Chapter 5.74 — LICENSURE OF TOBACCO RETAILERS

This chapter shall be known as the "tobacco retailer license" ordinance.

(Ord. 6962 § 3 (part), 2004)

The city council finds that despite existing federal, state and local laws intended to regulate tobacco sales and use, local laws need to be enhanced to ensure compliance and maximize their effectiveness in protecting the public's health, especially that of the more vulnerable youth. Regulating the quantity and location of tobacco retailers is equally important in reducing a youth's easy access to tobacco products. A March 2003 Pasadena Merchant Survey of 82 tobacco retailers indicated that 50% of business owners, 63% of managers and 76% of clerks agreed that retailers should be licensed. Additionally, almost 50% of the parties surveyed stated that the proposed license should be renewed annually. The purpose of this chapter is to discourage violations of laws which prohibit or discourage sale or distribution of tobacco products to minors in the city. It is not the purpose of this chapter to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed, or to alter the penalty provided therefore.

(Ord. 6962 § 3 (part), 2004)

As used in this chapter, the following terms have the meanings set forth below:

A.

"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 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 can or does share, ultimate control over the day-to-day operations of a business.

B.

"Tobacco product" means the same as set forth in Section 8.78.040(L).

C.

"Tobacco paraphernalia" includes cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco or products prepared from tobacco.

D.

"Tobacco retailer" means any person or business that operates a store, stand, booth, concession or other place at which the sales of tobacco products are made to purchasers for personal consumption or use.

E.

"Flavored tobacco product" means any tobacco product, as defined in this chapter, which imparts a characterizing flavor. This means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, dessert, alcoholic beverage, herb or spice.

F.

"Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen or e-hookah. Electronic smoking device includes any component, part or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, device or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

G.

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

H.

"Tobacco retailing" means engaging in the activities of a tobacco retailer.

I.

"Smoking" means inhaling, exhaling, burning or carrying any lighted or heated cigar, cigarette or pipe or any other lighted or heated tobacco or plant product intended for inhalation, whether natural or synthetic, in any manner or in any form.

"Smoking" includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.

(Ord. 6962 § 3 (part), 2004)

(Ord. No. 7381, §§ 2, 3, 11-1-2021)

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.

B.

It shall be a violation ofa tobacco retailer's license for a licensee or his or her agent or employee to violate any local, state, or federal tobacco-related law.

(Ord. 6962 § 3 (part), 2004)

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.

B.

It is the responsibility of each proprietor to be informed of the laws affecting the issuance of a tobacco retailer's license.

C.

A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section 5.74.100. All applications shall be submitted on a form supplied by the city and shall contain the following information:

The name, address, and telephone number of each proprietor;

The business name, address, and telephone number of the fixed location for which a tobacco retailer's license is sought;

The name and mailing address authorized by each applicant to receive all license-related communications and notices (the "authorized address"). Failure to supply an authorized address shall be understood to consent to the provision of notice at the business address specified in subsection 2 of this section;

Whether any applicant has previously been issued a license pursuant to this chapter that is or was at any time suspended or revoked and, if so, the dates of the suspension period or the date of revocation;

The applicant's tobacco license number issued by the California Department of Tax and Fee Administration;

Such other information as the city deems necessary for the administration or enforcement of this chapter;

Whether any applicant has violated any local, state or federal tobacco control law within the preceding 5 years.

(Ord. 6962 § 3 (part), 2004)

(Ord. No. 7381, § 4, 11-1-2021)

A.

Upon receipt of an application for a tobacco retailer's license and the license fee, the city shall issue a license unless:

The application is incomplete or inaccurate; or

The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect or by a proprietor which or who has had a license revoked, pursuant to Section 5.74.100; or

The application seeks authorization for tobacco retailing that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state or federal law;

The city has information that the proprietor or his or her agent or employee has violated any local, state or federal tobacco control law within the preceding 120 day period.

B.

A license shall be valid for 1 year and must be renewed prior to the expiration of the payment term.

C.

If the information required in the license application pursuant to Section 5.74.050(C), subsections 1, 2 or 3 changes, a new tobacco retailer' s license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. If the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.

(Ord. No. 7381, § 5, 11-1-2021)

Each license shall be prominently displayed in a publicly visible location at the licensed premises.

(Ord. 6962 § 3 (part), 2004)

The city council may by resolution establish fees for the administration of this chapter.

(Ord. 6962 § 3 (part), 2004)

A tobacco retailer's license is nontransferable and is valid only for the person and location of license issued for the period indicated, unless it is suspended or revoked for cause.

(Ord. 6962 § 3 (part), 2004)

A.

In addition to any other penalty authorized by law, a tobacco retailer's license may be suspended or revoked if the city finds, after notice to the licensee and opportunity to be heard, that the licensee or his or her agents or employees has violated the conditions of the license imposed pursuant to Section 5.74.040 of this chapter.

Upon a finding by the city of a first license violation, the license may be suspended for up to 30 days;

Upon a finding by the city of a second license violation within a five-year period of the first violation, the license may be suspended for up to 90 days;

Upon a finding by the city of a third violation within five years of the first violation, the license may be revoked.

B.

A tobacco retailer's license may be revoked if the city finds, after notice and opportunity to be heard, that one of the following conditions exist. The revocation shall be without prejudice to the filing of a new application for a license.

The application is incomplete for failure to provide the information required by Section 5.74.050;

The information contained in the application, including supplemental information, if any, is found to be false in any material respect;

The application seeks authorization for a license that is unlawful as specified in Section 5.74.060(A)(3).

C.

A decision of the city to revoke or suspend a license is appealable to a hearing officer and any appeal must be filed with the city's environmental health division manager at least 10 working days prior to the commencement date of the license suspension or revocation. An appeal shall stay all proceedings in furtherance of the appealed action. Following appeal, the decision of the hearing officer may be appealed to the city manager or his/her designee. A decision of the city manager or his/her designee shall be the final decision of the city.

D.

During a period of license suspension or revocation, the tobacco retailer must remove from public view all tobacco products and tobacco-related advertising.

(Ord. 6962 § 3 (part), 2004)

A.

The provisions of this chapter shall be enforced by the city health officer or an authorized designee in the environmental health division or by the city prosecutor.

B.

Violations of this chapter may be charged as a misdemeanor or an infraction in the discretion of the city prosecutor.

C.

In addition to the above remedy, a violation of this chapter may be remedied by civil action initiated by the city attorney.

D.

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

(Ord. No. 7381, § 6, 11-1-2021)

Editor's note— Ord. No. 7381, § 7, adopted Nov. 1, 2021, repealed § 5.74.120, which pertained to grace period and derived from Ord. No. 6962, § 3(part), adopted in 2004.