Hollister Municipal Code Ch. 5.38 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 Section 308).

B. State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 18 years of age (Business and Professions Code Section 22956) and provides procedures for using persons under 18 years of age to conduct onsite compliance checks of tobacco retailers (Business and Professions Code Section 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 18 years of age is illegal (Business and Professions Code Section 22952, Penal Code Section 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 and Professions Code Section 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 Section 308.1).

F. State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than 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 Section 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 Section 48901(a)).

H. Eighty-eight percent 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 14½.

I. The city of Hollister 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 and Professions Code Section 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.

M. Tobacco is the leading cause of preventable death in the United States and the leading risk factor contributing to the burden of disease in the world's high-income countries.

N. A recent study found that as of 2012 one out of six or 18 percent of adults in San Benito County smoke compared to 15 percent in the state of California.

O. Children are particularly influenced by cues suggesting that smoking is acceptable.

P. By selling tobacco products, pharmacies reinforce positive social perceptions of smoking, convey tacit approval of tobacco use, and send a message that it is not so dangerous to smoke.

Q. The Tobacco Education and Research Oversight Committee for California, as well as the American Pharmacists Association, the California Pharmacists Association, and the California Medical Association have called for the adoption of state and local prohibitions of tobacco sales in drug stores and pharmacies.

R. Pharmacies and drugstores are among the most accessible and trusted sources of health information among the public.

S. A majority (78 percent) of independently owned pharmacies in California have become tobacco free; however, tobacco products are still sold in 94 percent of chain drug stores.

T. Of the seven pharmacies in San Benito County, three do not sell tobacco and four currently sell tobacco. One of the pharmacies that sells tobacco is reviewing this matter at a corporate level.

U. More than 95 percent of California consumers have said they would continue shopping at drugstores that became tobacco-free as often or more often.

V. Of 336 city of Hollister consumers surveyed, an overwhelming percentage (86 percent) indicates that they would continue to patronize their pharmacy or drug store if it stopped selling tobacco products.

W. Of the independently owned pharmacies that are tobacco-free, 88 percent report they have experienced either no loss or an increase in business since removing tobacco from their shelves.

(Ord. 1004, § 1, 2006; Ord. 1118, § 2, 2015)

The purpose of this chapter is to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products 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. 1004, § 1, 2006)

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 Hollister, or designee.

Department means the Hollister police department.

Person means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

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 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 share 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 for the smoking, preparation, storing, or consumption of tobacco products.

Tobacco product means:

(1) Any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and

(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, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence.

Tobacco retailer means any person who sells, offers for sale, or does 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 means the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. 1004, § 1, 2006)

A. It is 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. 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 in this chapter.

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. 1004, § 1, 2006)

A. 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.

B. Pharmacies. No license may be issued or reissued to authorize tobacco retailing in a pharmacy. For the purposes of this subsection, "pharmacy" means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the state of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.

(Ord. 1004, § 1, 2006; Ord. 1118, § 2, 2015)

A. All applications for a license shall be submitted to the department 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 department 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; and

4. Such other information as the department 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 department whenever the information changes. A tobacco retailer shall provide the department in writing with any updates within ten business days of a change.

C. The information specified in subsections A.1. and 2. of this section shall be available to the public for all currently licensed tobacco retailers. Upon request, the department shall provide a compilation of this information to any person within a reasonable time and subject to a fee approximating the actual cost of compiling and presenting the information.

(Ord. 1004, § 1, 2006)

A. Upon the receipt of an application for a license and the applicable license fee, the department 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 chapter; 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 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; or

4. The city has information that the applicant or his or her agents or employees has 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 30-day period.

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 Section 5.38.060.

C. Where the department does not approve a license or renewal of a license, the department 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, 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. 1004, § 1, 2006)

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 ten 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, or

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. 1004, § 1, 2006)

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 department with clear and convincing evidence that the new proprietor has acquired or is acquiring the location in an arm's length transaction.

(Ord. 1004, § 1, 2006)

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

(Ord. 1004, § 1, 2006)

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 cost of the total program. All fees shall be used to fund the program. Fees are nonrefundable except as may be required by law.

(Ord. 1004, § 1, 2006)

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 27 years 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. 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. 1004, § 1, 2006)

A. Compliance with this chapter shall be monitored by the code enforcement division. Any peace officer or the code enforcement official may enforce the provisions of this chapter.

B. Each tobacco retailer shall be monitored for compliance at least one time per 12-month period. Nothing in this chapter shall create a right of action in any licensee or other person against the city or its agents by reason of such compliance checks.

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 or a code enforcement official of the city, or participating in a compliance check funded directly or indirectly by any state or local agency, organization or department.

(Ord. 1004, § 1, 2006)

In addition to any other penalty provided by law, a tobacco retailer's license shall be revoked if the department 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, has violated any of the requirements, conditions, or prohibitions of this chapter or, in a different legal proceeding, has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of this chapter.

(Ord. 1004, § 1, 2006)

A. After revocation for a first violation of this chapter at a location within any five-year period, no new license may issue for the location until ten days have passed from the date of revocation.

B. After revocation for a second violation of this chapter at a location within any five-year period, no new license may issue 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 $250.00.

C. After revocation for a third violation of this chapter at a location within any five-year period, no new license may issue 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 $500.00.

D. After revocation for four or more violations of this chapter at a location within any five-year period, no new license may issue 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 $1,000.00.

(Ord. 1004, § 1, 2006)

A tobacco retailer's license shall be revoked if the department 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 anytime before the license was issued. The revocation shall be without prejudice to the filing of a new application for a license.

(Ord. 1004, § 1, 2006)

A. Notice of Violation. 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 department'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 department within ten 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 department's 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 subsection A of this section, the department 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.

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. Notwithstanding the provisions of Section 1094.5 or Section 1094.6 of the Code of Civil Procedure, within 20 days after personal service of the hearing officers 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 officers 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 department by the contestant. The appeal shall be heard de novo, except that the contents of the department's file in the case shall be received in evidence. A copy of the records of the department 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. 1004, § 1, 2006)

A. In addition to any other penalty authorized by law, if the department finds 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 chapter at a location within any five-year period, no new license may issue for the person at the location until 30 days have passed from the date of the violation.

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

3. After of a third or subsequent violation of this chapter at a location within any five-year period, no new license may issue 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 Section 5.38.170 of this chapter.

(Ord. 1004, § 1, 2006)

For a first or second alleged violation of this chapter within any five-year period, the city attorney may engage in settlement negotiations and is authorized to enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter. Notice of any settlement shall be provided to the department and no hearing shall be held. Settlements shall not be confidential and shall contain the following minimum terms:

A. An agreement to stop acting as a tobacco retailer for a minimum period of time;

B. A settlement payment to the city; and

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

(Ord. 1004, § 1, 2006)

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 Municipal Code Chapter 1.16.

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

C. Any person violating this chapter is subject to the payment of civil penalties of up to $1,000.00 for each violation. Any continuing violation shall constitute a separate offense for each day of the violation.

D. Violations of this chapter are declared to be public nuisances.

E. Violations of this chapter are 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 chapter or by other law, any violation of this chapter 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 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. 1004, § 1, 2006)

A tobacco retailer shall be required to obtain a tobacco retail license and comply with the provisions of this chapter no later than October 16, 2006.

(Ord. 1004, § 1, 2006)