Fowler Municipal Code Ch. 20 Tobacco Retailers

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 minors (Penal Code 308).

(b) State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under eighteen (18) years of age (Business & Professions Code 22956) and provides procedures for using persons under eighteen (18) years of age to conduct onsite 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 eighteen (18) 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 six-tenths 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) Eighty-eight (88) percent of adults who have ever smoked tried their first cigarette by the age of eighteen (18), and the average age at which smokers try their first cigarette is fourteen and one-half (14½).

(i) The City of Fowler 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 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 adults. 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. No. 2012-01, § 1, 10-2-2012)

The purpose of this chapter 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. No. 2012-01, § 1, 10-2-2012)

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

"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.

"City Manager" means the City Manager of the City of Fowler or his or her designee.

"Department" means the Fowler Police Department.

"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.

"Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten (10) percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or shares ultimate control over the day-to-day operations of a business.

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

"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed or marketed for the smoking, preparation, storing, or consumption of tobacco products.

"Tobacco product" means:

(a) Any product containing, made of, 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, cigarillos, little cigars, pipe tobacco, chewing tobacco, snuff; and

(b) Any electronic smoking 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.

(c) But does not mean or include any drug, product, device, or combination thereof that has been 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 approved purpose.

"Tobacco retailer" means 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.

"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.

(Ord. No. 2012-01, § 1, 10-2-2012; Ord. No. 2020-04, § 3, 8-18-2020)

(a) It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which that activity is to occur.

(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 chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the right to act as a tobacco retailer at the location in the City identified on the face of the license.

(Ord. No. 2012-01, § 1, 10-2-2012)

No license will be issued to authorize tobacco retailing at other than a fixed location. No license will be issued for itinerant tobacco retailing or tobacco retailing from vehicles.

(Ord. No. 2012-01, § 1, 10-2-2012)

(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 chapter that is, or was at any time, revoked and, if so, the date of revocation;

(4) Whether or not any proprietor has previously been issued a license in another jurisdiction pursuant to a local ordinance similar to this chapter that is, or was at any time, revoked and, if so, the date of revocation;

(5) Whether or not any proceedings are pending against a proprietor or his or her agents or employees for violating any local, State, or Federal tobacco control law in the City or any other jurisdiction;

(6) A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought; and

(7) Such other information as the City Manager deems necessary for the administration or enforcement of this chapter.

(b) All information required to be submitted in order to apply for a tobacco retailer's license shall be updated with the City Manager whenever the information changes and within ten (10) business days of a change.

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

(Ord. No. 2012-01, § 1, 10-2-2012)

(a) Upon the receipt of an application for a license or renewal thereof, and the applicable license fee, the City Manager shall issue a license within thirty (30) days 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 chapter; provided, however, this subparagraph shall not constitute a basis for denial of a license if 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;

(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 period; or

(5) 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 any other location owned by the applicant within the preceding thirty-day period.

(b) A license shall be issued on a calendar year basis as follows: First-year licenses issued after September 1st shall be valid until December 31st of the succeeding year and automatically expire at that time unless sooner revoked. First-year licenses issued prior to September 1st shall be valid until December 31st of that year and automatically expire at that time unless sooner revoked. Licenses may be renewed prior to expiration by submitting an application for renewal to the City Manager prior to December 1st but no earlier than November 1st. The renewal application shall be accompanied by the applicable license fee and the applicant shall follow all of the procedures and provide all of the information required by Section 5-20.06. A license that has been revoked, or is subject to revocation proceedings, shall not be renewed.

(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 (5) 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. No. 2012-01, § 1, 10-2-2012)

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

(Ord. No. 2012-01, § 1, 10-2-2012)

The fee to issue or to renew a tobacco retailer's license shall be established by resolution of the City Council. The fee may 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 cost of the total program. All fees shall be used to fund the program. Fees are non-refundable except as may be required by law.

(Ord. No. 2012-01, § 1, 10-2-2012)

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:

(a) Submit the license fee plus a reinstatement fee of fifteen (15) percent of the license fee; and

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

(1) 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

(2) 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.

(Ord. No. 2012-01, § 1, 10-2-2012)

(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 chapter. 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 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; 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. No. 2012-01, § 1, 10-2-2012)

(a) No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to any person without taking reasonable steps 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) 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 chapter or any other local, State, or Federal tobacco-related law.

(Ord. No. 2012-01, § 1, 10-2-2012)

(a) Compliance with this chapter shall be monitored by the Fowler Police Department. Any peace officer may enforce the provisions of this chapter.

(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, including compliance with this chapter.

(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. No. 2012-01, § 1, 10-2-2012)

(a) Failure to Obtain Tobacco Retailer's License. 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 following penalties shall apply:

(1) After a first violation at a location within any five-year period, all proprietors shall pay an administrative fine of five hundred dollars ($500.00) and no license may be issued for the location until sixty (60) days have passed from the date of the violation.

(2) After a second violation at a location within any five-year period, all proprietors shall pay an administrative fine of seven hundred fifty dollars ($750.00) and no license may be issued for the location until ninety (90) days have passed from the date of the violation.

(3) After a third violation at a location within any five-year period, all proprietors shall pay an administrative fine of one thousand dollars ($1,000.00) and no license may be issued for the location until one year has passed from the date of the violation.

(4) After a fourth or subsequent violation at a location within any five-year period, all proprietors shall pay an administrative fine of one thousand dollars ($1,000.00) and no license may be issued for the location until five (5) years have passed from the date of the violation.

(b) Other Violations. 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 a licensee, or any of the licensee's agents or employees, have violated any of the requirements, conditions, or prohibitions of this chapter, the following penalties shall apply:

(1) After a first violation at a location within any five-year period, the license shall be revoked, and no new license shall be issued for the location, for a period of sixty (60) days from the date of the revocation and all proprietors shall pay an administrative fine of five hundred dollars ($500.00).

(2) After a second violation at a location within any five-year period, the license shall be revoked, and no new license shall be issued for the location, for a period of ninety (90) days from the date of the revocation and all proprietors shall pay an administrative fine of seven hundred fifty dollars ($750.00).

(3) After a third violation at a location within any five-year period, the license shall be revoked, and no new license shall be issued for the location, for a period of one year from the date of the revocation and all proprietors shall pay an administrative fine of one thousand dollars ($1,000.00).

(4) After a fourth or subsequent violation at a location within any five-year period, the license shall be revoked, and no new license shall be issued for the location, for a period of five (5) years from the date of the revocation and all proprietors shall pay an administrative fine of one thousand dollars ($1,000.00).

(c) Stipulation in Lieu of Penalties. Notwithstanding the foregoing penalties, for a first violation within any five-year period, the City Manager may enter into a stipulation with the tobacco retailer for a lesser period of delayed license issuance or suspension provided the tobacco retailer agrees to the following:

(1) To immediately obtain a license if one has not been issued.

(2) To forego a hearing.

(3) To pay the required administrative fines.

(4) To an admission that the violation occurred and that the violation will be considered in determining the penalty for any future violation.

(5) Such other terms as the City Manager deems reasonable.

The stipulation shall be a public record. The stipulation shall not be available for second and subsequent violations within any five-year period.

(Ord. No. 2012-01, § 1, 10-2-2012)

The following procedures shall apply to the denial or revocation of a license or the imposition of penalties for violations of this chapter:

(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 ten (10) calendar days of personal service of the notice on the person or persons subject to a revocation or a fine or within fifteen (15) calendar days if the person or persons subject to a revocation or a fine are served by mail.

Penalties shall be stayed pending any hearing.

(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 thirty (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 a late payment penalty of fifteen (15) percent. In the event that a judicial action is necessary to compel payment of the fine and late penalty, 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 subsection (a) of this section, the City Manager shall provide written notice within forty-five (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. At the hearing, the hearing officer shall receive all evidence relevant to the occurrence or nonoccurrence of the specified violation(s), the compliance or noncompliance with any of the provisions of this chapter, and any other relevant information. The hearing is informal in nature and need not be conducted according to technical rules relating to evidence and witnesses.

(d) Hearing Decision. The hearing officer shall render a written decision and findings within twenty (20) working days of the hearing. Copies of the decision and findings shall be provided to the person or persons subject to the denial, revocation or 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.

Any sustained penalties that were stayed during the pendency of the hearing shall be immediately imposed, unless the due date has not yet passed.

(f) Appeal to Superior Court of Limited Jurisdiction. Within twenty (20) days after personal service of the hearing officer's decision and findings or within twenty-five (25) days if served by mail, any person subject to a denial, 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. No. 2012-01, § 1, 10-2-2012)

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. No. 2012-01, § 1, 10-2-2012)

It shall be a violation of this chapter 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 chapter if the conduct at issue is authorized pursuant to California Health and Safety Code Sections 11362.7 et seq., and not otherwise prohibited by City ordinance.

(Ord. No. 2012-01, § 1, 10-2-2012)

(a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity including the provisions of the Fowler Municipal Code.

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

(c) Violations of this chapter are hereby declared to be public nuisances.

(d) Violations of this chapter 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.

(e) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen (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 chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

(Ord. No. 2012-01, § 1, 10-2-2012)

Nothing in this chapter is intended to waive any requirements for obtaining City business licenses as they pertain to the operation of retail outlets.

(Ord. No. 2012-01, § 1, 10-2-2012)

The provisions of this chapter are hereby declared to be severable. If any provision, clause, word, sentence, or paragraph of this chapter or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter.

(Ord. No. 2012-01, § 1, 10-2-2012)