Scotts Valley Municipal Code Ch. 5.22 Tobacco Retailer Licenses

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

(a) "Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value between two 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 avoiding the effect of the violations of this chapter is not an arm's length transaction.

(b) "Chief of Police" shall refer to the City of Scotts Valley Chief of Police or the person designated by the Chief of Police.

(c) "Drug paraphernalia" shall have the definitions set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time.

(d) "Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. "Electronic smoking device" includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine.

(e) "Flavored tobacco product" means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, dessert, alcoholic beverage, herb, or spice.

(f) "Moveable place of business" means any form of business that is operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions.

(g) "Person" shall mean any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

(h) "Pharmacy" shall mean any retail establishment in which 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 pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.

(i) "Proprietor" shall mean a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent 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 share ultimate control over the day-to-day operations of a business.

(j) "Self-service display" means the open display or storage of tobacco products in a manner that is physically accessible in any way to the 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.

(k) "Tobacco product" means:

(1) any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

(2) any electronic smoking device as defined in this section and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or

(3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including, but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, and pipes.

"Tobacco product" does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

(l) "Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco or tobacco products. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange.

(m) "Significant tobacco retailer" means any tobacco retailer for which the principal or core business is selling tobacco products as evidenced by the fact that (1) twenty percent or more of floor or display area is devoted to tobacco products, tobacco paraphernalia, or both; (2) sixty-seven percent or more of gross sales receipts are derived from tobacco products; or (3) fifty percent or more of completed sales transactions include tobacco products.

(n) "Youth-sensitive area" means a parcel in the city that is occupied by:

a. A private or public kindergarten, elementary, middle, junior high, or high school;

b. A library open to the public;

c. A playground open to the public;

d. A youth center, defined as a facility where persons under the age of eighteen come together for programs and activities;

e. A recreational facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes. "recreational facility" includes but is not limited to, a gymnasium, playing court, playing field, and swimming pool;

f. A park open to the public or to all residents of a private community;

g. A licensed child-care facility or preschool, other than a small family day care facility as defined in California Health and Safety Code § 1596.78.

(Ord. No. 188, § 1, 12-16-2015; Ord. No. 188.1, § 1, 6-15-2022)

(a) It shall be unlawful for any person to act as a tobacco retailer, without complying with Chapter 8.20 and obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which that activity is to occur.

(b) It shall be unlawful for any tobacco retailer or any of the tobacco retailer's agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product. A public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has or produces a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.

(c) Tobacco retailing by persons from a movable place of business is prohibited. Only fixed-location businesses are eligible to be licensed for tobacco retailing.

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

(e) Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product to another person without first verifying by means of government-issued photographic identification that the recipient is at least twenty-one years of age. Verification is not required for a person over the age of thirty. That the person appeared to be thirty years of age or older does not constitute a defense to a violation of this subsection.

(f) Minimum Age for Persons Selling Tobacco. No person who is younger than twenty-one years of age shall engage in tobacco retailing.

(g) Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

(h) In the course of tobacco retailing or in the operation of a business or maintenance of a location for which a tobacco retailer's license has been issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to violate any local, state or federal law applicable to tobacco products or tobacco retailing.

(i) All sales of tobacco products to consumers shall be conducted in-person at the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer's agents or employees to deliver tobacco products or to knowingly or recklessly sell tobacco products to any person that intends to deliver the tobacco product to a consumer in the city. For purposes of this subsection, "deliver" means the commercial transfer of tobacco products to a consumer at a location not licensed pursuant to this chapter.

(Ord. No. 188, § 1, 12-16-2015; Ord. No. 188.1, § 2, 6-15-2022)

A. No license shall be issued to authorize tobacco retailing at other than a fixed business place.

B. No license shall be issued to authorize tobacco retailing at any location for which a tobacco retailer license suspension is in effect or during a period of ineligibility following a revocation.

C. After the effective date of this ordinance, no license shall be issued to a significant tobacco retailer at any location, measured from the nearest property line, that is within one thousand feet of a school, or five hundred feet of a park, or other business or institution whose primary business or purpose is the instruction or education of children or those under the age of eighteen. Examples of such places include, but are not limited to, tutoring centers, child care centers, recreational facilities and gyms.

(Ord. No. 188, § 1, 12-16-2015)

(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. The application shall include a statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought.

(b) It shall be the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's license.

(c) No proprietor may rely on the issuance of a tobacco retailer's license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing.

(d) A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.22.090.

(e) Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's license any status or privilege to act as a tobacco retailer in contravention of any provision of law.

(f) All applications shall be submitted on a form supplied by the city police department and shall contain the following information:

(1) The name, address, and telephone number of each proprietor of the business that is seeking a license.

(2) The business name, address, and telephone number of the single fixed location for which a license is sought.

(3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (f)(2).

(4) Proof that the location for which a tobacco retailer's license is sought has been issued a valid state tobacco retailer's license by the California State Board of Equalization, if the tobacco retailer sells products that require such license.

(5) Whether a proprietor has previously been issued a tobacco retailer's license pursuant to this chapter that is or was at any time suspended or revoked, and, if so, the dates and locations of all such suspensions or revocations.

(6) Whether or not any proprietor or agent of the proprietor has admitted to violating, or has been found to have violated, this chapter, and if so, the dates and locations of all such violations within the previous five years.

(7) Such other information as the chief of police deems reasonably necessary for the administration or enforcement of this chapter.

(8) All information required to be submitted in order to apply for a tobacco retailer's license shall be updated with the city police department whenever the information changes. A tobacco retailer shall provide the city police department with any updates within ten business days of a change.

(Ord. No. 188, § 1, 12-16-2015; Ord. No. 188.1, § 3, 6-15-2022)

Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this chapter, the city planning department shall forward the application to the chief of police. The chief of police may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary. The chief of police may deny an application for a tobacco retail license based on any of the following:

(a) The application seeks authorization for tobacco retailing at a location for which a current proprietor's suspension is in effect pursuant to this chapter, for which a current proprietor's license has been revoked pursuant to this chapter, or for which this chapter otherwise prohibits issuance of tobacco retailer licenses;

(b) The application seeks authorization for tobacco retailing for a proprietor to whom a suspension is in effect pursuant to this chapter for the subject location or another location, whose license has been revoked pursuant to this chapter for the subject location or another location, or to whom this chapter otherwise prohibits a tobacco retailer license to be issued;

(c) The city has information that the proprietor or his or her agent or employee has violated any local, state or federal tobacco control law, including this chapter, within the preceding twelve months;

(d) The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter; or

(e) The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter or Chapter 8.20, that is otherwise unlawful pursuant to this code, or that is unlawful pursuant to any other local, state, or federal law.

Any denial of an application shall be in writing and shall set forth the reasons for denial of the permit. Such denial shall be subject to appeal in accordance with Section 5.22.130 of this Code.

(Ord. No. 188, § 1, 12-16-2015; Ord. No. 188.1, § 4, 6-15-2022)

(a) A tobacco retailer license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a tobacco retailer license is one year beginning each fiscal year on July 1st and ending on June 30th of the same year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license and submit the license fee no later than thirty days prior to expiration of the term.

(b) A tobacco retailer's license that is not timely renewed shall expire at the end of its term. To reinstate a license that has expired, or to renew a license not timely renewed pursuant to subsection (a), the proprietor must:

(1) Submit the license fee, if required.

(2) Submit a signed affidavit affirming that the proprietor:

(i) Has not sold and will not sell any tobacco product after the license expiration date and before the license is renewed; or

(ii) Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5.22.090(b) before seeking renewal of the license.

(Ord. No. 188, § 1, 12-16-2015; Ord. No. 188.1, § 5, 6-15-2022)

(a) A tobacco retailer's license may not be transferred from one person to another or from one location to another. Whenever a tobacco retailing location has a change in proprietor a new tobacco retailer's license is required.

(b) Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

(1) The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors in an arms length transaction; and

(2) The new proprietor(s) provides the city with clear and convincing evidence that the new proprietor(s) has acquired or is acquiring the location in an arm's length transaction.

(Ord. No. 188, § 1, 12-16-2015; Ord. No. 188.1, § 6, 6-15-2022)

A. In addition to any other remedy authorized by law, a tobacco retailer's license may be suspended and eventually revoked if the chief of police finds pursuant to this chapter that the licensee, or any of the licensee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Section 5.22.020. During any period of license suspension, the retailer must remove all tobacco products from public view and cannot sell such products.

B. Time Period of Suspension of License.

1. Upon the first time that the chief of police makes a finding as set forth in subsection A., the tobacco retailer's license shall be suspended for up to thirty days.

2. Upon the second time that the chief of police makes a finding as set forth in subsection A. within sixty months of the first determination, the tobacco retailer's license shall be suspended for ninety days.

3. Upon the third time that the chief of police makes a finding as set forth in subsection A. within sixty months of the prior determination, the tobacco retailer's license shall be suspended for one hundred eighty days.

4. Upon the fourth and each subsequent time that the chief of police makes a finding as set forth in subsection A. within sixty months of the prior determination, the tobacco retailer's license shall be revoked, and no new license may be issued for the location until five years have passed from the date of revocation.

C. Revocation of License Issued in Error. A tobacco retailer's license shall be revoked if the chief of police finds, after written notice and opportunity to be heard, that one or more of the bases for denial of a license under Section 5.22.030 existed at the time the application was made or at any time before the license was issued. The decision by the chief of police shall be final. The revocation shall be without prejudice to the filing of a new application for license.

(Ord. No. 188, § 1, 12-16-2015)

A. Upon determining the existence of any of the grounds for suspension or revocation of a license, the chief of police shall issue to the license holder a notice of intended decision.

B. The notice of intended decision shall state all the grounds upon which the revocation or suspension is based.

C. The notice of intended decision shall advise the permit holder that the suspension or revocation shall become final unless the licensee files a written request for hearing before the chief of police within ten calendar days of the date of service of the notice of intended decision.

D. The notice of intended decision shall specify the effective date of the suspension or revocation.

(Ord. No. 188, § 1, 12-16-2015)

A. The written request for a hearing before the chief of police must be received by the chief of police within ten calendar days of the date of service of the notice of intended decision.

B. Upon timely receipt of a written request for a hearing, the chief of police shall schedule a hearing which shall be held no later than thirty calendar days after receipt of a timely request for hearing.

C. The chief of police shall serve a notice of hearing on the licensee at least ten calendar days prior to the scheduled date of the hearing.

D. At the hearing before the chief of police, or before a hearing officer at the chief's option, the licensee shall be given the opportunity to present witnesses and relevant documentary evidence.

E. The hearing will be conducted informally, and the technical rules of evidence shall not apply. Any and all evidence which the chief of police or hearing officer deems reliable, relevant, and not unduly repetitious may be considered.

(Ord. No. 188, § 1, 12-16-2015)

A. The chief of police, or hearing officer, shall serve on the licensee a written decision sustaining, reversing, or modifying the chief's or hearing officer's intended decision.

B. The decision by the chief of police, designee, or hearing officer after hearing shall become final unless the licensee files an appeal within the time period specified in Chapter 4.20 of this Code.

(Ord. No. 188, § 1, 12-16-2015)

If a licensee is dissatisfied with the written decision of the chief of police or designee, the licensee may file a written appeal. The appeal shall be conducted in accordance with Chapter 4.20 of this Code. For purposes of Chapter 4.20, the written decision of the chief of police or designee shall constitute an abatement order and the chief of police shall be the designated enforcement official.

(Ord. No. 188, § 1, 12-16-2015)

(a) Tobacco products or flavored tobacco products offered for sale or exchange in violation of this chapter are subject to seizure by the chief of police, or any peace officer, and shall be forfeited after the licensee and any other owner of the tobacco products or flavored tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products or flavored tobacco products were not offered for sale or exchange in violation of this chapter.

(b) Forfeited tobacco products or flavored tobacco products shall be maintained and destroyed pursuant to the police department's policy for seized evidence. Tobacco products or flavored tobacco products that are hazardous waste shall be properly disposed of according to applicable hazardous waste regulations.

(Ord. No. 188, § 1, 12-16-2015; Ord. No. 188.1, § 7, 6-15-2022)

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

(b) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter, and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

(c) Violations of this chapter are hereby declared to be public nuisances.

(d) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied or prosecuted pursuant to Title 4 of this Code.

(e) (1)

A first violation of this chapter shall constitute an infraction punishable by a fine of three hundred dollars.

(2) A second violation of this chapter committed within one year of a first violation shall constitute an infraction punishable by a fine of one thousand dollars.

(3) A third violation of this chapter committed within one year of a second violation shall constitute an infraction punishable by a fine of three thousand dollars.

(4) A fourth or subsequent violation of this chapter committed within one year of a prior violation shall constitute a misdemeanor punishable by a fine of five thousand dollars.

Each day a violation of this chapter exists is a separate offense.

(Ord. No. 188, § 1, 12-16-2015; Ord. No. 188.1, § 8, 6-15-2022)

Whenever a notice is required to be given under this chapter, it shall be addressed to such person to be notified at the authorized address provided in the application for a tobacco retail license pursuant to Section 5.22.040 or, if an authorized address is not supplied, to the business address provided pursuant to Section 5.22.040.

(Ord. No. 188, § 1, 12-16-2015)

For a first or second alleged violation of this chapter within any sixty-month period, the city attorney may allow a tobacco retailer alleged to have violated this chapter to stipulate to the penalties provided for in this section in lieu of the penalties that would otherwise apply under this chapter and to forego a hearing on the allegations. Notice of any stipulation shall be provided to the police department and no hearing shall be held. Stipulations shall not be confidential and shall contain the following terms, plus any other noncriminal provisions established by the city attorney in the interests of justice:

A. After a first alleged violation of the chapter at a location:

1. An agreement to stop acting as a tobacco retailer for one day; and/or

2. An administrative penalty of one thousand dollars; and/or

3. An admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violation.

B. After a second alleged violation of the chapter at a location within any sixty-month period:

1. An agreement to stop acting as a tobacco retailer for ten days; and/or

2. An administrative penalty of at least five thousand dollars; and/or

3. An admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violations.

(Ord. No. 188, § 1, 12-16-2015)