Chapter 125 — TOBACCO

This subchapter shall be known as the “tobacco retailer license chapter.”

(Ord. 585-C.S., passed 3-2-10)

The City Council finds that despite existing federal, state and local laws intended to regulate tobacco sales and use, local laws need to be enhanced to ensure compliance and maximize their effectiveness in protecting the public’s health, especially that of the more vulnerable youth. The purpose of this subchapter is to discourage violations of laws which prohibit or discourage sale or distribution of tobacco products to minors in the city. It is not the purpose of this subchapter to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed, or to alter the penalty provided therefor. (Ord. 585-C.S., passed 3-2-10)

For the purposes of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. PROPRIETOR. A person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a 10% 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.

TOBACCO PARAPHERNALIA. Includes cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and other items designed for the smoking or ingestion of tobacco or products prepared from tobacco.

TOBACCO PRODUCT. Any manufactured substance made from the tobacco plant, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and smokeless tobacco, or products prepared from tobacco and designed for smoking or ingestion.

TOBACCO RETAILER. Any person or business that operates a store, stand, booth, concession or other place at which the sales of tobacco products are made to purchasers for person consumption or use.

(Ord. 585-C.S., passed 3-2-10)

(A) 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 subchapter, for each location at which that activity is to occur.

(B) It shall be a violation of a tobacco retailer’s license for a licensee or his or her agent or employee to violate any local, state, or federal tobacco-related law. (Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

(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.

(B) It is the responsibility of each proprietor to be informed of the laws affecting the issuance of a tobacco retailer’s license.

(C) A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to § 125.10. All applications shall be submitted on a form supplied by the city 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 fixed location for which a tobacco retailer’s license is sought;

(3) The name and mailing address authorized by each applicant to receive all license-related communications and notices (the “authorized address”). Failure to supply an authorized address shall be understood to consent to the provision of notice at the business address specified in division (C)(2) of this section;

(4) Whether any applicant 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 the revocation;

(5) Such other information as the city deems necessary for the administration or enforcement of this subchapter. (Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

(A) Upon receipt of an application for a tobacco retailer’s license and the license fee, the city shall issue a license unless:

(1) The application is incomplete or inaccurate; or

(2) The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect or by a proprietor which or who has had a license revoked; or

(3) The application seeks authorization for tobacco retailing that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state or federal law; or (4) The city has information that the proprietor or his or her agent or employee has violated any local, state or federal tobacco control law, other than selling tobacco products without the license required by this subchapter, within the preceding 30-day period;

(5) The city has information that the proprietor or his or her agent or employee has sold tobacco products without the required tobacco retailer’s license, within the previous 90-day period.

(B) A license shall be valid for one year and must be renewed no later than 30 days prior to the expiration of the payment term.

(C) If the information required in the license application pursuant to section § 125.05(C)(1), (2) or (3) changes, a new tobacco retailer’s license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for new license prior to acting as a tobacco retailer at the new location. If the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.

(Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

Each license shall be prominently displayed in a publicly visible location at the licensed premises.

(Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

The City Council shall, by resolution, establish fees for the administration, enforcement and implementation of this subchapter. (Ord. 585-C.S., passed 3-2-10)

A tobacco retailer’s license is non-transferable and is valid only for the person and location of license issued for the period indicated, unless it is suspended or revoked for cause. (Ord. 585-C.S., passed 3-2-10)

(A) In addition to any other penalty authorized by law, a tobacco retailer’s license may be suspended or revoked if the city finds, after notice to the licensee and an opportunity to be heard, that the licensee or his or her agent or employee has violated the conditions of the license imposed pursuant to § 125.04 of this subchapter.

(1) Upon a finding by the city of a first license violation, the license shall be suspended for 30 days;

(2) Upon a finding by the city of a second license violation within a five-year period of the first violation, the license shall be suspended for 90 days;

(3) Upon a finding by the city of a third violation within a five-year period of the first violation, the license shall be revoked.

(B) A tobacco retailer’s license may be revoked if the city finds, after notice and an opportunity to be heard, that the information contained in the application, including supplemental information, if any, is found to be false in any material respect.

(C) A decision of the city to revoke or suspend a license is appealable to the City Manager, who may assign a designee to serve as hearing officer. An appeal shall stay all proceedings in furtherance of the appealed action. The decision of the City Manager shall be the final decision of the city.

(D) During a period of license suspension or revocation, the tobacco retailer must remove from public view all tobacco products and tobacco-related advertising. (Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

Any tobacco retailer who is selling tobacco products as of the effective date of the ordinance codified in this subchapter, shall obtain a tobacco retailer’s license by no later than July 1, 2010.

(Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

TOBACCO USE AND SALES RESTRICTIONS

This subchapter is enacted pursuant to the provisions of Cal. Health & Safety Code § 118910 for the purpose of prohibiting smoking in specified places in order to eliminate the hazards and nuisance which smoking causes to those who are involuntarily exposed.

(Ord. 585-C.S., passed 3-2-10)

For the purposes of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

TOBACCO PRODUCT. Any manufactured substance made from the tobacco plan, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and smokeless tobacco, or products prepared from tobacco and designed for smoking or ingestion.

(Ord. 585-C.S., passed 3-2-10)

It is unlawful for any person to possess a burning tobacco product, including but not limited to cigars and cigarettes, to chew tobacco, to dispose of lighted or unlighted cigars or cigarettes or cigarette butts, or any other tobacco product waste, in or upon any city park, trail or walking path, picnic area, sports field, playground, swimming pool or recreation center. This prohibition includes all parking lots for, and sidewalks adjacent to, such facilities.

(Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

It is unlawful for a person to engage in retail tobacco sales at other than a fixed location. Itinerant tobacco retailing and tobacco retailing from vehicles are both expressly prohibited.

(Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

The seller of any tobacco products shall require government-issued photographic identification if a purchaser reasonably appears to be under 27 years of age. In compliance with federal and state law, tobacco products shall not be sold to anyone under 18 years of age.

(Ord. 585-C.S., passed 3-2-10) Penalty, see § 125.99

Enforcement of this chapter shall be enforced by the Police Department.

(Ord. 585-C.S., passed 3-2-10)

(A) Violations of this chapter may be charged as a misdemeanor or an infraction in the discretion of the City Prosecutor. Citations and warning notices may be utilized as determined appropriate to the circumstances by the enforcing personnel.

(B) In addition to the above remedy, a violation of this chapter may be remedied by civil action initiated by the City Attorney.

(Ord. 585-C.S., passed 3-2-10)