Fremont Municipal Code Art. 4 License Suspension, Revocation and Appeals

In addition to any other penalty authorized by law, any person found to engage in tobacco retailing at a location without a valid tobacco retailer’s license, either directly or through the person’s agents or employees, shall be ineligible to apply for, or to be issued, a tobacco retailer’s license for a minimum of 30 days after the violation is discovered (“ineligibility period”). (Ord. 07-2019 § 3, 10-8-19.)

If reasonable cause exists to believe a violation of this chapter has occurred, or if a court of competent jurisdiction determines the same, the department shall issue a notice of violation and begin the revocation process as follows:

(a) For a first violation within any 60-month period, the license may be suspended for the person or the location for 30 days.

(b) For a second violation within any 60-month period, the license may be suspended for the person or the location for 90 days.

(c) After a third violation within any 60-month period, the license may be suspended for the person or the location for 12 months.

(d) Upon a finding by the department of four or more violations within any 60-month period, the license shall be revoked.

(e) Locations where there is proof that ownership of the business has been transferred in an arm’s length transaction are exempt from the provisions of this section. (Ord. 07-2019 § 3, 10-8-19; Ord. 08-2025 § 2, 5-20-25.)

Any tobacco product or tobacco paraphernalia offered for sale in violation of this chapter is subject to seizure and may be forfeited after reasonable notice and a hearing opportunity is provided to the tobacco retailer to show the tobacco products and tobacco paraphernalia seized were not offered for sale. A retailer may appeal the department’s decision after the hearing, as set forth in Section 8.75.240. The forfeited illegal products will be destroyed after all internal appeals have been exhausted and the time for seeking judicial review under Cal. Civ. Proc. Code § 1094.6 has expired. No seized products will be destroyed while a lawsuit is pending until after a judgment becomes final. (Ord. 07-2019 § 3, 10-8-19.)

A tobacco retailer’s license shall be revoked if the department finds, after notice and an opportunity to be heard is afforded, that one or more of the bases for denial of a license under Section 8.75.140 existed at the time the application was made or at any time before the license was issued. The decision by the department is final. The revocation shall be without prejudice to the filing of a new license application. (Ord. 07-2019 § 3, 10-8-19.)

(a) Notice of Violation. A retailer may contact the department to challenge a finding of a violation within 10 days of the notice of violation. Upon receipt of a timely written challenge, the department will send a notice setting the date and time of the hearing for the retailer to show cause why a violation does not exist. If the tobacco retailer fails to present sufficient evidence at the hearing to disprove the violation, the department will issue a final written notice upholding the violation.

(b) Notice of Revocation or Suspension of License. If a license is subject to revocation or suspension, the department will provide written notice to the retailer of the basis for the proposed action, the penalties for violations, and the retailer’s right to request a hearing with the department within 10 days of the issuance of the notice. Upon receipt of a timely written request for a hearing, the department will send a notice setting the date and time of the hearing for the retailer to show cause why a violation does not exist. The failure to present sufficient evidence at the hearing to disprove the violation will result in the department issuing a final written notice upholding the violation and providing for the revocation or suspension of the license. The department’s final written notice shall inform the retailer of the right to appeal the department’s decision pursuant to subsection (c) of this section. Within 10 business days of the mailing of the notice of revocation or suspension, the tobacco retailer shall cease the operation of the business for which the license was issued.

(c) Appeal Procedures for License Denials, Suspensions and Revocations. A decision of the department to deny, revoke or suspend a license is appealable to the city manager or the city manager’s designee (“designee”), and must be filed with the city clerk within 10 days of mailing of the department’s notice of denial, revocation or suspension. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the city manager or designee is not available for denials of a license under Sections 8.75.130(e) and 8.75.230. The date, time, and place of appeal hearing will be provided in writing to the tobacco retailer with at least 10 days’ notice. If the tobacco retailer fails to present evidence establishing the tobacco retailer is entitled to retain the license or should not be subject to suspension or revocation, the city manager or designee will uphold the revocation or suspension and give written notice to the tobacco retailer. Within 10 days of the mailing of the final notice upholding the revocation or suspension, the tobacco retailer shall cease operation of the business for which the license was issued.

(d) Neither the provisions of the Administrative Procedure Act (Cal. Gov’t Code § 11500 et seq.) nor the formal rules of evidence in civil or criminal judicial hearings apply to any hearings or appeals under this chapter. A record of the hearing must be made by any means, including electronic recording, so long as a reasonably accurate and complete written transcription of the proceedings can be made.

(e) After the conclusion of the hearing, a notice of written decision upholding the city’s decision must be served on the retailer/appellant with findings of facts, conclusions of law, and notice of the time for seeking judicial review pursuant to Cal. Civ. Proc. Code § 1094.6. Any decision rendered after the hearing shall be the city’s final administrative decision.

(f) Judicial Review. The decisions of the hearing examiner or other responsible person on appeal shall be final, subject to judicial review under the provisions of Cal. Civ. Proc. Code §§ 1094.5 and 1094.6. Cal. Civ. Proc. Code § 1094.6 governs limitation of time for filing petitions under Cal. Civ. Proc. Code § 1094.5.

(g) Settlement in Lieu of Appeal. For a first or second alleged violation of this chapter within any five-year period, the department may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter; provided, that a timely appeal has been filed. Settlements shall not be confidential.

(1) After a first alleged violation, any settlement must contain the following minimum terms:

(A) Suspension of the tobacco retailer license for at least five days;

(B) A settlement payment to the city of at least $1,500; and

(C) An admission by the licensee that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.

(D) Immediate steps will be taken by the tobacco retailer to remedy the violation.

(E) Corrective action plan to be submitted to the city.

(2) After a second alleged violation, any settlement must contain the following minimum terms:

(A) Suspension of the tobacco retailer license for at least 15 days;

(B) A settlement payment to the department of at least $5,500; and

(C) An admission by the licensee that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.

(D) Immediate steps will be taken by the tobacco retailer to remedy the violation.

(E) Corrective action plan to be submitted to the city. (Ord. 07-2019 § 3, 10-8-19.)