San Fernando Municipal Code Art. VII Tobacco Retailing

The purpose of this article is to discourage violations of laws that prohibit or discourage the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by state law are criminally proscribed.

(Ord. No. 1526, § 2, 1-7-2002)

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

Department shall mean the administrative services department of the city.

Tobacco paraphernalia shall mean 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 products.

Tobacco product shall have the meaning set forth in section 106-941 of chapter 106 of this Code.

Tobacco retailer shall mean any person who sells or offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia; including tobacco giveaways or tobacco-related products; "tobacco retailed" shall mean the doing of any of these things.

(Ord. No. 1526, § 2, 1-7-2002)

(a) It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's permit pursuant to this article for each location at which that activity is to occur. No permit may issue to authorize tobacco retailing at other than a fixed location; peripatetic tobacco retailing and tobacco retailing from vehicles are prohibited.

(b) The permit shall be valid for the remaining portion of the then current year, and shall automatically expire on December 31 following the date of issuance. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's permit prior to its expiration.

(Ord. No. 1526, § 2, 1-7-2002)

(a) Application for a tobacco retailer's permit shall be submitted in the name of the person proposing to conduct retail tobacco sales and shall be signed by such person or an authorized agent thereof. All applications shall be submitted on a form supplied by the department and shall contain the following:

(1) The name, address and telephone number of the applicant.

(2) The business name, address, and telephone number of each location for which a retailer's permit is sought.

(3) Such other information as the department deems necessary for enforcement of this article.

(b) No person shall make any false, misleading or fraudulent statement or misrepresent any fact in any application for a permit required under this article.

(Ord. No. 1526, § 2, 1-7-2002)

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

(1) The application is incomplete or inaccurate;

(2) The application seeks authorization for tobacco retailing by a person or at a location for which a suspension is in effect pursuant to section 22-438;

(3) The application seeks authorization for tobacco retailing that is unlawful pursuant to chapter 106, article V of this Code; or

(4) The applicant fails, refuses or neglects to comply with the provisions of this Code relating to the business where the tobacco retailing is proposed to occur.

(Ord. No. 1526, § 2, 1-7-2002)

Each permittee shall prominently display the permit at each location where tobacco retailing occurs.

(Ord. No. 1526, § 2, 1-7-2002)

A fee shall be charged for a Tobacco Retailer's Permit. The amount of the fee shall be established by resolution of the city council. The fee shall be calculated so as to recover the cost of both the administration and enforcement of the permit, including but not limited to the cost of reviewing permit applications, issuing the permit, renewing the permit, administering the retailer permit program, retailer inspection and compliance checks, documentation of violations, and prosecution of violators. All fees are non-refundable, except as required by law and shall be used exclusively to fund the program and shall not be prorated.

(Ord. No. 1526, § 2, 1-7-2002; Ord. No. 1584, § 1, 10-20-2008)

A tobacco retailer's permit is nontransferable. In the event a person to whom a permit has been issued changes business location or sells the business referenced in that person's permit, that person must apply for a new permit prior to acting as a tobacco retailer at the new location. The transferee of the permittee must apply for a permit in the transferee's name before acting as a tobacco retailer. Any permit reissued pursuant to this section shall expire on the date the previous permit for the business or person would have otherwise expired.

(Ord. No. 1526, § 2, 1-7-2002)

(a) Grounds for suspension or revocation.

(1) A tobacco retailer's permit shall be revoked if the department finds, after notice and opportunity to be heard, that one or more of the bases for denial of a permit under section 22-434 exist. The revocation shall be without prejudice to the filing of a new application for a permit following correction of the conditions that required revocation of the permit.

(2) A tobacco retailer's permit shall be suspended if the department finds, after notice and opportunity to be heard, that the permittee or his or her agent or employee has violated any local, state, or federal law governing the sale, advertisement or display of tobacco, tobacco products, or tobacco paraphernalia.

(b) Suspension of permit. If the department finds that there are grounds for suspension of a permit, the following sanctions shall be imposed:

(1) Upon a first finding by the department of a violation by a permittee or any agent or employee of a permittee within any 12-month period, the permit shall be suspended for 30 days unless: (1) the permittee submits a training plan within a reasonable time established by the department in form and content acceptable to the department, for the training of all sales employees in the laws pertaining to the sale, advertisement, and display of tobacco, tobacco products, or tobacco paraphernalia to minors, and, techniques to ensure future compliance with such laws; and (2) the permittee files with the department, within such time as is reasonably established by the department, satisfactory evidence that the training described in the training plan has been completed.

(2) Upon the second finding by the of a violation by a permittee or by any agent or employee of a permittee within any 12-month period, the permit shall be suspended for 90 days.

(3) Upon each subsequent finding by the department of a violation by a permittee or by any agent or employee of a permittee within any 12-month period, the permit shall be suspended for one year.

(c) Appeal of suspension and/or revocation. The decision of the department is appealable to the city administrator or his/her designee and must be filed with the city clerk within ten days of receipt of the department's determination of violation. An appeal shall stay all proceedings in furtherance of the appealed action. Any such appeal shall follow the process set forth in paragraphs (d), (e), and (f) of section 22-439.

(d) Carrying on business after suspension or revocation. No person whose permit has been revoked or suspended pursuant to this article shall engage in or carry on any tobacco retailing until a new permit shall have been granted.

(Ord. No. 1526, § 2, 1-7-2002)

(a) Grounds for fine. If the department finds, based on substantial record evidence, that any permitted or unpermitted person has engaged in tobacco retailing activities in violation of section 22-432, the department shall fine that person as follows:

(1) A fine not exceeding $500.00 for a first violation in any 12-month period; or

(2) A fine not exceeding $1,000.00 for a second violation in any 12-month period; or

(3) A fine not exceeding $1,500.00 for a third or subsequent violation in any 12-month period.

Each day that a person without a valid tobacco retailer's permit offers tobacco, tobacco products or tobacco paraphernalia for sale or exchange shall constitute a separate violation.

(b) Notice of violation. A notice of violation and of intent to impose a fine shall be personally served on, or sent by certified mail to the person or persons subject to the fine. The notice shall state the basis of the department's determinations and include an advisement of the right to request for a hearing before the city administrator or his or her designee to contest the imposition of the fine. Any request for a hearing must be delivered to the city clerk in writing within ten calendar days of receipt of the notice of violation.

(c) Imposition of fine. If no request is timely filed for a hearing, the department's determination on the violation and the imposition of a fine shall be final and payment shall be made within 30 calendar days of written demand made in the manner specified above for a notice violation. 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 attorneys' fees incurred by the city in enforcing the fine.

(d) Notice of hearing. If a hearing is requested pursuant to paragraph (b) of this section 22-439, the city clerk shall provide written notice, within 45 calendar days of its receipt of the request, to the person or persons subject to the proposed fine of the date, time, and place of the hearing in the manner specified above for a notice of violation.

(e) Hearing procedure. The hearing shall be recorded on audio- or video-tape. Any party to the hearing may, at his or her own expense, cause the hearing to be recorded by a certified court reporter. During the hearing, evidence and testimony may be presented to the hearing officer (the city administrator, or his or her designee). The person or persons subject to the proposed fine may be represented by counsel and have the right to cross-examine witnesses. All testimony shall be given under oath. The hearing officer shall render a written decision and findings within 20 working days of the hearing. Copies of the decision and findings shall be provided to the person or persons subject to the fine in the manner specified above for a notice of violation.

(f) Finality of the hearing officer's decision. The decision of the hearing officer shall be the final decision of the city.

(g) Appeal to municipal court. Notwithstanding the provisions of § 1094.5 or § 1094.6 of the Code of Civil Procedure, within 20 days after service of the hearing officer's decision and findings, any person subject to a fine may seek review of the hearing officer's decision and findings by the municipal court. A copy of the notice of appeal to the municipal court shall be served in person or by first-class mail upon the department by the contestant. The appeal shall be heard de novo, except that the contents of the department's file in the case shall be received in evidence. A copy of the records of the department of the notices of the violation and of the hearing officer's decision and findings shall be admitted into evidence as prima facie evidence of the facts stated.

(h) Failure to pay fine. If no timely notice of appeal to the municipal court is filed, the hearing officer's decision and findings shall be deemed confirmed and the fine shall be collected pursuant to paragraph (c) of this section.

(Ord. No. 1526, § 2, 1-7-2002)

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

(Ord. No. 1526, § 2, 1-7-2002; Ord. No. 1537, § 12, 10-21-2002)