tobacco and electronic cigarette retailer's location or that could lead a reasonable consumer to believe that such product can be obtained at that location without first obtaining and maintaining a valid tobacco and electronic cigarette retailer's permit pursuant to this article, is prohibited.

D. The tobacco and electronic cigarette retailer shall prominently display the tobacco and electronic cigarette retail permit in a publicly and readily visible location at the permitted location.

E. No person engaging in tobacco and electronic cigarette retailing shall sell or transfer a tobacco product or tobacco and electronic cigarette paraphernalia to another person who appears to be under the age of thirty (30) 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/or possess the tobacco products or electronic cigarettes.

F. No person who is younger than the minimum age established by State law for the purchase or possession of any tobacco product or electronic cigarette shall engage in tobacco and electronic cigarette retailing.

G. It shall be a violation of the tobacco and electronic cigarette retailer permit for a permittee or his or her agent or employee to violate any local, State, or Federal tobacco or electronic cigarette related law.

H. It shall be unlawful for any tobacco retailer or any of the tobacco retailer's agents or employees to sell or offer for sale any flavored tobacco product. This regulation is not intended to impose any requirement which is different from, or in addition to, any requirement under the provisions of the Family Smoking Prevention and Tobacco Control Act relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products. (Ord. 14-O-2657, eff. 6-1-2014; amd. Ord. 18-O-2758, eff. 9-21-2018)

The City shall not enforce any law establishing a minimum age for tobacco product and electronic cigarette purchases or possession against a person who otherwise might be in violation of such law because of the age of a purchaser of tobacco or tobacco and electronic cigarette paraphernalia (hereinafter "youth decoy") if the potential violation occurs when: a) the youth decoy is participating in a compliance check supervised by a peace officer or a Code enforcement official of the City; or b) 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. 14-O-2657, eff. 6-1-2014)

A. In addition to any other remedy authorized by law, the following penalties shall be imposed if the City finds that the permittee or his or her agents or employees has or have violated any of the provisions of this article:

1. Upon a finding by the City of a first violation within any five (5) year period, the permittee shall pay a civil penalty to the City in the amount of two hundred fifty dollars ($250.00).

2. Upon a finding by the City of a second violation within any five (5) year period, the tobacco and electronic cigarette retailer permit shall be suspended for ninety (90) days and the permittee shall pay a civil penalty to the City in the amount of seven hundred fifty dollars ($750.00).

3. Upon a finding by the City of a third violation within any five (5) year period, the tobacco and electronic cigarette retailer permit shall be revoked and the permittee shall pay a civil penalty to the City in the amount of one thousand dollars ($1,000.00).

B. A tobacco or electronic cigarette retailer permit shall be revoked if the City finds that either one or both of the following conditions exist:

1. One or more of the bases for denial of a permit under section 4-2-2106 of this article existed at the time the application was made or at any time before the permit was issued.

2. The information contained in the permit application, including supplemental information, if any, is found to be false in any material respect.

C. In the event the City suspends or revokes a permit, written notice of the suspension or revocation shall be served upon the permittee within five (5) days of the suspension or revocation in the manner prescribed in section 4-2-2106 of this article. The notice shall contain:

1. A brief statement of the specific grounds for such suspension or revocation;

2. A statement that the permittee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of section 4-2-2112 of this article, to the City Clerk, within ten (10) calendar days of the date of service of the notice; and

3. A statement that the failure to appeal the notice of suspension or revocation will constitute a waiver of all rights to an administrative appeal hearing, and the suspension or revocation will be final.

D. A permittee for whom a permit suspension is in effect must remove all tobacco products, tobacco and electronic cigarette paraphernalia and tobacco and electronic cigarette related advertising from public view at the address that appears on the suspended permit. (Ord. 14-O-2657, eff. 6-1-2014)

A. Any applicant or permittee aggrieved by a decision denying, suspending, or revoking a permit, may appeal the decision by submitting a written appeal to the City Clerk within ten (10) calendar days from the date of service of the notice of denial, suspension, or revocation. The written appeal shall contain:

1. A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant;

2. A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the protested action should be reversed or otherwise set aside;

3. The signatures of all parties named as appellants and their official mailing addresses; and

4. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.

B. The appeal hearing shall be conducted by an Administrative Hearing Officer appointed pursuant to section 1-3-317 of this Code.

C. Written notice of the time and place of the hearing shall be given at least ten (10) calendar days prior to the date of the hearing to each appellant by the City either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal.

D. Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the notice and order, or any portion thereof.

E. Only those matters or issues specifically raised by the appellant in the appeal notice shall be considered in the hearing of the appeal.

F. Any suspension or revocation of a permit shall be stayed during the pendency of an appeal which is properly and timely filed pursuant to this section.

G. After December 31, 2020 this section shall only apply to cigar lounges and hotels. (Ord. 10-O-2587, eff. 10-1-2010; amd. Ord. 19-O-2783, eff. 7-5-2019)

A. At the time set for hearing, the Hearing Officer shall proceed to hear the testimony of the City, the appellant, and other competent persons respecting those matters or issues specifically listed by the appellant in the notice of appeal.

B. The proceedings at the hearing shall be electronically recorded. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the party's own expense.

C. The Hearing Officer may, upon request of the appellant or upon request of the City, grant continuances from time to time for good cause shown, or upon his or her own motion.

D. In any proceedings under this article, the Hearing Officer has the power to administer oaths and affirmations and to certify official acts. Hearings need not be conducted according to the technical rules relating to evidence and witnesses. (Ord. 10-O-2587, eff. 10-1-2010)

A. If it is shown, by a preponderance of the evidence, that one or more bases exist to deny, suspend, or revoke the permit, the hearing examiner shall affirm the City's decision to deny, suspend, or revoke the permit. The decision of the hearing examiner shall be in writing and shall contain findings of fact and a determination of the issues presented.

B. The notice of decision shall inform the appellant that the decision is a final decision and that the time for judicial review is governed by California Code of Civil Procedure section 1094.6. Copies of the decision shall be delivered to the parties personally or sent by certified mail to the address shown on the appeal. The decision shall be final when signed by the hearing examiner and served as provided in this section. (Ord. 10-O-2587, eff. 10-1-2010)

A. Notwithstanding any section to the contrary, a cigar lounge that is operating in compliance with State law and that holds a valid tobacco and electronic cigarette retailer permit on March 25, 2019 may apply annually to renew an existing tobacco and electronic cigarette retailer permit, and said application shall be approved if all criteria set forth in section 4-2-2106 of this article is satisfied.

B. Notwithstanding any section to the contrary, hotels may apply annually to renew or obtain a tobacco and electronic cigarette retailer permit, and may sell tobacco and electronic cigarette paraphernalia so long as the following requirements are met:

1. Tobacco products and tobacco and electronic cigarette paraphernalia shall only be sold to hotel guests who can present proof of current hotel occupancy;

2. Any sale of tobacco products and tobacco and electronic cigarette paraphernalia shall be conducted through a hotel "service", such as through concierge services, guest services, room service, and not through a retail location that is open to the public; and

3. The tobacco products and tobacco and electronic cigarette paraphernalia shall not be publicly displayed in the hotel.

C. All other tobacco and electronic cigarette retailers that hold a valid tobacco and electronic cigarette retailer permit on May 21, 2019 shall be permitted to apply annually to obtain a renewal of that permit, and will be permitted to operate as tobacco and electronic cigarette retailers until December 31, 2020.

D. To the extent the City is preempted by State law, a person shall not be prohibited from selling tobacco and electronic cigarette paraphernalia if that paraphernalia will be used for a substance that is not a tobacco product or flavored tobacco product. (Ord. 19-O-2783, eff. 7-5-2019)

A. Any permittee, other than cigar lounges and hotels, that wishes to operate a tobacco and electronic cigarette retailer on or after January 1, 2021, may apply for one hardship exemption as provided for in this section.

B. A permittee must submit a complete application for a hardship exemption at least ninety (90) days before the permit is set to expire, but no sooner than six (6) months before the permit is set to expire. Such application shall be made in writing on a form prescribed by the Director of Finance and shall be accompanied by the filing fee established by resolution of the City Council. The permittee shall bear the burden of proof in establishing by a preponderance of the evidence, that the application of section 4-2-2115 of this article to the permittee's business is unreasonable, and will cause significant hardship to the permittee by not allowing the permittee to recover his or her investment backed expectations. The permittee applying for the exemption shall furthermore be required, in order to meet its burden of proof, to submit the documents set forth in this section.

C. A complete application for a hardship exemption shall include the following:

1. The permittee's name and street address of business;

2. The address to which notice is to be mailed, at the permittee's option, a telephone number and/or email address;

3. The permittee's signature;

4. A declaration, under penalty of perjury, that all the information in the application is true and correct;

• 5. The term of the requested extension;
• 6. Documentation relevant to the information requested in subsection D of this section; and
• 7. The required filing fee.

D. In determining whether to grant a hardship exemption to the permittee, and in determining the appropriate length of time that the permittee will be authorized to continue to operate as a retailer, the Hearing Officer, or City Council on appeal by the applicant, may consider, among other factors:

1. The percentage of the retail sales over the last three (3) years that have been derived from tobacco products and tobacco and electronic cigarette paraphernalia;

2. The amount of investment in the business;

3. The present actual and depreciated value of any business improvements dedicated to the retail sale of tobacco products and tobacco and electronic cigarette paraphernalia;

4. The applicable Internal Revenue Service depreciation schedule or functional non-confidential equivalent;

5. The remaining useful life of the business improvements that are dedicated to the sale of tobacco products and tobacco and electronic cigarette paraphernalia;

• 6. The remaining lease term of the business, if any;
• 7. The ability of the tobacco and electronic cigarette retailer to sell other products;
• 8. The opportunity for relocation of the business and the cost of relocation; and

9. A business plan demonstrating how long the business will need to sell tobacco products and tobacco and electronic cigarette paraphernalia to recoup any investment backed expectations, and a plan for phasing out the sale of those products.

E. The hardship exemption hearing shall be conducted by an Administrative Hearing Officer appointed pursuant to section 1-3-317 of this Code and shall be conducted pursuant to the procedures set forth in section 4-2-2113 of this article. Written notice of the time and place of the hearing shall be given at least ten (10) calendar days prior to the date of the hearing to the permittee by the City either by causing a copy of such notice to be delivered to the permittee personally or by mailing a copy thereof, postage prepaid, addressed to the permittee at the address shown on the hardship exemption application.

F. Within forty five (45) days after a completed application is filed, the Hearing Officer shall open the hearing on the hardship exemption. The Hearing Officer shall receive and consider evidence presented by the permittee, and shall determine whether to grant or deny the hardship exemption, and if granting the hardship exemption, the length of time that the tobacco and electronic cigarette retailer will be permitted to operate. The Hearing Officer shall make written findings in support of the decision. The decision of the Hearing Officer shall be final and conclusive, unless a timely and complete appeal is filed by the applicant with the City Clerk pursuant to subsection G of this section.

G. Any decision of the Hearing Officer may be appealed by the applicant by filing a complete notice of appeal with the City Clerk within fifteen (15) days after notice of the decision was mailed to the applicant. To be deemed complete, the notice of appeal shall be signed by the applicant, shall state the grounds for disagreement with the decision of the Hearing Officer, and shall be accompanied by the filing fee established by resolution of the City Council.

H. Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the hardship exemption.

I. A retailer may continue to sell tobacco, tobacco products, or tobacco and electronic cigarette paraphernalia while a hardship exemption application is pending before a Hearing Officer or on appeal to the City Council.

J. Only those matters or issues specifically raised by the appellant in the appeal notice shall be considered in the hearing of the appeal. (Ord. 19-O-2783, eff. 7-5-2019)

A. In addition to any other remedy, any person violating any provision of this article shall be guilty of a misdemeanor for each day such violation continues.

B. 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. The City may recover reasonable attorney fees and costs of suit in any civil action brought by the City Prosecutor to remedy any violation of this article.

C. Any violation of this article may, in the discretion of the City Prosecutor, be prosecuted as infractions or misdemeanors.

D. Violations of this article are hereby declared to be public nuisances subject to abatement by the City.

E. In addition to criminal sanctions and other remedies set forth in this article, administrative penalties may be imposed pursuant to title 1, chapter 3, article 3 of this Code against any person violating any provision of this article. Imposition, enforcement, collection and administrative review of administrative penalties imposed shall be conducted pursuant to title 1, chapter 3, article 3 of this Code.

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

G. The City shall not enforce a violation of subsection 4-2-2109H of this article against any tobacco retailer that is lawfully operating in the City until December 21, 2018. (Ord. 10-O-2587, eff. 10-1-2010; amd. Ord. 18-O-2758, eff. 9-21-2018; Ord. 19-O-2783, eff. 7-5-2019)