Marin County Municipal Code Ch. 5.70 Requirement of License for All Tobacco Retailers

The purposes of this chapter are:

(a) To protect the public health, safety and general welfare as it relates to regulating the sale of tobacco products through licensing of responsible retailers; and

(b) It is the intent of the board of supervisors, in enacting this ordinance, to ensure compliance with the business standards and practices of the county and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein; and

(c) To offset the costs associated with providing county personnel to inspect retail businesses that do not comply with the purposes of this chapter.

(Ord. No. 3583, § I, 2012)

The board of supervisors finds and declares as follows:

(a) Based in part on the information contained in this section, the board of supervisors finds that the failure of tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety and welfare of the residents of the county; and

(b) The board of supervisors finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the county to protect the health, safety and welfare of our residents; and

(c) Approximately four hundred thirty-eight thousand people die in the United States from tobacco-related diseases every year, making it the nation's leading cause of preventable death; [4] and

(d) The World Health Organization (WHO) estimates that by 2030, tobacco will account for 8.3 million deaths per year, killing fifty percent more people in 2015 than HIV/AIDS, and will be responsible for ten percent of all deaths worldwide; [5] and

(e) The California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority, as evidenced by the fact that:

•

The Legislature has declared that smoking is the single most important source of preventable disease and premature death in California (Cal. Health and Safety Code § 118950);

•

State law prohibits the sale or furnishing of cigarettes, tobacco products, and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Cal. Pen. Code § 308);

•

State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under eighteen years of age (Cal. Bus. and Prof. Code § 22956) and provides procedures for using minors to conduct onsite compliance checks of tobacco retailers (Cal. Bus. and Prof. Code § 22952);

•

State law prohibits the sale of tobacco products and paraphernalia through self-services displays with limited exceptions for tobacco stores (Cal. Bus. and Prof. Code § 22960, 22962);

•

State law prohibits the sale of "bidis" (hand-rolled filter-less cigarettes imported primarily from India and southeast Asian countries) except in adult-only establishments (Cal. Pen. Code § 308.1); and

•

State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than twenty and prohibits the manufacture, distribution, or sale of "roll-your-own" tobacco in packages containing less than 0.60 ounces of tobacco (Cal. Pen. Code § 308.3); and

(f) State law requires all tobacco retailers to be licensed by the board of equalization primarily to curb the illegal sale and distribution of cigarettes due to tax evasion and counterfeiting (Cal. Bus. and Prof. Code §§ 22970.1, 22972); and

(g) State law explicitly permits cities and counties to enact local tobacco retail licensing ordinances, and allows for the suspension or revocation of a local license for a violation of any state tobacco control law (Cal. Bus. and Prof. Code § 22971.3); and

(h) California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993), have affirmed the power of the county to regulate business activity in order to discourage violations of law; and

(i) Despite the states' efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the fact that:

•

Each day, nearly four thousand children under eighteen years of age smoke their first cigarette, and almost one thousand five hundred children under eighteen years of age begin smoking daily; [6]

•

More than seventy-five percent of all current smokers in 2001 began smoking before the age of eighteen; [7]

•

Among middle school students who were current cigarette users in 2004, 70.6 percent were not asked to show proof of age when they purchased or attempted to purchase cigarettes from a store, and 66.4 percent were not refused purchase because of their age; [8]

•

In 2002, children under eighteen smoked approximately five hundred forty million packs of cigarettes, generating nearly $1.2 billion in tobacco industry revenue [9]; and

(j) Research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes, as evidenced by the following:

•

A review of thirteen California communities with strong tobacco retailer licensing ordinances shows that the youth sales rate declined in twelve of the thirteen communities, with an average decrease of sixty-eight percent in the youth sales rate; [10]

•

A study of the effect of licensing and enforcement methods used in the Philadelphia area revealed a decrease in sales to minors from eighty-five percent in 1994 to forty-three percent in 1998; [11]

•

A study of several Minnesota cities found that an increased licensing fee in conjunction with strict enforcement of youth access laws led to a decrease from 39.8 percent to 4.9 percent in sales of tobacco to minors; [12] and

(k) The implementation of tobacco retailer licensing requirements is supported by most Californians, as evidenced by the following:

•

Statewide, over eighty percent of California adults think tobacco retailers should be licensed; [13]

•

Similarly, in rural areas in California, seventy-eight percent of adults think tobacco retailers should be licensed, and ninety-one percent agree that a store owner who repeatedly sells cigarettes to minors should no longer have the right to sell cigarettes; [14]

•

Sixty-five percent of California's key opinion leaders surveyed support implementation of tobacco-licensing requirements; [15]

•

Over ninety percent of enforcement agencies surveyed in 2000 rated license suspension or revocation after repeated violations as an effective strategy to reduce youth access to tobacco; [16] and

(l) Ninety-four cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop minors from smoking; [17] and

(m) California retailers continue to sell tobacco to underage consumers, evidenced by the following:

•

Nearly eleven percent of all tobacco retailers unlawfully sold to minors in 2007; [18]

•

Nontraditional tobacco retailers such as deli, meat, and donut shops sold to minors in 2007 at a much higher rate than the statewide average, as high as sixteen percent; [19]

•

Teens surveyed in 2002 say they bought their cigarettes at: gas stations (fifty-eight percent), liquor stores (forty-five percent), and supermarkets and small grocery stores (twenty-nine percent combined); [20] and

(n) A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the county to regulate the operation of lawful businesses to discourage violations of federal, state and local tobacco-related laws; and

(o) The County of Marin has a substantial interest in promoting compliance with federal, state and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in protecting children from being lured into illegal activity through the misconduct of adults.

(Ord. No. 3583, § I, 2012)

Footnotes:

--- (4) ---

U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report: Annual Smoking - Attributable Mortality, Years of Potential Life Lost, and Productivity Losses - United States 1997-2001. 2005, 54(25): p. 625-628. Available at: www.cdc.gov/mmwr/preview/mmwrhtml/mm5425a1.htm.

--- (5) ---

World Health Organization—World Health Statistics 2007, Part 1: Ten Statistical Highlights in Global Public Health. 2007, p. 12. Available at: www.who.int/whosis/whostat2007\_10highlights.pdf.

--- (6) ---

Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Results from the 2004 National Survey on Drug Use and Health: National Findings. 2005. Available at: http://oas.samhsa.gov/NSDUH/2k4nsduh/2k4Results/2k4Results.pdf.

--- (7) ---

Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. 2003 National Survey on Drug Use and Health: Results, 2003. Available at: www.oas.samhsa.gov/nhsda/2k3nsduh/2k3Results.htm#ch5.

--- (8) ---

U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report: Tobacco Use, Access and Exposure to Tobacco Among Middle and High School Students, U.S., 2004. 2005, 54: p. 297-301. Available at: www.cdc.gov/mmwr/preview/mmwrhtml/mm5412a1.htm.

--- (9) ---

Healton C, Farrelly MC, Weitzenkamp D, et al. "Youth Smoking Prevention and Tobacco Industry Revenue." Tobacco Control, 15: 103-106, 2006. Available at: http://tobaccocontrol.bmj.com/cgi/content/full/15/2/103.

--- (10) ---

American Lung Association of California, Center for Tobacco Policy and Organizing. Tobacco Retail Licensing is Effective. 2007. Available at: www.center4tobaccopolicy.org/\_files/\_files/5377\_Tobacco%20Retailer%20Licensing%20is%20Effective%20 October%202007.pdf.

--- (11) ---

Ma GX, Shive S and Tracy M. "The Effects of Licensing and Inspection Enforcement to Reduce Tobacco Sales to Minors in Greater Philadelphia, 1994-1998." Addictive Behaviors, 26(5): 677-87, 2001. Abstract available at: www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list\_uids=11676378&dopt= Abstract.

--- (12) ---

Forster JL et al. "The Effects of Community Policies to Reduce Youth Access to Tobacco." American Journal of Public Health, 88(8): 1193-1197, 1998. Available at: www.ajph.org/cgi/reprint/88/8/1193.

--- (13) ---

California Department of Health Services, Tobacco Control Section. California Tobacco Control Update. 2004. Available at: http://dhs.ca.gov/tobacco/documents/pubs/2004TCSupdate.pdf.

--- (14) ---

American Lung Association of California, Center for Tobacco Policy and Organizing. Survey of California Rural and Small Town Voters About Local Tobacco Retail Licensing Ordinances. 2008. Available at: www.center4tobaccopolicy.org/\_files/\_files/Rural\_Poll\_Summary\_of\_Findings\_Final\_5-21-08.pdf.

--- (15) ---

California Department of Health Services, Tobacco Control Section. Final Report, Independent Evaluation of the California Tobacco Control Prevention & Education Program: Waves 1, 2, and 3 (1996-2000). 2003. Available at: www.dhs.ca.gov/tobacco/documents/pubs/WavesComplete.pdf.

--- (16) ---

Id. --- (17) ---

American Nonsmokers' Rights Foundation. California Municipalities With Ordinances Restricting Youth Access To Tobacco. 2008. Available at: http://talc.phlaw.org/pdf\_files/0021.pdf.

--- (18) ---

California Department of Health Services, Tobacco Control Section. Youth Purchase Survey, 2007: Percent of Retailers Selling Tobacco to Youth by Store Type. 2007 (graph on file with TALC).

--- (19) ---

Id. --- (20) ---

California Department of Health Services, Tobacco Control Section. Final Report, Tobacco Control Successes in California: A Focus on Young People, Results from the California Tobacco Surveys, 1990-2002. 2003, p. 11-12. Available at: www.dhs.ca.gov/tobacco/documents/eval/2003CTSReport.pdf.

This chapter shall be known as the "licensing of tobacco retailers."

(Ord. No. 3583, § I, 2012)

For purposes of this chapter, the following words and phrases have the following meanings unless the context clearly requires otherwise:

(a) "Department" means Department of Health and Human Services of Marin County and any agency or person designated by the department to enforce or administer the provisions of this chapter.

(b) "Director" means the Director of the Marin County Department of Health and Human Services or his/her designee.

(c) "Licensee" means a tobacco retailer who has been issued a tobacco retailer's license in accordance with Section 5.70.050.

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

(e) "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.

(f) "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, and snuff.

(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 any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

(g) "Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

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

(Ord. No. 3583, § I, 2012; Ord. No. 3698, § II, 2018)

(a) It is unlawful for any retailer, individual, or entity to sell or offer for sale any tobacco products in the unincorporated area of the county without first obtaining and maintaining a valid tobacco retailer's license from the County of Marin for each location where these sales are conducted. No tobacco retailer's license will be issued that authorizes tobacco retailing at any location other than a fixed location. Tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited.

(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 is 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 (including but not limited to California Penal Code Section 308), or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

(Ord. No. 3583, § I, 2012)

(a) Application. An application for a tobacco retailer's license shall be submitted to the Director of the Marin County Department of Health and Human Services in the name of the retailer, individual, or entity proposing to conduct retail tobacco sales on the business premises. The application shall be signed by the retailer, individual or entity or agent with written authority to act for same. All applications shall be submitted on a form available from the department and shall contain the following information:

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

(2) The business name, address and telephone number of each establishment where tobacco is to be sold.

(b) Issuance and renewal. All tobacco retailer's licenses will be issued and due for renewal effective July 1st and will expire on the subsequent June 30th. Licensees must apply for renewal before the tobacco retailer's license expires. Applicants for renewal must follow the application procedures set forth in subsection (a).

(c) 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.

(d) All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code section 6250 et seq.) or any other applicable law, subject to the laws' exemptions.

(Ord. No. 3583, § I, 2012)

(a) Upon receipt of a completed application for a tobacco retailer's license, including payment of a fee pursuant to Section 5.70.053, the department will issue a tobacco retailer's license, unless any of the following grounds for denial exist:

(1) The application is incomplete or inaccurate;

(2) The application seeks authorization for tobacco retailing by a person or location for which a suspension is in effect under Section 5.70.057;

(3) The application seeks authorization for tobacco retailing that is an unlawful use of land, building or structure contrary to any provision of the Marin County Code; or

(4) Failure to pay an outstanding fine pursuant to this Code.

(b) Each licensee must prominently display the tobacco retailer's license at the location where tobacco retail sales are conducted.

(c) The tobacco retailer's license is nontransferable. If there is a change in location, a new tobacco retailer's license will be issued for the new address upon receipt of an application for change of location as provided in subsection (a) of Section 5.70.051. The new tobacco retailer's license will retain the same expiration date as the previous one.

(Ord. No. 3583, § I, 2012)

The fee to issue or to renew a tobacco retailer's license shall be twenty-five dollars and shall be adjusted from time to time by resolution of the board of supervisors. 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. 3583, § I, 2012)

If a tobacco retailer's license is denied, revoked, or suspended pursuant to this chapter, the holder of a valid business license issued pursuant to Section 5.54 of this Code may nevertheless carry on all lawful aspects of his or her business, other than the sale or offering for sale of tobacco products, unless otherwise prohibited.

(Ord. No. 3583, § I, 2012)

(a) Enforcement of this chapter shall be the responsibility of the Marin County Department of Health and Human Services. Additionally, any person may report violations of this section to the department. Specifically, the department may rely upon reports from any law enforcement officer or persons acting on behalf of the department as to violations of this chapter.

(b) The county may seek compliance with this chapter by any remedy allowed under this Code, including, but not limited to, revocation (Section 5.70.056), suspension (Section 5.70.057), administrative (civil) fines (Section 5.70.058) and any other remedy allowed by law. Such remedies may be sought independent of one another or may be sought in addition to one another.

(Ord. No. 3583, § I, 2012)

(a) Grounds for revocation. A tobacco retailer's license may be revoked on any of the following grounds:

(1) One or more of the grounds for denial of a tobacco retailer's license under Section 5.70.052 existed either when a license application was made or before the tobacco retailer's license was issued;

(2) The tobacco retailer's license fee is unpaid;

(3) The tobacco retailer's license has been transferred in violation of Subsection 5.70.052(c); or

(4) The tobacco retailer receives a violation following three suspensions within seventy-two months of the first suspension.

(b) Notice of revocation hearing. If any grounds for revocation exist, the director may issue a notice of revocation hearing. A notice of revocation hearing will be served to a tobacco retailer as specified in Section 5.70.065 and will include all of the following information:

(1) The address or a definite description of the location where the tobacco retailer's license is issued;

(2) The grounds for revocation;

(3) The date of the revocation hearing before the director or his/her designee. The notice of revocation hearing will set the hearing date no sooner than twenty days and no later than forty-five days following the date the notice of revocation hearing is served.

(c) Revocation hearing. A tobacco retailer's license may be revoked by the director or his/her designee after a tobacco retailer's license revocation hearing. At the hearing, the licensee will be given the opportunity to testify and to present evidence concerning the grounds set forth in the notice of revocation hearing. After considering the testimony and evidence submitted at the hearing, the director or his/her designee will issue a written decision to revoke or not revoke the license and will list in the decision the reason or reasons for that decision. The written decision will be served as specified in Section 5.70.065. A revocation is without prejudice to the filing of a new application for a tobacco retailer's license.

(d) Revocation appeal. The decision of the director or his/her designee to revoke a tobacco retailer's license is appealable to a hearing officer. The hearing officer shall be the county administrative officer (CAO) or his/her designee. The matter will be heard at a noticed public hearing. The appeal shall be filed no later than twenty days following the mailing of the director's decision or the date of personal service.

(e) Final order. The tobacco retailer's license revocation becomes a final administrative order at one of the following times:

(1) On the date of the revocation hearing, if a tobacco retailer fails to appear at a scheduled revocation hearing;

(2) On the date when the time for an appeal has expired without a written appeal on record;

(3) On the date of the appeal hearing, if a tobacco retailer fails to appear at a scheduled appeal hearing before the hearing officer;

(4) On the date of the decision by the hearing officer, if a tobacco retailer appears at a scheduled appeal hearing before the hearing officer and the decision is adverse to the tobacco retailer.

(Ord. No. 3583, § I, 2012)

(a) Grounds for suspension. A tobacco retailer's license may be suspended for any violation of this chapter, or any state or federal tobacco-related laws following the first citation and mandatory training.

(b) Notice of suspension hearing. If any grounds for suspension exist, the director or his/her designee may issue a notice of suspension hearing. The notice of suspension hearing will be served to a tobacco retailer as specified in Section 5.70.065 and will include all of the following information:

(1) The date of the violation;

(2) The address or other description of the location where the violation occurred;

(3) The Code section(s) violated, or applicable state or federal law violated, and a description of the violation;

(4) The time period of the tobacco retailer's license suspension;

(5) The date of the suspension hearing before the director or his/her designee. The notice of suspension hearing will set the hearing date no sooner than twenty days and no later than forty-five days following the date the notice of suspension hearing is served.

(c) Suspension hearing. A tobacco retailer's license may be suspended by the director or his/her designee after a tobacco retailer's license suspension hearing. At the hearing, the licensee will be given the opportunity to testify and to present evidence concerning the grounds set forth in the notice of suspension hearing. After considering the testimony and evidence submitted at the hearing, the director or his/her designee will issue a written decision to suspend or not suspend the tobacco retailer's license. The director or his/her designee will list in the decision the reason or reasons for the decision and will list the time period of the tobacco retailer's license suspension, if applicable. The written decision will be served as specified in Section 5.70.065.

(d) Time period of license suspension.

(1) A tobacco retailer's license may be suspended up to thirty days for a second violation occurring within thirty-six months of the first violation;

(2) A tobacco retailer's license may be suspended up to ninety days for a third violation occurring within thirty-six months of the first violation;

(3) A tobacco retailer's license may be suspended up to one year for the next violation following the ninety day suspension that occurs within seventy-two months of the first suspension.

(e) Suspension appeal. The decision of the director or his/her designee to suspend a tobacco retailer's license is appealable to a hearing officer. The hearing officer shall be the county administrative officer (CAO) or his/her designee. The matter will be heard at a noticed public hearing. The appeal shall be filed no later than twenty days following the date of mailing of the director's decision or the date of personal service.

(f) Final order. The tobacco retailer's license suspension becomes a final administrative order at one of the following times:

(1) On the date of the suspension hearing, if a tobacco retailer fails to appear at a scheduled suspension hearing;

(2) On the date when the time for an appeal has expired without a written appeal on record;

(3) On the date of the appeal hearing, if a tobacco retailer fails to appear at a scheduled appeal hearing before the hearing officer;

(4) On the date of the decision by the hearing officer, if a tobacco retailer appears at a scheduled appeal hearing before the hearing officer and the decision is adverse to the tobacco retailer.

(Ord. No. 3583, § I, 2012)

(a) Violations of this chapter are subject to an administrative citation issued by the department. Violations will be handled in the following manner:

(1) Where a retailer or any employee of the tobacco retailer receives its first citation for a violation, the retailer shall be subject to an administrative citation and fine not less than two hundred dollars. Additionally, the proprietor of the tobacco retailer shall attend a training session with the health and human services tobacco coordinator or his/her designee and all tobacco retailer staff authorized by the tobacco retailer to conduct transactions for the sale of tobacco products shall sign an agreement verifying knowledge of this ordinance including the entire provisions of Section 5.70.050 and the consequence for violations of the ordinance.

(2) Subsequent violations that are connected to a prior violation as set forth in Subsection 5.70.056(a)(4) or Subsection 5.70.057(d) shall subject the retailer to an administrative fine of not less than five hundred dollars per violation. It is the specific intention of the board of supervisors that the administrative fine may be assessed by the director for violations even where the department seeks revocation and/or suspension of a tobacco retailer's license. Each day that tobacco products are offered for sale by a tobacco retailer without a tobacco retailer's license is a separate violation that subjects the retailer to an administrative fine of not less than five hundred dollars per day. All fines and interest upon proceeds of fines shall be used exclusively to fund the tobacco education program.

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

(c) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

(Ord. No. 3583, § I, 2012)

(a) Administrative hearing.

(1) Any person subject to an administrative fine pursuant to Section 5.70.058, et seq. shall have the right to request an administrative hearing within forty-five days of the issuance of a citation for an administrative violation of this ordinance [Sections 5.75.058] pursuant to the authority granted to the board of supervisors by Government Code Section 53069.4, et seq. To request such a hearing, the person requesting the hearing shall notify the director of the department of health and human services in writing within forty-five days of the issuance of the citation.

(2) The Marin County Department of Health and Human Services shall refer any request for a hearing under Section 5.70.058, et seq. to a hearing officer. The hearing officer shall be the county administrative officer (CAO) or his/her designee. The hearing officer shall conduct a hearing on the matter within ninety days of the request for the hearing unless one of the parties requests a continuance for good cause. The hearing officer shall render a decision within thirty days of the conclusion of the hearing. Either party may appeal the decision of the hearing officer pursuant to the requirements set forth below in subsection (b).

(b) Appeal from decision of the hearing officer.

(1) The person upon whom an administrative fine is imposed pursuant to Section 5.70.058 may appeal the decision of the hearing officer. The department of health and human services (H&HS) may also appeal the decision of the officer. No appeal can lie unless the party filing the appeal has first properly requested and obtained a hearing under Subsection 5.75.059(a) or, in the case of H&HS, participated in a hearing under Subsection 5.75.059(a).

(2) The appeal must be filed within twenty days after service of the final decision issued by the hearing officer pursuant to California Government Code Section 53069.4, subdivision (b). The procedures outlined in Government Code 53069.4 shall apply.

(Ord. No. 3583, § I, 2012)

If a clerk or employee sells a tobacco product to a minor, the retailer shall immediately notify the appropriate local law enforcement agency of the violation of Penal Code Section 308 for enforcement under that statute.

(Ord. No. 3583, § I, 2012)

All notices or decisions required to be served by this chapter will be served either by the method specified in subsection (a) or by the method specified in subsection (b). The failure of a person to receive a properly addressed service shall not affect the validity of the proceedings.

(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 pre-paid, 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.

(Ord. No. 3583, § I, 2012)

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this chapter, or its application to any other person or circumstance. The Board of Supervisors of the County of Marin hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

(Ord. No. 3583, § I, 2012)

This chapter shall be and is hereby declared to be in full force and effect as of thirty days from and after the date of its passage and a summary shall be published once before the expiration of fifteen days after its passage, with the names of the supervisors voting for and against the same, in the Marin Independent Journal, a newspaper of general circulation published in the County of Marin.

(Ord. No. 3583, § I, 2012)