Chapter 5.51 — TOBACCO LICENSING

It is the purpose and intent of this chapter to encourage responsible tobacco retailing, to discourage violations of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minors, and to protect children from being lured into illegal activity through the misconduct of adults. There is no intent 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.

(Code 1972, § 5.51.010; Ord. No. 1246, § 2(part), 2008)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

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 under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the

primary purpose of avoiding the effect of the violations of this chapter is presumed not to be an arm's length transaction.

Department means county health officer or his designee.

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

Retail tobacco store means a retail store utilized primarily for the sale of tobacco products and accessories; and in which at least 80 percent of the square footage of the available retail floor and shelf space is devoted to the sale of tobacco-related products and accessories.

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.

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

(1)

Any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe 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 Federal Food and Drug Administration for use in treating nicotine or tobacco product dependence.

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; the term "tobacco retailing" means 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.

(Code 1972, § 5.51.020; Ord. No. 1246, § 2(part), 2008)

(a)

It is 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 shall constitute a public nuisance.

(b)

A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a revoked license:

(1)

Shall keep all tobacco products and tobacco paraphernalia from public view.

(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 would lead a reasonable consumer to believe that such products can be obtained at the tobacco retailer's 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 county identified on the face of the license. 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, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code section 6404.5.

(d)

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 of the laws affecting the issuance of a tobacco retailer's license. A license that is issued in error or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to section 5.51.090(D).

(e)

In addition to any other penalty under this chapter, a person found to have engaged in tobacco retailing without a valid tobacco retailer's license shall be ineligible to apply for or be issued a tobacco retailing license according to the following:

(1)

After a first violation for a person within any 60-month period, no new license may issue for the person as a proprietor until 30 days have passed from the date of last violation.

(2)

After a second violation for a person within any 60-month period, no new license may issue for the person as a proprietor until 90 days have passed from the date of last violation.

(3)

After three or more violations for a person within any 60-month period, no new license may issue for the person as a proprietor until five years have passed from the date of last violation.

(4)

Each day that a person engages in tobacco retailing without a valid tobacco retailer's license shall constitute a separate violation.

(f)

Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this chapter are subject to seizure and forfeiture. Forfeited tobacco products and tobacco paraphernalia shall be destroyed.

(g)

All applications shall be submitted on a form supplied by the department and shall contain the following information:

(1)

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

(2)

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

(3)

The name and mailing address authorized by each proprietor to receive all license-related communications and notices (the "authorized address"). 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 (g)(2) of this section;

(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 state board of equalization;

(5)

Whether or not any proprietor is a person who has been determined to have violated this chapter or has been a proprietor at a location that has been determined to have violated this chapter, and if so, the dates and locations of all such violations;

(6)

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

(7)

All information required to be submitted to apply for a tobacco retailer's license shall be updated with the department whenever the information changes within ten business days of the change.

(Code 1972, § 5.51.030; Ord. No. 1246, § 2(part), 2008)

(a)

No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited.

(b)

Upon the receipt of an application for a tobacco retailer's license and the license fee, the department shall issue a license unless substantial record evidence demonstrates that one of the following bases for denial exists:

(1)

The application is incomplete or inaccurate.

(2)

The application seeks authorization for tobacco retailing at a location for which a prohibition on issuing licenses is in effect pursuant to section 5.51.090(b). However, this subsection shall not constitute a basis for denial of a license if the applicant provides the county 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. Clear and convincing evidence can be oral or written and must be the type of evidence upon which a responsible person would rely.

(3)

The application seeks authorization for tobacco retailing for a proprietor for which a prohibition on issuing licenses is in effect pursuant to section 5.51.090(b).

(4)

The application seeks authorization for tobacco retailing that is prohibited pursuant to subsection (a) of this section, that is unlawful pursuant to any other county ordinance, or that is unlawful pursuant to any other local, state, or federal law.

(Code 1972, § 5.51.040; Ord. No. 1246, § 2(part), 2008)

(a)

A tobacco retailer's license is nontransferable. A tobacco retailer's license may not be transferred from one person to another or from one location to another. 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, violations accumulated against a location or business shall continue to be counted against the location or business unless the location or business has been transferred to a new proprietor and the new proprietor provides the county with documentation demonstrating by clear and convincing evidence that the new proprietor has acquired or is acquiring the location or business in an arm's length transaction.

(Code 1972, § 5.51.050; Ord. No. 1246, § 2(part), 2008)

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. Each tobacco retailer shall apply for the renewal of his tobacco retailer's license no later than 30 days prior to expiration of the term. The amount of the fee shall be set by resolution of the city council.

(Code 1972, § 5.51.060; Ord. No. 1246, § 2(part), 2008)

(a)

Display of license. Each license shall be prominently displayed in a publicly and readily visible location at the licensed location.

(b)

Positive identification required. No person shall engage in tobacco retailing without first examining the identification of the purchaser, if the purchaser reasonably appears under the age of 27 years old, and confirming that the proposed sale is to a purchaser who is at least the minimum age in state law for being sold the tobacco product or tobacco paraphernalia.

(c)

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 any tobacco product shall engage in tobacco retailing.

(d)

Self-service displays prohibited. No person shall 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. A tobacco retailer who chooses to display tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times.

(Code 1972, § 5.51.070; Ord. No. 1246, § 2(part), 2008)

(a)

Violation of tobacco-related laws. It shall be a violation of a tobacco retailer's license for a licensee, including his agent or employee, to violate any of the following laws:

(1)

Any local, state, or federal tobacco-related law;

(2)

Local, state, or federal sign laws;

(3)

Local, state, or federal laws restricting the age of purchase for any product.

(b)

License compliance monitoring.

(1)

Compliance with this chapter shall be monitored by the department. Any peace officer may enforce the penal provisions of this chapter.

(2)

The department shall check the compliance of each tobacco retailer at least three times per 12-month period. Nothing in this section or chapter shall create a right of action in any licensee or other person against the city, its agent or its designee.

(3)

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 tobacco-related laws.

(4)

The county shall not enforce any tobacco-related minimum age law 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:

a.

The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official; or

b.

The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the county department of health and human services or funded in part, either directly or indirectly through subcontracting, by the state department of health services.

(c)

No contest plea. A plea of "no contest" or its equivalent by a tobacco retailer for a violation of any law designated in subsection (a) of this section shall operate as an admission that this chapter has been violated for the purposes of license revocation.

(Code 1972, § 5.51.080; Ord. No. 1246, § 2(part), 2008)

(a)

Revocation of license for violation.

(1)

In addition to any other penalty authorized by law, a tobacco retailer's license shall be revoked if the county hearing officer finds, after notice to the licensee and opportunity to be heard, that the licensee, including his agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter (hereinafter "license violation").

(2)

For a first or second alleged license violation within any 60-month period, the county counsel 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 board of supervisors. Settlements shall not be confidential and shall contain the following minimum terms:

a.

After an alleged first license violation at a location within any 60-month period:

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

A settlement payment to the county of at least $1,000.00; and

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 an alleged second license violation at a location within any 60-month period:

An agreement to stop acting as a tobacco retailer for at least ten days;

A settlement payment to the county of at least $5,000.00; and

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)

New license after revocation for violation.

(1)

After a first license violation at a location within any 60-month period, no new license may issue for the location until ten days have passed from the date of the last revocation or violation, whichever is later.

(2)

After a second license violation at a location within any 60-month period, no new license may issue for the location until 30 days have passed from the date of the last revocation or violation, whichever is later.

(c)

Violations of this chapter are subject to a civil action brought by the district attorney or county counsel, punishable by:

(1)

A fine not less than $250.00 and not exceeding $1,000.00 for a first violation in any 60-month period;

(2)

A fine not less than $1,500.00 and not exceeding $2,500.00 for a second violation in any 60-month period; or

(3)

A fine not less than $3,000.00 and not exceeding $10,000.00 for a third or subsequent violation in any 60- month period.

(d)

Violations of this chapter may, in the discretion of the district attorney or county counsel, be prosecuted as infractions or misdemeanors.

(e)

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

(f)

Violations of this chapter are 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 in the discretion of the city attorney, the county counsel, or the district attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Code 1972, § 5.51.090; Ord. No. 1246, § 2(part), 2008)

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 city 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.

(Code 1972, § 5.51.110; Ord. No. 1246, § 2(part), 2008)