Pacifica Municipal Code Ch. 31 Tobacco Retailing

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

(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 (2) 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.

(b) "Department" means Pacifica Police Department.

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

(d) "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten (10%) percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.

(e) "Self-service display" means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A vending machine is a form of self-service display.

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

(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 product" means: (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence.

(i) "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, or who distributes free or low cost samples of 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.

(j) "Vending machine" means a machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(a) It shall be unlawful for any person to act as a tobacco retailer 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 public nuisance.

(b) A tobacco retailer or 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 5-31.12.

(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.

(c) 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 right to act as a tobacco retailer at the location in the City identified on the face of the license. For example, nothing in this chapter shall be construed to render inapplicable, supercede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code including without limitation the zoning regulations, building codes, and business license tax provisions of Title 3, 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.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(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 license may issue to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g., an "on-sale" license issued by the California Department of Alcoholic Beverage Control) and no license may issue to authorize tobacco retailing at any location offering food or alcoholic beverages for sale for consumption by guests or patrons on the premises. For example, tobacco retailing in bars and restaurants is prohibited. Restaurants that allow on-site consumption of alcoholic beverages that were brought to the premises by patrons shall also not be entitled to a license to engage in tobacco retailing.

(c) No license may issue to authorize tobacco retailing at a pharmacy, as that term is defined in Section 5-33.01 of this Code.

(§ 2, Ord. 757-C.S., eff. March 12, 2008; § 4, Ord. 871-C.S., eff. March 30, 2022)

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 under penalty of perjury.

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, or contrary to any other law, or on the basis of false or misleading information supplied by a proprietor, or due to omission of a material fact, shall be revoked pursuant to Section 5-31.11(d) of this chapter. 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 Department and shall contain the following information:

(a) The name, address, and telephone number of each proprietor of the business that is seeking a license.

(b) The business name, address, and telephone number of the single fixed location for which a license is sought.

(c) 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 understood to consent to the provision of notice at the business address specified in subsection (b) above.

(d) 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.

(e) Whether or not any proprietor has admitted violating, or has been found to have violated, this chapter or whose proprietorship 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 six (6) years.

(f) Such other information as the Department deems necessary for the administration or enforcement of this chapter.

(g) All information required to be submitted in order to apply for a tobacco retailer's license shall be updated with the Department whenever the information changes. A tobacco retailer shall provide the Department in writing with any updates within ten (10) business days of a change.

(h) The information specified in subsections (b) and (c) shall be available to the public for all currently licensed tobacco retailers. Upon request, the Department shall provide a compilation of this information to any person within a reasonable time and subject to a fee approximating the actual cost of compiling and presenting the information.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

Upon the receipt of an application for a tobacco retailer's license and the full license fee required by this chapter the 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. The submission of inaccurate or false information, or an omission of a material fact, shall be a violation of this chapter.

(b) The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subsection shall not constitute a basis for denial of a license if the applicant provides the City of Pacifica with documentation demonstrating by clear and convincing evidence that the applicant has acquired, or is acquiring, the location or business in an arm's length transaction.

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

(d) The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending), that is unlawful pursuant to the Pacifica Municipal Code including without limitation, the zoning regulations, building codes, and business license tax provisions of Title 3, or that is unlawful pursuant to any other law.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(a) Renewal of license. A tobacco retailer license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a tobacco retailer license is one year from date of issuance. 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 (30) 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 reinstate a license that has expired, or to renew a license not timely renewed pursuant to subsection (a), the proprietor must:

(1) Submit the license fee plus a reinstatement fee of ten (10%) percent of the license fee.

(2) Submit a signed affidavit affirming that the proprietor:

(i) 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

(ii) Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5-31.12(a) of this chapter, before seeking renewal of the license.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(a) A tobacco retailer's license may not be transferred from one person to another or from one location to another. Any attempt to do so shall constitute a violation of this chapter. Whenever a tobacco retailing location has a change in proprietors a new tobacco retailer's license is required.

(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.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

The fee to issue or to renew a tobacco retailer's license shall be established by resolution of the City Council. The fee shall be calculated so as to recover the total cost 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. All fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. Fees required by this chapter shall be in addition to any required under any other chapter of the Pacifica Municipal Code.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(a) 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 issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to:

(1) Violate any local, State, or Federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

(2) Violate any local, State, or Federal law regulating exterior, storefront, window, or door signage, as well as local regulations pertaining to outdoor display or storage of products or other personal property.

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

(c) 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 under State law to purchase and possess the tobacco product or tobacco paraphernalia.

(d) 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.

(e) Self-service displays prohibited. No tobacco retailer shall display tobacco products or tobacco paraphernalia by means of a self-service display or engage in tobacco retailing by means of a self-service display.

(f) Smoking prohibited. Smoking shall be prohibited inside the location of a tobacco retailer and in all outdoor areas that are within twenty (20′) feet of any door, window, or other opening into the tobacco retailer except in such places in which smoking is already prohibited by State or Federal law, in which case the State or Federal law applies in lieu of this subsection. A tobacco retailer shall not permit smoking in violation of this subsection and shall post conspicuous "no smoking" signs at all entrances to the licensed location and in all outdoor portions of the licensed location in which smoking is prohibited.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(a) Compliance with this chapter shall be monitored by the Police Department, the Business License Department, and Code Enforcement Officials. Any peace officer or Code Enforcement Officials may enforce the penal provisions of this chapter.

(b) The Police Department or Code Enforcement Officials should endeavor to check the compliance of each tobacco retailer at least two (2) times per twelve (12) month period. The Police Department or Code Enforcement Officials may check the compliance of tobacco retailers previously found to be in compliance a fewer number of times so that the enforcement agency may check the compliance of tobacco retailers previously found in violation of the licensing law a greater number of times. Nothing in this subsection shall create a right of action in any licensee or other person against the City or its agents by reason of such compliance checks.

(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 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 Official of the City; or

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

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(a) Revocation of license for violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be revoked if the Department finds or any court of competent jurisdiction determines, 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, in a different legal proceeding, has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Section 5-31.09(a) above.

(b) 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 month (60) 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 (4) 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 (5) years have passed from the date of revocation.

(c) Appeal of revocation. A decision of the Department to revoke a license is appealable to the City Manager and must be filed on a City-approved form with the City Clerk within ten (10) days of mailing (via first class mail) of the Department's decision. If such an appeal is made, it shall stay enforcement of the appealed action. Following appeal, the decision of the City Manager may be appealed to the City Council and must be filed with the City Clerk within ten (10) days of mailing (via first class mail) of the City Manager's decision. A decision of the City Counsel shall be the final decision of the City. An appeal to City Manager or the City Council is not available for a revocation made pursuant to subsection (d) below.

(d) Revocation of license issued in error. A tobacco retailer's license shall be revoked if the Department finds, after the licensee is afforded reasonable notice and an opportunity to be heard by the City Manager that one or more of the bases for denial of a license under Section 5-31.05 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. The revocation shall be without prejudice to the filing of a new license application.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(a) In addition to any other penalty authorized by law, if the Department finds or any court of competent jurisdiction determines, 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 be issued a tobacco retailing license for that location as follows:

(1) After a first violation of this chapter at a location within any sixty (60) month period, no new license may issue for the person at the location until thirty (30) days have passed from the date of the violation.

(2) After a second violation of this chapter at a location within any sixty (60) month period, no new license may issue for the person at the location until ninety (90) days have passed from the date of the violation.

(3) After a third or subsequent violation of this chapter at a location within any sixty (60) month period, no new license may issue for the person at the location until five (5) years have passed from the date of the violation.

(b) For the purpose of the civil remedies provided in this chapter, each:

(1) Day on which tobacco products or tobacco paraphernalia are offered for sale in violation of this chapter; or

(2) Tobacco products and items of tobacco paraphernalia distributed, sold or offered for sale;

whichever is greater, shall constitute a separate violation of this chapter.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

For a first or second alleged violation of this chapter within any sixty (60) month period, the City Attorney may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter without approval from the City Council. Notice of any settlement shall be provided to the Department and no hearing shall be held. Settlements shall not be confidential and shall contain the following minimum terms:

(a) After a first alleged violation of this chapter at a location within any sixty (60) month period:

(1) An agreement to stop acting as a tobacco retailer for at least one day;

(2) A settlement payment to the City of at least One Thousand and no/100ths ($1,000.00) Dollars; and

(3) An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.

(b) After a second alleged violation of this chapter at a location within any sixty (60) month period:

(1) An agreement to stop acting as a tobacco retailer for at least ten (10) days;

(2) A settlement payment to the City of at least Five Thousand and no/100ths ($5,000.00) Dollars; and

(3) An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)

(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 age of eighteen (18) 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) Violations of this chapter are subject to a civil action brought by the City Attorney, punishable by a civil fine payable to the city not less than Two Hundred Fifty and no/100ths ($250.00) Dollars and not exceeding One Thousand and no/100ths ($1,000.00) Dollars per violation.

(d) Violations of this chapter may, in the discretion of the City Attorney or City Prosecutor, be prosecuted as infractions or misdemeanors.

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

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

(g) 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 or City Prosecutor, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(§ 2, Ord. 757-C.S., eff. March 12, 2008)