Lafayette Municipal Code Ch. 5-9 Tobacco Retailer Licensing and Restrictions on Sales of Tobacco And…

In this chapter, unless the context otherwise requires, the following definitions shall apply:

(a) "Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value 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.

(b) "Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or the provision of ingredient information.

(c) "Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.

(d) "Coupon" means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.

(e) "Department" means the agency or department designated by the city manager to enforce or administer the provisions of this chapter.

(f) "Flavored tobacco product" means any tobacco product that imparts a characterizing flavor.

(g) "Full retail price" means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.

(h) "Labeling" means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.

(i) "Manager" means a person with a managerial interest in a business. 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.

(j) "Manufacturer" means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.

(k) "Package" or "packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.

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

(m) "Proprietor" means a person with an ownership 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.

(n) "Sale" or "sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

(o) "Self-service display" means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.

(p) "Tobacco paraphernalia" means any item designed or marketed for the consumption, use, or preparation of tobacco products.

(q) "Tobacco product" means:

(1) Any 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, snuff; and

(2) Any electronic 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.

(3) Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. "Tobacco product" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

(r) "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. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. No. 675, § 1, 5-28-2019)

(a) Tobacco Retailer's License Required. It shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer's license is a public nuisance as a matter of law.

(b) Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

(c) Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

(d) Positive Identification Required. No person engaged in tobacco retailing shall sell a tobacco product or tobacco paraphernalia to another person who is 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 for sale of tobacco products as established by state law.

(e) Self-service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

(f) Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer's packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements.

(g) On-site Sales. All sales of tobacco products and tobacco paraphernalia to consumers shall be conducted in-person at the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer's agents or employees to deliver tobacco products or tobacco paraphernalia or to knowingly or recklessly sell tobacco products or tobacco paraphernalia to any person that intends to deliver the tobacco product or tobacco paraphernalia to a consumer in the city. For purposes of this subsection, "deliver" means the commercial transfer of tobacco products or tobacco paraphernalia to a consumer at a location not licensed pursuant to this chapter.

(h) False and Misleading Advertising Prohibited. A tobacco retailer without a valid tobacco retailer license or a proprietor without a valid tobacco retailer license, including, for example, a person whose license has been suspended or 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 under Section 5-913; and

(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.

(i) Free Samples Prohibited. No tobacco retailer shall distribute any free tobacco product or tobacco paraphernalia to a consumer.

(j) Display of Price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed to indicate the price of the product.

(k) Prohibition of Tobacco Coupons and Discounts. No tobacco retailer shall:

(1) Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price;

(2) Sell any tobacco product to a consumer through a multiple-package discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or any other item; or

(3) Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.

(Ord. No. 675, § 1, 5-28-2019)

(a) It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer's agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.

(b) There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.

(c) There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:

(1) Made a public statement or claim that the tobacco product imparts a characterizing flavor;

(2) Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or

(3) Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.

(d) A tobacco retailer lawfully operating as of the date this chapter is adopted may apply for an exemption from subsection (a) for an additional period of up to 180 days from the compliance period (as defined by Section 5-917), provided that all of the following requirements are met:

(1) Within 30 days of the effective date of this chapter, the tobacco retailer submits to the city manager, or his or her designee, written notice that it seeks temporary exemption from subsection (a) and documentation that demonstrates: (i) the tobacco retailer was lawfully operating as of the date this chapter was adopted; (ii) 60 percent or more of gross sales receipts are derived from flavored tobacco products, tobacco paraphernalia, or both; and (iii) the amortization period afforded by the 90-day compliance period provided under Section 5-917 is insufficient to allow the tobacco retailer to sell, return to the distributor or wholesaler, or otherwise obtain the benefit of, property which has no lawful use by virtue of the ordinance adopting this section. The submission shall include all information and documentation the city manager or his or her designee may request to determine the tobacco retailer's qualifications for this exemption.

(2) The city manager or his or her designee determines in writing that the tobacco retailer meets the qualifications set forth in subsection (d)(1).

(3) The decision of the city manager or his or her designee shall be final as to the city and subject to judicial review pursuant to Code of Civil Procedure Section 1094.5.

(Ord. No. 675, § 1, 5-28-2019)

(a) Mobile Vending. No license may issue to authorize tobacco retailing at other than a fixed location, including, but not limited to, tobacco retailing by persons on foot or from vehicles.

(b) Pharmacies. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy. For the purposes of this chapter, "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, and includes a retail establishment that sells other retail goods in addition to prescription pharmaceuticals as well as a retail establishment in which the pharmacy located within a larger, connected retail establishment.

(c) Population and Density. The issuing of tobacco retailer licenses is limited as follows:

(1) The total number of tobacco retailer licenses within the city shall be limited to the lesser of 11, or one for each 2,500, or fraction thereof, inhabitants of the city. An existing tobacco retailer operating lawfully within the city on the date this chapter is adopted shall be given priority in licensing if such tobacco retailer submits proof within the compliance period (as defined by Section 5-917) demonstrating that it has been operating lawfully as of the date this chapter is adopted, is eligible for a license and will comply with this chapter, and is in possession of all required state and local licenses or permits.

(2) For the purposes of this subsection, the total population of the city shall be determined by the most current published total available from the U.S. Census Bureau or the California State Department of Finance, whichever has been more recently updated, as of the date the license application is filed.

(3) No new license may be issued to authorize tobacco retailing if the number of tobacco retailer licenses already issued equals or exceeds the total number authorized pursuant to subsection (c)(1).

(d) If the actual number of existing tobacco retailers operating lawfully within the city on the date this chapter is adopted exceeds the limit in subsection (c)(1), then a tobacco retailer operating lawfully within the city on the date this chapter is adopted that is eligible for a tobacco retailer license for the location for which a license is sought may receive or renew a license for that location. For so long as the number of licensed retailers approved pursuant to this section exceeds the limit specified in subsection (c)(1), then the following conditions apply to all licensed tobacco retailers:

(1) Failure to timely submit the license application or a license renewal shall cause the retailer to be ineligible for a license or license renewal.

(2) If the tobacco retailer closes the business, or otherwise voluntarily suspends tobacco retailing, for more than 60 consecutive days, then the tobacco retailer shall be deemed to have voluntarily surrendered the license. Surrendered licenses may not be renewed.

(3) Without limiting Section 5-908, any sale of the tobacco retailer's business in an arm's length transaction shall be deemed a voluntary surrender of the license. Surrendered licenses may not be renewed.

(Ord. No. 675, § 1, 5-28-2019)

(a) The application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof.

It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's license. No proprietor may rely on the issuance of a license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5-912(c) of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's license any status or right to act as a tobacco retailer in contravention of any provision of law.

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 of the business seeking a license.

(2) The business name, address, and telephone number of the single fixed location for which a license is sought.

(3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above.

(4) Proof that the location for which a tobacco retailer's license is sought has been issued a valid state license for the sale of tobacco products, if the tobacco retailer sells products that require such license.

(5) Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter or any other local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing, and, if so, the dates and locations of all such violations within the previous five years.

(6) Such other information as the department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.

(b) A licensed tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer's license within ten business days of a change.

(Ord. No. 675, § 1, 5-28-2019)

Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this chapter, the department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:

(a) The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter;

(b) The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued; and/or

(c) The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful pursuant to this code, or that is unlawful pursuant to any other law.

(Ord. No. 675, § 1, 5-28-2019)

(a) Term. The term of a tobacco retailer license is one year.

(b) Renewal of License. Each tobacco retailer shall apply for the renewal of their tobacco retailer's license by filing out the license renewal application form and submit the license fee no later than 30 days prior to expiration of the term. Applications for renewal made less than 30 days before the expiration date shall not stay the expiration date of the license.

(c) Expiration of License. A tobacco retailer's license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subsection (a), the proprietor must:

(1) Submit the license fee and application renewal form; and

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

(A) 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

(B) Has waited the period of time required by Section 5-912 or Section 5-913(d) of this chapter before seeking renewal of the license (if applicable).

(Ord. No. 675, § 1, 5-28-2019)

A tobacco retailer's license may not be transferred from one person to another or from one location to another.

(Ord. No. 675, § 1, 5-28-2019)

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 limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including, but not limited to:

(a) Any provision of this code; and/or

(b) Any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. Obtaining a tobacco retailer's license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

(Ord. No. 675, § 1, 5-28-2019)

The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a 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 regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

(Ord. No. 675, § 1, 5-28-2019)

(a) Compliance with this chapter shall be monitored by the department. In addition, any peace officer may enforce the provisions of California Penal Code and the STAKE Act (California Business and Professions Code, § 22950 et seq.) related to tobacco control as provided by state law. The city may designate additional persons to monitor compliance with this chapter.

(b) The department shall inspect each tobacco retailer at least one time per 12-month period. A tobacco retailer found to have violated any provision of this chapter may be reinspected in the sole discretion of the department within three months of the violation. Should any such reinspection be performed, the cost of any reinspection shall be billed to the proprietor, and the proprietor shall obligated to pay, a reinspection fee in an amount established by resolution of the city council. Nothing in this paragraph shall create an obligation on the part of the city or the department to conduct inspections or reinspections, nor shall this section create a right of action in any licensee or other person against the city or its agents.

(c) The city council does not intend and nothing in this chapter shall be interpreted to penalize the purchase, use, possession, or attempted purchase, use, or possession of tobacco products or tobacco paraphernalia by persons under 21 years of age; provided, however, that persons under 21 years of age remain subject to generally applicable laws regulating such conduct without respect to the person's age.

(Ord. No. 675, § 1, 5-28-2019)

(a) The department may suspend or revoke a tobacco retailer's license if any of the conditions identified in this section exist. On determining that grounds for license suspension or revocation exist, the department shall serve the licensee with written notice of the proposed suspension or revocation. The notice shall state the ground or grounds upon which the decision is based, the effective date of the notice, the right of the licensee to appeal the decision to the city manager. The notice is effective 15 calendar days from the date of service of the notice. If an appeal is timely and properly filed, then the effective date of the notice is stayed.

(b) A licensee is subject to suspension or revocation of the tobacco retailer's license for any of the following causes arising from the acts or omissions of the licensee, or its employees, agents, managers or proprietors:

(1) The licensee has made a false, misleading or fraudulent statement or omission of facts in the application for a license, or in any report or record required to be filed with the city.

(2) A violation of any provision of this chapter, or any other provision of the municipal code.

(3) A violation of any local, state or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

(c) Upon finding that one or more of the conditions in subsection (b) exist then a tobacco retailer's license may be suspended or revoked as follows:

(1) Upon a finding by the department of a first violation of this chapter at a location within any five-year period, the license shall be suspended for 30 days.

(2) Upon a finding by the department of a second violation of this chapter at a location within any five-year period, the license shall be suspended for 90 days.

(3) Upon a finding by the department of a third violation of this chapter at a location within any five-year period, the license shall be suspended for the remainder of the license term, up to one year. No license renewal may be approved for a period of one year from the date of suspension.

(4) Upon a finding by the department of four or more violations of this chapter at a location within any five-year period, the license shall be revoked. Upon revocation, no new license may be issued to the proprietor for a period of five years from the date of revocation.

(d) Revocation of License Wrongly Issued. A tobacco retailer's license shall be revoked if the department finds that one or more of the bases for denial of a license under Section 5-906 existed at the time application was made or at any time before the license issued.

(e) Prior violations at a location shall continue to be counted against a location for purposes of subsection (c), and for purposes of license ineligibility periods pursuant to Section 5-913, unless:

(1) The location has been transferred to new proprietor(s) in an arm's length transaction; and

(2) The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm's length transaction.

(Ord. No. 675, § 1, 5-28-2019)

(a) Imposition of Fine—Amounts. If the department finds a person or retailer is selling or offering tobacco products for sale without a valid tobacco retailer's license (or with an expired or suspended license), that person or retailer is subject to an administrative fine, as permitted under Government Code Section 53069.4.

The fine amount is:

(1) Up to a maximum $100.00 for a first violation;

(2) Up to a maximum $200.00 for a second violation within one year;

(3) Up to a maximum $500.00 for the third and subsequent violations within one year.

Each day that a tobacco product is offered for sale without a license by a person or retailer required to have a license is a separate violation.

(b) Fine Procedures. Notice of the fine shall be served on the person or retailer who is the owner of the establishment. The notice shall contain a description of the violation, the amount of the fine and the date by which the fine is due, as well notice of the right to request an appeal hearing before the city manager in accordance with Section 5-914 contesting the imposition of the fine or requesting a hardship waiver. The hearing must be requested within 15 days of the date of the notice of the fine.

(c) Failure to Pay Fine. An outstanding fine must be paid before the city may issue the tobacco retailer's license.

(d) In addition to any fines and any other penalty authorized by law, if a court of competent jurisdiction determines, or the department finds 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 to be issued, a tobacco retailer's license as follows:

(1) After a first violation of this section at a location within any five-year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 30 days have passed from the date of the violation.

(2) After a second violation of this section at a location within any five-year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 90 days have passed from the date of the second violation.

(3) After a third violation of this section at a location within any five-year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until one year has passed from the date of the third violation.

(4) After of a fourth or subsequent violation of this section at a location within any five-year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until five years have passed from the date of the fourth or subsequent violation.

(Ord. No. 675, § 1, 5-28-2019)

(a) A licensee may appeal a decision of the department within 15 calendar days of the date of service of the decision by filing a written appeal with the city clerk. The notice of appeal shall be in writing and signed by the person making the appeal, or his or her legal representative, and shall contain the following:

(1) The name, address, telephone number of the appellant.

(2) A true and correct copy of the notice of the decision issued by the department for which the appellant is appealing.

(3) A specific statement of the reasons and grounds for making the appeal in sufficient detail to enable the city manager to understand the nature of the controversy, the basis of the appeal, and the relief requested.

(4) All documents or other evidence pertinent to the appeal that the appellant requests the city manager to consider at the hearing.

(b) At the time of filing the appellant shall pay the designated appeal fee, established by resolution of the city council from time to time.

(c) Failure of the city clerk to receive a timely and proper appeal, or the requisite fee, constitutes a waiver of the right to appeal the decision of the department and a failure to exhaust all administrative remedies. In this event, the department's decision is final and binding.

(d) In the event a notice of appeal is timely filed, the decision being appealed shall not be effective until a final order has been rendered and issued by the city manager. If a notice of appeal is not timely filed, in the event of a decision of nonrenewal, the permit expires at the conclusion of the term of the license and in the event of a suspension or revocation, the suspension of revocation is effective upon the expiration of the period for filing a written notice of appeal.

(e) Upon receipt of a timely notice of appeal, the city clerk shall set the matter for a hearing before the city manager, who shall hear the matter de novo. The department bears the burden of proof to establish the grounds for denial, nonrenewal, suspension or revocation by a preponderance of the evidence. The issuance of the department's decision constitutes prima facie evidence of grounds for the denial, nonrenewal, suspension, or revocation.

(f) The appeal shall be held within a reasonable time after the filing of the notice of appeal, but in no event later than 90 calendar days from the date of such filing. The city clerk shall notify the appellant in writing of the date, time and location of the hearing at least ten calendar days prior to the date of the hearing.

(g) At the hearing the appellant may present witnesses and evidence relevant to the decision appealed. Appeal hearings are informal, and the formal rules of evidence and discovery applicable in a court of law shall not apply to the hearing. However, rules of privilege shall be applicable to the extent they are permitted by law, and irrelevant, collateral and repetitious evidence may be excluded.

(h) After the conclusion of the appeal hearing, the city manager shall determine if any ground exists for the denial, nonrenewal, suspension, or revocation of the tobacco retailer's license. If the city manager determines that no grounds supporting the department's decision exist, the department's notice of decision shall be deemed cancelled. If the city manager determines that grounds supporting the department's decision exist, the city manager shall issue a written final order upholding the department's decision. The decision of the city manager shall be final. The decision shall contain the following statement: "The decision of the city manager is final and binding. Judicial review of this decision is subject to the time limits set forth in California Code of Civil Procedure Section 1094.6." The final order shall be served by first-class mail on the appellant.

(Ord. No. 675, § 1, 5-28-2019)

All notices or decisions required to be served by this chapter will be served by either:

(a) Certified mail. Certified mail will be addressed to the tobacco retailer at the address shown on the license application. Service is deemed complete upon the deposit of the notice or decision, postage prepaid, in the United States mail. Simultaneously, the same notice or decision may be sent by regular mail. If a notice or decision sent by certified mail is returned unsigned, then service is deemed effective pursuant to regular mail on the date mailed.

(b) Personal service. Personal service is deemed complete on the date the notice or decision is personally served.

The failure of a person to receive a properly addressed service shall not affect the validity of the proceedings.

(Ord. No. 675, § 1, 5-28-2019)

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

(b) For the purposes of this chapter:

(1) Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter shall constitute a separate violation of this chapter; and

(2) Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.

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

(d) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of 21 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.

(e) Violations of this chapter, in the discretion of the city attorney, may be prosecuted as infractions or misdemeanors when the interests of justice so require.

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

(g) In addition to other remedies provided by this chapter, by this code, or by other law, any violation of this chapter may be remedied by, without limitation, administrative citation and penalties or a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.

(Ord. No. 675, § 1, 5-28-2019)

A tobacco retailer that is open for business and operating in the city on the date the ordinance enacting this chapter is adopted shall have 90 days from the effective date of the ordinance comply with this Chapter 5-9 (the "compliance period").

(Ord. No. 675, § 1, 5-28-2019)

The city manager shall have the power and authority to promulgate rules, regulations, and requirements consistent with the provisions of this chapter and other law.

(Ord. No. 675, § 1, 5-28-2019)