Desert Hot Springs Municipal Code Ch. 5.24 Tobacco Retailers

The City of Desert Hot Springs has substantial interest in promoting compliance with federal, state and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in protecting children from being lured into illegal activity through the misconduct of adults.

It is the intent of this chapter to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by federal or State law are criminally proscribed or to alter the penalty provided therefor.

(Prior code § 119.01)

For the purposes of this chapter, the following words and terms shall have the following meanings:

“Arm’s length transaction”

means a sale in good faith for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter is presumed not to be an arm’s length transaction.

“Department”

means County Health Officer or his or her designee.

“Person”

means any natural person, partnership, cooperative association, 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.

“Self-service display”

means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A vending machine is a form of self-service display.

“Smoking”

means possessing a lighted tobacco product, tobacco paraphernalia, or any other weed or plant (including a lighted pipe, lighted cigar, or lighted cigarette of any kind), the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, or cigarette of any kind).

“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, preparation, storing or consumption of tobacco products.

“Tobacco product”

means (1) 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; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body but does not include any product specifically approved by the federal Food and Drug Administration for use in treating nicotine or tobacco product dependence.

“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.

(Prior code § 119.02)

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. Tobacco retailing without a valid tobacco retailer’s license shall constitute a public nuisance.

B. A tobacco retailer or proprietor without a valid tobacco retailer’s license, including for example, a revoked license:

1. Shall keep all tobacco products and tobacco paraphernalia from public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute an “offer for sale” for the purpose of subsection F of this section.

2. 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 would lead a reasonable consumer to believe that such products can be obtained at the tobacco retailer’s location.

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 identified on the face of the license. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition of limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code Section 6404.

D. 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 shall be revoked pursuant to Section 5.24.090(D) of this chapter.

E. In addition to any other penalty under this chapter a person found to have engaged in tobacco retailing without a valid tobacco retailer’s license shall be ineligible to apply for or be issued a tobacco retailer’s license according to the following:

1. After a first violation for a person within any 60-month period, no new license may be issued for the person as a proprietor until 30 days have passed from the date of last violation.

2. After a second violation for a person within any 60-month period, no new license may be issued for the person as a proprietor until 90 days have passed from the date of last violation.

3. After three or more violations for a person within any 60-month period, no new license may be issued for the person as a proprietor until five years have passed from the date of last violation.

4. Each day that a person engages in tobacco retailing without a valid tobacco retailer’s license shall constitute a separate violation.

F. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this chapter are subject to seizure and forfeiture. Forfeited tobacco products and tobacco paraphernalia shall be destroyed.

G. 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 (G)(2) of this subsection.

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

5. Whether or not any proprietor is a person who has been determined to have violated this chapter or has been a proprietor at a location that has been determined to have violated this chapter and, if so, the dates and locations of such violations.

6. Such other information as the Department deems necessary for the administration or enforcement of this chapter.

(Prior code § 119.03)

A. No license may be issued 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. 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 that one of the following bases for denial exists:

1. The application is incomplete or inaccurate.

2. The application seeks authorization for tobacco retailing at a location for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.090(B). However, this subsection shall not constitute a basis for denial of a license if the applicant provides the County 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.

3. The application seeks authorization for tobacco retailing for a proprietor for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.030(E).

4. The application seeks authorization for tobacco retailing that is prohibited pursuant to subsection A of this section, that is unlawful pursuant to any other City ordinance, or that is unlawful pursuant to any other local, state, or federal law.

(Prior code § 119.04)

A. A tobacco retailer’s license is nontransferable. If the information required in the license application pursuant to Section 5.24.030(G)(1), (2), or (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.

B. Notwithstanding any other provision of this chapter, violations accumulated against a location or business shall continue to be counted against the location or business unless the location or business has been transferred to a new proprietor and the new proprietor provides the County with documentation demonstrating by clear and convincing evidence that the new proprietor has acquired or is acquiring the location or business in an arm’s length transaction.

(Prior code § 119.05)

A tobacco retailer’s license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a tobacco retailer’s license is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license not later than 30 days prior to expiration of the term.

(Prior code § 119.06)

A. Display of License. Each license shall be prominently displayed in a publicly and readily visible location at the licensed location.

B. Positive Identification Required. No person shall engage in tobacco retailing without first examining the identification of the purchaser if the purchaser reasonably appears under the age of 27 years old, and confirming that the proposed sale is to a purchaser who is at least the minimum age in State law for being sold the tobacco product or tobacco paraphernalia.

C. Minimum Age for Persons Selling Tobacco. No person shall engage in tobacco retailing if the person is younger than the minimum age in State law for being sold or for possessing any tobacco product.

D. Self-Service Displays Prohibited. No person shall display tobacco products or tobacco paraphernalia by means of a self-service display or engage in tobacco retailing by means of a self-service display. A tobacco retailer who chooses to display tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times.

(Prior code § 119.07)

A. Violation of Tobacco-Related Laws. It shall be a violation of a tobacco retailer’s license for a licensee, including his or her agent or employee, to violate any of the following laws:

1. Any local, state or federal tobacco-related laws;

2. Local, state or federal sign laws;

3. Local, state or federal laws restricting the age of purchase for any product.

B. License Compliance Monitoring.

1. Compliance with this chapter shall be monitored by the Department. Any peace officer may enforce the penal provisions of this chapter.

2. The Department shall check the compliance of each tobacco retailer at least three times per 12-month period. The Department may check the compliance of tobacco retailers previously found to be in compliance a fewer number of times so that the Department may check the compliance of tobacco retailers previously found in violation a greater number of times.

3. Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance checks shall determine compliance with other tobacco-related laws.

4. The County shall not enforce any tobacco-related minimum-age law against a person who otherwise might be in violation of such law because of the person’s age (hereinafter “youth decoy”) if the potential violation occurs when:

a. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official; or

b. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through sub-contracting, by the County Department of Health and Human Services or funded in part, either directly or indirectly through subcontracting, by the California Department of Health Services.

B . No Contest Plea. A plea of “no contest” or its equivalent by a tobacco retailer for a violation of any law designated in subsection A of this section shall operate as an admission that this chapter has been violated for the purposes of license revocation.

(Prior code § 119.08)

A. Revocation of License for Violation.

1. In addition to any other penalty authorized by law, a tobacco retailer’s license shall be revoked if the County Hearing Officer finds, after notice to the licensee and opportunity to be heard, that the licensee, including his or her agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter (hereinafter “license violation”).

2. No attorney may take part in the defense of a license revocation proceeding unless the attorney’s participation meets any exception for attorneys appearing in small claims court under California Code of Civil Procedure Section 116.530. The prohibition shall not apply if the County elects to be represented by an attorney in the proceeding and notice of the election is included in the notice given pursuant to subsection (A)(1) of this subsection.

3. For the first or second alleged license violation within any 60-month period, the County Counsel may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter without approval from the Board of Supervisors. Settlements shall not be confidential and shall contain the following minimum terms:

a. After an alleged first license violation at a location within any 60-month period:

i. An agreement to stop acting as a tobacco retailer for at least one day; and

ii. A settlement payment to the County of a least $1,000; and

iii. 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. After an alleged second license violation at a location within any 60-month period:

i. An agreement to stop acting as a tobacco retailer for at least ten days; and

ii. A settlement payment to the County of at least $5,000; and

iii. An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty would be assessed for any future violations.

B. New License after Revocation for Violation.

1. After a first license violation at a location within any 60-month period, no new license may be issued for the location until ten days have passed from the date of the last revocation or violation, whichever is later.

2. After a second license violation at a location within any 60-month period, no new license may be issued for the location until 30 days have passed from the date of the last revocation or violation, whichever is later.

3. After a third license violation at a location within any 60-month period, no new license may be issued for the location until 90 days have passed from the date of the last revocation or violation, whichever is later.

4. After four or more license violations at a location within any 60-month period, no new license may be issued for the location until five years have passed from the date of the last revocation or violation, whichever is later.

C. Expiration of License. A tobacco retailer’s license that is not timely renewed pursuant to Section 5.24.060 shall expire at the end of its term. To reinstate a license that has expired due to failure to timely pay the renewal fee, the proprietor must:

1. Submit the renewal fee plus a reinstatement fee of ten percent of the renewal fee.

2. Submit a signed affidavit affirming that the proprietor has not sold any tobacco product or tobacco paraphernalia during any period that the license was expired.

D. 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 5.24.040(B) existed at the time application was made or at anytime before the license was issued. The revocation shall be without prejudice to the filing of a new application for a license.

(Prior code § 119.09)

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

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

B. Violations of this chapter are subject to a civil action brought by the District Attorney or County Counsel, punishable by:

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

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

3. A fine not less than $3,000 and not exceeding $10,000 for a third or subsequent violation in any 60-month period.

C. Violations of this chapter may, in the discretion of the District Attorney or County Counsel, be prosecuted as infractions or misdemeanors.

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

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

F. In addition to other remedies provided by this chapter or by other laws, any violation of this chapter may be remedied by a civil action brought by the County Counsel, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Prior code § 119.10)