Montebello Municipal Code Ch. 5.80 Licensing Regulations for Tobacco Retailers

The purpose of this chapter is to regulate tobacco retailers to promote the health, safety and general welfare of the citizens of the City of Montebello. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the sale of tobacco products or tobacco paraphernalia, in accordance with all provisions of the Government Code and the Montebello Municipal Code.

(Ord. No. 2335, § 2, 9-23-2009)

The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:

"Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction.

"Department" means the Montebello Police Department, and any agency or person designated by the department to enforce or administer the provisions of this chapter.

"Drug paraphernalia" shall have the definition set forth in California Health and Safety Code section 11014.5, as that section may be amended from time to time.

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

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

"Self-service display" means the open display 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.

"Smoking" means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed, shisha, herb, or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed, shisha, herb, or plant (including in a pipe, cigar, hookah pipe, or cigarette of any kind).

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

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence; and any product 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, including but not limited to shisha, herbs, or plants of any kind, by means of inhalation through smoking.

"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, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. No. 2335, § 2, 9-23-2009)

A. Tobacco Retailer 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 that activity is to occur. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law.

B. Lawful Business Operations. 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, 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 or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of twenty-seven years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product or tobacco paraphernalia.

E. Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.

F. Self-Service Display Prohibited. Tobacco retailing by means of a self-service display is prohibited.

G. False and Misleading Advertising Prohibited. A tobacco retailer or 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 5.80.130; 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.

H. Drug Paraphernalia. It shall be a violation of this chapter for any licensee or any of the licensee's agents or employees, to violate any local, state, or federal law regulating controlled substances or drug paraphernalia, such as, for example, California Health and Safety Code section 11364.7, except that a violation of federal law relating to the use of medical marijuana shall not be a violation of this chapter if the conduct at issue is authorized pursuant to California Health and Safety Code sections 11362.7 et seq.

I. Pseudoephedrine. It shall be a violation of this chapter for any licensee or any of the licensee's agents or employees, to violate any state or federal law regulating sales or display of pseudoephedrine, such as, for example, California Health and Safety Code sections 11100 and 11106, and 21 U.S.C. 830.

J. On-site Smoking Prohibited. No person engaged in tobacco retailing shall permit smoking inside the licensed premises or in any adjacent outdoor area owned, leased, or operated by the person engaged in tobacco retailing.

(Ord. No. 2335, § 2, 9-23-2009)

A. No license may be issued to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

B. No license may be issued to authorize tobacco retailing at any location where smoking is permitted inside the premises or in any adjacent outdoor area owned, leased, or operated by the person applying for a license to engage in tobacco retailing. In addition, no license may be issued to authorize tobacco retailing at any location where smoking is permitted within twenty-five feet of any doorway, window, opening, or other vent into the licensed premises.

(Ord. No. 2335, § 2, 9-23-2009)

A. 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 5.80.120. 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 police department and shall contain the following information:

1. The name, street 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 deemed 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 tobacco retailer's license by the California Board of Equalization.

5. Proof that the business at the location for which a tobacco retailer's license is sought has obtained a valid business license pursuant to Title 5 of the Montebello Municipal Code, and has paid all applicable business license taxes.

6. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five years.

7. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought.

8. Such other information as the police 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 police department in writing of any change in the information submitted on an application for a tobacco retailer's license within fourteen business days of a change.

C. 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. 2335, § 2, 9-23-2009)

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

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

2. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subparagraph shall not constitute a basis for denial of a license if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business that was otherwise legally operating at the time of enactment of this chapter.

3. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.

4. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, (e.g., mobile vending), that is unlawful pursuant to this Code, or that is unlawful pursuant to any other law.

B. Should an application be denied for any of the foregoing reasons, the chief of police shall issue a written notice of decision to deny such application within fifteen days of receipt of a complete application stating the basis for such denial.

C. Within ten days of receipt of such decision, an applicant who is aggrieved by the decision declining to issue such permit may file a written letter of appeal along with the appeal fee as specified by the citywide user fees with the city manager, appealing the decision of the chief to the city manager. The letter of appeal shall briefly outline the basis for such appeal. The city manager upon receipt of such written letter of appeal, shall obtain from the chief all of the files applicable to the application. The city manager shall hereafter conduct an informal hearing for the purpose of determining whether the decision, as rendered by the chief, was within the authority granted to him pursuant to the provisions of this chapter. The city manager shall give written notice of the time and place of such hearing to the applicant, to the chief and to any other person requesting such notice. At the time and place set for such hearing, the city manager shall act as the hearing officer and shall accept all relevant evidence pertaining to the application, including, but not limited to, the files and records in custody of the chief relating thereto. The city manager shall give the applicant, and any other interested person, a reasonable opportunity to be heard with respect to the merits of such appeal. The burden of proof shall be upon the applicant to show that the action of the chief was arbitrary, capricious or in excess of the authority granted pursuant to the provisions of this chapter. The city manager shall affirm, reverse or modify, in whole or in part, the decision as rendered by the chief of police. The city manager shall, promptly, give written notice, to the applicant and any other person requesting the same, of his decision, together with the reasons therefore. The decision of the city manager shall be final and conclusive in the absence of an appeal to the city council as hereinafter provided. (Prior code § 4254 (part))

D. Any applicant who is aggrieved by a decision of the city manager, as hereinbefore provided, shall have the right to appeal such decision to the city council. Such an appeal shall be perfected by the filing of a written letter of appeal, briefly stating the grounds therefore, with the city clerk, within ten days after the giving of notice of the city manager's decision. Upon receipt of a letter of appeal, the city clerk shall place the same on the city council's agenda at its next most convenient meeting. The city clerk shall give the applicant, and any other person requesting the same, ten days' written notice of the time and place of such hearing before the council. At such time and place, the city council shall hear the matter, and shall, thereafter, issue, conditionally issue, or decline to issue, the permit as requested. The city council shall give the applicant and any other interested person the right to present any relevant evidence bearing upon such appeal. The burden of proof shall be upon the applicant to show that the action of the city manager was arbitrary, capricious or outside the scope of authority granted to him by the provisions of the chapter. The decision of the city council shall be final and conclusive.

(Ord. No. 2335, § 2, 9-23-2009)

A. Renewal of License. A tobacco retailer's license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer's license is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license and submit the license fee no later than thirty days prior to expiration of the term.

B. 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 subparagraph (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 appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5.80.130, before seeking renewal of the license.

(Ord. No. 2335, § 2, 9-23-2009)

A. A tobacco retailer's license may not be transferred from one person to another or from one location to another. A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietor(s).

B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

1. The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

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

(Ord. No. 2335, § 2, 9-23-2009)

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. For example, 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, any provision of this Code or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5.

(Ord. No. 2335, § 2, 9-23-2009)

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. 2335, § 2, 9-23-2009)

A. Compliance with this chapter shall be monitored by the department. In addition, any peace officer or code enforcement officer may enforce any provision of this chapter. The city may designate any number of additional persons to monitor compliance with this chapter.

B. The department or other person designated to enforce the provisions of this chapter shall check the compliance of each tobacco retailer in the city at least two times per twelve-month period. The department may check the compliance of tobacco retailers previously found to be in compliance a fewer number of times so that the department may check the compliance of new licensees and tobacco retailers previously found in violation of the licensing law more frequently. Nothing in this paragraph shall create a right of action in any licensee or other person against the city or its employees or agents.

C. Compliance checks shall be conducted so as to allow the department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco. When the department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

D. The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a person who otherwise might be in violation of such law because of the person's age (hereinafter "youth decoy") if the potential violation occurs when:

1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement officer of the city;

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

3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by any city agency or the California Department of Health Services.

(Ord. No. 2335, § 2, 9-23-2009)

A. In addition to any other penalty authorized by law, a tobacco retailer's license shall be suspended or revoked if any court of competent jurisdiction determines, or the department finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Section 5.80.030.

B. Suspension or Revocation of License. If the department finds that there are grounds for the suspension of a tobacco retailer's license, the following sanctions shall be imposed:

1. A first violation of this chapter shall result in a thirty-day suspension of the right to sell tobacco products and tobacco paraphernalia.

2. A second violation of this chapter within a sixty-month period shall result in a ninety-day suspension of the right to sell tobacco products and tobacco paraphernalia.

3. A third or subsequent violation of this chapter within a sixty-month period shall result in a revocation of the right to sell tobacco products and tobacco paraphernalia.

C. Appeal of Suspension and/or Revocation. The decision of the department is appealable to the city council and must be filed with the city clerk within ten days of receipt of the determination of violation. An appeal shall stay all proceedings in furtherance of the appealed action.

D. Revocation of License Wrongly Issued. A tobacco retailer's license shall be revoked if the department finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.80.060 existed at the time application was made or at any time before the license issued. The decision by the department shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new license application.

(Ord. No. 2335, § 2, 9-23-2009)

A. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the department finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's license, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailing license as follows:

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

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

3. After of a third or subsequent violation of this section at a location within any sixty-month 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 violation.

B. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the department or any peace officer or code enforcement officer and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this chapter. The decision by the department may be appealed pursuant to the procedures set forth in Section 5.80.120(C). Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.

C. For the purposes of the civil remedies provided in this chapter:

1. Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter; or

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.

(Ord. No. 2335, § 2, 9-23-2009)

A. Violations of this chapter may be enforced in any combination as allowed in Chapters 1.12 and 1.14. The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.

B. 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.

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

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

(Ord. No. 2335, § 2, 9-23-2009)