Port Hueneme Municipal Code Ch. 7 Tobacco and Electronic Cigarette Retailers

For the purposes of this Chapter, the following words shall have the following meanings:

(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 any potential violations of this Chapter are not arm's length transactions.

(b) "Director" means the City Community Development Director or his or her Designee.

(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 that 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 regardless of whether such control is actually exercised.

(e) "Self-service display" means the open display or storage of tobacco products in a manner that it is physically accessible to the general public in any way 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 an employee of the retailer. A vending machine is a form of self-service display.

(f) "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, excluding cannabis, 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.

(g) "Tobacco product":

(1) Means any of the following:

(A) A 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, without limitation, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.

(B) An electronic device that delivers nicotine or other vaporized liquids or solids to the person inhaling from the device, including, without limitation, an electronic cigarette, cigar, pipe, or hookah.

(C) Any component, part, or accessory of a tobacco product, whether or not sold separately.

(2) "Tobacco product" does not include a 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 the product is marketed and sold solely for such an approved purpose.

(h) Tobacco Retailer: Any person who sells, exchanges, transfers, or offers for sale, exchange, or transfer any form of consideration, tobacco, or tobacco products.

(i) Tobacco Retailing: Selling, offering for sale, or exchanging or offering to exchange for any form of consideration, tobacco or tobacco products without regard to the quantity of tobacco or tobacco products sold, offered for sale, exchanged, or offered for exchange.

(Ord. No. 761, § 2, 2-3-20)

(a) No person shall 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 such activity is to occur.

(b) Each tobacco retailer license shall be posted in a conspicuous location at the place of business for which the license has been issued.

(c) The issuance of a license should not eliminate compliance with any other requirements, including, without limitation, the requirement for any other license or permit, certificate or clearance, imposed by any other local, state, or federal rule, regulation, or law.

(Ord. No. 761, § 2, 2-3-20)

(a) A tobacco retailer license is valid for twelve (12) months from the date of issuance or as indicated on the license and shall specify the location where tobacco retailing may take place.

(b) Fees for such permits shall be established by resolution of the City Council.

(Ord. No. 761, § 2, 2-3-20)

(a) No person engaged in tobacco retailing shall sell, transfer, or exchange a tobacco product to another person who appears to be under the age of thirty (30) without first examining the identification of the person to confirm that the person is at least the minimum age to purchase and possess tobacco products pursuant to state law.

(b) No person who is younger than the minimum age established by state law for the purchase or possession tobacco products shall engage in tobacco retailing.

(c) Tobacco retailing by means of a self-service display is prohibited.

(d) Tobacco retailing at other than a fixed location is prohibited.

(Ord. No. 761, § 2, 2-3-20)

(a) An application for a tobacco retailer license shall be submitted on a form supplied by the Director, signed by each proprietor or an authorized agent thereof, and shall contain the following information:

(1) The name, title, 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 the license is sought;

(3) A single name and mailing address authorized by each proprietor to receive all communication and notices required by, authorized by, or convenient to the enforcement of this Chapter;

(4) Proof that the location for which a tobacco retailer license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization, if applicable;

(5) The dates and locations of any admitted violations of this Chapter or any tobacco license requirement by any proprietor or any agent of the proprietor and the dates and locations of any violations of this Chapter or of any tobacco license or permit requirement found to have been committed by any proprietor or any agent of the proprietor within the previous five (5) years; and

(6) Such other information as the Director deems necessary for the administration or enforcement of this Chapter as specified in the application form required by this Chapter.

(b) A licensed tobacco retailer shall inform the Director in writing of any change in the information submitted on an application for a tobacco retailer license within ten (10) business days of such change.

(Ord. No. 761, § 2, 2-3-20)

Upon receipt of a completed application for a tobacco retailer license and the applicable license fee, the Director shall issue a license, after receiving input from appropriate City departments, unless substantial evidence demonstrates that one (1) or more the following bases for denial exists:

(a) The information presented in the application is inaccurate or false;

(b) The application seeks authorization for tobacco retailing at a location for which this Chapter or any City zoning or land-use ordinances or resolutions prohibit the issuance of tobacco retailer licenses. Prior violations of this Chapter for engaging in tobacco retailing without a license shall not constitute a basis for denial of a license if the applicant provides to the Director 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 in accordance with Section 5625;

(c) The application seeks authorization for tobacco retailing for a proprietor to whom this Chapter prohibits a license to be issued; or

(d) The application seeks authorization for tobacco retailing that is prohibited pursuant to this Chapter, the City's Municipal Code, or that is unlawful pursuant to any other law.

(Ord. No. 761, § 2, 2-3-20)

(a) An application for the renewal of a tobacco retailer license shall be submitted to the Director, along with the license renewal fee as established by resolution of the City Council, no later than thirty (30) days prior to the expiration of the license.

(b) A tobacco retailer license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subsection (a) of this section, the proprietor(s) must provide the following:

(1) An application for a new tobacco retailer license along with the new application fee as established by resolution of the City Council; and

(2) A signed affidavit affirming that the proprietor(s) has/have not sold and will not sell any tobacco product after the license expiration date and before a new license is issued or has waited the appropriate ineligibility period, as a result of engaging in tobacco retailing without a license pursuant to Section 5625 of this Chapter, before seeking a new tobacco retailer license.

(Ord. No. 761, § 2, 2-3-20)

(a) A tobacco retailer license may not be transferred from one person to another or from one location to another.

(b) A new tobacco retailer license is required when a tobacco retailing location has a change in proprietor.

(c) 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 fully transferred to a new proprietor or proprietors; and

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

(Ord. No. 761, § 2, 2-3-20)

(a) In addition to any other penalty authorized by law, a tobacco retailer license may be modified, suspended, or revoked by the Director, after sixty (60) days' notice and an opportunity to be heard, for failure of the tobacco retailer and/or proprietor(s), or any agents or employees thereof, to comply with applicable local, state, or federal rules, regulations, or laws concerning tobacco retailing, based upon matters occurring after the license is issued or on matters not considered at the time of issuance of the license that would have authorized the denial of the license or the imposition of conditions on the license.

(b) Any person, including a City officer or employee on behalf of a City department, may file a written request for modification, suspension, or revocation of a tobacco retail license with the Director stating facts that the tobacco retailer, proprietor(s), or any agent or employee thereof failed to comply with applicable rules, laws, regulations, or license conditions.

(c) If the request is filed by a City officer or employee on behalf of a City department, the request shall be accompanied by a written report stating facts indicating the tobacco retailer, proprietor(s), or any agents or employees thereof have not complied with the applicable rules, regulations, laws, or license conditions and recommending that the tobacco retailer license be suspended, revoked, or in what respect the license should be modified.

(d) Following revocation, no new permit may issue for the same proprietor(s) or location until the following time period has elapsed:

(1) Thirty (30) days from the date of revocation for a first violation at a location within any five (5) year period.

(2) Sixty (60) days from the date of revocation for a second violation at a location within any five (5) year period.

(3) Ninety (90) days from the date of revocation for a third violation at a location within any five (5) year period.

(4) One (1) year from the date of revocation for a fourth or any subsequent violation at a location within any five (5) year period.

(e) A tobacco retailer license shall be revoked if the Director finds, after notice and opportunity to be heard in compliance with this Chapter has been given, that one (1) or more of the bases denial of a license pursuant to Section 5621 of this Chapter existed at the time the application for a tobacco retailer license was made or any time prior to license issuance. The decision by the Director shall be final.

(Ord. No. 761, § 2, 2-3-20)

(a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Director finds based upon a preponderance of the evidence, after sixty (60) days' notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer license, either directly or through the person's agents or employees, that person shall be ineligible to apply for, or to be issued, a tobacco retailer license as follows:

(1) After a first violation of this section at a location within any five (5) year period, no new permit may issue for the person or location, unless ownership of the business at the location has been fully transferred in an arm's length transaction, until thirty (30) days have passed from the date of violation.

(2) After a second violation of this section at a location within any five (5) year period, no new permit may issue for the person or location, unless ownership of the business at the location has been fully transferred in an arm's length transaction, until ninety (90) days have passed from the date of violation.

(3) After a third or subsequent violation of this section at a location within any five (5) year period, no new permit may issue for the person or location, unless ownership of the business at the location has been fully transferred in an arm's length transaction, until one (1) year has passed from the date of violation.

(b) Tobacco products offered for sale or exchange in violation of this Chapter are subject to seizure by the Director or any peace officer and shall be forfeited after the tobacco retailer and/or proprietor(s) or other owner of the tobacco products is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale or exchange in violation of this Chapter, state, or federal law. Forfeited tobacco products shall be destroyed after hearing on such matter and the time in which to seek judicial review of the Director's decision 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 suit is final, after final judgment is entered.

(Ord. No. 761, § 2, 2-3-20)

(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 of age, 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 hereby declared public nuisances.

(d) 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, including, without limitation, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and/or suits for injunctive relief.

(Ord. No. 761, § 2, 2-3-20)