Calexico Municipal Code Ch. 5.94 Licensure of Tobacco Retailers

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

"Department" means the department of development services.

"Person" means any natural person, partnership, cooperative association, private 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 can or does share, ultimate control over the day-to-day operations of a business.

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco.

"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 or ingestion of tobacco products.

"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" means 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. 1010 § 3 (part), 2004)

A. It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which that activity is to occur. No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited.

B. The payment of the license fee designated in Section 5.94.060 confers paid status upon a license for a term of one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license no later than thirty days prior to expiration of the payment term.

C. 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 right to act as a tobacco retailer at the location in the city of Calexico identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supercede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code Section 6404.5.

(Ord. 1010 § 3 (part), 2004)

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 of the laws affecting the issuance of a tobacco retailer's license. A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section 5.94.090(C) of this chapter. 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.

2. The business name, address, and telephone number of the single fixed location for which a tobacco retailer's license is sought.

3. The name and mailing address authorized by each proprietor to receive all license-related communications and notices (the "authorized address"). 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. Whether or not any proprietor has previously been issued a license pursuant to this chapter that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation.

5. Such other information as the department deems necessary for the administration or enforcement of this chapter.

(Ord. 1010 § 3 (part), 2004)

Upon the receipt of an application for a tobacco retailer's license and the license fee, the department shall issue a license unless substantial record evidence demonstrates one of the following bases for denial:

A. The application is incomplete or inaccurate;

B. The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect pursuant to Section 5.94.080 of this chapter; or by a proprietor which or who has had a license revoked pursuant to Section 5.94.090(A)(4) of this chapter; or

C. The application seeks authorization for tobacco retailing that is prohibited pursuant to Section 5.94.020 of this chapter (e.g., mobile vending), that is unlawful pursuant to this code chapter (e.g., the zoning code), or that is unlawful pursuant to any other local, state, or federal law.

(Ord. 1010 § 3 (part), 2004)

Each license shall be prominently displayed in a publicly visible location at the licensed premises.

(Ord. 1010 § 3 (part), 2004)

The fee to issue or to renew a tobacco retailer's license shall be established by resolution of the city council. The fee shall be calculated so as to recover no more than the total cost of license administration and enforcement, including, for example, but not limited to, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators. Fees are nonrefundable except as may be required by law.

(Ord. 1010 § 3 (part), 2004)

A tobacco retailer's license is nontransferable. If the information required in the license application pursuant to Section 5.94.030(1)—(3), changes, a new tobacco retailer's license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. Or if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.

(Ord. 1010 § 3 (part), 2004)

A. Violation of Tobacco-Related Laws. It shall be a violation of a tobacco retailer's license for a licensee or his or her agent or employee to violate any local, state, or federal tobacco-related law.

B. License Compliance Monitoring. Compliance with this chapter shall be monitored by city of Calexico. The city council anticipates that compliance checks of each tobacco retailer will be conducted at least one time during each twelve-month period.

(Ord. 1010 § 3 (part), 2004)

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 the department finds, after notice to the licensee and opportunity to be heard, that the licensee or his or her agents or employees has or have violated the requirements of this chapter or other conditions of the license imposed pursuant to Section 5.94.080 above.

1. Upon a finding by the department of a first license violation within any sixty-month period, the license shall be suspended for thirty days.

2. Upon a finding by the department of a second license violation within any sixty-month period, the license shall be suspended for ninety days.

3. Upon a finding by the department of a third license violation within any sixty-month period, the license shall be suspended for one year.

4. Upon a finding by the department of a fourth license violation within any sixty-month period, the license shall be revoked and the proprietor or proprietors who had been issued the license shall never again be issued a tobacco retailer's license pursuant to this chapter.

B. Suspension of License for Failure to Pay Renewal Fee. A tobacco retailer's license that is not timely renewed pursuant to Section 5.94.020(B) shall automatically be suspended by operation of law. If not renewed, a license shall be automatically revoked two years after the renewal date.

C. Revocation of License Issued in Error. A tobacco retailer's license shall be revoked if the department finds, after notice and opportunity to be heard, that one or more of the bases for denial of a license under Section 5.94.040 existed at the time application was made or at anytime before the license issued. The revocation shall be without prejudice to the filing of a new application for a license.

D. Appeal of Suspension or Revocation. A decision of the department to revoke or suspend a license is appealable to the city manager and must be filed with the city clerk within ten days of mailing of the department's decision. An appeal shall stay all proceedings in furtherance of the appealed action. A decision of the city manager is appealable to the city council and must be filed within ten days of the mailing the city manager's decision. A suspension or revocation pursuant to Section 5.94.09(B) is not subject to appeal.

(Ord. 1010 § 3 (part), 2004)

A. Engaging in tobacco retailing in violation of any provision of this chapter is unlawful and in addition to any other penalties authorized by law shall be fined as follows:

1. A fine not exceeding one hundred dollars for a first violation in any twelve-month period; or

2. A fine not exceeding two hundred dollars for a second violation in any twelve-month period; or

3. A fine not exceeding five hundred dollars for a third or subsequent violation in any twelve-month period.

Each day that such a person engages in tobacco retailing shall constitute a separate violation.

(Ord. 1010 § 3 (part), 2004)

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

A. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall constitute a violation.

B. In addition to the administrative enforcement procedures provided by this chapter, violations of this chapter may, in the discretion of the city attorney be prosecuted as infractions or misdemeanors.

C. Violations of this chapter are declared to be public nuisances.

D. Violations of this chapter are declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates.

E. 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.

F. Any person acting for the interests of itself, its members, or the general public may bring an action for injunctive relief to prevent future such violations or to recover such actual damages as he or she may prove.

(Ord. 1010 § 3 (part), 2004)