Firebaugh Municipal Code § 4-5 Tobacco Retailers

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

The City Council finds and determines that:

The City Council finds and determines that:

a. 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 persons under 21 years of age (Penal Code 308).

b. State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 21 years of age (Business & Professions Code 22956) and provides procedures for using persons under 21 years of age to conduct on-site compliance checks of tobacco retailers (Business & Professions Code 22952).

c. State law requires that tobacco retailers post a conspicuous notice at each point of sale, stating that selling tobacco products to anyone under 21 years of age is illegal (Business & Professions Code 22952, Penal Code 308).

d. State law prohibits the sale or display of cigarettes through a self-service display and prohibits public access to cigarettes without the assistance of a Clerk (Business & Professions Code 22962).

e. State law prohibits the sale of bidis (hand rolled filterless cigarettes imported primarily from India and Southeast Asian countries) except at those businesses that prohibit the presence of minors (Penal Code 308.1).

f. State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than twenty (20) and prohibits the manufacture, distribution, or sale of "roll-your-own" tobacco in packages containing less than 0.6 of an ounce of tobacco (Penal Code 308.3).

g. State law prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees (Education Code 48901(a)).

h. 88% of adults who have ever smoked tried their first cigarette by the age of 18, and the average age at which smokers try their first cigarette is 14 1/2.

i. The City of Firebaugh 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; in addressing the public health concerns related to tobacco use by minors; and in protecting children from being lured into illegal activity through the misconduct of adults.

j. California courts in 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 local jurisdictions to regulate business activity in order to discourage violations of law.

k. State law authorizes local tobacco retailer licensing laws to provide for the suspension or revocation of the local tobacco retailer license for any violation of a State tobacco control law (Business & Professions Code 22971.3).

l. 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 persons 21 years of age or older. It will, however, allow the City to regulate the operation of lawful businesses to discourage violations of Federal, State, and local tobacco-related laws.

[Ord. #09-06, S1]

The purpose of this section is to encourage responsible tobacco retailing and to discourage violations of all tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco product 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 for violations.

[Ord. #09-06, S1; amended 5-20-2019 by Ord. No. 19-02; 6-7-2021 by Ord. No. 21-03]

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

a. ARM'S LENGTH TRANSACTION — shall mean a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this section is not an arm's length transaction.

b. CITY MANAGER — shall mean the City Manager of the City of Firebaugh or his or her designee.

c. DEPARTMENT — shall mean the Firebaugh Police Department.

d. DRUG PARAPHERNALIA — shall have the definition set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time.

e. PROPRIETOR — shall mean a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a 10% 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 shares ultimate control over the day-to-day operations of a business.

f. SELF-SERVICE DISPLAY — shall mean 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.

g. TOBACCO PARAPHERNALIA — shall mean any item designed or marketed for the consumption, use, or preparation of tobacco products, including, but not limited to, 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.

h. TOBACCO PRODUCT — shall mean: 1) any product containing, made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; 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; and 3) any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah. "Tobacco product" does not include any product specifically approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

i. TOBACCO RETAILER — shall mean any person who sells, offers for sale, or exchanges or offers to exchange, for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, or who distributes free or low cost samples of tobacco products or tobacco paraphernalia.

j. TOBACCO RETAILING — shall mean selling, offering for sale, exchanging, or offering to exchange for any form of consideration tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange.

k. TOBACCO STORE — shall mean a retail business that meets all of the following requirements: primarily sells tobacco products, generates more than 60% of its gross revenues annually from the sale of tobacco products and tobacco paraphernalia, does not sell alcoholic beverages or food for consumption on the premises, and does not permit any person under 18 years of age to be present or enter the premises at any time.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

a. It shall be unlawful for any person to act as a tobacco retailer (i.e., sell or offer to sell tobacco products) without first obtaining and maintaining a valid tobacco retailer's license pursuant to this section for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's license is a public nuisance.

b. A tobacco retailer or proprietor without a valid tobacco retailer license, including without limitation a person whose license has been revoked:

1. Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license and shall be subject to the penalties provided herein.

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 could lead a reasonable consumer to believe that such products can be obtained at that location.

c. Nothing in this section 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.

d. Any violation of this section is considered a misdemeanor and is punishable by the provisions provided in subsection 4-5.20, including but not limited to civil penalties of up to $1,000 for each violation.

[Ord. #09-06, S1]

a. In addition to any other penalty authorized by law, if the City manager 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 section at a location within any five-year period, no new license may be issued for the person at the location until 30 days have passed from the date of the violation.

2. After a second violation of this section at a location within any five-year period, no new license may be issued for the person at the location until 90 days have passed from the date of the violation.

3. After a third or subsequent violation of this section at a location within any five-year period, no new license may be issued for the person at the location until five years have passed from the date of the violation.

b. The notice and hearing procedures applicable to establishing an ineligibility period for a person engaging in tobacco retailing without a license shall be the same procedures set forth in subsection 4-5.16.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

a. No license will be issued to authorize tobacco retailing at other than a fixed location.

b. No license will be issued for itinerant tobacco retailing or tobacco retailing from vehicles.

c. The number of tobacco retailer licenses issued within the City shall not exceed fourteen (14). City Staff shall assess the limit on tobacco retailer licenses every two years to evaluate whether to recommend to the City Council an amendment to this section to change the number of permitted licenses as reasonably necessary to advance the public health and law enforcement purposes this section seeks to achieve.

d. No tobacco retailer license shall be issued for the sale of tobacco products within 250 feet of any school, public park, or playground, as measured by a straight line from the nearest point of the property line of the parcel on which the business is located, to the nearest point on which a school, public park, or playground is located.

[Ord. #09-06, S1]

a. All applications for a license shall be submitted to the City manager in the name of each proprietor proposing to conduct tobacco retailing and shall be signed by each proprietor or an authorized agent thereof. A proprietor proposing to conduct tobacco retailing at more than one location shall submit a separate application for each location. All applications shall be submitted on a form supplied by the City manager 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 fixed location for which a license is sought;

3. Whether or not any proprietor has previously been issued a license pursuant to this section that is, or was at any time, revoked and, if so, the date of revocation; and

4. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought.

5. Such other information as the department deems necessary for the administration or enforcement of this section.

b. All information required to be submitted in order to apply for a tobacco retailer's license shall be updated with the department whenever the information changes. A tobacco retailer shall provide the City manager in writing with any updates within 10 business days of a change.

c. Applications submitted pursuant to this section shall be deemed public records.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

a. Upon the receipt of an application for a license and the applicable license fee, the City manager shall issue a license unless:

1. The application is incomplete or inaccurate;

2. The application seeks authorization for tobacco retailing at an address that appears on a license that has been revoked, or is subject to revocation proceedings for violation of any of the provisions of this section; provided, however, this subparagraph shall not constitute a basis for denial of a license if either or both of the following apply:

(a) The applicant provides the City manager with documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm's length transaction;

(b) It has been more than five years since the most recent license for that location was revoked;

3. The application seeks authorization for tobacco retailing that is unlawful or unauthorized pursuant to this Code, including applicable zoning regulations, or that is unlawful or unauthorized pursuant to any other local, State, or Federal law;

4. The City has information that the applicant or his or her agents or employees have violated any local, State, or Federal tobacco control law at the location for which the license or renewal of the license is sought within the preceding thirty-day (30) periods; or

5. The City has already issued the maximum number of tobacco retailer licenses, as referenced in subsection 4-5.6c.

b. A license shall be valid for one year and must be renewed not later than 30 days prior to the expiration of the license, but no earlier than 60 days prior to the expiration of the license. Unless revoked on an earlier date, all licenses shall expire one year after the date of issuance. A license may be renewed for additional periods of one year by submitting an application to the department and payment of the applicable license fee; provided, however, a license that has been revoked, or is subject to revocation proceedings, shall not be renewed. The application and license fee shall be submitted at least 30 days, but not more than 60 days, prior to the expiration of the current valid license. The applicant shall follow all of the procedures and provide all of the information required by subsection 4-5.7.

c. Where the City manager does not approve a license or renewal of a license, the City manager shall notify the applicant of the specific grounds for the denial in writing. The notice of denial shall be served personally or by mail not later than five working days after the date of the denial. If by mail, the notice shall be placed in a sealed envelope, with postage paid, and shall be addressed to the applicant at the address as it appears on the application. The giving of notice shall be deemed complete at the time of deposit of the notice in the mail or at the time of personal service. Personal service to a corporation may be made by delivery of the notice to any person designated in the Code of Civil Procedure to be served for the corporation with summons and complaint in a civil action.

[Ord. #09-06, S1]

Each license shall be prominently displayed in a publicly visible location at the licensed premises.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

The fee to issue or to renew a tobacco retailer's license shall be established by resolution of the City Council. The fee shall be calculated so as to recover the total cost of both license administration and license enforcement, including, for example, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the total cost of the program. All fees shall be used to fund the program. Fees are nonrefundable except as may be required by law.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

a. A tobacco retailer's license that is not timely renewed shall expire at the end of its term. To reinstate a license that has expired, or to renew a license not timely renewed, the proprietor must:

1. Submit the full license fee amount that is due, plus a reinstatement fee equal to the full license fee amount; 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 and shall comply with the provisions provided within subsection 4-5.4; or

(b) Following the proprietor's last act of tobacco retailing, has waited the appropriate ineligibility period established for tobacco retailing without a license before seeking renewal of the license, as provided by section 4-5.5.

[Ord. #09-06, S1]

a. A tobacco retailer's license may not be transferred from one person to another or from one location to another. Any attempt to do so shall constitute a violation of this section. Whenever a tobacco retailing location has a change in proprietors, a new tobacco retailer's license is required.

b. Notwithstanding any other provision of this section, 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; and

2. The new Proprietor provides the City manager with clear and convincing evidence that the new proprietor has acquired or is acquiring the location in an arm's length transaction.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

a. No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of 21 without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under State law to purchase and possess the tobacco product or tobacco paraphernalia.

b. No person who is younger than the minimum age established by State law for the purchase or possession of tobacco products shall engage in tobacco retailing.

c. No tobacco retailer 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.

d. No tobacco retailer shall sell or transfer a tobacco product or tobacco paraphernalia to a person who is younger than the minimum age established by State Law.

1. Any violation of this subsection shall result in the revocation of the tobacco retailer's license as further provided for in subsection 4-5.15.

e. It shall be a violation of a tobacco retailer's license for a licensee or his or her agent or employee to violate any provision of this section or any other local, State, or Federal tobacco-related law.

[Ord. #09-06, S1]

a. Compliance with this section shall be monitored by the police department. Any peace officer may enforce the provisions of this section.

b. Each tobacco retailer may be monitored for compliance.

c. 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 laws applicable to tobacco retailing.

d. The City shall not enforce any law establishing a minimum age for tobacco purchases or possession 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 the youth decoy is participating in a compliance check which is supervised by a peace officer of the City or participating in a compliance check funded directly or indirectly by any State or local agency, organization, or department.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

a. In addition to any other penalty provided by law, a tobacco retailer's license shall be revoked if the City manager finds, or any court of competent jurisdiction determines, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, have violated any of the requirements, conditions, or prohibitions of this section or in a different legal proceeding has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of this section.

b. The City manager may allow a tobacco retailer alleged to have violated this section to stipulate to the penalties provided in this subsection in lieu of the penalties that would otherwise apply under this section and to forego a hearing on the allegations. Stipulations shall not be confidential and shall contain the following terms plus any other noncriminal provisions established by the City manager in the interests of justice:

1. After a first alleged violation of this section at a location:

(a) An agreement to stop acting as a tobacco retailer for one day;

(b) An administrative penalty of $500; and

(c) An admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violation.

2. After a second alleged violation of this section at a location within any sixty-month period:

(a) An agreement to stop acting as a tobacco retailer for 10 days;

(b) An administrative penalty of at least $1,000; and

(c) An admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violations.

c. Any tobacco retailer whose license has been revoked shall comply with all the provisions of subsection 4-5.4 of this section.

[Ord. #09-06, S1]

a. After revocation for a first violation of this section at a location within any five-year period, no new license may be issued for the location until 10 days have passed from the date of revocation.

b. After revocation for a second violation of this section at a location within any five-year period, no new license may be issued for the location until 30 days have passed from the date of revocation. If the violation occurs within 12 months of the first violation, the tobacco retailer shall be subject to an administrative fine of $250.

c. After revocation for a third violation of this section at a location within any five-year period, no new license may be issued for the location until 90 days have passed from the date of revocation. If the violation occurs within 12 months of the second violation, the tobacco retailer shall be subject to an administrative fine of $500.

d. After revocation for four or more violations of this section at a location within any five-year period, no new license may be issued for the location until five years have passed from the date of revocation. In addition, the tobacco retailer shall be subject to an administrative fine of $1,000.

[Ord. #09-06, S1]

A tobacco retailer's license shall be revoked if the City manager finds, after notice and opportunity to be heard, that one or more of the bases for denial of a license existed at the time application was made, or at any time before the license was issued. The revocation shall be without prejudice to the filing of a new application for a license.

[Ord. #09-06, S1]

a. Notice of Denial or Violation. A notice of denial or a notice of violation and of intent to revoke a license or impose a fine shall be personally served on or sent by certified mail to the person or persons subject to the revocation or fine. The address supplied pursuant to a tobacco retailer license application shall be deemed an appropriate address to provide such notice to any proprietor listed on the application. The notice shall state the basis of the City manager's determinations and include an advisement of the right to request a hearing to contest the revocation or the fine. Any request for a hearing must be in writing and must be received by the City manager within 10 calendar days of personal service of the notice on the person or persons subject to a revocation or a fine or within 15 calendar days if the person or persons subject to a revocation or a fine are served by mail.

b. License Revocation and Imposition of Fine. If no request for a hearing is timely received, the City manager's denial of the application for license or determination on the violation and the imposition of a revocation or a fine shall be final. Revocation shall be effective as of the date specified in the notice, and payment of any fine shall be made within 30 calendar days of written demand made in the manner specified above for a notice of violation. If the fine is not paid within that time, the fine may be collected along with interest at the legal rate in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the person or persons subject to the fine shall also be liable for the costs of the suit and attorneys' fees incurred by the City in collecting the fine.

c. Notice of Hearing. If a hearing is requested pursuant to paragraph a of this subsection, the City manager shall provide written notice within 45 calendar days of its receipt of the hearing request to the person or persons subject to a revocation or a fine of the date, time, and place of the hearing in the manner specified above for a notice of violation. The hearing officer shall be the City manager or his/her designee.

d. Hearing Decision. The hearing officer shall render a written decision and findings within 20 working days of the hearing. Copies of the decision and findings shall be provided to the person or persons subject to a revocation or a fine in the manner specified above for a notice of violation.

e. Finality of the Hearing Officer's Decision. The decision of the hearing officer shall be the final decision of the City.

f. Appeal to Superior Court of Limited Jurisdiction. Within 20 days after personal service of the hearing officer's decision and findings or within 25 days if served by mail, any person subject to a revocation or a fine may seek review of the hearing officer's decision and findings by the superior court of limited jurisdiction. A copy of the notice of appeal to the superior court shall be timely served in person or by first class mail upon the City manager by the contestant. The appeal shall be heard de novo except that the contents of the City's file in the case shall be received in evidence. A copy of the City's records of the notices of the violation and of the hearing officer's decision and findings shall be admitted into evidence as prima facie evidence of the facts stated therein.

[Ord. #09-06, S1]

It shall be a violation of this section for any licensee or any of the licensee's agents or employees, to violate any local, State, or Federal law regulating controlled substances or drug paraphernalia, as defined in section 11364.5 of the Health and Safety Code, such as, for example, California Health and Safety Code section 11364.7, except that a violation of Federal law relating to the use of medical marijuana shall not be a violation of this section if the conduct at issue is authorized pursuant to California Health and Safety Code sections 11362.7 et seq.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

a. The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity including the provisions of Municipal Code Chapter 4.

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

c. Any person violating any section of this Article is subject to the payment of civil penalties of up to $1,000 for each violation, unless otherwise specifically provided for therein. Any continuing violation shall constitute a separate offense for each day of the violation.

d. Violation of any portion of this section shall be considered a misdemeanor, and is hereby declared to be a public nuisance.

e. Violations of this section are hereby declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates.

f. In addition to other remedies provided by this section or by other law, any violation of this section may be remedied by a civil action brought by the City including administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

g. Whenever evidence of a violation of this section 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 to appear or give testimony in any civil or administrative process brought to enforce this section and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]

If any subsection, subdivision, paragraph, sentence, clause or phrase hereinafter part of this section or its application to any person or circumstance is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining subsections, subdivisions, paragraphs, sentences, clauses, or phrases parts of this section or its application to any other person or circumstance. The City Council hereby declares that it would have adopted each part hereof irrespective of the fact that anyone or more other parts hereof be declared invalid or unenforceable.