Cudahy Municipal Code Art. XXVI Tobacco Retailers

In enacting this article, it is the intent of the city council to encourage responsible tobacco retailing, and to discourage violations of tobacco-related laws, especially those laws that are designed to discourage the sale or distribution of tobacco and nicotine products to minors. There is no intent, however, to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein. (Ord. 695 § 1, 2018).

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

(1) “Arm’s length transaction” shall mean 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 article is not an arm’s length transaction.

(2) “Cannabis” shall mean all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin, as defined in California Business and Professions Code Section 26001(f), as that section and subdivision may be amended or interpreted by the California courts or superseded by any successor statute. “Cannabis” also means the separated resin, whether crude or purified, obtained from cannabis. “Cannabis” does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. “Cannabis” does not mean industrial hemp as defined by Section 11018.5 of the California Health and Safety Code, as that section may be amended or interpreted by the California courts or superseded by any successor statute. “Cannabis” includes medical cannabis.

(3) “Characterizing flavor” means a distinguishable 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 that is perceivable by an ordinary consumer. Characterizing flavor includes, but is 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.

(4) “City” shall mean the city of Cudahy, California.

(5) “Department” shall mean the community development department, and any other agency or person tasked by the city manager of the city with enforcement of this article.

(6) “Electronic smoking device” shall mean an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances. An “electronic smoking device” includes a device that is manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigarillo, an electronic pipe, an electronic hookah, a vape pen, or a vapor pen.

(7) “Flavored tobacco product” means any tobacco product, other than cigarettes as defined by federal law, that contains a constituent that imparts a characterizing flavor. A tobacco product whose labeling or packaging contains text or an image indicating that the product imparts a characterizing flavor is presumed to be a flavored tobacco product.

(8) “Permittee” shall mean any tobacco retailer or proprietor thereof holding a permit issued by the city pursuant to the provisions of this article.

(9) “Person” shall mean any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

(10) “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 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.

(11) “Self-service display” shall mean 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. Self-service display includes, but is not limited to, vending machine, rack, countertop or shelf that allows self-service sales, or any other manner of storage or display that allows a consumer to retrieve the tobacco product or tobacco paraphernalia without assistance of the retailer.

(12) “Smoking” shall mean inhaling, exhaling, burning, or possessing a lighted, heated, or ignited tobacco product, lighted tobacco paraphernalia, electronic smoking device, or any other lighted weed or plant (including, but not limited to, a lighted pipe, lighted hookah, lighted cigar, or lighted cigarette of any kind).

(13) “Tobacco paraphernalia” shall mean 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.

(14) “Tobacco product” shall mean any substance containing, made from, 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, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco. “Tobacco product” includes, but is not limited to, any electronic smoking device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. For purposes of this article, “tobacco product” does not include “cannabis” as that term is defined in this article, or 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 the product is marketed and sold solely for that approved purpose.

(15) “Tobacco retailer” shall mean any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia.

(16) “Tobacco retailer permit” or “permit” shall mean a permit issued by the city authorizing a proprietor to engage in tobacco retailing.

(17) “Tobacco retailing” shall mean the doing of any of the activities mentioned in the definition of “tobacco retailer.” 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. 695 § 1, 2018).

(1) It shall be unlawful and a misdemeanor for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer’s permit pursuant to this article for each location at which that activity is to occur.

(a) Any tobacco retailer who is selling tobacco products or tobacco paraphernalia as of the effective date of the ordinance codified in this chapter shall obtain a tobacco retailer permit no later than January 1, 2019.

(2) Except where noted otherwise in this article, notwithstanding any other provisions of this code, the issuance, suspension, and revocation of a tobacco retailer permit, and all related procedures, shall be governed solely by this article. (Ord. 695 § 1, 2018).

(1) No tobacco retailer permit may issue to authorize tobacco retailing at other than a fixed location. Peripatetic tobacco retailing, tobacco retailing by persons on foot or from vehicles is explicitly prohibited.

(2) No tobacco retailer permit may be issued to authorize tobacco retailing at any location that violates any provision of the Cudahy zoning code.

(3) No tobacco retailer permit may be issued to authorize tobacco retailing at a location where a person or business has engaged in tobacco retailing at that location, either directly or through the person’s agents or employees, without a valid tobacco retailer permit as follows:

(a) After a first violation at that location within any 60-month period, no new tobacco retailer permit may issue for the location (unless ownership of the business at the location has been transferred in an arm’s length transaction) until at least 30 days have passed from the date of the violation;

(b) After a second violation at that location within any 60-month period, no new tobacco retailer permit may issue for the location (unless ownership of the business at the location has been transferred in an arm’s length transaction) until at least 90 days have passed from the date of the violation;

(c) After a third violation at that location within any 60-month period, no new tobacco retailer permit may issue for the location (unless ownership of the business at the location has been transferred in an arm’s length transaction) until at least 24 months have passed from the date of the violation. (Ord. 695 § 1, 2018).

(1) Any person seeking a tobacco retailer permit shall submit a completed application, on a city-approved form, to the department. Said application shall contain the following information.

Application for a tobacco retailer permit shall be submitted in the name of each proprietor proposing to conduct retail sales of tobacco products and/or tobacco paraphernalia and shall be signed by each proprietor or an authorized agent thereof.

(a) The name, address, and telephone number of each proprietor of the business seeking a permit.

(b) The business name, address, and telephone number of the single, fixed location for which a permit is sought.

(c) A single name and mailing address authorized by each proprietor to receive all communications and notices (hereinafter, “authorized agent”) required by, authorized by, or convenient to the enforcement of this article. If an authorized agent is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (1)(b) of this section.

(d) Proof that the location for which a tobacco retailer permit is sought has been issued a valid state tobacco retailer’s license by the California Board of Equalization.

(e) Whether any proprietor or any agent of the proprietor has 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.

(f) Whether any proprietor or any agent of the proprietor has admitted violating or has been determined to have violated any provision of this article or any state or federal tobacco-related law, and, if so, the dates of all such violations within the preceding five years.

(g) Such other information as the department deems necessary for the administration or enforcement of this article as specified on the application form required by this section.

(2) No application for a tobacco retailer permit shall be accepted by the city unless accompanied by payment of an annual fee in an amount established by resolution of the city council.

(3) A permittee shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer permit within 10 business days of a change.

(4) 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. 695 § 1, 2018).

(1) Upon the receipt of both a completed application for a tobacco retailer permit and the corresponding permit fee, the department shall issue a permit within 30 calendar days unless substantial evidence demonstrates that one or more of the following bases for denial exist:

(a) The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this article.

(b) The application seeks authorization for tobacco retailing at a location for which this article prohibits issuance of tobacco retailer permit. However, this subsection (1)(b) shall not constitute a basis for denial of a permit if the applicant provides the city 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.

(c) The application seeks authorization for tobacco retailing for a proprietor to whom this article prohibits a permit to be issued.

(d) The applicant or proprietor of the proposed tobacco retailer has had a tobacco retailer permit revoked within the preceding 12 months.

(e) The application seeks authorization for tobacco retailing that is prohibited pursuant to this article, that is unlawful pursuant to this code (including without limitation the zoning code and business license regulations), or that is unlawful pursuant to any other law.

(2) Any applicant aggrieved by a decision denying a tobacco retailer permit may appeal the decision in the same manner as the appeal of a suspension or revocation pursuant to the provisions of CMC 5.08.1910(4) and 5.08.1920. (Ord. 695 § 1, 2018).

(1) Term. A permit issued pursuant to this article shall be valid for one year from the date of issuance, unless the permit is revoked earlier in accordance with the provisions of this article.

(2) Renewal of Permit. Each tobacco retailer who seeks to renew a tobacco retailer permit shall submit a renewal application on a city-approved form and tender the annual permit fee to the department no later than 30 calendar days prior to the expiration of the permit. Any tobacco retailer permit that is not timely renewed shall expire and become null and void at the end of its term, and the expiration shall not be stayed as a result of a pending permit. (Ord. 695 § 1, 2018).

(1) A permit holder shall not operate under a name, or conduct business under a designation, other than as specified on the permit.

(2) A tobacco retailer permit may not be transferred from one person to another or from one location to another. A change in proprietor, business name, or location, or a change in any other information from that which is shown on the permit application, shall render the permit automatically and immediately null and void, and shall require the permit holder to obtain a new tobacco retailer permit in accordance with the provisions of this article.

(3) Notwithstanding any other provision of this article, prior violations at a location shall continue to be counted against a location and permit ineligibility periods shall continue to apply to a location unless:

(a) The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

(b) The new proprietor(s) provide(s) the city with clear and convincing evidence that the new proprietor(s) has/have acquired or is acquiring the location in an arm’s length transaction. (Ord. 695 § 1, 2018).

Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer permit 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 article 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 Chapter 8.40 CMC, Second-Hand Smoke Control, and Title 20 CMC (Zoning) and any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, the mere issuance of a tobacco retailer permit does not result in the retailer being deemed a retail or wholesale tobacco shop for the purposes of California Labor Code Section 6404.5. (Ord. 695 § 1, 2018).

The following applicable operating requirements of this section shall be deemed conditions of any tobacco retailer permit issued pursuant to the provisions of this article, and failure to comply with every such requirement shall be grounds for suspension, revocation, and/or the imposition of administrative fines in accordance with CMC 5.08.1910:

(1) Knowledge of Applicable Laws. It is the responsibility of each permittee and proprietor to be informed of the laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer permit, and to ensure that each of the permittee’s employees and agents are informed of such laws. No person may rely on the issuance of a permit as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A permit issued contrary to this article, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to CMC 5.08.1910. Nothing in this article shall be construed to vest in any person obtaining and maintaining a tobacco retailer permit any status or right to act as a tobacco retailer in contravention of any provision of law.

(2) Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a tobacco retailer permit has been issued, it shall be a violation of this article for a permittee, or any of the permittee’s agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

(3) Display of Permit. Each tobacco retailer permit shall be prominently displayed in a publicly visible location at the permitted location.

(4) Retail Sales to Persons Under 21 Prohibited. No person engaged in tobacco retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco product or tobacco paraphernalia to any person who is under the legal age of 21 years.

(a) This subsection does not apply to the retail sales of any tobacco products or tobacco paraphernalia to active duty military personnel who are 18 years of age or older if an identification card issued by the United States Armed Forces is presented to the tobacco retailer as proof of age for this purpose.

(5) Positive Identification Required. No person engaged in tobacco retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco product or tobacco paraphernalia to another person who appears to be under the age of 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 possess the tobacco product or tobacco paraphernalia. The permittee or the permittee’s agent or employee shall refuse the sale or transfer of any tobacco product or tobacco paraphernalia to any person, who appears to be under the age of 30 years, who fails to present valid, legal photo identification prior to the sale or transfer.

(6) Minimum Age for Persons Selling Tobacco. No person who is younger than 21 years of age shall engage in tobacco retailing.

(7) Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

(8) Compliance with State-Mandated Sign Requirements. Tobacco retailers shall post and maintain all signage required by the California Labor Code, California Business and Professions Code, California Penal Code, and any other applicable federal, state, or local law.

(9) False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a current and valid tobacco retailer permit, including, but not limited to, a tobacco retailer whose permit is suspended or has been revoked:

(a) 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 permit under CMC 5.08.1820;

(i) This subsection does not relieve a tobacco retailer or proprietor from the requirement to obtain and maintain a valid tobacco retailer permit prior to engaging in tobacco retailing in the city.

(b) 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.

(10) Flavored Tobacco Products. No tobacco retailer may sell, distribute, display, or offer for sale any flavored tobacco product.

(11) Packaging and Labeling.

(a) No tobacco retailer may sell, distribute, display or offer for sale any tobacco product to any consumer unless that product is sold in the original manufacturer’s packaging intended for sale to consumers and conforms to all applicable federal labeling requirements.

(b) No tobacco retailer may sell, distribute, display or offer for sale any cigarette unless it is sold in a package that complies with California Penal Code Section 308.3 (and any subsequent amendment thereto).

(c) No tobacco retailer may sell, distribute, display or offer for sale any cigar unless it is sold in a package of at least 10 cigars. This subsection does not apply to a cigar that has a price of at least $5.00 per cigar that is sold, distributed, displayed, or offered for sale at a retail or wholesale tobacco shop as defined by California Labor Code Section 6404.5(e)(2)(B). (Ord. 695 § 1, 2018).

(1) Compliance with this article shall be monitored by the Los Angeles County sheriff’s department, the community development department, code enforcement personnel, and permit investigators (hereinafter, collectively, “enforcement officers”). The city manager may designate any number of additional persons to monitor compliance with this article.

(2) Enforcement officers should check the compliance of each tobacco retailer at least three times per 12-month period. Enforcement officers may check the compliance of tobacco retailers previously found to be in compliance with this article a fewer number of times so that enforcement officers may check the compliance of new permittees and tobacco retailers previously found in violation of this article more frequently. Nothing in this subsection shall create a right of action in any permittee or other person against the city or its agents.

(3) Compliance checks shall be conducted so as to allow enforcement officers to determine, at a minimum, if a tobacco retailer is complying with laws regulating youth access to tobacco. Enforcement officers may also conduct compliance checks to determine compliance with other laws applicable to tobacco retailing.

(4) Enforcement officers shall have the right to enter, free of charge or restriction, at any time, any place of business for which a permit is required by this article, and to demand the exhibition of such permit for the current term by any person engaged or employed in the transaction of such business.

(5) The Los Angeles County sheriff’s department and/or the city manager (or designee thereof) may promulgate and adopt policies, procedures, and/or guidelines for the participation of persons under the age of 21 in compliance checks pursuant to this article (hereinafter, “youth decoy”).

(6) The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a youth decoy if the potential violation occurs when:

(a) The youth decoy is participating in a compliance check supervised by a peace officer or enforcement officer;

(b) The youth decoy is acting as an agent of an enforcement officer;

(c) The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the city or the California Department of Health Services. (Ord. 695 § 1, 2018).

(1) Suspension or Revocation – Administrative Fine. In addition to any other penalty authorized by law, a tobacco retailer permit shall be suspended or revoked and an administrative fine shall be assessed against the tobacco retailer in accordance with the procedures set forth in this section if it is determined that the permittee or his or her agent or employee has violated any of the conditions of the permit imposed pursuant to this article or any other local, state or federal law pertaining to the sale of tobacco products or tobacco paraphernalia to persons under 21 years of age.

(a) First Violation. Upon a determination by the department of a first permit violation within a 60-month period, the permit shall be suspended for a period of 30 calendar days and an administrative fine in the amount of $500.00 (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the suspension becomes effective.

(b) Second Violation. Upon a determination by the department of a second permit violation within a 60-month period, the permit shall be suspended for a period of 90 calendar days and an administrative fine in the amount of $1,000 (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the suspension becomes effective.

(c) Third Violation. Upon a determination by the department of a third permit violation within a 60-month period, the permit shall be revoked and an administrative fine in the amount of $2,500 (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the revocation becomes effective.

(2) Revocation of Permit Wrongly Issued. A tobacco retailer permit shall be revoked if the department determines that one or more of the bases for denial of a permit under CMC 5.08.1830 or 5.08.1850(1) existed at the time the application was made or at any time before the permit was issued. No administrative fine shall accompany a revocation of a permit that had been wrongly issued.

(3) Order of Suspension/Revocation. Upon a determination by the department that the permittee or his or her agent or employee has violated any of the conditions of the permit imposed pursuant to this article, or any other local, state or federal law pertaining to the sale of tobacco products or tobacco paraphernalia to persons under the age of 21 years, the department shall serve a written order of suspension/revocation of tobacco retailer permit (hereinafter, “order of suspension/revocation”) upon either (a) the authorized agent either via personal service or via first class mail, postage prepaid, to the address provided on the tobacco retailer permit application, or (b) if an authorized agent was not listed on the tobacco retailer permit application, to the permittee via personal service or via first class mail, postage prepaid, to the business address.

(a) The order of suspension/revocation shall provide, at a minimum, the following information:

(i) The name of the permittee and tobacco retailer permit number;

(ii) A brief statement of the specific grounds for the suspension or revocation;

(iii) If applicable, the term of the suspension;

(iv) If applicable, the amount of any administrative fine being assessed;

(v) If applicable, the dates and terms of any prior suspensions and administrative fines within the preceding 60 months;

(vi) The effective date of the suspension or revocation and the due date of the administrative fine;

(vii) If applicable, the date on which a permittee may apply for a new tobacco retailer permit after revocation;

(viii) The time frame and manner in which the permittee may contest the order of suspension/revocation as set forth in subsection (4)(a) of this section;

(ix) A statement that the failure of the permittee to contest the order of suspension/revocation will constitute a waiver of the permittee’s right to administratively challenge the order of suspension/revocation, and the order of suspension/revocation shall be deemed a final and binding administrative decision; and

(x) If applicable and in the possession of the department, copies of the following documents:

(A) Permittee’s application for tobacco retailer permit;

(B) Permittee’s tobacco retailer permit;

(C) Permittee’s tobacco retailer’s license (as issued by the State Board of Equalization); and

(D) Any law enforcement report, memorandum, and/or photograph submitted by the sheriff’s department or other law enforcement agency relied upon by the department in support of the suspension or revocation. These documents shall be redacted as required or permitted by law.

(b) Service of the order of suspension/revocation shall be deemed to have been completed on the date on which the order of suspension/revocation is either personally delivered to the authorized agent or permittee or the date on which the order of suspension/revocation is deposited with the United States Postal Service.

(c) Failure of an authorized agent or permittee to receive a properly addressed order of suspension/revocation shall not invalidate any of the proceedings pursuant to this article.

(4) Contest of Order of Suspension/Revocation.

(a) Any permittee whose permit has been suspended or revoked pursuant to the provisions of this article may contest the order of suspension/revocation by filing with the department a written request to contest the order of suspension/revocation (including the imposition of the corresponding administrative fine) within 10 calendar days of the order of suspension/revocation. The written request must include, at a minimum, the following:

(i) The name of the permittee, the address of the business property, and the tobacco retailer permit number that is subject to the order of suspension/revocation;

(ii) The date on which the order of suspension/revocation was issued;

(iii) 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 permittee;

(iv) A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the order of suspension/revocation should be reversed or otherwise set aside;

(v) The signature of all proprietors who are contesting the order of suspension/revocation under penalty of perjury as to the contents of the request for appeal.

(b) Notwithstanding Chapter 1.40 CMC (Administrative Fines and Citations) or any other provision of the Cudahy Municipal Code, an administrative fine assessed against a tobacco retailer in conjunction with an order of suspension/revocation shall only be challenged as set forth in this section.

(c) Upon receipt of such written request for a hearing, the department shall give not less than five business days’ written notice to the permittee to show cause at a time and place fixed in the notice why the tobacco retailer permit should not be suspended or revoked (as the case may be). The written notice of hearing shall be served upon the permittee in the same manner as the order of suspension/revocation.

(d) Any order of suspension/revocation and any assessment of a corresponding administrative fine shall be stayed pending the city manager’s determination upon the timely filing of a request for a hearing.

(5) Administrative Review Hearing.

(a) The director shall conduct the administrative review hearing at the designated time and place. The hearing is to be conducted informally, and formal rules of evidence do not apply. If a youth decoy participated in the underlying investigation, the youth decoy shall not be required to appear or to give testimony. At the hearing, the permittee shall have the burden of showing cause why the tobacco retailer permit should not be suspended or revoked, and the permittee shall be given an opportunity to present any evidence (testimonial, documentary, or otherwise) as it pertains to whether grounds for suspension or revocation exist. In determining whether grounds for suspension or revocation exist, the director shall not consider any evidence pertaining to preventative measures or subsequent remedial measures (e.g., employee training, the termination of employment of the agent/employee that committed the underlying violation, etc.).

(b) Within 30 calendar days of the conclusion of the administrative review hearing, the director shall serve the permittee with written notice of its determination as to whether the tobacco retailer permit shall be suspended or revoked (and the corresponding administrative fine shall be assessed). The written determination shall be served upon the permittee in the same manner as the order of suspension/revocation. If the director determines that the tobacco retailer permit shall be suspended or revoked, the written determination shall contain all of the information required pursuant to subsection (3)(a) of this section. A written determination that the tobacco retailer permit shall be suspended or revoked shall also contain the time frame and manner in which the permittee may contest the director’s determination as set forth in CMC 5.08.1920, and a statement that the failure of the permittee to contest the director’s determination will constitute a waiver of the permittee’s right to administratively challenge the director’s determination, and the director’s determination to suspend or revoke the tobacco retailer permit shall be deemed a final and binding administrative decision. (Ord. 695 § 1, 2018).

(1) Request for Appeal. Any permittee who has been aggrieved by a director’s determination to affirm an order of suspension/revocation and to suspend or revoke a tobacco retailer permit (and impose the corresponding administrative fine) may appeal the director’s determination by submitting a written request for appeal to the city clerk within 10 calendar days of the director’s written determination. The written request for appeal shall contain, at a minimum, the following:

(a) The name of the permittee, the address of the business property, and the tobacco retailer permit number that is subject to the director’s determination to suspend or revoke;

(b) The date on which the director’s determination was issued;

(c) A statement as to all grounds for appeal in ordinary and concise language, together with any material facts claimed to support the contentions of the permittee (as only the matters and issues raised in the written request will be considered on appeal);

(d) A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the director’s determination should be reversed or otherwise set aside;

(e) The signature of all proprietors who are contesting the director’s determination under penalty of perjury as to the contents of the request for appeal.

(2) Staying of Suspension/Revocation. A director’s determination to suspend or revoke a tobacco retailer permit (and to pay the corresponding administrative fine) shall be stayed pending a determination of the city manager (or designee thereof) upon the timely filing of a written request for appeal.

(3) Notice of Appeal Hearing. Upon receipt of such written request for appeal, the city clerk shall give not less than five business days’ written notice to the permittee of the date and time of the appeal hearing. Service of the notice of appeal hearing shall be in the same manner as the order of suspension/revocation.

(4) Appeal Hearing. At the time and place set for the appeal hearing, the city manager (or designee thereof) shall proceed to hear testimony and to receive evidence from the city, the permittee, and other competent persons respecting those matters or issues on appeal. Only those matters or issues specifically raised by the permittee in the written request for appeal shall be considered in the hearing of the appeal. The formal rules of evidence do not apply to this proceeding. If a youth decoy participated in the underlying investigation, the youth decoy shall not be required to appear or to give testimony. At the hearing, the permittee shall be given an opportunity to present any evidence (testimonial, documentary, or otherwise) as it pertains to whether grounds for suspension or revocation exist. In determining whether grounds for suspension or revocation exist, the director shall not consider any evidence pertaining to preventative measures or subsequent remedial measures (e.g., employee training, the termination of employment of the agent/employee that committed the underlying violation, etc.).

(5) Decision on Appeal. If it is shown at the appeal hearing by a preponderance of the evidence that one or more bases exist to suspend or revoke the tobacco retailer permit, the city manager (or designee thereof) shall affirm the director’s determination to suspend or revoke the permit and to impose the corresponding administrative fine. The city manager shall cause to be served upon the permittee a written notice of decision, which shall contain the city manager’s determination as to whether the tobacco retailer permit shall be suspended or revoked and the corresponding administrative fine assessed, as well as findings of fact that support the determination. The written notice of decision shall further inform the appellant that the decision is a final decision and that the time for judicial review for the suspension or revocation is governed by California Code of Civil Procedure Section 1094.6 et seq., and that the time for judicial review for the imposition of the administrative fine is governed by Government Code Section 53069.4(b). The notice of decision shall be served upon the appellant in the same manner as the order of suspension/revocation. A decision to affirm the director’s determination to suspend or revoke a tobacco retailer permit shall become effective, and the permit shall be suspended or revoked, immediately upon service of the written notice of decision. The corresponding administrative fine shall be immediately due upon service of the written notice of decision. (Ord. 695 § 1, 2018).

(1) Notwithstanding any other provision of this article, no tobacco retailer’s permit shall be issued to a tobacco retailer (or proprietor thereof) whose permit has previously been revoked pursuant to CMC 5.08.1910(1) for a period of 12 months from the date of the prior revocation.

(2) Notwithstanding any other provision of this article, no tobacco retailer’s permit shall be issued for any location where a tobacco retailer permit has previously been revoked pursuant to CMC 5.08.1910(1) for a period of 12 months from the date of the prior revocation, unless ownership of the business at the location has been transferred in an arm’s length transaction.

(3) The revocation of a tobacco retailer’s permit pursuant to CMC 5.08.1910(2) shall be without prejudice to the filing of a new tobacco retailer permit application. Any such new application shall be reviewed in accordance with CMC 5.08.1910. (Ord. 695 § 1, 2018).

(1) In addition to any other remedy, any person who causes, permits, aids, abets, suffers, or conceals a violation of any provision of this article, or who fails to comply with any obligation or requirement of this article, is guilty of a misdemeanor punishable in accordance with Chapter 1.36 CMC.

(2) Each violation of this article is hereby declared to be a public nuisance.

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

(4) In addition to other remedies provided by this article or by other law, any violation of this article may be remedied by administrative or civil action, including, but not limited to, civil injunction or other abatement action. (Ord. 695 § 1, 2018).

If any section, subsection, paragraph, sentence, clause or phrase of this article is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this article. The city council declares that it would have adopted this article, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional. (Ord. 695 § 1, 2018).