Los Altos Municipal Code Ch. 4.48 Tobacco Retailer Licensing

This article is intended to set forth a local licensing process for tobacco retailers to ensure compliance with city business standards and practices; encourage responsible retailing of tobacco products and electronic smoking devices; discourage violations of laws related to tobacco products and electronic smoking devices, especially those laws that prohibit or discourage sale or distribution of tobacco products or electronic smoking devices to minors; and, protect the public health, safety, and welfare. This article does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws.

(Ord. No. 2020-469, § 1, 2-25-2020)

For the purposes of this chapter, certain terms used herein are defined as follows:

A.

"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 or more informed and willing parties of the legal age, 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 section is not an arm's length transaction.

B.

"Department" means the Los Altos Police Department and any other department, division, or person designated by the city to enforce or administer the provisions of this chapter.

C.

"Electronic smoking device" includes any such device, whether it is manufactured, distributed, marketed, or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, electronic vape, vaporizer or any other product name or description. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for the use in the mitigation, treatment, or prevention of disease.

D.

"Flavored tobacco product" means any tobacco product, including disposables, that imparts 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 mint, wintergreen, cotton candy, mango, candy, cocoa, dessert, alcoholic beverage, herb, menthol, or spice; provided, however, that a tobacco product shall not be determined to be flavored tobacco solely because of the use of additives or flavorings or the provision of ingredient information. (Including disposables)

E.

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

F.

"Retailer" means any person who sells, exchanges, or offers to sell or exchange, for any form of consideration, tobacco products, paraphernalia, or electronic smoking devices. "Retailing" shall mean the doing of any of these things whether exclusively or in conjunction with any other use. The definition of a retailer is without regard to the quantity of tobacco products, paraphernalia, or electronic smoking devices sold, exchanged, or offered for sale or exchange.

G.

"Self-service display" means the open display or storage of tobacco products, paraphernalia, or electronic smoking devices in a manner that is physically accessible in any way to the direct 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.

H.

"Tobacco paraphernalia" means any product that is an accessory of "tobacco products" such as, but not limited to, ashtrays, spittoons, and conventional matches and lighters that solely provide an external heat source to initiate but not maintain combustion of a tobacco product.

I.

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, menthols, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco (such as flavored tobacco); and any product or formulation of product 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 cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

J.

"Tobacco retailer license" is a license issued pursuant to this article.

(Ord. No. 2020-469, § 1, 2-25-2020)

It shall be unlawful for any person to act as a retailer in the City of Los Altos without first obtaining and maintaining a valid tobacco retailer license pursuant to this article for each location at which the activity is to occur.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

Lawful business operation. It shall be a violation of this article for any retailer to violate any local, state, or federal law applicable to tobacco products, electronic smoking devices, or the retailing of such products.

B.

Location. Retailing activities shall be conducted at a fixed location and within an enclosed area of a commercial premises accessible to the general public during the hours of business operation.

No tobacco retailer license may be issued to a retailer who is within one thousand feet of a site occupied by a public or private elementary, middle, or high school, except those that meet subsection (4) criteria. All distances shall be measured in a straight line from the point on the parcel boundary of the proposed tobacco retailer location nearest to the subject use (i.e. existing tobacco retailer or school) to the nearest point on the parcel boundary of the subject use.

No tobacco retailer license may be issued to a retailer who is within five hundred feet of a site occupied by another retailer, except those that meet subsection (4) criteria. All distances shall be measured in a straight line from the point on the parcel boundary of the proposed tobacco retailer location nearest to the subject use (i.e. existing tobacco retailer or school) to the nearest point on the parcel boundary of the subject use.

No tobacco retailer license may be issued to retailers at any location where the profession of pharmacy is practiced by a pharmacist licensed by the State in accordance with the Business and Professions Code and where prescription drugs are offered for sale.

A tobacco retailer license may be issued for use of a location that was retailing prior to February 11th, 2020 and may be renewed thereafter unless it expires due to non-renewal or is revoked in accordance with Section 4.48.070 of this Code.

D.

Display of license. Each tobacco retailer license shall be prominently displayed in a publicly visible place at the licensed location.

E.

License nontransferable. A tobacco retailer license may not be transferred from one person to another or from one location to another. Whenever a new person obtains possession of a fifty (50) percent or greater interest in the stock, assets, or income of a business (other than a security interest for the repayment of debt) for which a tobacco retailer license has been issued, a new license shall be required.

F.

False and misleading advertising prohibited. A retailer either without a valid tobacco retailer license or with a suspended license shall not display any tobacco products, paraphernalia, or electronic smoking devices nor display any advertisement that promotes the sale or distribution of such products from the retailer's location or that could lead a reasonable consumer to believe that tobacco products, paraphernalia, or electronic smoking devices can be obtained at that location.

G.

Minimum age for purchase. No retailer shall sell, give, or otherwise transfer tobacco product, paraphernalia, or electronic smoking devices to a person under the minimum age for purchase as set by State law.

H.

Positive identification required. No retailer shall sell, give, or otherwise transfer tobacco product, paraphernalia, or electronic smoking devices to another person without first examining the customer's identification to confirm that the customer is at least the minimum age for purchase as set by State law.

I.

Limitation on storefront advertising. Storefront advertising shall comply with Chapter 14.68 of this Code and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the establishment. However, this shall not apply to an establishment where there are no windows or where existing windows are located at a height that preclude view of the interior of the premises by a person standing outside the premises.

K.

Vending machines prohibited. No tobacco product, paraphernalia, or electronic smoking device shall be sold, offered for sale, or distributed to the public from a vending machine or appliance, or any other coin- or token-operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

L.

Self-service displays prohibited. No tobacco product, paraphernalia, or electronic smoking device shall be sold, offered for sale, or distributed to the public from a self-service display.

M.

Flavored tobacco products prohibited. No retailer shall sell a tobacco product containing, as a constituent or additive, an artificial or natural flavor or aroma (other than tobacco) or an herb or spice, including but not limited to mint, wintergreen, cotton candy, mango, candy, cocoa, dessert, alcoholic beverage, herb, menthol, or spice, that is a characterizing flavor or aroma of the tobacco product, smoke, or vapor produced by the tobacco product.

Paragraph (M) of this subsection (4.48.040) shall not apply to any retailer that meets all of the following criteria:

a.

Primarily sells tobacco products;

b.

Generates more than sixty (60) percent of its gross revenues annually from the sale of tobacco products;

c.

Does not permit any person under twenty-one (21) years of age to be present or enter the premises at any time, unless accompanied by the person's parent or legal guardian, as defined in Section 6903 of the Family Code;

d.

Does not sell alcoholic beverages or food for consumption on the premises; and

e.

Posts a sign outside the retail location that clearly, sufficiently, and conspicuously informs the public that persons under twenty-one (21) years of age are prohibited from entering the premises.

N.

Prohibition on sale or distribution of electronic cigarette products. No retailer shall sell or distribute electronic cigarette products after June 30th, 2020.

O.

Limited, conditional privilege. Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer license any status or right other than the limited, conditional privilege to act as a retailer at the location in the city identified on the face of the license.

P.

No retailer permit may be issued to authorize retailing at any location where 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 drugs are offered for sale.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

All applications for a tobacco retailer license shall be submitted to the Director of Finance and Administrative Services on a form supplied by the City of Los Altos.

B.

Any person holding a tobacco retailer license shall inform the City in writing of any change in the information submitted on an application for such license within fourteen (14) calendar days of a change.

C.

All information specified in an application shall be subject to disclosure under the California Public Records Act or any other applicable law.

D.

It is the responsibility of each retailer to be informed of all laws applicable to retailing, including those laws affecting the issuance of a tobacco retailer license. No retailer may rely on the issuance of a tobacco retailer license as a determination by the city that the retailer has complied with all laws applicable to retailing. A tobacco retailer license issued contrary to this article, to any other law, or on the basis of false or misleading information supplied by a retailer shall be revoked.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

Upon receipt of a complete application for a tobacco retailer license and the application and license fees, the City of Los Altos shall issue a license, unless substantial evidence demonstrates that one or more of the following bases for denial exist:

The information presented in the application is inaccurate or false.

The application seeks authorization for retailing by a person to whom this article prohibits issuance of a tobacco retailer license.

The application seeks authorization for retailing at a location or in some other manner that is prohibited pursuant to this article or that is unlawful pursuant to any other law.

B.

A tobacco retailer license shall be revoked if the City of Los Altos finds that one or more of the bases for denial of a license under this section existed at the time the application was made or at any time before the license was issued. Such a revocation shall be without prejudice to the filing of a new license application.

C.

A decision to deny issuance of a tobacco retailer license or to revoke such a license that has been wrongly issued may be appealed pursuant to Section 4.48.100 of this article.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

Term of license. The term of a tobacco retailer license is one year. A license is invalid thirty (30) days after the expiration date of the license.

B.

Renewal of license. The City of Los Altos shall renew a valid tobacco retailer license upon timely payment of the annual license fee. A license may not be renewed more than ninety (90) days after its expiration.

C.

Issuance of license after revocation or expiration of license. To apply for a new tobacco retailer license more than ninety (90) days after expiration of a tobacco retailer license or following revocation of a tobacco retailer license that was wrongly issued, a retailer must submit a complete application for a license, along with the application fee and annual license fee.

D.

Fee for new licenses and renewals. The fees to apply for and issue or renew a tobacco retailer license shall be established from time to time by resolution of the city council. The fees shall be calculated so as to recover any amount up to the cost of administration of this article, including, for example, issuing a license, administering the program, and monitoring compliance. Fees shall not exceed the cost of the program authorized by this article. Fees are nonrefundable except as may be required by law. A retailer license may not be issued or renewed until full payment of any applicable fees is made.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

Compliance with this Chapter shall be monitored by the Department. In addition, any peace officer may enforce the penal provisions of this article. The city manager may designate any number of additional persons to monitor compliance with this article.

B.

The city shall not enforce any law establishing a minimum age for tobacco product, paraphernalia, or electronic smoking device purchases against a person who otherwise might be in violation of such law because of the person's age if the violation occurs when:

The purchaser (hereinafter referred to as "youth decoy") is participating in a compliance check supervised by a peace officer or designated official of the city;

The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this article; or

The youth decoy is participating in a compliance check funded in part, either directly or independently through subcontracting, by the County or the State of California.

C.

Any violation of this article is hereby declared to be a public nuisance.

D.

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

E.

For purpose of this article, each day on which a tobacco product, paraphernalia, or electronic smoking device is offered for sale in violation of this article constitutes a separate violation.

F.

Violations of this article shall be subject to issuance of administrative citations pursuant to and suspended from holding or receiving a tobacco retailer license as follows:

First citation within twenty-four (24) months. For up to sixty (60) calendar days from the date of the administrative citation issuance, no tobacco retailer license shall be issued, and any existing license shall be suspended.

Second or subsequent citations within twenty-four (24) months. For up to twenty-four (24) months from the date of the administrative citation issuance, no tobacco retailer license shall be issued, and any existing license shall be revoked.

G.

Notwithstanding any other provisions of this article, prior violations of this article at a location shall continue to be counted against a location and license ineligibility and suspension periods shall continue to apply to a location unless:

One hundred (100) percent of the interest in the stock, assets, or income of the business, other than security interest for the repayment of debt, has been transferred to one or more new owners; and

The city is provided clear and convincing evidence that the transfer was pursuant to an arm's length transaction in good faith between two or more 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 to avoid the effect of the violations of this article is not an arm's length transaction.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

Request for hearing. A decision to deny issuance of a tobacco retailer license, to revoke a tobacco retailer license that has been wrongly issued, or the issuance of an administrative fine for an underaged youth may be appealed to the city manager or his/her designee, subject to the following requirements and procedures.

All appeals must be submitted in writing to the city clerk no later than fifteen (15) calendar days after receipt of notice of the appealed action. If such an appeal is made, it shall stay enforcement of the appealed action.

No later than fifteen (15) calendar days after receipt of the appeal, the city manager shall set an appeal hearing at the earliest practicable time. The city clerk shall give notice of the hearing to the parties at least ten (10) calendar days before the date of the hearing.

B.

Conduct of hearing. Hearings pursuant to this article shall be conducted pursuant to procedures adopted by the city manager. Strict rules of evidence shall not apply. Any relevant evidence may be admitted if it is the sort of evidence on which responsible persons are accustomed to relying on in the conduct of serious affairs.

C.

City manager's decision. All parties shall be given written notice of the city manager's decision within fifteen (15) business days of the hearing. The decision of the city manager shall be supported by the weight of the evidence. The decision of the city manager shall be final and shall not be subject to appeal to the city council.

D.

Appellant's failure to appear at hearing. Failure of the appellant to appear at a hearing shall be considered a withdrawal of the request for a hearing and the decision being appealed shall remain in effect.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

The department shall inspect each tobacco retailer at least one time during every 12-month period.

B.

The department may conduct a hearing to determine whether a licensee, or an agent or employee of the licensee, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, no contest or its equivalent, or admitted to a violation of this chapter or any federal or state tobacco- related laws. The department shall provide notice of the date, time, and location of the hearing to the primary person authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this chapter. The hearing may not be conducted less than fourteen (14) days after the notice for the hearing is issued. The hearing need not be conducted according to the technical rules relating to evidence and witnesses, but shall comply with the provisions in Government Code Section 11512 A., B., and C.. Oral evidence shall be taken only upon oath or affirmation, and irrelevant and unduly repetitious evidence shall be excluded. The department and the licensee have the right to: call and examine witnesses on any matter relevant to the issues of the hearing; introduce documentary and physical evidence; cross-examine opposing witnesses or any matter relevant to the issues of the hearing; to impeach any witness regardless of which party called the witness to testify; to rebut evidence; to take notice of any fact that may be judicially noticed, whether that notice is taken before or after the hearing; and to represent himself or herself, or to be represented by anyone of his or her choice who is lawfully permitted to do so. The department shall mail written findings and its determination after hearing to the primary person authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this chapter.

C.

Nothing in this chapter creates a right of action in any licensee or other person against the city or its agents or its employees.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

It is a violation of this chapter to do any of the following:

Conduct tobacco retailing without a license;

Conduct tobacco retailing at a location that is not licensed;

Conduct tobacco retailing at a location that is not fixed;

Conduct tobacco retailing that involves the delivery of tobacco products or tobacco paraphernalia from a fixed location in the city to a customer at a different location in the city;

Fail to fulfill the licensee obligations set forth in Section 4.48.045;

Sell, offer for sale, exchange, or offer to exchange any flavored tobacco in the city, unless specifically exempt per subsection 4.48.040.M.1; and to

Violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

B.

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

C.

Each sale in violation of this chapter shall be regarded as a new and separate offense. Each day any violation of this chapter continues shall be regarded as a new and separate offense. The remedies provided in this chapter shall be cumulative and exclusive.

D.

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

E.

This chapter is not intended and nothing in this chapter shall be interpreted to penalize the purchase, use, possession, or attempted purchase, use, or possession of tobacco products, tobacco paraphernalia, electronic smoking devices, or electronic smoking device fluid by persons under the state age requirement; provided, however, persons under the state age requirement remain subject to generally applicable laws regulating such conduct without respect to the person's age.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

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

B.

Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the state age requirement, such 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.

C.

Violations of this chapter are subject to a civil action brought by the District Attorney or the city attorney, punishable by a civil fine not less than two hundred fifty dollars ($250.00) and not exceeding one thousand dollars ($1,000.00) per violation.

D.

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

E.

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, including, for example, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.

(Ord. No. 2020-469, § 1, 2-25-2020)

A.

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.

B.

In addition to any other remedy authorized by law, a license shall be suspended or revoked if any court of competent jurisdiction determines, or the department finds and determines after hearing pursuant to Section 4.48.060 that the licensee, or any agent or employee of the licensee, violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, no contest or its equivalent, or admitted to a violation of this chapter or any federal or state tobacco-related laws.

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 thirty (30) days.

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 one year.

Upon a finding by the department of three or more violations of this chapter at a location within any five- year period, the license shall be revoked.

C.

When a license is suspended, the licensee and all employees and agents must immediately cease all tobacco retailing and remove all tobacco products from public view from the licensed location, during the term of the suspension.

D.

When a license is revoked, the licensee and all employees and agents must immediately cease all tobacco retailing and remove all tobacco products from public view from the licensed location, and no tobacco retailing may occur at that location unless and until a new license is issued pursuant to this chapter.

E.

Violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

The tobacco retailing business at the location has been transferred to new proprietor(s) in an arm's length transaction; and

The new proprietor(s) obtain a license to conduct tobacco retailing at that location.

F.

A decision of the department to suspend a license is appealable to the city manager and any appeal must be filed in writing with the city clerk within ten (10) days of mailing of the department's decision. If such an appeal is timely made, it shall stay enforcement of the appealed action. The decision on the appeal by the city manager shall be the final decision of the city.

(Ord. No. 2020-469, § 1, 2-25-2020)

As a possible alternative to the hearing for the suspension of a license following a first or second alleged violation of this chapter within any five-year period, the licensee alleged to have violated this chapter may request the department exercise its prosecutorial discretion to allow the licensee to agree to the penalties provided in this section in lieu of the penalties that would otherwise apply under this chapter and to forego a hearing on the allegations. Notice of any agreement shall be provided to the department and no hearing shall be held. Agreements shall not be confidential and shall contain the following terms as well as any other noncriminal provisions established by the city in the interests of justice:

A.

After a first alleged violation of this chapter at a location:

Cease all tobacco retailing and remove all tobacco products from public view from the licensed location for one day;

Payment of an administrative penalty of one thousand dollars ($1,000.00); and

Admission that the violation occurred and an acknowledgment that the violation will be considered in determining the fine or penalty for any future violation.

B.

After a second alleged violation of this chapter at a location within any five-year period:

Cease all tobacco retailing and remove all tobacco products from public view from the licensed location for ten (10) days;

Payment of an administrative penalty of at least five thousand ($5,000.00); and

Admission that the violation occurred and an acknowledgment that the violation will be considered in determining the fine or penalty for any future violations.

(Ord. No. 2020-469, § 1, 2-25-2020)