Chapter 123 — TOBACCO AND E-CIGARETTE SALES LICENSING REQUIREMENTS

(A) It is the intent of this chapter to implement Riverbank's adopted Vision Statement that, "Riverbank in 2025 will be a pleasant, quiet, friendly community with a distinct small-town character'; and that "Our city should be safe and healthy for all our residents". The uncontrolled sale of tobacco products hinders achievement of this adopted vision. It is the intent of the city to encourage responsible tobacco and e-cigarette retailing and to discourage violations of tobacco and e-cigarette related laws, especially those which prohibit or discourage the sale or distribution of tobacco, e-cigarette, and nicotine products to minors, but not 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.

(B) In order to facilitate the achievement of this vision and to protect the public health, safety and welfare, the City Council finds that a local licensing system for tobacco and e-cigarette retailers is appropriate. Tobacco and e-cigarette sales licensing will ensure that retailers comply with tobacco and e-cigarette control laws and the business standards of the city.

(Ord. 2015-018, passed 11-24-15)

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

APPELLANT. A person who appeals a Finance Department decision to the Appeals Board.

APPEALS BOARD. The Planning Commission.

E-CIGARETTE. A device used to simulate the experience of smoking, having a cartridge with a heater or other mechanism that vaporizes liquid nicotine instead of burning tobacco. Also referred to as an electronic cigarette or e- cig.

ILLEGAL PARAPHERNALIA. Means any equipment, product, or material that is modified for making, using, or concealing illegal drugs such as cocaine, heroin, and methamphetamine. Drug paraphernalia generally falls into two categories including user-specific products and dealer-specific products.

(1) User-specific products. These products include items that are marketed to illegal drug users to assist them in taking or concealing illegal drugs. These products include glass hashish pipes, crack cocaine pipes, smoking masks, hashish bongs, cocaine freebase kits, syringes, and items such as hollowed-out cosmetic cases or fake phones or pagers used to conceal illegal drugs. Also included are items for commercially growing hydroponic marijuana, such as guidebooks, fertilizer, and fluorescent grow-lights, and products purported to cleanse an individual's system of drug residues to increase the individual's chance of passing a urine analysis for drug use.

(2) Dealer-specific products. These products include items that are used by drug traffickers for preparing illegal drugs for distribution at the street level. Items such as digital scales and vials that can be used to sell crack, heroin, or marijuana are also within the purview of this definition.

PERSON. Any natural person, firm, partnership, trust, estate, association, corporation, or organization of any kind. Where a principal acts through an agent, the word "person" shall include both such principal and agent. TOBACCO PRODUCT. Any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, liquid nicotine, or any other preparation of tobacco.

TOBACCO AND E-CIGARETTE RETAILER. Any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, e-cigarettes, or tobacco products.

TOBACCO AND E-CIGARETTE RETAILING. The doing of any of these things: This definition is without regard to the quantity of tobacco, e-cigarette, or tobacco products sold, offered for sale, exchanged, or offered for exchange. (Ord. 2015-018, passed 11-24-15)

(A) It is unlawful for any person to act as a tobacco or e-cigarette retailer without first obtaining and maintaining a valid tobacco and e-cigarette retailer's license pursuant to this chapter for each location at which that activity is to occur. No license may be issued to authorize tobacco and e-cigarette retailing at other than a fixed location. For example, tobacco and e-cigarette retailing by persons on foot and tobacco and e-cigarette retailing from vehicles are prohibited.

(B) The following standards are met prior to issuance of a tobacco and e-cigarette retail license: Sale of tobacco and e-cigarette products shall have 500 foot spacing from any school, or playground; and, flashing or electronic signage within view of schools, playgrounds, or residential districts shall be prohibited.

(C) The term of a license is one year from the date of issuance, unless earlier suspended, terminated, or revoked pursuant to § 123.12. Each tobacco and e-cigarette retailer shall apply for the renewal of his or her tobacco and e- cigarette retailer's license no later than 30 days prior to its expiration.

(D) Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco and e- cigarette retailer's license any status or right other than the right to act as a tobacco and e-cigarette 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, 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 Labor Code § 6404.5.

(Ord. 2015-018, passed 11-24-15)

An activity shall retain its deemed approved status only if it conforms to all of the following deemed approved performance standards:

(A) That the tobacco and e-cigarette retailer shall not offer for sale illegal paraphernalia. The offering of sale of such shall result in immediate suspension of a tobacco and e-cigarette license;

(B) That the tobacco and e-cigarette retailer does not sell tobacco or e-cigarette products to underage minors pursuant to state and federal laws;

(C) That the tobacco and e-cigarette retailer does not adversely affect the peace, or safety of persons residing or working in the surrounding area;

(D) That it does not result in repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, harassment of passersby, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, curfew violations, or police detentions and arrests;

(E) That it does not result in violations to any applicable provision of any other city, state, or federal regulation, ordinance or statute;

(F) That its upkeep and operating characteristics are compatible with and will not adversely affect the livability or appropriate development of the surrounding neighborhood.

(Ord. 2015-018, passed 11-24-15)

All tobacco and e-cigarette retailer commercial activities that were legal activities immediately prior to the effective date of the tobacco and e-cigarette sale regulations shall automatically become deemed approved activities as of the effective date of the regulations and shall no longer be considered legal nonconforming activities. Each such deemed approved activity shall retain its deemed approved status as long as it complies with the deemed approved performance standards.

(Ord. 2015-018, passed 11-24-15)

Application for a tobacco and e-cigarette retailer's license shall be submitted in the name of each person proposing to conduct retail tobacco and e-cigarette sales and shall be signed by each person or an authorized agent thereof. It is the responsibility of each person to be informed of the laws affecting the issuance of a tobacco and e-cigarette retailer's license. A license that is issued, in error or on the basis of false or misleading information supplied by a person, may be revoked pursuant to § 123.12. 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 person;

(B) The business name, address, and telephone number of each location for which a tobacco retailer's license is sought;

(C) A floor plan of the establishment that clearly shows the location within the establishment where the tobacco and e-cigarette products are to be stored;

(D) The name and mailing address authorized by each person to receive all license-related communications and notices (the "authorized address"). If an authorized address is not supplied, each person shall be understood to consent to the provision of notice at the business address specified pursuant to division (B) of this section;

(E) Whether or not any person 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;

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

(Ord. 2015-018, passed 11-24-15)

Upon the receipt of an application for a tobacco and e-cigarette retailer's license that meets the requirements of this chapter, and payment of the license fee, the Finance Department shall issue a license, unless:

• (A) The application is incomplete or inaccurate; or

(B) The application seeks authorization for tobacco and e-cigarette retailing by a person for which or for whom a suspension is in effect, or by a person which or who has had any license revoked pursuant to the Riverbank Code of Ordinances.

(Ord. 2015-018, passed 11-24-15)

Each license shall be prominently displayed in a publicly visible location at the licensed premises. (Ord. 2015-018, passed 11-24-15)

The fee to issue or to renew a tobacco and e-cigarette retailer's license shall be established by resolution of the City Council.

(Ord. 2015-018, passed 11-24-15)

A tobacco and e-cigarette retailer's license is not transferable. If the information required in the license application pursuant to § 123.06(A), (B) or (C) changes, the tobacco and e-cigarette retailer must notify the Finance Department within 14 days, and update all information on the license application form in order to continue to act as a tobacco and e-cigarette retailer. For example, if a tobacco and e-cigarette retailer to whom a license has been issued changes business location, that tobacco and e-cigarette retailer must supply updated license information within 14 days of acting as a tobacco or e-cigarette retailer at the new location. If a business is sold, the new owner must apply for a license for that location before acting as a tobacco and e-cigarette retailer. The current licensee shall notify the Finance Department of the sale of the tobacco and e-cigarette retailing business.

(Ord. 2015-018, passed 11-24-15)

(A) Violation of tobacco-related and e-cigarette-related laws. It shall be a violation of a tobacco or e-cigarette retailer's license for a person or his or her agent or employee to violate any local, state, or federal tobacco-related or any e-cigarette-related law.

(B) License compliance monitoring. The city anticipates that compliance checks of each tobacco and e-cigarette retailer will be conducted at least two times during each 12-month period by the Stanislaus County Public Health Department. The city shall not enforce any tobacco-related or e-cigarette-related minimum age law against a person who otherwise would be in violation of such law because of the person's age (hereinafter "youth decoy") if the violation occurs when:

(1) The youth decoy is participating in a compliance check supervised by a law enforcement official, a code enforcement official, or any peace officer; or

(2) The youth decoy is participating in a compliance check funded or supervised in part by the County of Stanislaus or, funded or supervised in any part by the California Department of Health Services. (Ord. 2015-018, passed 11-24-15)

(A) Suspension, termination, or revocation of license for violation. In addition to any other penalty authorized by law, a tobacco and e-cigarette retailer's license may be suspended or revoked, if the Finance Department determines that the person or his or her agents or employees have violated the requirements of this chapter or other conditions of the license imposed pursuant to § 123.04. A person who loses his or her license for one location does not lose it for all locations, if those locations are in compliance with this chapter, and may renew licenses for other conforming locations. A person cannot obtain a new license for a new location so long as there is a suspension in effect for any location.

(1) Notice required. The licensee shall be served with written notice of all determinations or decisions under this section affecting his or her license. Notice shall be served by personal service, overnight courier, certified mail return receipt requested, or U.S. mail with first class postage affixed. The notice shall be sent to the business address on file.

All notices shall be deemed served, when received, except for notices sent by first class mail which shall be deemed served two days after deposit in the U.S. mail if addressed to a location within Stanislaus County and five days if addressed to a location outside Stanislaus County. The notice shall describe the legal and factual basis for the decision. A decision imposing a line shall specify the amount of the fine. A decision to suspend or revoke a license shall specify the beginning and ending dates of the suspension or the effective date of the revocation. No decision shall become effective in less than ten days from the date of service.

(2) Duration of suspensions.

(a) Upon a finding by the Finance Department of a first license violation within any 36-month period, the license shall be suspended for 14 days. However, prior to imposing the suspension, the Finance Department shall by letter (an "advice letter") advise the person that if the person trains all sales employees at the location of the sale in the laws pertaining to the sale of tobacco and e-cigarette products to minors and techniques to ensure future compliance with said laws, the suspension will not go into effect. Within 30 days of the issuance of the advice letter, the person must file with the Finance Department an affidavit signed by the person and the sales employees that said training has been completed. If the person fails to timely submit the affidavit, the Finance Department shall notify the person that the permit is suspended for 14 days.

(b) Upon a finding by the Finance Department of a second license violation within any 36-month period, the license shall be suspended for 21 days.

(c) Upon a finding by the Finance Department of a third license violation within any 36-month period, the license shall be suspended for 30 days.

(d) Upon a finding by the Finance Department of a fourth license violation within any 36-month period, the license shall be revoked and the person or persons who had been issued the license shall not be issued a tobacco and e- cigarette retailer's license pursuant to this chapter for a period of three years from the date of revocation.

(B) Failure to pay renewal fees. A tobacco and e-cigarette retailer's license which is not timely renewed pursuant to § 123.03(C) is an expired license. The tobacco and e-cigarette retailer shall not engage in tobacco and e-cigarette retailing at the licensed location until a new license has been issued for that location.

(C) Revocation of license issued in error. A tobacco and e-cigarette retailer's license shall be revoked if the Finance Department determines that one or more of the basis for denial of a license under §§ 123.03 or 123.04 existed at the time application was made or at any time before the license was issued. The revocation shall be without prejudice to the filing of a new application for a license.

(D) License suspension requires the removal of all tobacco and e-cigarette products from public view. A tobacco and e-cigarette retailer whose license is suspended must remove from public view all tobacco and e-cigarette products and tobacco and e-cigarette advertising for the duration of the suspension. Failure to remove such items from view will be regarded as a violation of this chapter equivalent to that of selling to minors.

(E) Revocation of license obtained under false pretenses. Tobacco and e-cigarette retailers whose license is obtained under false pretenses shall have that license revoked. A licensee whose license is revoked pursuant to this section may not apply for a new license for a period of one year from the date the license is revoked. (Ord. 2015-018, passed 11-24-15)

(A) Grounds for a fine. If the Finance Department determines that any unlicensed person, including a person named on a revoked or suspended license, has engaged in tobacco and e-cigarette retailing in violation of this chapter, the Finance Department shall fine that person as follows:

(1) A fine not exceeding $100 for a first violation in any 36-month period;

(2) A fine not exceeding $200 for a second violation in any 36-month period; or

(3) A fine not exceeding $500 for a third or subsequent violation in any 36-month period.

(4) Each day that such a person engages in tobacco and e-cigarette retailing shall constitute a separate violation.

(B) Imposition of Fine. If no request for a hearing is timely received in accordance with § 123.14, the Finance Department's determination on the violation and the imposition of a fine shall be final and payment shall be made within 30 days after notice of the fine was served in accordance with § 123.12(A)(1). If the fine is not paid within that time, the fine may be collected, along with interest at the legal rate, in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the person or persons subject to the fine shall also be liable for the costs of the suit and attorney's fees incurred by the city in collecting the tine. (Ord. 2015-018, passed 11-24-15)

(A) Appeal of fine, suspension, or revocation. A decision of the Finance Department to impose a fine or to revoke or suspend a license may be appealed to the Appeals Board. The appellant must file a written notice of appeal with the City Clerk's office within ten days after service of the notice of the decision. Failure to file an appeal within ten days waives any right to further challenge the Finance Department's decision. "File" means delivered to the City Clerk's office in the Riverbank City Hall. The filing of a notice of appeal automatically stays the Finance Department's decision, until the Appeals Board has served its final decision on the appeal. The Appeals Board may reverse, modify or uphold the Finance Department's decision.

(B) Notice of hearing, If a notice of appeal is timely filed, the City Clerk shall provide written notice to the appellant of the date, time, and place of the hearing in the manner specified in this chapter. A hearing may not be conducted less than 20 days after notice is given to the appellant.

(C) Hearing. The Appeals Board rules governing the conduct of its hearings shall include the following:

(1) The Finance Department shall submit evidence at the hearing substantiating its decision. Such evidence may include testimony, police or other reports of the incident, witness statements and other documents. Not less than ten days prior to the scheduled hearing, the City Clerk must notify the appellant of the name, address and phone number of any witness to the violation, and furnish the appellant with a copy of any document it intends to submit at the hearing. Not less than seven days prior to the hearing, the appellant may request the Finance Department to produce at the hearing any witness the department intends to rely upon to substantiate the violation. The written request must name the witness or witnesses who are requested to attend the hearing. The Finance Department may not rely on the testimony of any witness (including such testimony contained in reports or written witness statements) whose appearance at the hearing is required by this section, if that witness fails to appear.

(2) Not less than ten days prior to the hearing, the appellant must notify the City Clerk in writing of the name, address and phone number of any witness the appellant intends to call as a witness at the hearing, provide a brief description of the proposed testimony, and furnish the City Clerk with a copy of any document the appellant intends to offer as evidence at the hearing. The appellant may not call any witness to testify at the hearing who was not identified as required by this section or offer any document as evidence at the hearing that was not provided to the Finance Department as required by this section.

rief description of the proposed testimony, and furnish the City Clerk with a copy of any document the appellant intends to offer as evidence at the hearing. The appellant may not call any witness to testify at the hearing who was not identified as required by this section or offer any document as evidence at the hearing that was not provided to the Finance Department as required by this section.

(3) At the hearing, the appellant may be represented by an attorney, at appellant's expense. Both the Appeals Board and the appellant shall have the right to examine and cross-examine any witness produced at the hearing. The rules of evidence that normally apply in court shall not apply in a hearing before the Appeals Board but the Appeals Board shall only consider evidence which would be relied upon by reasonable people making an important decision, and shall disregard evidence which by its nature is unreliable or not credible.

(4) The entire hearing shall be electronically or stenographically recorded. The Appeals Board shall base its decision exclusively on the evidence presented at the hearing and shall issue a written decision, which includes a

statement of the relevant facts which the committee finds to be true and explains how the facts support its decision. For example, if the Finance Department finds that the appellant sold cigarettes or e-cigarettes to a minor, but this was the first violation committed by the appellant within 36 months, the decision would explain that § 123.12(B)(2)(a) requires a 14-day suspension of the appellant's license to sell tobacco and e-cigarette products at the licensed location, and on that basis, the facts support a 14-day suspension of the license for that location. The record of the hearing shall be preserved for not less than six months after the decision is served on the appellant.

(D) Hearing decision. The chairperson of the Appeals Board shall issue the written decision required by division (C)(4) of this section. Copies of the decision shall be served in accordance with § 123.12(A)(1). The hearing decision shall include notice of the appellant's right to seek review of the decision pursuant to Cal. Code of Civil Procedure §§ 1094.5 and 1094.6.

• (E) Finality of the Appeals Board's decision. The decision of the Appeals Board shall be the final decision for the city.

• (F) Appeal to Superior Court. Judicial review of the Appeal Board's decision shall be governed by the Cal. Code of Civil Procedure §§ 1094.5 and 1094.6.

• (G) Enforcement of decision. Unless stayed by a court, any final decision of the Appeals Board is effective immediately and may be implemented and enforced by the department.

(Ord. 2015-018, passed 11-24-15)

The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

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

• (B) Violations of this chapter are declared to be public nuisances.

• (C) Violations of this chapter are declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates.

• (D) A violation of this chapter constitutes a misdemeanor punishable by a fine of $1,000 or by imprisonment in the county jail for six months, or both.

• (E) 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 the district attorney, including, for example, administrative or judicial nuisance abatement proceedings, other legally authorized enforcement proceedings, and suits for injunctive relief.

• (Ord. 2015-018, passed 11-24-15)