Chapter 5.14 — TOBACCO RETAILER LICENSE

The purpose of this chapter is to impose a licensing requirement on tobacco retailers for the protection of the public health, safety and welfare of minors in the City of Oakley. (Ord. 22-18, 12/11/2018)

For purposes of this chapter, the following words, terms and phrases shall have the meanings given below:

"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 violation of this chapter is not an arm’s length transaction.

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

"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" as used in this chapter shall mean 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 (10%) 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.

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

"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. Vending machines, racks, counter-tops or shelves are forms of a self-service display.

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

"Tobacco product" means:

• 1. Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff;
• 2. Any electronic device that delivers nicotine or other substances to the person inhaling from

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City of Oakley, CA § 5.14.104

OAKLEY CODE

§ 5.14.106

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

"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 selling, offering for sale, offering to exchange or exchanging for any form of consideration tobacco, tobacco products, or tobacco paraphernalia. 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. 22-18, 12/11/2018)

• 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 license 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 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 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 (27) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age for sale of tobacco products as established by State law.

• e. Minimum Age for Persons Selling Tobacco. No person who is younger than eighteen (18) years of age shall engage in tobacco retailing.

• f. False and Misleading Advertising Prohibited. A tobacco retailer without a valid tobacco retailer license, or a proprietor without a valid tobacco retailer license including, for example, a person whose license has been 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 5.14.118.
  • 2. Shall not display any advertisement relating to tobacco products or tobacco

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City of Oakley, CA

BUSINESS REGULATIONS

§ 5.14.106

§ 5.14.112

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.

• g. 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 California Health and Safety Code Section 11364.7.

• h. Sale of Tobacco Products by Self-Service Display Prohibited. It is unlawful for any person to display tobacco products or tobacco paraphernalia by means of a self-service display or to engage in tobacco retailing by means of a self-service display.

• (Ord. 22-18, 12/11/2018)

• a. No license may issue 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 more than twenty-five (25) tobacco retailing licenses may be issued. (Ord. 22-18, 12/11/2018)

No new tobacco retailer license may be issued to authorize tobacco retailing if the tobacco retailer is within one thousand (1,000) feet of any school, playground, park, library or bus stop serving a school site as set forth in Section 9.1.1234(c).

For purposes of this section, distance is measured by the shortest line connecting any point on the property line of the parcel on which tobacco retailing business will be established or maintained to any point on the property line of the other parcel.

New retailers within five hundred (500) feet of existing tobacco retailers are prohibited from selling tobacco products. (Ord. 22-18, 12/11/2018)

A tobacco retailer operating lawfully on the date the ordinance codified in this chapter is adopted that is ineligible to receive a tobacco retailer’s license for a location pursuant to Section 5.14.110, and any tobacco retailer operating lawfully that becomes ineligible to receive or renew a tobacco retailer’s license due to the creation of a new area as described in Section 5.14.110 may receive or renew a license for that location so long as all of the following conditions are met:

• a. The license is timely obtained and is renewed without lapse.

• b. The tobacco retailer does not commit three or more violations of this chapter at a location within any sixty (60) month period.

• c. The tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than sixty (60) consecutive days.

• d. The tobacco retailer does not substantially change the business premises or business

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City of Oakley, CA § 5.14.112

OAKLEY CODE

§ 5.14.116

operation. A substantial change to the business operation includes, but is not limited to, the transferring of a location to a new proprietor in an arm’s length transaction and the transferring of a location for which a significant purpose is avoiding the effect of the violations of this chapter.

The tobacco retailer retains the right to operate under all other applicable laws. (Ord. 22-18, 12/11/2018)

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, and shall include the license application fee adopted by a resolution of the City Council.

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 retailers. 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 5.14.126. 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 City of Oakley Police Department and shall contain, at a minimum, the following information:

• a. The name, address, telephone number, driver license or similar identification, including date of birth, of each proprietor of the business that is seeking a license.

• b. A single name and mailing address authorized by each proprietor to receive all communications and notices ("authorized address"). If no address is provided or the address provided is not current, the default address shall be the address provided in subsection (a) of this section.

• c. 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 Department of Tax and Fee Administration.

• d. Whether or not any new 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 past five years.

• e. A copy of the conditional use permit required by Section 9.1.1234(c)(1).

• f. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the business seeking the license.

All information required to apply for a tobacco retailer license shall be updated with the Police Department within ten (10) business days whenever information changes. (Ord. 22-18, 12/11/2018)

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City of Oakley, CA

BUSINESS REGULATIONS

§ 5.14.116

§ 5.14.120

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

• a. The information presented in the application is incomplete, inaccurate, or false.

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

• c. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits a license to be issued.

• d. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, unlawful to this Code, or unlawful to any other law.

• e. The maximum number of licenses (twenty-five (25)) have already been issued. (Ord. 22-18, 12/11/2018)

In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Police Department finds based on a preponderance of the 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, the person shall be ineligible to apply for, or to be issued, a tobacco retailer’s license as follows:

• a. After a first violation of this section at a location within any sixty (60) 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 thirty (30) days have passed from the date of the violation.

• b. After a second violation of this section at a location within any sixty (60) 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 ninety (90) days have passed from the date of the violation.

• c. After a third or subsequent violation of this section at a location within any sixty (60) 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.

• (Ord. 22-18, 12/11/2018)

• 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/her/its tobacco retailer’s license and submit the license fee not later than thirty (30) days prior to expiration of the term.

• b. Expiration of License. A tobacco retailer’s license that is not timely renewed shall expire

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City of Oakley, CA

OAKLEY CODE

§ 5.14.120

§ 5.14.126

at the end of its term. To renew a license not timely renewed pursuant to subsection (a) of this section, 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 5.14.118, before seeking renewal of the license.

• (Ord. 22-18, 12/11/2018)

• 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 provisions 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 transferred to a new proprietor in an arm’s length transaction; and
  • 2. The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm’s length transaction.

• (Ord. 22-18, 12/11/2018)

• a. Amount of Fees. The fee shall be established by resolution adopted by the City Council. The fees shall be calculated so as to recover the total costs of both license administration and license enforcement, including, for example, issuing the 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 any interest upon proceeds of fees shall be used exclusively to fund the program, and shall be separately accounted for. Fees are nonrefundable except as may be required by law.

• (Ord. 22-18, 12/11/2018)

• a. Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer’s license shall be revoked if any court of competent jurisdiction determines, or if the City Manager or his or her designee 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,

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City of Oakley, CA

BUSINESS REGULATIONS

§ 5.14.126

§ 5.14.128

conditions, or prohibitions of this chapter or has pleaded guilty, "no contest" or its equivalent.

• b. Notice of Revocation of Hearing. If any grounds for revocation exist, the City Manager or his or her designee may issue a notice of revocation hearing. A notice of revocation hearing will be served to a tobacco retailer as specified in Section 5.14.132 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 an administrative hearing officer. The notice of revocation hearing will set the hearing date no sooner than fifteen (15) days and no later than forty-five (45) days following the date of the notice of revocation hearing is served.

• c. Revocation Hearing. A tobacco retailer’s license may be revoked by the City Manager or his or 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 administrative hearing officer will issue a written decision to revoke or not revoke the license and the reason for the decision. The written decision will be mailed to the tobacco retailer at the address provided in Section 5.14.114(b). 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 administrative hearing officer to revoke a tobacco retailer’s license may be appealed to the City Council. Such appeal must be submitted in writing to the City Clerk within thirty (30) days of the date of the administrative hearing officer’s decision. The appeal shall be heard by the City Council within forty-five (45) days upon the City Clerk’s receipt of the written appeal.

• e.

  • New License After Revocation.

  • 1. After revocation for a first violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until ten (10) days have passed from the date of revocation.
  • 2. After revocation for a second violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until thirty (30) days have passed from the date of revocation.
• 3. After revocation for a third violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until ninety (90) days have passed from the date of revocation.
  • 4. After revocation for four or more violations of this chapter at a location within any sixty (60) month period, no new license may issue for the location until five years have passed from the date of revocation.

• (Ord. 22-18, 12/11/2018)

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City of Oakley, CA § 5.14.128

OAKLEY CODE

§ 5.14.132

• a. Compliance with this chapter shall be monitored by the Police Department. Any peace officer may enforce the penal provisions of this chapter.

• b. Nothing in this chapter shall create a right of action in any tobacco retailer licensee or other person against the City or its agents.

• c. Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When 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 product or electronic smoking device purchases or possession against a person who otherwise might be in violation of such law because of the person’s age (i.e., "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 official of the City;
  • 2. The youth decoy is acting as an agent of a person designated by the City to monitor compliance with these regulations; or
• 3. The youth decoy is participating in a compliance check funded by, either directly or indirectly through subcontracting by, Contra Costa Health Services, the California Department of Health Services or other governmental agency.

• (Ord. 22-18, 12/11/2018)

The City may seek compliance with this chapter by any remedy allowed under the Oakley Municipal Code, including, but not limited to, revocation, administrative fines, or penalties. (Ord. 22-18, 12/11/2018)

All notices or correspondence between the City and proprietor(s) shall be mailed to the address provided in Section 5.14.114(b). The failure of a person to receive properly addressed correspondence shall not affect the validity of the proceedings. (Ord. 22-18, 12/11/2018)

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City of Oakley, CA

BUSINESS REGULATIONS

§ 5.15.102

§ 5.15.106