Plumas County Municipal Code Ch. 14 Tobacco Retailer Licensing Program

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 the department or agency designated by the Board of Supervisors of the County of Plumas to enforce or administer the provisions of this chapter.

(c) "Electronic smoking device" means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic smoking device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

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

(e) "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.

(f) "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.

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

(h) "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; or

(2) Any electronic smoking device; or

(3) Notwithstanding any provision of subsections (1) and (2), above, to the contrary, any component, part, or accessory of a tobacco product, whether or not sold separately.

"Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

(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 within the unincorporated area of Plumas County. "Tobacco retailing" shall mean the doing of any of these things within the unincorporated area of Plumas County. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(§ 3, Ord. 16-1103, adopted September 20, 2016)

(a) Tobacco retailer's license required. 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 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 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 thirty (30) 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. Persons eighteen (18) years of age or older may engage in tobacco retailing unsupervised on behalf of a licensed tobacco retailer. Persons seventeen (17) years of age or younger may only engage in tobacco retailing on behalf of a licensed tobacco retailer if they are under the continuous supervision of a person twenty-one (21) years of age or older who is on the premises.

(f) Self-service displays prohibited. Tobacco retailing by means of a self-service display is prohibited.

(g) 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 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 5-14.12; 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) Effective date. The provisions of this chapter shall become effective on January 1, 2017.

(§ 4, Ord. 16-1103, adopted September 20, 2016)

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.

(§ 5, Ord. 16-1103, adopted September 20, 2016)

(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 County 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 5-14.11(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:

(1) The name, 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 understood 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 license for the sale of tobacco products, if the tobacco retailer sells products that require such license.

(5) 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 (5) years.

(6) Such other information as the 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 department in writing of any change in the information submitted on an application for a tobacco retailer's license within ten (10) 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 law's exemptions.

(§ 6, Ord. 16-1103, adopted September 20, 2016)

Upon the receipt of a complete application for a tobacco retailer's license 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 inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.

(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 that is prohibited pursuant to chapter (e.g., mobile vending), that is unlawful pursuant to this Code, or that is unlawful pursuant to any other law.

(d) The establishment on the application is not in compliance with federal, state or local laws regarding tobacco sales and displays, or store signage requirements.

(§ 7, Ord. 16-1103, adopted September 20, 2016)

(a) Renewal of license. A tobacco retailer's license is invalid if the term of the license has expired. The tobacco retailer's license will automatically renew for up to four (4) additional 1-year periods after the initial term, conditioned upon the following:

(1) The licensee remains eligible for a tobacco retailer's license as of the expiration date of the then-current term; and

(2) Within the sixty (60) months prior to the expiration date of the then-current term, the licensee has not been found by the department or a court of competent jurisdiction by a preponderance of the evidence, after the licensee has been afforded notice and an opportunity to be heard, to have violated the requirements and prohibitions set forth in Section 5-14.02 above. If such a finding of a violation of the requirements and prohibitions set forth in Section 5-14.02 has occurred within the sixty (60) months prior to the expiration date of the then-current term, the licensee must reapply for a tobacco retailer's license annually, and no automatic renewal may occur.

Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license no later than thirty (30) days prior to expiration of the term, unless the tobacco retailer is eligible for automatic renewal at the end of such 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) above, the proprietor must:

(1) Submit the application renewal form; and

(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 period of time required by Section 5-14.12(a) of this chapter for tobacco retailing without a valid license before seeking renewal of the license.

(§ 8, Ord. 16-1103, adopted September 20, 2016)

(a) A tobacco retailer's license may not be transferred from one person to another or from one (1) 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 transferred to new proprietor(s) in an arm's length transaction; and

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

(§ 9, Ord. 16-1103, adopted September 20, 2016)

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 County 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's license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

(§ 10, Ord. 16-1103, adopted September 20, 2016)

There shall be no fee imposed upon a tobacco retailer for the issuance or renewal of a tobacco retailer's license.

(§ 11, Ord. 16-1103, adopted September 20, 2016)

(a) Compliance with this chapter shall be monitored by the department. In addition, any peace officer may enforce the penal provisions of this chapter. The County may designate any number of additional persons to monitor compliance with this chapter.

(b) The department may inspect each tobacco retailer one (1) or more times per twelve (12) month period, if sufficient funds are appropriated by the Board of Supervisors to perform such inspections. Nothing in this paragraph shall create a right of action in any licensee or other person against the County or its agents.

(c) The County shall not enforce any law establishing a minimum age for tobacco product purchases or possession against a person who otherwise might be in violation of such law because of the person's age (such a person shall be referred to as a "youth decoy") if the potential violation occurs when:

(1) The youth decoy is participating in an inspection supervised by a peace officer, code enforcement official, or the person designated by the County to monitor compliance with this chapter;

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

(3) The youth decoy is participating in an inspection funded in part, either directly or indirectly through subcontracting, by the Plumas County Public Health Agency or the California Department of Health Services.

(§ 12, Ord. 16-1103, adopted September 20, 2016)

(a) Suspension or revocation of license for violation. In lieu of or in addition to any other penalty authorized by law, a licensee shall be fined and/or have its license suspended or revoked, as set forth below, 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 provision of Section 5-14.02 above.

(1) Upon a finding by the department of a first violation of this chapter at a location within any 60-month period, a fine of five hundred and no/100ths ($500.00) shall be issued to the proprietor(s).

(2) Upon a finding by the department of a second violation of this chapter at a location within any 60-month period, the license shall be suspended for ninety (90) days and a fine of one thousand and no/100ths ($1,000.00) shall be issued to the proprietor(s).

(3) Upon a finding by the department of a third violation of this chapter at a location within any 60-month period, the license shall be suspended for one (1) year and a fine of one thousand five hundred and no/100ths ($1,500.00) shall be issued to the proprietor(s).

(b) Appeal of suspension or revocation. A decision of the department to suspend or revoke a license is appealable to the Plumas County Board of Supervisors. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to the Plumas County Board of Supervisors is not available for a revocation made pursuant to subsection (d) below.

(c) Appellate process. Except as otherwise provided by law, any decision made appealable to the Plumas County Board of Supervisors pursuant to this chapter shall be subject to the following requirements and procedures.

(1) Any appeal must be in writing, shall state the specific reasons therefore and the grounds asserted for relief and the specific relief requested, and shall be filed with the Clerk of the Board of Supervisors within ten (10) calendar days of personal service of the notice of the action being appealed, or within fifteen (15) calendar days of mailing if the notice is only served by mail. If any person to whom the notice of violation was given does not file a written appeal within the time and in the manner set forth above, the right to review of the department's determination shall be deemed to have been waived, and the department's decision shall be final.

If a written appeal is filed within the time and in the manner set forth above, the matter shall be heard by the Plumas County Board of Supervisors.

(2) Not later than fifteen (15) days after receipt of the appeal, the Clerk of the Board of Supervisors shall provide written notice to the parties of the date, time, and place of the hearing, in the manner specified above for a notice of revocation.

(3) The provisions of the Administration Procedure Act (commencing with Section 11500 of the Government Code of the State) shall not be applicable to such hearing, nor shall formal rules of evidence in civil or criminal judicial proceedings be so applicable.

A record of the hearing shall be made by any means, including electronic recording, so long as a reasonably accurate and complete written transcription of the proceedings can be made. Technical rules of evidence shall not apply to the hearing, but relevant evidence may be admitted and given probative effect only if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.

A decision of the Plumas County Board of Supervisors shall be supported by substantial evidence. The Plumas County Board of Supervisors shall sustain the department's decision if the Plumas County Board of Supervisors finds that any lawful basis for the department's action exists.

(4) Following the conclusion of the hearing, the Plumas County Board of Supervisors shall prepare a written decision that either grants or denies the appeal, contains findings of facts and conclusions of law, and includes notification that the time limit within which a judicial review shall be sought is governed by Code of Civil Procedure Section 1094.6. Notice of the written decision, including a copy thereof, shall be filed with the Clerk of the Board of Supervisors and served upon all parties not later than ten (10) business days following the date on which the hearing is closed.

The written decision of the Plumas County Board of Supervisors shall be the final decision of the County, and shall become final upon the date that notice thereof is mailed to the appellant by certified mail.

(5) Any determination of the Plumas County Board of Supervisors shall be subject to judicial review pursuant to Code of Civil Procedure Section 1094.5.

(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 (1) or more of the bases for denial of a license under Section 5-14.05 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 County. Such a revocation shall be without prejudice to the filing of a new license application.

(e) Fines and interest upon proceeds of fines shall be used exclusively to fund the tobacco retail licensing program. Fines are nonrefundable except as may be required by law.

(§ 13, Ord. 16-1103, adopted September 20, 2016)

(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 retailer's license as follows:

(1) After a first violation of this section at a location within any 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.

(2) After a second violation of this section at a location within any 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 and a fine of five hundred dollars and no/100ths ($500.00) shall be issued to the proprietor.

(3) After of a third or subsequent violation of this section at a location within any 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 one (1) year has passed from the date of the violation and a fine of one thousand dollars and no/100ths ($1,000.00) shall be issued to the proprietor.

(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 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 5-14.11(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.

(§ 14, Ord. 16-1103, adopted September 20, 2016)

(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 District Attorney, punishable by a civil fine not less than two hundred fifty dollars and no/100ths ($250.00) and not exceeding one thousand dollars and no/100ths ($1,000.00) per violation.

(d) Violations of this chapter may, in the discretion of the District Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.

(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 District Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(§ 15, Ord. 16-1103, adopted September 20, 2016)

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 Board of Supervisors of the County of Plumas hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one (1) or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

(§ 16, Ord. 16-1103, adopted September 20, 2016)