Davis Municipal Code § 6-15 Tobacco Retailer Permit

(a) In addition to any other penalty authorized by law, a Tobacco Retailer's Permit shall be revoked if any court of competent jurisdiction determines, or if the Director finds after the Tobacco Retailer or Permittee is afforded notice and an opportunity to be heard, that the Tobacco Retailer or Permittee, or any of the Tobacco Retailer's or Permittee's officers, agents or employees, has violated any of the requirements, conditions, or prohibitions of this Article or, in a different legal proceeding, has pleaded guilty, "no contest" or its equivalent, or admitted to, a violation of any law designated in Section 6-15.10.

(b) A Tobacco Retailer's Permit shall be revoked if the Department finds, after the Permittee is afforded reasonable notice and an opportunity to be heard, that one or more of the bases for denial of a Permit under Section 6-15.07 existed at the time the Permit application was submitted or at any time thereafter and before the Permit issued. The revocation shall be without prejudice to the filing of a new Permit application.

(c) A decision to revoke a Permit is appealable to the Tobacco Retailing Permit Hearing Authority pursuant to Section 6-15.13. If such an appeal is made within the time provided in that Section, it shall stay enforcement of the appealed action.

(d) A notice of revocation shall be personally served on, or sent by certified mail to, the Permit holder. The notice shall state the basis of the Department's determination(s) and the revocation, and shall include an advisement of the right to appeal as set forth in Section 6-15.13.

(e) During the period that any permit is revoked, the Proprietor shall prominently display a notice advising the public of the revocation, in the form and in the manner designated by the Department.

(f) After revocation pursuant to subsection (a) above, a new permit may be issued only in accordance with the following:

(1) After revocation for a first violation of this Article at any location within any 60 month period, no new Permit may issue for that location, or that Proprietor or other Person, until not less than 10 days have passed from the date of revocation.

(2) After revocation for a second violation of this Article at any location within any 60 month period, no new Permit may issue for that location, or that Proprietor or other Person, until not less than 90 days have passed from the date of revocation.

(3) After revocation for a third violation of this Article at any location within any 60 month period, no new Permit may issue for that location, or that Proprietor or other Person, until not less than one year has passed from the date of revocation.

(4) After revocation for four or more violations of this Article at any location within any 60 month period, no new Permit may issue for that location, or that Proprietor or other Person, until not less than five years have passed from the date of revocation.

(c) Section 6-15.14, regarding enforcement and violations, shall read as follows:

(a) In addition to any other penalty authorized by law, if the Department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any Person has engaged in Tobacco Retailing at a location without a valid Tobacco Retailer's license, either directly or through the Person's agents or employees, the Person shall be ineligible to apply for or be issued a Tobacco Retailing license for that location as follows:

(1) After a first violation of this Article at a location within any 60 month period, no license may issue for the Person at the location until not less than 30 days have passed from the date of the violation.

(2) After a second violation of this Article at a location within any 60 month period, no license may issue for the Person at the location until not less than 90 days have passed from the date of the violation.

(3) After of a third or subsequent violation of this Article at a location within any 60 month period, no license may issue for the Person at the location until not less than five years have passed from the date of the violation.

(b) Tobacco Products and Tobacco Paraphernalia offered for sale or exchange in violation of this Article are subject to seizure by the Department or any peace officer, and shall be forfeited after the licensee and any other owner of the Tobacco Products and Tobacco Paraphernalia seized is given reasonable notice by the Department and an opportunity to demonstrate that the Tobacco Products and Tobacco Paraphernalia were not offered for sale or exchange in violation of this Article. The decision by the Department may be appealed pursuant to the procedures set forth in Section 6-15.13. Forfeited Tobacco Products and Tobacco Paraphernalia shall be destroyed.

(c) Each day after the effective date of this Article on which Tobacco Products or Tobacco Paraphernalia are offered for sale in violation of this Article shall constitute a violation of this Article separate and apart from any other violation of this Article.

(d) For a first or second alleged violation of this Article within any 60 month period, the Director may engage in settlement negotiations and, with the City Attorney's concurrence, may enter into a settlement agreement with a Tobacco Retailer alleged to have violated this Article without approval from the City Council. Notice of any settlement shall be provided to the Board, and no hearing shall be held. Settlements shall not be confidential and shall contain the following minimum terms:

(1) After a first alleged violation of this Article at a location within any 60 month period:

(A) An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations;

(B) An agreement to stop acting as a Tobacco Retailer for at least one day; and;

(C) A settlement payment to the City of at least $1,000.

(2) After a second alleged violation of this Article at a location within any 60 month period:

(A) An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations;

(B) An agreement to stop acting as a Tobacco Retailer for at least 10 days; and

(C) A settlement payment to the City of at least $5,000.

(d) Section 6-15.15, regarding additional enforcement regulations, shall read as follows:

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

(b) Violations of this Article may, in the discretion of the District Attorney, be prosecuted as criminal infractions or misdemeanors.

(c) Violations of this Article are subject to a civil action brought by the District Attorney, punishable as follows:

(1) A fine not less than $250 and not exceeding $1,000 for a first violation in any 60 month period;

(2) A fine not less than $1,000 and not exceeding $2,500 for a second violation in any 60 month period; or

(3) A fine not less than $2,500 and not exceeding $5,000 for a third or subsequent violation in any 60 month period.

(d) Any violation of this Article is hereby declared to be a public nuisance as well as a private nuisance that is 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 Article or by other law, any violation of this Article may be remedied by a civil action brought by the District Attorney, including but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(f) Any Person, including the C, acting for the interests of itself, its members, or the general public (hereinafter "the Private Enforcer") may bring a civil action to enforce this Article.

(1) Upon proof of a violation, a court shall award to the Private Enforcer the following:

(A) Damages in the amount of either:

(i) Upon proof, actual damages; or

(ii) With insufficient or no proof of the amount of actual damages, $500 for each violation of this Article (hereinafter "Statutory Damages"). Unless otherwise specified in this Article, each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this Article, no Private Enforcer suing on behalf of the general public shall recover Statutory Damages based upon a violation of this Article if a previous claim brought on behalf of the general public for Statutory Damages and based upon the same violation has been adjudicated, whether or not the Private Enforcer was a party to that adjudication.

(B) Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, or a conscious disregard for the public health.

(C) Injunctive Relief.

(i) Notwithstanding any legal or equitable bar against a Private Enforcer seeking relief on his/her/its own behalf, a Private Enforcer may bring an action to enforce this Article solely on behalf of the general public. When a Private Enforcer brings an action solely on behalf of the general public, nothing about such an action shall act to preclude or bar the Private Enforcer from bringing a subsequent action based upon the same facts but seeking relief on the Private Enforcer's own behalf.

(ii) Nothing in this Article shall prohibit the Private Enforcer from bringing an action in small claims court to enforce this Article, so long as the amount in demand and the type of relief sought are within the jurisdictional requirements of small claims court as set forth in California Code of Civil Procedure Section 116.220.

(g) 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 (but shall be permitted) 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.

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

(i) Any peace officer may enforce the penal provisions of this Article.

(Ord. 2576 § 1, 2020)