Chapter 114 — TOBACCO SALE, CONSUMPTION

(A) It shall be unlawful for any person, business, or tobacco retailer within the city to sell, offer for sale, or display for sale any tobacco product, as defined in § 114.16, by means of a self-service display. All tobacco products and paraphernalia shall be offered for sale exclusively by means of vendor/employee assistance.

(B) This section shall not apply to any person, business, or tobacco retailer if the sale, offer to sell, or display for sale of any tobacco product or paraphernalia is conducted within a building which is posted with a sign prohibiting entrance into such building of anyone under 21 years old unless the person is:

• (1) Active duty military personnel who is 18 years of age or older; and

(2) The person possesses a United States Armed Forces identification card indicating the proof of age and military status.

(Prior Code, § 3221.1) (Ord. 00-08, passed 12-4-2000; Ord. 16-03, passed 9-6-2016; Ord. 19-01, passed 2-4-2019) Penalty, see § 114.99

No person, business, tobacco retailer, or other establishment shall sell or offer for sale cigarettes, or other tobacco or smoking products, not in the original packaging provided by the manufacturer and with all required health warnings. (Prior Code, § 3221.2) (Ord. 00-08, passed 12-4-2000) Penalty, see § 114.99

LICENSING OF TOBACCO RETAILERS

It is the purpose and intent of this subchapter to discourage violations of laws which prohibit or regulate the sale or distribution of tobacco products and tobacco paraphernalia, but not to expand or reduce the degree to which the acts regulated by state or federal law are criminally proscribed or to alter the penalty provided therefor.

(Prior Code, § 10420) (Ord. 05-06, passed 9-6-2005; Ord. 16-03, passed 9-6-2016; Ord. 19-01, passed 2-4-2019)

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates, or requires, a different meaning.

ENFORCEMENT AGENCY. The City Police Department.

HEARING OFFICER. The city employee designated by the City Manager to serve in that capacity. LICENSING AGENT. A city employee designated by the City Manager to serve in this capacity.

PERSON. Any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

PROPRIETOR.

(1) 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.

(2) A managerial interest shall be deemed to exist when a person can or does have, or can or does share, ultimate control over the day-to-day operations of a business.

TOBACCO PARAPHERNALIA. Any cigarette papers or wrappers, blunt wraps, pipes, holders of smoking materials of all types, cigarette rolling machines, or other instruments or things designed for the smoking or ingestion of tobacco products as defined in Cal. Business and Professions Code § 22962(a)(2) and Cal. Penal Code § 308(a). TOBACCO PRODUCT.

• (1) Any of the following:

(a) A 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, chewing tobacco, pipe tobacco, or snuff;

(b) An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah; and

(c) Any component, part, or accessory of a tobacco product, whether or not sold separately.

(2) TOBACCO PRODUCT does not include a product 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 the product is marketed and sold solely for such an approved purpose.

TOBACCO RETAILER. Any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco or tobacco products; TOBACCO RETAILING shall mean engaging in any of these activities. (Prior Code, § 10421) (Ord. 05-06, passed 9-6-2005; Ord. 16-03, passed 9-6-2016; Ord. 19-01, passed 2-4-2019)

(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 issued pursuant to this subchapter for each location at which that activity is to occur.

(B) No license will be issued to authorize tobacco retailing at other than a fixed location; itinerant tobacco retailing and tobacco retailing from vehicles are prohibited.

(C) No license will be issued to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (for example, an “on-sale” license issued by the State Department of Alcoholic Beverage Control); tobacco retailing in bars and restaurants serving alcoholic beverages is prohibited.

(D) No person shall sell a tobacco product without first examining the identification of the purchaser and confirming that the proposed sale is to a purchaser who is at least the minimum age in state law for being sold the tobacco product.

(E) Licenses issued hereunder are valid for one year and each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license prior to its expiration. A tobacco retailer license does not confer any new rights under any other law and does not exempt any business that otherwise would be subject to the smoke-free work place provisions of Cal. Labor Code § 6404.5.

(F) A tobacco retailer operating legally on the date that the ordinance enacting this subchapter was first introduced and that would otherwise be entitled to receive a license may receive a license and may continue to operate so long as:

• (1) The license is renewed continually without lapse;

• (2) The tobacco retailer is not closed for business for more than 60 consecutive days;

• (3) The tobacco retailer does not substantially change the business premises or business operation; and

(4) The tobacco retailer maintains the right to operate under the terms of other applicable laws, including, without limitation, the zoning ordinance, building codes, and business tax certificate ordinance.

(Prior Code, § 10422) (Ord. 05-06, passed 9-6-2005) Penalty, see § 114.99

An application for a tobacco retailer’s license shall be submitted to the licensing agent in the name of each proprietor/person proposing to conduct retail tobacco sales and shall be signed by such person or an authorized agent thereof. All applications shall be submitted on a form supplied by the licensing agent and shall contain the following information:

• (A) The name, address, and telephone number of the applicant;

(B) The business name, address, and telephone number of each location for which a tobacco retailer’s license is sought;

• (C) Such other information as the licensing agent deems necessary for enforcement of this subchapter; and

(D) Whether or not any proprietor has previously been issued a license pursuant to this subchapter that is, or was at any time, revoked and, if so, the dates of the revocation and the period of revocation. (Prior Code, § 10423) (Ord. 05-06, passed 9-6-2005)

The licensing agent shall issue a tobacco retailer’s license unless substantial record evidence demonstrates one of the following bases for denial:

• (A) The application is incomplete or inaccurate;

• (B) The application seeks authorization for tobacco retailing by a person or at a location for which a revocation is in effect pursuant to § 114.25; or

(C) The application seeks authorization for tobacco retailing in an area that is in violation of city zoning pursuant to Chapter 152 or that is unlawful pursuant to any other local, state, or federal law.

(Prior Code, § 10424) (Ord. 05-06, passed 9-6-2005)

Each licensee shall prominently display the license in a public place at each location where tobacco retailing occurs. (Prior Code, § 10425) (Ord. 05-06, passed 9-6-2005)

The fee for a tobacco retailer’s license shall be established by resolution of the City Council amending the Master Fee Schedule. The fee shall be calculated so as to recover the total cost, but no more than the total cost, of license administration and enforcement, including, for example, but not limited to, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violation, and prosecution of violators. The fee for tobacco retailer’s license shall be paid to the licensing agent. (Prior Code, § 10426) (Ord. 05-06, passed 9-6-2005)

A tobacco retailer’s license is nontransferable to a different person or a different location. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. Or if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.

(Prior Code, § 10427) (Ord. 05-06, passed 9-6-2005)

It shall be a violation of a license for a licensee or his or her agents or employees to violate any local, state, or federal tobacco-related law.

(Prior Code, § 10428) (Ord. 05-06, passed 9-6-2005)

Compliance with this subchapter shall be monitored by the City Police Department. At least four compliance checks of each tobacco retailer shall be conducted during each 12-month period. The cost of compliance monitoring shall be incorporated into the license fee.

(Prior Code, § 10429) (Ord. 05-06, passed 9-6-2005)

(A) Revocation of license. In addition to any other penalty authorized by law, a tobacco retailer’s license may be revoked if the city finds, after notice to the licensee and opportunity to be heard, that the licensee, or his or her agents or employees, has violated the conditions of the license imposed pursuant to this subchapter.

(1) After revocation for a first violation of this subchapter 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.

(2) After revocation for a second violation of this subchapter at a location within any five-year period, no new license may be issued for the location until 90 days.

(3) After revocation for a third violation of this subchapter at a location within any five-year period, no new license may be issued for the location until one year.

(4) After revocation for four or more violations of this subchapter 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. (Prior Code, § 10430)

(B) Revocation of license issued in error.

(1) A tobacco retailer’s license shall be revoked if the city finds, after the licensee is afforded reasonable notice and opportunity to be heard, that one or more of the bases for denial of a license under § 114.19 existed at the time application was made or at any time before the license issued.

(2) The decision by the Department shall be the final decision of the city. The revocation shall be without prejudice to the filing of a new application for a license.

(Prior Code, § 10430.1)

(C) Appeal of suspension and/or revocation.

(1) A decision of the city to revoke a license is appealable to a hearing officer and must be filed with the hearing officer at least ten working days prior to the commencement date of the license revocation. An appeal shall stay all proceedings in furtherance of the appealed action. Following appeal, the decision of the hearing officer may be appealed to the City Manager, or his or her designee. A decision of the City Manager, or his or her designee, shall be the final decision of the city.

(2) During a period of license revocation, the tobacco retailer must remove from public view all tobacco products and shall not display any advertisement relating to tobacco products that promotes the sale or distribution of such products from the tobacco retailer’s location or that would lead a reasonable consumer to believe that such products can be obtained at the tobacco retailer’s location.

(Prior Code, § 10431) (Ord. 05-06, passed 9-6-2005)

(A) Any person, business owner, or proprietor, or employee of any business or establishment subject to the requirements of §§ 114.01 and 114.02 who violates any mandatory provision of §§ 114.01 and 114.02 shall be guilty of an infraction and subject to punishment as provided for in §§ 37.055 through 37.060. (Prior Code, § 3221.3)

(B) (1) Any violation of the provisions of §§ 114.15 through 114.25 by any person is a misdemeanor and is punishable as provided in §§ 37.055 through 37.060.

(2) Each day that an unlicensed person offers tobacco products or tobacco for sale or exchange shall constitute a separate violation.

• (3) Violations of §§ 114.15 through 114.25 are hereby declared to be a public nuisance.

(4) In addition to other remedies provided by §§ 114.15 through 114.25 or by other law, any violation of §§

114.15 through 114.25 may be remedied by a civil action brought by the City Attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. The remedies provided by §§ 114.15 through 114.25 are cumulative and in addition to any other remedies available at law or in equity.

(Prior Code, § 10432)

(Ord. 00-08, passed 12-4-2000; Ord. 05-06, passed 9-6-2005)