Fremont Municipal Code Art. 5 Enforcement and Penalties

(a) The department is charged with enforcing the provisions of this chapter. The city manager shall have power to adopt rules of procedure and regulations for the purpose of carrying out the provisions of this chapter; and a copy of such rules of procedure and regulations shall be on file and made available for public examination.

(b) Inspection and Right of Entry. The department, or a duly authorized representative, may enter on any site or into any structure for the purpose of investigation, provided they shall do so in a reasonable manner, whenever they have cause to suspect a violation of any provision of this chapter. The refusal of an owner, occupant or agent to permit such entry and inspection constitutes a violation of this chapter.

(c) Youth Participation. Whenever evidence of a violation of this chapter 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 chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. (Ord. 07-2019 § 3, 10-8-19.)

(a) The penalty provisions of Chapters 1.15 and 1.20 are incorporated herein by reference.

(b) Infractions. Any person who violates, causes, or permits another person to violate any provision of this chapter is guilty of an infraction.

(c) Criminal Prosecution. A violation of this chapter is a misdemeanor, which may be charged and prosecuted as an infraction in the interests of justice, in the discretion of the enforcement official. Criminal enforcement of this chapter shall be the responsibility of the chief of police or designee. In addition, any peace officer or code enforcement official also may enforce this provision in accordance with law.

(d) Civil Enforcement.

(1) Fines. Violations of this chapter are subject to a civil action brought by the city, punishable by a civil fine of up to $1,000 for each violation.

(2) Injunctions, Nuisance Abatement and Code Enforcement. Violations of this chapter may be remedied by a civil action brought by the city attorney including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. Where the city pursues a civil action to remedy a violation of this chapter, the prevailing party shall be entitled to recover attorneys’ fees and costs if the city elects, at the beginning of that action, to seek recovery of its own attorneys’ fees and costs pursuant to Cal. Gov’t Code § 38773.5.

(A) In assessing the amount of the civil penalty to be imposed, the court shall consider any one or more of the relevant circumstances presented by: the nature and seriousness of the misconduct giving rise to the violation, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the misconduct, and the defendant’s assets, liabilities, and net worth.

(B) The city attorney may at any time institute civil proceedings for injunctive and monetary relief, including civil penalties, against any person for violations of this chapter, without regard to whether the department has assessed or collected administrative penalties. The city may recover reasonable attorneys’ fees and costs for civil actions brought under this chapter.

(e) Unfair Competition. Violations of this chapter constitute unfair competition pursuant to Cal. Bus. & Prof. Code § 17204. The city attorney may cause an action to be filed for injunction and civil penalties of up to $2,500 for each violation. Any person who intentionally violates an injunction is liable for additional civil penalties up to $6,000 for each day of each violation.

(f) Public Nuisance. Violations of this chapter are hereby declared to be a public nuisance. The city attorney may bring a civil action to abate the nuisance and to recover the expense of investigation, abatement and prosecution. The city may recover abatement and related administrative costs by imposing a nuisance abatement lien on the property or by special assessment in accordance with the law. The prevailing party shall be entitled to recover attorney fees in any action, administrative proceeding, or special proceeding instituted to abate a nuisance.

(g) General Provisions.

(1) Cumulative remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(2) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. A violation exists for each day on which an electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia, vaping device, tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter. A violation also exists for each individual retail electronic cigarette, electronic cigarette product or tobacco product and each individual retail item of electronic cigarette paraphernalia tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter.

(3) Each day on which a violation exists shall constitute a separate violation of this chapter.

(4) A violation exists for each day on which a tobacco retailer:

(A) Operates without a license;

(B) Distributes, sells or offers for sale an illegal tobacco product or tobacco paraphernalia; or

(C) Commits any other violation of this chapter. (Ord. 07-2019 § 3, 10-8-19.)