Article 4-90

TOBACCO RETAILER LICENSE

Sections:

This Article is intended to set forth a local licensing process for tobacco retailers to ensure compliance with City business standards and practices; encourage responsible retailing of tobacco products; discourage violations of laws related to tobacco products, especially those laws that prohibit or discourage sale or distribution of tobacco products to minors; prohibit sales of electronic smoking products, and, protect the public health, safety, and welfare. This Article does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws.

(Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 357, § 1(Att. 1), 10-17-2018; Ord. No. 375, § 1(Att. 1), 9-162020)

(a) Electronic smoking product means any of the following products:

(1) Any device or delivery system that can be used to deliver nicotine or other chemicals in aerosolized or vaporized form, including but not limited to an e-cigarette, e-cigar, e-pipe, e-hookah, vape pen, electronic vape, vaporizer, or any other product name or description.

(2) Any component, part, or accessory of such a device or delivery system that is used during its operation.

(3) Any flavored or unflavored liquid or substance containing nicotine or other chemicals, whether sold separately or sold in combination with any device

or delivery system that could be used to delivery nicotine or other chemicals in aerosolized or vaporized form.

(4) Any product for use in an electronic smoking device or delivery system whether or not it contains nicotine or tobacco or is derived from nicotine or tobacco.

(5) Electronic smoking products shall not include:

(i) Any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold separately; or

(ii) Any 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 that product is marketed and sold solely for such approved use.

(b) Flavored tobacco product means any tobacco product that imparts a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to mint, wintergreen, fruit, menthol, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product shall not be determined to be flavored tobacco solely because of the use of additives or flavorings or the provision of ingredient information.

(c) Paraphernalia means cigarette papers or wrappers, pipes, holders of smoking materials of all types, rolling machines, and any other item designed for smoking or for ingestion of tobacco products. Until January 1, 2021 paraphernalia includes electronic smoking products.

(d) Person means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

(e) Retailer meansanypersonwhosells,exchanges, or offers to sell or exchange, for any form of consideration, tobacco products or paraphernalia. "Retailing" shall mean the doing of any of these things whether exclusively or in conjunction with any other use. The definition of a retailer is without regard to the quantity of tobacco products or paraphernalia sold, exchanged, or offered for sale or exchange.

(Saratoga Supp. No. 49, 3-22)

84.16

4-90.040

(f) Self-service display means the open display or storage of tobacco products or paraphernalia in a manner that is physically accessible in any way to the direct general public 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 employee of the retailer.

(g) Tobacco product means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco (such as flavored tobacco); and any product or formulation of product containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any 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 that product is marketed and sold solely for such approved use.

(h) Tobacco retailer license is a license issued pursuant to this Article.

(Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 341, § 1(Att. A), 8-17-2016; Ord. No. 357, § 1(Att. 1), 10-172018; Ord. No. 375, § 1(Att. 1), 9-16-2020; Ord. No. 387, § 1(Exh. A), 1-19-2022, eff. 5-1-2022)

It shall be unlawful for any person to act as a retailer in the City of Saratoga without first obtaining and maintaining a valid tobacco retailer license pursuant to this Article for each location at which the activity is to occur.

(Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 341, § 1(Att. A), 8-17-2016; Ord. No. 357, § 1(Att. 1), 10-172018; Ord. No. 375, § 1(Att. 1), 9-16-2020)

(a) Lawful business operation. It shall be a violation of this Article for any retailer to violate any local, state, or federal law applicable to tobacco products, electronic smoking devices, or the retailing of such products.

(b) Location. Retailing activities shall be conducted at a fixed location and within an enclosed area of a commercial premises accessible to the general public during the hours of business operation. No

tobacco retailers established after September 16, 2016, shall be granted a tobacco retailer license for a location which is: within five hundred feet of a site occupied by another tobacco retailer; within one thousand feet of a site occupied by a public or private elementary, middle, or high school; or within one thousand feet of a site occupied by a City park. All distances shall be measured in a straight line from the point on the parcel boundary of the proposed tobacco retailer location nearest to the subject use (i.e. existing tobacco retailer, school, or park) to the nearest point on the parcel boundary of the subject use. Notwithstanding the foregoing, a tobacco retailer license may be issued for use of a location for which a tobacco retailer license was in effect prior to September 16, 2016 and may be renewed thereafter unless it expires due to non-renewal or is revoked in accordance with section 4-90.070 of this Code.

(c) Pharmacies. No retailer permit may be issued to authorize retailing activities at any location where the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription drugs are offered for sale regardless of whether other retail goods in addition to prescription pharmaceuticals are offered for sale.

(d) Display of license. Each tobacco retailer license shall be prominently displayed in a publicly visible place at the licensed location.

(e) License nontransferable. A tobacco retailer license may not be transferred from one person to another or from one location to another. Whenever a new person obtains possession of a ten percent or greater interest in the stock, assets, or income of a business (other than a security interest for the repayment of debt) for which a tobacco retailer license has been issued, a new license shall be required.

(f) False and misleading advertising prohibited. A retailer either without a valid tobacco retailer license or with a suspended license shall not display any tobacco products or paraphernalia nor display any advertisement that promotes the sale or distribution of such products from the retailer's location or that could lead a reasonable consumer to believe that tobacco products or paraphernalia can be obtained at that location.

(g) Minimum age for purchase. No retailer shall sell, give, or otherwise transfer tobacco product or paraphernalia to a person under the minimum age for purchase as set by State law.

(Saratoga Supp. No. 49, 3-22)

84.17

4-90.040

(h) Positive identification required. No retailer shall sell, give, or otherwise transfer tobacco product or paraphernalia to another person who appears to be under thirty years of age without first examining the customer's identification to confirm that the customer is at least the minimum age for purchase as set by State law.

(i) Minimum age for engaging in tobacco sales. No retailer may allow a person under the minimum age for purchase as set by State law of tobacco products to sell, give, or otherwise transfer to customers tobacco product or paraphernalia.

(j) Limitation on storefront advertising. Storefront advertising shall comply with Article 15-30 of this Code and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the establishment. However, this shall not apply to an establishment where there are no windows or where existing windows are located at a height that preclude view of the interior of the premises by a person standing outside the premises.

(k) Vendingmachinesprohibited. Notobaccoproduct or paraphernalia shall be sold, offered for sale, or distributed to the public from a vending machine or appliance,oranyothercoin-ortoken-operatedmechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

(l) Self-service displays prohibited. No tobacco product or paraphernalia shall be sold, offered for sale, or distributed to the public from a self-service display.

(m) Flavored tobacco products prohibited. No flavored tobacco product shall be sold, offered for sale, or possessed with intent to sell or offer for sale.

(n) Electronic smoking products prohibited. Beginning January 1, 2021 no electronic smoking products shall be sold, offered for sale, or possessed with intent to sell or offer for sale.

(o) Limited, conditional privilege. Nothing in this Article shall be construed to grant any person obtaining and maintaining a tobacco retailer license any sta-

tus or right other than the limited, conditional privilege to act as a retailer at the location in the City identified on the face of the license.

(Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 341, § 1(Att. A), 8-17-2016; Ord. No. 357, § 1(Att. 1), 10-172018; Ord. No. 375, § 1(Att. 1), 9-16-2020)

(a) All applications for a tobacco retailer license shall be submitted to the Director of Finance and Administrative Services on a form supplied by the City of Saratoga.

(b) Any person holding a tobacco retailer license shall inform the City in writing of any change in the information submitted on an application for such license within fourteen calendar days of a change.

(c) Allinformationspecifiedinanapplicationshall be subject to disclosure under the California Public Records Act or any other applicable law.

(d) It is the responsibility of each retailer to be informed of all laws applicable to retailing, including those laws affecting the issuance of a tobacco retailer license. No retailer may rely on the issuance of a tobacco retailer license as a determination by the City that the retailer has complied with all laws applicable to retailing. A tobacco retailer license issued contrary to this Article, to any other law, or on the basis of false or misleading information supplied by a retailer shall be revoked.

(Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 357, § 1(Att. 1), 10-17-2018)

Editor’s note— Ord. No. 327, § 1(Att.), adopted June 17, 2015, set forth two sections designated 7-90.040. At the editor's discretion, the second such section, pertaining to application procedure, has been redesignated 4-90.045.

(a) Upon receipt of a complete application for a tobacco retailer license and the application and license fees, the Director of Finance and Administrative Services shall issue a license, unless substantial evidence demonstrates that one or more of the following bases for denial exist:

(1) The information presented in the application is inaccurate or false.

(2) The application seeks authorization for retailing by a person to whom this Article prohibits issuance of a tobacco retailer license.

(Saratoga Supp. No. 49, 3-22)

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4-90.070

(3) The application seeks authorization for retailing at a location or in some other manner that is prohibited pursuant to this Article or that is unlawful pursuant to any other law.

(b) A tobacco retailer license shall be revoked if the Director of Finance and Administrative Services finds that one or more of the bases for denial of a license under this section existed at the time the application was made or at any time before the license was issued. Such a revocation shall be without prejudice to the filing of a new license application.

(c) A decision to deny issuance of a tobacco retailer license or to revoke such a license that has been wrongly issued may be appealed pursuant to Section 4-90.100 of this Article.

(Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 341, § 1(Att. A), 8-17-2016; Ord. No. 357, § 1(Att. 1), 10-172018)

(a) Term of license. The term of a tobacco retailer license is one year. A license is invalid thirty days after the expiration date of the license.

(b) Renewal of license. The Director of Finance and Administrative Services shall renew a valid tobacco retailer license upon timely payment of the annual license fee. A license may not be renewed more than ninety days after its expiration.

(c) Issuance of license after revocation or expiration of license. To apply for a new tobacco retailer license more than ninety days after expiration of a tobacco retailer license or following revocation of a tobacco retailer license that was wrongly issued, a retailer must submit a complete application for a license, along with the application fee and annual license fee.

(d) Fee for new licenses and renewals. The fees to apply for and issue or renew a tobacco retailer license shall be established from time to time by resolution of the City Council. The fees shall be calculated so as to recover any amount up to the cost of administration of this Article, including, for example, issuing a license, administering the program, and monitoring compliance. Fees shall not exceed the cost of the program authorized by this Article. Fees are nonrefundable ex-

cept as may be required by law. A retailer license may not be issued or renewed until full payment of any applicable fees is made.

(Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 341, § 1(Att. A), 8-17-2016; Ord. No. 357, § 1(Att. 1), 10-172018)

(a) Any peace officer may enforce the penal provisions of this Article. The City Manager may designate any number of additional persons to monitor compliance with this Article.

(b) The City shall not enforce any law establishing a minimum age for tobacco product, paraphernalia, or electronic smoking product purchases against a person who otherwise might be in violation of such law because of the person's age if the violation occurs when:

(1) Thepurchaser(hereinafterreferredtoas"youth decoy") is participating in a compliance check supervised by a peace officer or designated official of the City;

(2) The youth decoy is acting as an agent of a person designated by the City to monitor compliance with this Article; or

(3) The youth decoy is participating in a compliance check funded in part, either directly or independently through subcontracting, by the County or the State of California.

(c) Any violation of this Article is hereby declared to be a public nuisance.

(d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Article shall also constitute a violation of this Article.

(e) For purpose of this Article, each day on which a tobacco product, paraphernalia, flavored tobacco product, or electronic smoking product is offered for sale in violation of this Article constitutes a separate violation.

(f) Violations of this Article shall be subject to issuance of administrative citations pursuant to Article 3-30 and suspended from holding or receiving a tobacco retailer license as follows:

(1) First citation within twenty-four months. For up to sixty calendar days from the date of the administrative citation issuance, no tobacco retailer license shall be issued and any existing license shall be suspended.

(Saratoga Supp. No. 47, 1-21)

84.19

4-90.070

(2) Second or subsequent citations within twentyfour months. For up to twenty-four months from the date of the administrative citation issuance, no tobacco retailer license shall be issued and any existing license shall be revoked.

(g) Notwithstanding any other provisions of this Article, prior violations of this Article at a location shall continue to be counted against a location and license ineligibility and suspension periods shall continue to apply to a location unless:

(1) One hundred percent of the interest in the stock, assets, or income of the business, other than security interest for the repayment of debt, has been transferred to one or more new owners; and

(2) The City is provided clear and convincing evidence that the transfer was pursuant to an arm's length transaction in good faith between two or more 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 to avoid the effect of the violations of this Article is not an arm's length transaction.

if it is the sort of evidence on which responsible persons are accustomed to rely on in the conduct of serious affairs.

(c) City Manager's decision. All parties shall be given written notice of the City Manager's decision within fifteen business days of the hearing. The decision of the City Manager shall be supported by the weight of the evidence. The decision of the City Manager shall be final and shall not be subject to appeal to the City Council.

(d) Appellant's failure to appear at hearing. Failure of the appellant to appear at a hearing shall be considered a withdrawal of the request for a hearing and the decision being appealed shall remain in effect. (Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 357, § 1(Att. 1), 10-17-2018)

(Ord. No. 327, § 1(Att.), 6-17-2015; Ord. No. 341, § 1(Att. A), 8-17-2016; Ord. No. 357, § 1(Att. 1), 10-172018; Ord. No. 375, § 1(Att. 1), 9-16-2020)

(a) Request for hearing. A decision to deny issuance of a tobacco retailer license or to revoke a tobacco retailer license that has been wrongly issued may be appealed to the City Manager, subject to the following requirements and procedures.

(1) All appeals must be submitted in writing to the City Clerk no later than fifteen calendar days after receipt of notice of the appealed action. If such an appeal is made, it shall stay enforcement of the appealed action.

(2) No later than fifteen calendar days after receipt of the appeal, the City Manager shall set an appeal hearing at the earliest practicable time. The City Clerk shall give notice of the hearing to the parties at least ten calendar days before the date of the hearing.

(b) Conduct of hearing. Hearings pursuant to this Article shall be conducted pursuant to procedures adopted by the City Manager. Strict rules of evidence shall not apply. Any relevant evidence may be admitted

(Saratoga Supp. No. 47, 1-21)

84.20

5-25.070

a period of thirty consecutive calendar days or less counting portions of calendar days as full days. Any such person so occupying space in a hotel shall be deemed to be a transient until the period of thirty days has expired. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this Article may be considered.