El Cerrito Municipal Code Art. 4 License Application and Procedures

Applications for a tobacco retailer license shall be submitted on a form provided by the city.

(Ord. No. 2015-08, § 3, 10-6-2015)

Upon the receipt of a complete application for a tobacco retailer license and the license fee required by this chapter, the city shall issue a license unless substantial evidence demonstrates that 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. Tobacco retailing is not an allowed use at the stated location;

3. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful pursuant to any portion of the El Cerrito Municipal Code or that is unlawful pursuant to any other law;

4. The location for which a tobacco retailer license is sought lacks a valid state tobacco retailer license issued by the California Board of Equalization; or

5. The applicant has been found in violation of three or more regulations within the last five years pertaining to any local, state, and/or federal laws regarding sales, advertising or display of tobacco products, electronic smoking devices, imitation tobacco products and/or smoking paraphernalia.

(Ord. No. 2015-08, § 3, 10-6-2015)

Any person aggrieved by any decision of the license administrator with respect to the issuance or refusal to issue such license may follow the process described in ECMC 4.32.150

(Ord. No. 2015-08, § 3, 10-6-2015)

The initial tobacco retailer license will expire at the same time as the retailer's business license, therefore, the initial license may have a term shorter than one year.

The renewal term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the annual renewal of his or her tobacco retailer license and the license fee shall be due and payable in advance of the time the retailer's business license expires. The applicant for the renewal of a tobacco retailer license shall submit the renewal form, including a sworn statement setting forth such information concerning the applicant's business as may be required by the license administrator to enable the administrator to ascertain if tobacco retail was the principal or core business during the preceding year and if the applicant or an employee has been found in violation pertaining to any local, state, and/or federal laws regarding sales, advertising or display of tobacco products, electronic smoking devices, flavored tobacco products, imitation tobacco products and/or smoking paraphernalia.

(Ord. No. 2015-08, § 3, 10-6-2015)

For failure to pay a renewal fee of the license when due, the license administrator shall add a penalty at the rate set forth for business license taxes per ECMC 4.32.210, using the tobacco license cost as the basis to determine the penalty amount.

No license shall be issued, nor one which has been suspended or revoked, shall be reinstated or reissued to any person who, at the time of applying therefore, is indebted to the city for any delinquent license fees, unless such licensee, with the consent of the license administrator, enters into a written agreement with the city through the license administrator to pay such delinquent fees in at least monthly installments extending over a period not to exceed one year.

Such agreement must acknowledge the obligation owed to the city by the licensee, and provide that upon failure to make timely payment of any installment, the whole amount unpaid shall become immediately due and payable and that the current license shall be revocable by the license administrator upon thirty days' notice and, in the event legal action is brought by the city to enforce collection of any amount included in the agreement, such licensee shall pay all costs of suit incurred by the city or its assignee, including reasonable attorney fees. The execution of such an agreement shall not prevent the prior accrual of penalties on unpaid balances at the rate provided in this section, but no penalties shall accrue on account of fees included in the agreement after the execution of the agreement and the payment of the first installment and during such time as such licensee shall not be in breach of the agreement.

(Ord. No. 2015-08, § 3, 10-6-2015)

A. A tobacco retailer license may not be transferred from one person to another or from one location to another. A new tobacco retailer license is required whenever a tobacco retailing business has a change in owner(s).

B. 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 transferred to new owner(s) in an arm's length transaction; and

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

(Ord. No. 2015-08, § 3, 10-6-2015)

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, 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, 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. 2015-08, § 3, 10-6-2015)

The fees for the annual tobacco retailer license shall be established by the city council and included in the city's master fee schedule. Fees are payable at the time the retailer obtains or renews its business license. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and enforcement, but shall not exceed the cost of the regulatory program authorized by this chapter. Annual fees shall not be pro-rated or refunded during the course of the year. Upon adoption of this chapter, the following fees will be included in the city's master fee schedule as amended by council resolution and reviewed annually thereafter:

Four hundred eighty-five dollars for tobacco retailer license (initial license)

Four hundred thirty-nine dollars for tobacco retailer license renewal

The city may charge a re-inspection fee to offset the additional staff time required to handle non-compliant businesses. Additional inspections will be billed based on actual costs incurred.

To encourage compliance in a timely manner, tobacco retailers operating at the time this chapter is adopted who are able to demonstrate full compliance with Article 2 (Requirements and Prohibitions) of this chapter at the time of initial application for a tobacco retailer license shall have the license fee for the first year reduced by fifty percent. Tobacco retailers operating at the time this chapter is adopted who are able to demonstrate full compliance with Article 2 of this chapter at the time of license renewal in 2016 shall have that year's license renewal fee reduced by twenty five percent.

(Ord. No. 2015-08, § 3, 10-6-2015)

Compliance with the regulations in this chapter shall be enforced by the city's community development department, in conjunction with the El Cerrito Police Department. The city manager may designate another position responsible for these duties. The code enforcement officer or his/her designee shall use reasonable efforts to conduct a compliance check visit to each tobacco retailing location at least once during the initial twelve month period, and thereafter on a periodic basis to determine if the tobacco retailer is in compliance with these regulations. Nothing in this section shall create a right of action in any tobacco retailer or other person against the city or its agents in conducting these annual inspections.

Retailers may be subject to additional inspections based on random selection, past violations or complaints. Nothing in this paragraph shall create a right of action in any licensee or other person against the city or its agents.

The city's police department shall develop and carry out inspections in an effort to enforce any local, state or federal law related to tobacco sales, especially those related to a minimum age for tobacco purchases or possession.

(Ord. No. 2015-08, § 3, 10-6-2015)

To the extent permissible by law, the community development director, chief of police and their designees shall have the right to enter and inspect any tobacco retailer for the purpose of ensuring compliance with the regulations in this chapter, provided that any such entry and inspection shall be conducted in a reasonable manner and when there is reason to suspect a violation of any of the provisions of the tobacco retailer regulations.

Whether in plain clothes or uniform, peace officers have the right to visit and inspect any tobacco retailing location at any time during business hours without a search warrant upon presentation of appropriate credentials. This includes inspecting the bar and back bar, store room, office, closed or locked cabinets, safes, kitchen, or any other area within the premises. Inspections will be requested or conducted no more than once in a twenty-four-hour period. Refusal to allow inspection will be a violation of this chapter.

(Ord. No. 2015-08, § 3, 10-6-2015)

In addition to any other penalty authorized by law, a tobacco retailer license shall be suspended or revoked if any court of competent jurisdiction determines, or the city finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in this chapter.

1. Upon a finding by the city of a first violation of this chapter, at a location within any five-year period, the privilege to sell tobacco, tobacco products, electronic smoking devices and smoking paraphernalia shall be suspended for ten days.

2. Upon a finding by the city of a second violation of this chapter at a location within any five-year period, the privilege to sell tobacco, tobacco products, electronic smoking devices and smoking paraphernalia shall be suspended for thirty days.

3. Upon a finding by the city of a third violation of this chapter at a location within any five-year period, the privilege to sell tobacco, tobacco products, electronic smoking devices and smoking paraphernalia shall be suspended for sixty days.

4. Upon a finding by the city of four or more violations of this chapter at a location within any five-year period, the tobacco retailer license shall be revoked.

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 transferred to new owner(s) in an arm's length transaction; and

2. The new owner(s) provide the city with evidence that the new owner(s) have acquired or are acquiring the location in an arm's length transaction.

(Ord. No. 2015-08, § 3, 10-6-2015)

To ensure customers and the public are aware of periods of suspension or revocation, all tobacco-related products, paraphernalia, and advertising must be removed from public view during periods of suspension or revocation.

1. During periods of suspension or revocation, the city shall post a notice to the public on the property that states: "This retailer has violated important public health laws regulating tobacco. Tobacco sales are currently banned at this location." The notice will be at least twenty-two inches wide and placed nearby the main entrance to the store.

(Ord. No. 2015-08, § 3, 10-6-2015)

Any person found to be in violation of this chapter shall have the right to a hearing in accordance with ECMC Chapter 1.14, "Administrative Penalties."

(Ord. No. 2015-08, § 3, 10-6-2015)