Duarte Municipal Code Ch. 5.09 Tobacco Retailer License

(a) Based in part on the information contained in this section, the city council finds that the failure of tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of the city.

(b) The city council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the city, to protect the health, safety, and welfare of our residents.

(c) Approximately four hundred thirty-eight thousand people die in the United States from tobacco-related diseases every year, making it the nation's leading cause of preventable death. (U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report: Annual Smoking - Attributable Mortality, Years of Potential Life Lost, and Productivity Losses - United States 1997-2001. 2005, 54(25): p. 625-628.)

(d) The World Health Organization (WHO) estimates that by 2030, tobacco will account for 8.3 million deaths per year, killing fifty percent more people in 2015 than HIV/AIDS, and will be responsible for ten percent of all deaths worldwide. (World Health Organization. World Health Statistics 2007, Part 1: Ten Statistical Highlights in Global Public Health. 2007, p. 12.)

(e) The California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority, as evidenced by the fact that:

(1) The legislature has declared that smoking is the single most important source of preventable disease and premature death in California (California Health and Safety Code Section 118950).

(2) State law prohibits the sale or furnishing of cigarettes, tobacco products, and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (California Penal Code Section 308).

(3) State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under eighteen years of age (California Business and Professions Code Section 22956) and provides procedures for using minors to conduct onsite compliance checks of tobacco retailers (California Business and Professions Code Section 22952).

(4) State law prohibits the sale of tobacco products and paraphernalia through self-service displays with limited exceptions for tobacco stores (California Business and Professions Code Sections 22960, 22962).

(5) State law prohibits the sale of "bidis" (hand-rolled filter-less cigarettes imported primarily from India and Southeast Asian countries) except in adult-only establishments (California Penal Code Section 308.1).

(6) State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than twenty and prohibits the manufacture, distribution, or sale of "roll-your-own" tobacco in packages containing less than six-tenths ounces of tobacco (California Penal Code Section 308.3).

(f) State law requires all tobacco retailers to be licensed by the Board of Equalization primarily to curb the illegal sale and distribution of cigarettes due to tax evasion and counterfeiting (California Business and Professions Code Sections 22970.1, 22972).

(g) State law explicitly permits cities and counties to enact local tobacco retail licensing ordinances, and allows for the suspension or revocation of a local license for a violation of any state tobacco control law (California Business and Professions Code Section 22971.3).

(h) California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993), have affirmed the power of cities to regulate business activity in order to discourage violations of law.

(i) Despite the state's efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the following facts:

(1) Each day, nearly four thousand children under eighteen years of age smoke their first cigarette, and almost one thousand five hundred children under eighteen years of age begin smoking daily. (Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Results from the 2004 National Survey on Drug Use and Health: National Findings. 2005.)

(2) More than seventy-five percent of all current smokers in 2001 began smoking before the age of eighteen. (Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. 2003 National Survey on Drug Use and Health: Results. 2003.)

(3) Among middle school students who were current cigarette users in 2004, seventy and six-tenths percent were not asked to show proof of age when they purchased or attempted to purchase cigarettes from a store, and sixty-six and four-tenths percent were not refused purchase because of their age. (U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report: Tobacco Use, Access and Exposure to Tobacco Among Middle and High School Students, U.S., 2004. 2005, 54: p. 297-301.)

(4) In 2002, youth smoked approximately five hundred forty million packs of cigarettes, generating nearly 1.2 billion dollars in tobacco industry revenue. (Healton C, Farrelly MC, Weitzenkamp D, et al. "Youth Smoking Prevention and Tobacco Industry Revenue." Tobacco Control, 15: 103-106, 2006.)

(j) Research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes, as evidenced by the following:

(1) A review of thirteen California communities with strong tobacco retailer licensing ordinances shows that the youth sales rate declined in twelve of the thirteen communities, with an average decrease of sixty-eight percent in the youth sales rate. (American Lung Association of California, Center for Tobacco Policy and Organizing. Tobacco Retail Licensing is Effective. 2007.)

(2) A study of the effect of licensing and enforcement methods used in the Philadelphia area revealed a decrease in sales to minors from eighty-five percent in 1994 to forty-three percent in 1998. (Ma GX, Shive S and Tracy M. "The Effects of Licensing and Inspection Enforcement to Reduce Tobacco Sales to Minors in Greater Philadelphia, 1994-1998." Addictive Behaviors, 26(5): 677-87, 2001.)

(3) A study of several Minnesota cities found that an increased licensing fee in conjunction with strict enforcement of youth access laws led to a decrease from thirty-nine and eight-tenths percent to four and nine-tenths percent in the number of youth able to purchase tobacco. (Forster JL et al. "The Effects of Community Policies to Reduce Youth Access to Tobacco." American Journal of Public Health, 88(8): 1193-1197, 1998.)

(k) The implementation of tobacco retailer licensing requirements is supported by most Californians, as evidenced by the following:

(1) Statewide, over eighty percent of California adults think tobacco retailers should be licensed. (Department of Health Services, Tobacco Control Section. California Tobacco Control Update. 2004.)

(2) Similarly, in rural areas in California, seventy-eight percent of adults think tobacco retailers should be licensed, and ninety-one percent agree that a store owner who repeatedly sells cigarettes to minors should no longer have the right to sell cigarettes. (American Lung Association of California, Center for Tobacco Policy and Organizing. Survey of California Rural and Small Town Voters About Local Tobacco Retail Licensing Ordinances. 2008.)

(3) Sixty-five percent of California's key opinion leaders surveyed support implementation of tobacco-licensing requirements. (California Department of Health Services, Tobacco Control Section. Final Report, Independent Evaluation of the California Tobacco Control Prevention and Education Program: Waves 1, 2, and 3 (1996-2000). 2003.)

(4) Over ninety percent of enforcement agencies surveyed in 2000 rated license suspension or revocation after repeated violations as an effective strategy to reduce youth access to tobacco. (California Department of Health Services, Tobacco Control Section. Final Report, Independent Evaluation of the California Tobacco Control Prevention and Education Program: Waves 1, 2, and 3 (1996-2000). 2003.)

(l) Approximately eighty cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop minors from smoking. (American Nonsmokers' Rights Foundation. California Municipalities With Ordinances Restricting Youth Access To Tobacco. 2008.)

(m) California retailers continue to sell tobacco to underage consumers, evidenced by the following:

(1) Nearly eleven percent of all tobacco retailers unlawfully sold to minors in 2007. (California Department of Health Services, Tobacco Control Section. Youth Purchase Survey, 2007: Percent of Retailers Selling Tobacco to Youth by Store Type. 2007.)

(2) Non-traditional tobacco retailers such as deli, meat, and donut shops sold to minors in 2007 at a much higher rate than the statewide average, as high as sixteen percent. (California Department of Health Services, Tobacco Control Section. Youth Purchase Survey, 2007: Percent of Retailers Selling Tobacco to Youth by Store Type. 2007.)

(3) Teens surveyed in 2002 say they bought their cigarettes at: gas stations (fifty-eight percent), liquor stores (forty-five percent), and supermarkets and small grocery stores (twenty-nine percent combined). (California Department of Health Services, Tobacco Control Section. Final Report, Tobacco Control Successes in California: A Focus on Young People, Results from the California Tobacco Surveys, 1990-2002. 2003, p. 11-12.)

(4) Twenty-three "youth tobacco purchase surveys" in 2011 resulted in thirteen percent of Duarte tobacco retailers willing to sell tobacco products to minors under eighteen years of age.

(n) A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults, but it will allow the city to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws.

(o) The city has a 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.

(p) It is the intent of the city council, in enacting the ordinance establishing this chapter, to ensure compliance with the business standards and practices of the city and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine 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 penalties provided therein.

(q) The city has a substantial interest in requiring a tobacco retailer license for the sale of electronic cigarettes and vaping devices and electronic cigarettes and vaping accessories because:

(1) The widespread presence of electronic cigarettes and vaping devices, most of which use nicotine, in retail settings normalizes the use of nicotine products and triggers smoking urges among former smokers and those attempting to quit;

(2) The electronic cigarettes and vaping devices can be lawfully used with nicotine derived from tobacco or other sources;

(3) The widespread presence of electronic cigarettes and vaping devices in retail settings has similar impacts as traditional tobacco products;

(4) The electronic cigarettes and vaping devices and electronic cigarettes and vaping accessories can be used a drug paraphernalia, because they can be customized to be used with non-nicotine products, such as synthetic drugs or dry herb products that are unlawful; and

(5) The use of electronic cigarettes and vaping accessories in an electronic cigarette and vaping establishment similar to a tobacco smoking establishment would create a threat to public health, safety, and welfare because nicotine derived products such as e-liquids are not regulated by the state and, therefore, it would be impossible for law enforcement to monitor.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014)

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

(a) "Arm's length transaction" means 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 chapter is not an arm's length transaction.

(b) "Characterizing flavor" means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco itself, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes, or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. 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. Rather, it is the presence of a Distinguishable taste or aroma or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.

(c) "Cigarette" means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette.

(d) "Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture, or parking of the tobacco product.

(e) "Department" means the city's Public Safety Department, and any agency or person designated by the Department to enforce or administer the provisions of this chapter or Chapter 6.20.

(f) "Director" means the Director of the Public Safety Department or designee.

(g) "Distinguishable" means perceivable by either the sense of smell or taste.

(h) "Distribute" or "Distribution" means the transfer, by any person other than a common carrier, of a tobacco product at any point from the place of manufacture or thereafter to the person who sells the tobacco product to an individual for personal consumption.

(i) "Electronic cigarette and vaping accessory" includes atomizers, atomizer tanks, metal mesh, heating coils, atomizer base with battery thread, cartomizer, cartomizer tanks, polyfill material, cartomizer base with battery thread, clearomizer, drip tip, clearomizer tank, cords, wicks, clearomizer base with thread, cartridges, tips, electronic cigarette device batteries, electronic cigarette device chargers, and any other item specifically designed for the preparation, charging, or use with an electronic cigarette and vaping.

(j) "Electronic cigarette and vaping device" means 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, herbs or other substances. "Electronic smoking vaping device" includes any such electronic smoking or vaping device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, personal product vaporizer (e.g., liquid, dry herb, oils, wax, etc.), electronic nicotine delivery system, e-hookah, or any other similar system. "Electronic smoking and vaping device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.

(k) "Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor. There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, images, or all, on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

(l) "Labeling" means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

(m) "Manufacture" means to make, fabricate, assemble, repair, or process a tobacco product.

(n) "Packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.

(o) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

(p) "Proprietor" means a person with an ownership interest or managerial role 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 role 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.

(q) "Self-service display" means the 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. A vending machine is a form of self-service display.

(r) "Sell," "Sale," and "to Sell" mean any transaction where, for any consideration, ownership of a tobacco product is transferred from one person to another, including but not limited to any transfer of title or possession for consideration, exchange, or barter, in any manner of by any means.

(s) "Smoking" means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and also means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including, but not limited to, a pipe, cigar, hookah pipe, or cigarette of any kind).

(t) "Tobacco paraphernalia" includes any instrument or paraphernalia that is designed for the smoking or ingestion of lawful tobacco products including without limitation cigarette papers, cigarette wrappers, cigar wrappers, blunt wraps, pipes, holders, clips, and cigarette rolling machines. "Tobacco paraphernalia" excludes "drug paraphernalia" as that term is defined in Health and Safety Code Section 11364.5(d), as amended from time to time.

(u) "Tobacco product" includes any substance containing tobacco or derived from tobacco and any substance used in electronic cigarette and vaping devices including but not limited to flavored tobacco products, cigarettes, cigars, e-juice, e-liquid, e- nicotine, smoke juice, pipe tobacco, rolling tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, nicotine gel, nicotine lollipops, or any other preparation of tobacco; and 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. "Tobacco product" does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

(v) "Tobacco retailer" means any person or entity, whether or not a tobacco proprietor, who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories.

(w) "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories sold, offered for sale, exchanged, or offered for exchange.

(x) "Youth decoy" means a person under the age of twenty-one who, solely for the purposes of conducting compliance checks pursuant to this chapter, has received training by the department, has received written authorization from the department, or has received an immunity letter from the Los Angeles County District Attorney's Office and has provided a true and correct copy of that immunity letter to the department. The city shall not enforce any law establishing a minimum age for purchase of tobacco products against a youth decoy if the violation occurs when the youth decoy is participating in a compliance check supervised by the department or other peace officer or city code enforcement, or the youth decoy is participating in a compliance check supervised by a person designated in writing as an agent of the department for purposes of monitoring compliance with this chapter.

(y) Any other definition, the meaning of which is not otherwise defined in this code or clear as set forth in their context, shall be the definition in Health and Safety Code section 104559.5(a).

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014; Ord. No. 928, § 2, 12-10-2024)

(a) TOBACCO RETAILER LICENSE REQUIRED. It shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer license pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law and a violation of this code.

(b) LAWFUL BUSINESS OPERATION. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law or regulation applicable to tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories and/or tobacco retailing, including without limitation, the provisions of the California Uniform Controlled Substances Act relating to the sale and display of "drug paraphernalia" (specifically, Health and Safety Code Sections 11364 to 11376.5, as amended from time to time), Chapter 6.21 of this code relating to the possession, sale and distribution of synthetic drugs, and the Duarte Development Code, which sets forth operational requirements for tobacco shops and accessory tobacco uses.

(c) DISPLAY OF LICENSE. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

(d) POSITIVE IDENTIFICATION REQUIRED. No person engaged in tobacco retailing shall sell, exchange, or transfer in any manner a tobacco product, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories to another person who appears to be under the age of twenty-seven 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, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories.

(e) MINIMUM AGE FOR PERSONS ENGAGING IN TOBACCO RETAILING. Person must be twenty-one and older to sell tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories.

(1) No establishments may have an employee under twenty-one years of age.

(f) SELF-SERVICE DISPLAYS PROHIBITED. Tobacco retailing by means of a self-service display is prohibited.

(g) SALE, DISPLAY AND ADVERTISING FOR TOBACCO RETAILING PROHIBITED WITHOUT A VALID TOBACCO RETAILER LICENSE. A tobacco retailer or proprietor without a valid tobacco retailer license, including, but not limited to, a person whose license has been suspended or revoked:

(1) Shall not sell or offer to sell any tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, or electronic cigarette and vaping accessories.

(2) Shall keep all tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories out of public view. The public display of any of these products in violation of this provision shall constitute tobacco retailing without a license under this chapter.

(3) Shall not display any advertisement relating to tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories 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.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014; Ord. No. 928, § 3, 12-10-2024)

(a) LICENSE FOR FIXED LOCATION ONLY. No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

(b) APPLICABILITY OF ZONING. A license may only be issued to authorize tobacco retailing at fixed location where allowed in compliance with Title 19 of this code (the Duarte Development Code).

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014)

(a) APPLICATION. Application for a tobacco retailer license shall be submitted in the name of each proprietor proposing to engage in tobacco retailing and shall be signed by each proprietor or an authorized agent thereof.

(b) LICENSE NOT SUBSTITUTE FOR COMPLIANCE WITH ALL LAWS. It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer license. No proprietor may rely on the issuance of a tobacco retailer license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to the applicable provisions of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer license any status or right to act as a tobacco retailer in contravention of any provision of law.

(c) APPLICATION FORM. All applications shall be submitted on a form supplied by the department and shall contain the following information and may require an applicant to provide other and additional information:

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

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

(3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") required by, authorized by, or necessary to the enforcement of this chapter. 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) 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 or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five years.

(6) Such other information as the department deems reasonably necessary for the administration or enforcement of this chapter as specified on the application form required by this section, which may include, but not necessarily limited to, social security number and driver's license number.

(d) INSPECTION FOR NEW RETAILERS AND RENEWAL LICENSES. In order to verify compliance with all Title 19 of this code (the Duarte Development Code) and tobacco retailer licensing requirements, the public safety director or his designee shall:

(1) Require the submittal and approval of a floor plan showing compliance with all regulations prior to approving a new or renewal tobacco retailer license; and

(2) Inspect the business location prior to license issuance or license renewal.

(e) CHANGE IN INFORMATION PROVIDED. A licensed tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer license within ten business days of a change.

(f) APPLICATION INFORMATION SUBJECT TO PUBLIC DISCLOSURE. 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. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014)

(a) LICENSE ISSUANCE. Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this chapter, the department may issue a license unless one or more of the following bases for denial exists:

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

(2) The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses.

(3) The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.

(4) The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter or that is unlawful pursuant to other provisions of this code, or that is unlawful pursuant to any other law.

(5) The applicant, or any officer, agent or owner of the applicant, if an entity, or manager of the tobacco retailer has been found in violation of this chapter, has had a prior license revoked or suspended by the city, and/or if any fines or fees owed to the city are delinquent.

(6) The applicant or any officer, agent or owner of the applicant, if an entity, or manager of the tobacco retailer has been found in violation of any state law relevant to such license application and/or has any relevant state license that has been revoked or currently suspended.

(7) If the city finds that issuance of the license would be contrary to this code, or that the operation or location of the business would be detrimental to public health, safety or welfare.

(b) TERM OF LICENSE. The term of a tobacco retailer license is one calendar year commencing on the date of issuance of the license unless earlier revoked pursuant to the provisions of this chapter.

(c) PAYMENT OF LICENSE FEE. A tobacco retailer license is invalid if the license fee as established by resolution of the city council has not been timely paid in full.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014; Ord. No. 928, § 4, 12-10-2024)

(a) RENEWAL OF LICENSE. A tobacco retailer license is invalid upon the date of its expiration unless renewed prior to the expiration date. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer license and submit the license fee no later than thirty days prior to expiration of the license term.

(b) To renew a tobacco retailer license, the proprietor must:

(1) Submit the license fee and application renewal form, and,

(2) Submit a signed affidavit affirming that the proprietor:

a. Has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed.

b. Has waited the applicable ineligibility period established for tobacco retailing without a license, as set forth in Section 5.09.130 before seeking renewal of the license.

(c) The city may refuse to renew a tobacco retailer license if any condition in Section 5.09.060 has been found by the city to exist.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014; Ord. No. 928, § 5, 12-10-2024)

(a) NO TRANSFER OF LICENSE. A tobacco retailer license may not be transferred from one person to another or from one location to another. A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietor(s) or a tobacco retailing location has a change in location.

(b) EFFECT OF PRIOR VIOLATIONS. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

(1) The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors.

(2) The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014)

Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer license 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. For example and not by way of limitation, nothing in this chapter 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, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example and not by way of limitation, obtaining a tobacco retailer license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014)

The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example and without limitation, issuing a license, administering the license program, retailer education, retailer inspection, and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. The license fee is nonrefundable except as may be provided by law.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014)

(a) DEPARTMENT; PEACE OFFICERS. Compliance with this chapter shall be monitored by the department, including but not limited to peace officers and city code enforcement officers. In addition, any peace officer may enforce the penal provisions of this chapter. The city may designate any number of additional persons to monitor compliance with this chapter.

(b) PURPOSE OF COMPLIANCE CHECK. Compliance checks shall be conducted so as to allow the department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories. When the department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

(c) YOUTH DECOYS. From time to time, and at a time of the department's choosing, the department may, but is not obligated to, use one or more youth decoys to determine if a proprietor or tobacco retailer is complying with the requirements of this chapter and other laws with respect to the prohibition on the sale, exchange, or transfer of any tobacco product, tobacco paraphernalia, electronic cigarette and vaping device, and/or electronic cigarette and vaping accessory to a minor. Youth decoys, at the direction and under the supervision of the department, or other peace officers, may enter a tobacco retailer location as a customer and attempt to obtain through lawful means a tobacco product, tobacco paraphernalia, electronic cigarette and vaping device, and/or electronic cigarette and vaping accessory and if so obtained then report to the department officer or other peace officer supervising the youth decoy that the proprietor or tobacco retailer has sold, exchanged, or transferred the tobacco product, tobacco paraphernalia, electronic cigarette and vaping device, and/or electronic cigarette and vaping accessory to the youth decoy. Nothing in this chapter shall prohibit the department officer or other peace officer supervising the youth decoy to enforce the provisions of this chapter or other applicable laws pursuant to the information provided by the youth decoy.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014)

(a) REVOCATION OF LICENSE FOR VIOLATION. In addition to any other penalty authorized by law, a tobacco retailer license shall be revoked if the licensee, or any of the licensee's officers, agents or employees, has violated any of the provisions, requirements, conditions, or prohibitions of this chapter or any conditions of the license itself, or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law pertaining to the display, sale, exchange, or transfer of any tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories including but not limited to the requirements of Section 5.09.030. The revocation notice shall include the ground(s) for revocation and a statement of the right to appeal.

(b) APPEAL OF REVOCATION. A decision of the department to revoke a tobacco retailer license is appealable to the city manager or designee and must be filed with the city clerk within ten days of the date of mailing of the department's notification of revocation. Failure to properly and timely file such an appeal shall constitute a waiver of the right to appeal and a failure to exhaust administrative remedies. If such an appeal is made, it shall not stay enforcement of the appealed action except upon written request to, and decision in writing by, the city manager or designee that a stay would not be adverse to public safety, health or welfare. Any determination(s) by the city manager or designee shall be the final decision of the city. An appeal is not available for a revocation made pursuant to subsection (c) below.

(c) REVOCATION OF LICENSE WRONGLY ISSUED. A tobacco retailer's license shall be revoked if the department finds that one or more of the bases for denial of a license under Section 5.09.060 existed at the time application was made or at any time before the license issued. The decision by the department shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new license application.

(d) NEW LICENSE AFTER REVOCATION. In addition to other applicable provisions of this chapter pertaining to obtaining a tobacco retailer license, the following requirements shall also apply in the situation where a proprietor or tobacco retailer seeks to obtain a new tobacco retailer license after such person or tobacco retailer has had a tobacco retailer license revoked:

(1) After revocation for a first violation of this chapter at a location within any sixty-month period, no new license may issue for the location until fifteen days have passed from the date of revocation.

(2) After revocation for a second violation of this chapter at a location within any sixty-month period, no new license may issue for the location until thirty days have passed from the date of revocation.

(3) After revocation for a third violation of this chapter at a location within any sixty-month period, no new license may issue for the location until one year has passed from the date of revocation.

(4) After revocation for four or more violations of this chapter at a location within any sixty-month period, no new license may issue for the location until five years have passed from the date of revocation.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014; Ord. No. 928, § 6, 12-10-2024)

(a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the department finds based on substantial evidence, 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 to be issued, a tobacco retailing license as follows:

(1) After a first violation of this section at a location within any sixty-month period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until thirty days have passed from the date of the violation.

(2) After a second violation of this section at a location within any sixty-month period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until ninety days have passed from the date of the violation.

(3) After of a third or subsequent violation of this section at a location within any sixty-month period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until five years have passed from the date of the violation.

(b) SEIZURE OF TOBACCO PRODUCTS, TOBACCO PARAPHERNALIA, AND E-CIGARETTE AND VAPING DEVICES. Tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories offered for sale, exchange, or transfer in violation of this section 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, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories seized is given reasonable notice and an opportunity to demonstrate that the tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories were not offered for sale or exchange in violation of this chapter. The decision by the department may be appealed pursuant to the procedures set forth in Section 5.09.120(b). Forfeited tobacco products, tobacco paraphernalia, electronic cigarette and vaping devices, and/or electronic cigarette and vaping accessories shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after dismissal of that suit or judgment in that suit becomes final and nonappealable.

(c) SEPARATE VIOLATIONS. For the purposes of the civil remedies provided in this chapter:

(1) Each day on which a tobacco product, and tobacco paraphernalia, electronic cigarette and vaping device, and/or electronic cigarette and vaping accessory is offered for sale, exchange, or transfer in violation of this chapter constitutes a separate violation of this chapter.

(2) Each individual retail tobacco product, tobacco paraphernalia, electronic cigarette and vaping device, and/or electronic cigarette and vaping accessory that is distributed, sold or offered for sale, exchanged or offered for exchange, or transferred or offered for transfer, in violation of this chapter constitutes a separate violation of this chapter.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014)

(a) REMEDIES CUMULATIVE. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity, and may be used in conjunction with, or in lieu of, each other remedy.

(b) EVIDENCE PROVIDED BY MINOR. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, including but not limited to a youth decoy, such a person shall not be required to appear or 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.

(c) AIDING AND ABETTING. Causing, permitting, allowing, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

(d) VIOLATIONS ARE A PUBLIC NUISANCE. Any violation of this chapter is hereby declared to be a public nuisance. Each day a violation of this chapter exists constitutes a separate and distinct violation.

(e) OTHER PENALTIES AND REMEDIES. Notwithstanding any other penalty provided by this code or otherwise by law, any person who violates any provision of this chapter shall be guilty of a misdemeanor for each such violation punishable in accordance with Section 1.04.100 of this code. In addition, the city may enforce the provisions of this chapter by any means authorized by law, including but not limited to criminal and/or civil enforcement process including, without limitation, through nuisance abatement proceedings, restraining order, preliminary or permanent injunction, or by any other means available in law or equity.

(f) ADMINISTRATIVE FINES. Each person who violates any provision of this chapter shall be subject to an administrative fine in an amount up to five hundred dollars for the first violation and up to one thousand dollars for the second and each subsequent violation(s), pursuant to the procedure in Chapter 1.08 of this code.

(g) COSTS. In any proceeding or action under this chapter, including any appeal, reasonable attorneys' fees may be recovered by the prevailing party if the city elects, at the initiation of the action or proceeding, to seek its attorney's fees in the event it is the prevailing party; however, the award of attorneys' fees to a prevailing party shall not exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding. In addition, the city may recoup its staff costs for investigating and enforcing violations, and providing notice in accordance with this chapter.

(Ord. No. 839, § 1, 5-14-2013; Ord. No. 853, § 1, 8-26-2014; Ord. No. 928, § 7, 12-10-2024)