San Jose Municipal Code Part 4 Limitations on License

A. The procedures set forth in Part 1.5 of Chapter 6.02 for summary suspension shall govern the summary suspension of any tobacco retail license issued pursuant to this chapter.

B. Any other actions taken by the city regarding an application for a new tobacco retail license or an existing tobacco retail license shall be governed by the provisions set forth in Sections 6.87.405 through 6.87.530.

(Ord. 28875.)

Any tobacco retailer applying for a tobacco retail license under Section 6.87.440 or requesting an exemption under Section 6.87.210 shall agree to fully indemnify, defend and hold harmless the city, its officers, employees and agents for all claims, losses, or liabilities that arise out of the issuance or use of the tobacco retail license or exemption, or that arise out of any sale, distribution, transfer or use of tobacco products or tobacco paraphernalia, in a form approved by the city attorney's office.

(Ord. 28875.)

No tobacco retailer shall assign or transfer any tobacco retail license or any exemption issued under this chapter, and any attempt to assign or transfer any such license or exemption shall render the license or exemption null and void.

(Ord. 28875.)

Nothing in the chapter shall be construed to grant any tobacco retailer obtaining and maintaining a tobacco retail license or an exemption under this chapter any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the tobacco retail license issued by the director or on the exemption granted by the director. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. Obtaining a tobacco retail license or exemption under this chapter does not make the person engaged in tobacco retailing a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

(Ord. 28875.)

A. Each tobacco retail license issued under this chapter shall expire one year after the date of issuance, subject to suspension or revocation as provided for in this chapter.

B. The expiration date of each tobacco retail license shall be shown on the license itself and each tobacco retail license shall expire at midnight on the expiration date.

(Ord. 28875.)

A. Each tobacco retailer who applies for or holds a tobacco retail license shall pay all associated fees in the amounts established by resolution of the city council.

B. The director shall not issue or renew a tobacco retail license prior to full payment of any applicable fees.

(Ord. 28875.)

An application for any tobacco retail license required by this chapter must be filed on the form provided by the director.

(Ord. 28875.)

A. Only one tobacco retail license or exemption is required per tobacco retailing establishment.

B. Every tobacco retailer shall be required to secure a separate tobacco retail license or exemption in accordance with the requirements of this chapter for each and every separate place of business conducted by such tobacco retailer.

(Ord. 28875.)

A. Applications for a new Tobacco Retail License shall contain or be accompanied by the following:

1. If the Tobacco Retailer is:

a. An individual, the individual shall state his or her legal name and any aliases and shall submit satisfactory proof that he or she is twenty-one (21) years of age;

b. A partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any;

c. A closely held corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors and of each stockholder, and the name and address of the registered corporate agent for service of process;

d. A corporation, other than a closely held corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the state and date of incorporation, evidence that the corporation is in good standing and authorized to do business in the state of California, the names and capacity of all officers, directors and principal owners, and the name and address of the registered corporate agent for service of process;

e. A limited liability company, the company shall state its complete name, the date of filing of the articles of organization and operating agreement, and the names of all managers and members;

2. The legal name under which the business engaging in Tobacco Retailing is or will be conducted;

3. The physical address and all telephone numbers of the business engaging in Tobacco Retailing;

4. Proof of the Tobacco Retailer's right to possess the Premises where the Tobacco Retailing is to occur and proof that engaging in Tobacco Retailing from the Premises does not violate the terms of any contract or lease regarding the Premises;

5. The following personal information concerning the Tobacco Retailer, if an individual; and concerning each stockholder, each officer and each director, if the Tobacco Retailer is a closely held corporation; and concerning each partner, including limited partners, having an ownership interest in the business of more than ten percent (10%), if the Tobacco Retailer is a partnership:

a. Complete legal name, and any aliases;

b. Date of birth;

c. Current residence address (post office boxes will not be deemed to satisfy this requirement);

d. If the person has resided at the current residence address for less than three (3) years, the previous addresses immediately prior to the present address for the last three (3) years;

e. A copy of a valid government issued photo identification card or valid government issued driver's license;

f. The business history experience, including but not limited to, whether or not the person previously operating in this City or anywhere in the United States under any permit or license issued to a business engaging in Tobacco Retailing, has had such a permit or license denied, revoked or suspended and the reasons therefor, and the business activities or occupations subsequent to such action of denial, suspension or revocation;

6. A signed indemnification agreement as required by Section 6.87.405;

7. Proof of payment of any applicable business tax for the business engaging in Tobacco Retailing which is due to the City pursuant to Chapter 4.76 of the Code;

8. A copy of all current and valid permits, licenses or other authorization(s) required by the City or any other federal, state or local agency for the Premises and for the operation of the business engaging in Tobacco Retailing, including but not limited to any and all permits, licenses and authorization(s) required by the California Department of Alcoholic Beverage Control, the California Board of Equalization, County Department of Health, the City's Department of Planning, Building and Code Enforcement, and the Fire Marshal;

9. The name, telephone number and address of the person authorized to accept service of process on behalf of the business engaging in Tobacco Retailing and all of the business owners;

10. Authorization for the Director to seek other information the Director considers necessary for a complete investigation and to conduct an investigation into the truth of the statements set forth in the application;

11. A dated statement agreeing and certifying under penalty of perjury the following:

a. That the information provided in the application is true and correct.

b. That for purposes of this Chapter all persons signing and required to sign the application shall be deemed the Tobacco Retailer applying for the Tobacco Retail License and shall be deemed the Licensee under the Tobacco Retail License as a result of the submission of the application.

c. That all persons signing and required to sign the application are and shall be bound by the terms of any Tobacco Retail License issued as a result of the submission of the application and shall be liable for any violation of said license.

B. The application shall be signed by the Tobacco Retailer as follows:

1. For an individual, the application shall be signed by that individual.

2. For a partnership, the application shall be signed by each of the partners.

3. For a limited liability company that has elected to be managed by its members, the application shall be signed by each member or by an officer authorized by the articles of organization or the operating agreement to bind the company. In the case of a limited liability company that has elected to be managed by a manager or managers, the application shall be signed by the manager or managers or by an officer authorized by the articles of organization or the operating agreement to bind the company.

4. For a corporation, the application shall be signed by two (2) officers of the corporation, one (1) from each of the following categories:

a. The chairperson of the board, the president, or a vice president.

b. The secretary, assistant secretary, chief financial officer, or assistant treasurer.

C. An application shall not be deemed complete until all the information required in Subsections A. and B. has been provided to the Director and the required fees and any applicable business tax required pursuant to Chapter 4.76 of the Code have been paid.

(Ords. 28875, 30675.)

A licensed tobacco retailer shall inform the director in writing of any change in the information submitted on an application for a tobacco retail license within ten business days of the change so that the director may determine whether there has been a substantial change in the information originally submitted such that a new application must be submitted.

(Ord. 28875.)

A. Upon receiving a completed application for a tobacco retail license, the director shall investigate the information required by Section 6.87.440.

B. The director shall also coordinate the investigation of the premises for the purpose of assuring that the premises complies with the requirements of this chapter and applicable public health, safety, welfare and zoning laws set forth in this code and in federal, state and local laws.

C. The director shall make a determination to approve or deny the application within a reasonable period of time after the applicant has submitted a complete application.

(Ord. 28875.)

An application for a Tobacco Retail License or a request for an exemption may be denied, and a Tobacco Retail License issued or an exemption granted pursuant to this Chapter may be suspended or revoked by the Director upon any of the following grounds:

A. The Tobacco Retailer has knowingly made a false statement of fact or omitted a fact required to be revealed in an application for the Tobacco Retail License or a request for an exemption, or in any amendment or report or other information required to be made thereunder;

B. The Premises in which the Tobacco Retailing will occur is in violation of any building, zoning, health, safety, fire, police or other provision of this Code or of federal, state or local law which substantially affects the public health, safety or welfare;

C. The Tobacco Retailer has violated the terms and conditions of the Licensee's Tobacco Retail License or other requirements of this Chapter within the past five (5) years;

D. The Tobacco Retailer has owned or leased a Premises that has been the subject of an administrative, civil or criminal nuisance abatement action and court judgment or administrative determination finding the Premises to be a nuisance within the past five (5) years;

E. Failure to pay any disturbance response fee imposed pursuant to Section 6.02.310;

F. Failure to pay any reinspection fee authorized by Section 6.87.320 B.;

G. A prior application for a license or permit to operate a business engaged in Tobacco Retailing in the City or anywhere in the United States has been denied by the City or any federal, state, or local agency on one or more of the grounds provided in this section within five (5) years prior to the date of the current application;

H. A permit or license issued by the City or any federal, state or local agency to operate or manage a business engaged in Tobacco Retailing anywhere in the United States has been revoked or suspended within the past five (5) years;

I. The Tobacco Retailer has conducted the business engaging in Tobacco Retailing in a manner that creates or results in a public nuisance, as defined in Section 1.13.050 of this Code or Sections 3479 and 3480 of the California Civil Code, on or within one hundred fifty (150) feet of the Premises;

J. If the Tobacco Retailer is a corporation, the corporation is not in good standing in the state of California or is not authorized to do business in the state of California;

K. Engaging in Tobacco Retailing, or allowing or offering Tobacco Products for sale at the Premises for which the Tobacco Retail License is sought or was issued or granted is prohibited under the terms of any contract or lease for that Premises.

(Ords. 28875, 30675.)

A. A licensee may renew its tobacco retail license by complying with the following:

1. An application to renew must be filed on the form provided by the director;

2. The application to renew must be filed with the director no later than sixty days prior to the expiration date of the current tobacco retail license; and

3. The application shall contain or be accompanied by the information required by Section 6.87.440 above.

B. An application to renew shall not be deemed complete until all the information required in Subsection A. has been provided to the director and the required fees and any applicable business tax required pursuant to Chapter 4.76 of the code have been paid.

C. If an application to renew a tobacco retail license is not filed, or the renewal fees are not paid, prior to the expiration date of the current tobacco retail license, the tobacco retail license shall be deemed to have expired on the date of expiration noted on the tobacco retail license.

(Ord. 28875.)

Any person who fails for more than thirty calendar days after the expiration of any tobacco retail license issued to apply for a new tobacco retail license and who continues to engage in tobacco retailing shall pay to the city a penalty of ten percent of the amount of a tobacco retail license fee. Such penalty shall be paid at the time the person applies for a new tobacco retail license and shall be in addition to the fee charged for a new tobacco retail license.

(Ord. 28875.)

Upon receiving a completed application to renew, the director shall investigate the information required in Section 6.87.460 by following the process set forth in Section 6.87.450 above.

(Ord. 28875.)

An application to renew a tobacco retail license may be denied by the director upon the grounds set forth in Section 6.87.455.

(Ord. 28875.)