Lomita Municipal Code Ch. 17 Tobacco Retailer Licensing

The city council finds and determines that:

(a) California Penal Code § 308 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.

(b) California Business and Professions Code § 22956 requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under eighteen (18) years of age.

(c) California Business and Professions Code § 22952 and California Penal Code § 308 require that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under eighteen (18) years of age is illegal.

(d) California Business and Profession Code § 22962 prohibits the sale or display of cigarettes though [through] a self-service display and prohibits public access to cigarettes without the assistance of a clerk.

(e) California Penal Code § 308.1 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.

(f) California Penal Code § 308.3 prohibits the manufacture, distribution, or sale of cigarettes in packages of less than twenty (20) and prohibits the manufacture, distribution, or sale of "roll-your-own" tobacco in packages containing less than six-tenths (0.60) ounces of tobacco.

(g) California Education Code § 48901 (a) 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.

(h) California Business and Professions Code § 22971.3 authorizes local authorities to adopt tobacco retailer licensing laws to provide for the suspension and revocation of the local tobacco retailer license for any violation of a state tobacco control law.

(i) Despite the above-referenced restrictions, minors continue to obtain cigarettes and other tobacco products at alarming rates. Each year an estimated nine hundred twenty-four million (924,000,000) packs of cigarettes are consumed by minors twelve (12) to seventeen (17) years of age.

(j) In a 2001 California youth-buying survey, 17.1 percent of retailers surveyed unlawfully sold tobacco products to minors.

(k) The city has a substantial interest in promoting compliance with federal, state and local laws intended to regulate tobacco sales and use.

(l) Studies have shown that local tobacco retail licensing programs coupled with a strong enforcement program substantially reduces youth access to tobacco.

(Ord. No. 702, § 2, 6-4-07)

The purpose of this chapter is to encourage responsible tobacco retailing and discourage violations of tobacco-related laws that prohibit the sale or distribution of tobacco products to minors and tobacco-related laws that prohibit the display of tobacco products within reach of the public, 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 therefore.

(Ord. No. 702, § 2, 6-4-07)

When used in this chapter, the following definitions shall have the meanings given by this section, whether or not these words or phrases are capitalized:

"Hearing officer" means the city employee or other person designated by the city manager to serve in this capacity.

"Itinerant tobacco retailing" means engaging in tobacco retailing at other than a fixed location.

"Person" means any individual, firm, partnership, joint venture, limited liability company, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.

"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 (10) 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 has, or can have, sole or shared control over the day-to-day operations of a business.

"Tobacco product" means: (1) any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe 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 other 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 Federal Food and Drug Administration for use in treating nicotine or tobacco product dependence.

"Tobacco paraphernalia" includes cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette-rolling machines, and any other item designed for the smoking or ingestion of tobacco products.

"Tobacco retailer" means any person who sells, offers for sale, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange.

"Tobacco retailing" means selling, offering for sale, exchanging, or offering to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange.

(Ord. No. 702, § 2, 6-4-07)

(a) It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retail license pursuant to this chapter for each location at which tobacco retailing is to occur. No tobacco retail 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) Nothing in this chapter shall be construed to grant any person obtaining a tobacco retailer 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, subject to compliance with all other applicable laws, regulations, and ordinances. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on indoor smoking made applicable to business establishments by Labor Code § 6404.5.

(Ord. No. 702, § 2, 6-4-07)

(a) Application for a tobacco retailer license shall be submitted to the administrative services department, business license division, 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.

(b) All applications shall be submitted on a form supplied by the city 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 tobacco retailer's license is sought.

(3) The name and mailing address authorized by each applicant to receive all license-related communications and notices (the "authorized address"). Failure to supply an authorized address shall be understood to consent to the provision of notice at the business address specified in paragraph 2., above.

(4) Whether or not any applicant has previously been issued a license pursuant to this chapter that is or was at any time suspended or revoked and, if so, the dates of the suspension period or the date of revocation.

(5) Such other information as the city manager deems necessary for the administration or enforcement of this chapter.

(Ord. No. 702, § 2, 6-4-07)

(a) Upon the receipt of an application for a tobacco retailer license and the payment of a tobacco retailer license fee, the city 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 is suspended, has been revoked, or is subject to suspension or 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. For the purposes of this subparagraph, an "arm's length transaction" is defined as sale in good faith and for valuable consideration that reflects the fair market value in the open market between two (2) informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter that occurred at the location, is presumed not to be an "arm's length transaction";

b. It has been more than three (3) years since the most recent license for that location was revoked;

(3) The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect or by a proprietor which or who has had a license revoked, pursuant to this chapter;

(4) The application seeks an authorization for tobacco retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, state, or federal law; or

(5) The city has information that the applicant or his or her agents or employees have 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 thirty-day period.

(6) The issuance of a tobacco retail license would be in conflict with any other city ordinance.

(b) A license shall be valid for one (1) year and must be renewed no later than thirty (30) days prior, but no earlier than sixty (60) days prior to the expiration of the license. Unless revoked on an earlier date, all tobacco retailer licenses shall expire one (1) year after the date of issuance. A license may be renewed annually by submitting an tobacco retailer license application to the administrative services department, business license division, along with the payment of a tobacco retailer licensing fee; provided however, a tobacco retailer license that is suspended, has been revoked, or is subject to suspension or revocation proceedings shall not be renewed. The applicant shall follow all of the procedures and provide all of the information required by section 4-17.050 above. The city shall process the application according to the provisions of this section.

(c) If the information required in the license application pursuant to section 4-17.050(B), items 1, 2, or 3, changes, a new tobacco retailer's license is required before the business may continue to act as a tobacco retailer. 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 retailer at the new location. If the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.

(d) A tobacco retailer's license that is not timely renewed pursuant to this chapter shall be automatically suspended by operation of law. If not renewed, a license shall be automatically revoked two (2) years after the renewal date. To reinstate the paid status of a license that has been suspended due to the failure to timely pay the renewal fee, the tobacco retailer must:

(1) Submit the renewal fee plus a reinstatement fee of ten (10) percent of the renewal fee; and

(2) Submit a signed affidavit affirming that he or she has not sold any tobacco product or tobacco paraphernalia during the period the license was suspended for failure to pay the renewal fee.

(Ord. No. 702, § 2, 6-4-07)

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

(Ord. No. 702, § 2, 6-4-07)

The fee for issuance or renewal of a tobacco retailer license shall be established by resolution of the city council and shall be in addition to the city's business license fee and any other license or permit fee imposed by this Code upon the applicant. The tobacco retailer license fee shall be paid to the city at the time the license application is submitted.

(Ord. No. 702, § 2, 6-4-07)

A tobacco retailer license is nontransferable and is valid only for the person and location of license issued, unless it is suspended or revoked for cause, for the period indicated. If a tobacco retailer licensee changes the location of his or her business, that tobacco retailer licensee must obtain a new tobacco retailer license prior to acting as a tobacco retailer at the new location. If a business licensed to conduct tobacco retailing is sold or transferred, the new owner must obtain a tobacco retailer license for that location before acting as a tobacco retailer.

(Ord. No. 702, § 2, 6-4-07)

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

(b) Compliance with this chapter shall be monitored by the administrative services department, business license division and the community development department, neighborhood preservation division. Any peace officer also may enforce this chapter. The above departments shall check compliance of each tobacco retailer at least one (1) time per twelve-month period and shall conduct additional compliance checks as warranted. The compliance checks shall be conducted to determine, at a minimum, if the tobacco retailer is complying with tobacco laws regulating underage sales. The neighborhood preservation division in conjunction with the Los Angeles County Sheriff's Department and other law enforcement personnel may use youth decoys in conducting compliance checks. When appropriate, the compliance checks shall determine compliance with other tobacco-related laws.

(c) The city shall not enforce any tobacco-related minimum-age law against a person who otherwise might be in violation of such law because of a person's age (hereinafter a "youth decoy") if the potential violation occurs when:

(1) The youth decoy is participating in a compliance check supervised by a peace officer or a code compliance official; or

(2) The youth decoy is participating in a compliance check funded in part by the Los Angeles County Department of Health Services or funded in part, either directly or indirectly through subcontracting, by the California Department of Health Services.

(Ord. No. 702, § 2, 6-4-07)

(a) In addition to any other penalty authorized by law, a tobacco retailer license may be suspended or revoked if the city finds, after notice to the tobacco retailer licensee and opportunity to be heard, that the tobacco retailer licensee or his or her agents or employees has or have violated any of the provisions of this chapter; provided however, violations by a licensee at one location may not be accumulated against other locations of that same tobacco retailer licensee, nor may violations accumulated against a prior tobacco retailer licensee at a licensed location be accumulated against a new tobacco retailer licensee at the same licensed location.

(1) Upon a finding by the city of a first violation within any three-year period, the city shall:

(i) Issue a written warning to the licensee.

(ii) Advise the licensee of the penalties for further violations of the ordinance.

(iii) Require the licensee to provide documentation to the city that all employees engaged in the retail sales of tobacco have received training in a city-approved program within sixty (60) days after the warning, or such other time as shall be set by the city.

(2) Upon a finding by the city of a second license violation within any three-year period, the license may be suspended up to thirty (30) days.

(3) Upon a finding by the city of a third license violation within any three-year period, the licensee may be suspended up to ninety (90) days.

(4) Upon the finding by the city of a fourth license violation within any three-year period, the license may be suspended for up to one (1) year.

(5) Upon a finding by the city of a fifth license violation within any three-year period, the license may be revoked.

(b) A tobacco retailer license shall be revoked if the city finds, after notice and opportunity to be heard, that any one or more of the conditions listed below exist. The revocation shall be without prejudice to the filing of a new application for a tobacco retailer license.

(1) One (1) or more of the basis for denial of a tobacco retailer license under section 4-17.060 existed at the time the tobacco retailer license application was made or at anytime before the tobacco retailer license was issued.

(2) The application is incomplete for failure to provide the information required by 4-17.050.

(3) The information contained in the application, including supplemental information, if any is found to be false in any material respect.

(4) The application seeks authorization for tobacco retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, state, or federal law.

(c) In the event the city suspends or revokes a tobacco retailer license, written notice of the suspension or revocation shall be served upon the tobacco retailer licensee within five (5) days of the suspension or revocation in a manner prescribed in section 4-17.050. The notice shall contain:

(1) A brief statement of the specific grounds for such suspension or revocation;

(2) A statement that the tobacco retailer licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of section 4-17.120, to the city, within ten (10) calendar days of the date of the service of the notice; and

(3) A statement that the failure to appeal the notice of suspension or revocation will constitute a waiver of all right to an administrative appeal hearing, and the suspension or revocation will be final.

(Ord. No. 702, § 2, 6-4-07)

(a) Any tobacco retailer license applicant or licensee aggrieved by the decision of the city in denying, suspending, or revoking a tobacco retailer license, may appeal the decision, by submitting a written appeal to the city clerk within ten (10) calendar days from the date of service of the notice of denial, suspension, or revocation. The written appeal shall contain:

(1) A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant;

(2) A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the protested action should be reversed or otherwise set aside;

(3) The signatures of all parties named as appellants and their official mailing addresses; and

(4) The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.

(b) The appeal hearing shall be conducted by a hearing officer.

(c) Upon receipt of any appeal filed pursuant to this section, the city clerk shall transmit said appeal to the hearing officer who shall calendar it for a hearing. The hearing officer shall give the parties at least fifteen (15) calendar days' written notice of the time and place of the hearing either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal. Upon good cause, the hearing officer may grant one (1) extension for the date of the hearing not to exceed fifteen (15) days from date original set for the hearing.

(d) Only those matters or issues specifically raised by the appellant in the notice of appeal shall be considered in the hearing of the appeal.

(e) Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the notice and order, or any portion thereof.

(f) Following the hearing on the appeal by the hearing officer, 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.

(g) During a period of license suspension the tobacco retailer licensee must remove from public view all tobacco products and tobacco paraphernalia at the address that appears on the suspended or revoked tobacco retailer license.

(Ord. No. 702, § 2, 6-4-07)

(a) At the time set for hearing, the hearing officer shall proceed to hear the testimony of material witnesses, the appellant, and other competent persons, including members of the public, respecting those matters or issues specifically listed by the appellant in the notice of appeal.

(b) The proceedings at the hearing shall be electronically recorded. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the party's own expense.

(c) The hearing officer may, upon the request of the appellant or upon the request of the city, grant continuances from time to time for good cause shown, or upon his or her own motion.

(Ord. No. 702, § 2, 6-4-07)

(a) Hearings need not be conducted in accordance to the technical rules relating to evidence and witnesses. Government Code § 11513, subsections (a), (b) and (c) shall apply to hearings under this chapter.

(b) Oral evidence shall be taken only upon oath or affirmation.

(c) Irrelevant and unduly repetitious evidence shall be excluded.

(d) Each party shall have these rights, among others:

(1) To call and examine witnesses on any matter relevant to the issues of the hearing;

(2) To introduce documentary and physical evidence;

(3) To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;

(4) To impeach any witness regardless of which party first called the witness to testify;

(5) To rebut evidence presented against the party; and,

(6) To represent himself, herself, or itself or to be represented by anyone of his, her, or its choice who is lawfully permitted to do so.

(e) In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact that may be judicially noticed by the courts of this state or that may appear in any of the official records of the city of any of its departments.

(Ord. No. 702, § 2, 6-4-07)

(a) If it is shown, by a preponderance of the evidence, that one (1) or more bases exist to deny, suspend, or revoke the tobacco retailer license, the hearing officer shall affirm the city's decision to deny, suspend, or revoke the tobacco retailer license. The decision of the hearing officer shall be in writing and shall contain findings of fact and a determination of the issues presented.

(b) The decision of the hearing officer shall inform the appellant that the decision may be appealed to the city manager by filing a written appeal with the hearing officer within ten (10) days of receipt of the decision of the hearing officer. The written appeal shall be forwarded to the city manager upon receipt.

(c) Within fifteen (15) days of receipt of the written appeal, the city manager shall review the record of the hearing and issue a written decision to grant or deny the appeal. A decision of the city manager shall be final. The city manager shall provide appellant with a copy of his or her decision and the decision shall indicate that the time for judicial review of the decision is governed by Code of Civil Procedure § 1094.6. Copies of the decision shall be delivered to the parties personally or sent by certified mail to the address shown on the appeal. The decision shall be final when signed by city manager and served as provided in this section.

(Ord. No. 702, § 2, 6-4-07)

The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.

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

(b) Violations of this chapter shall constitute a misdemeanor except that, notwithstanding any provision of this subdivision, any violation may, in the discretion of the city attorney, be charged and prosecuted as an infraction in accordance with section 1-2.01.

(c) Any person violating this chapter is subject to a civil action brought by the city attorney, punishable by a fine of one thousand dollars ($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 hereby declared to be public nuisances.

(e) Violations of this chapter are hereby 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 attorney in the name of the city, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings and suits for injunctive relief.

(Ord. No. 702, § 2, 6-4-07)

If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, that decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The city council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.

(Ord. No. 702, § 2, 6-4-07)