Sierra Madre Municipal Code Ch. 5.58 Licensing of Tobacco Retailers

It is the purpose and intent of the city council to enact regulations governing the sale or display of tobacco products in the city to prevent adverse impacts affecting the public health and welfare of its citizens, and particularly minors. Accordingly, pursuant to the recitals contained in Ordinance No. 06-1260, the city council has adopted the regulations contained in this chapter.

(Ord. 1260 § 2 (part), 2006)

For the purposes of this chapter, certain terms are defined as set forth in this section:

"City" means the city of Sierra Madre.

"Department" means administrative services and community development.

"Electronic cigarette" and "vaping product" shall mean: 1) any product intended for human consumption by inhalation regardless of nicotine content, whether for onetime use or reusable, that relies on vaporization or aerosolization, including but not limited to electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, electronic vaping product delivery pens, hookah pens, and any other similar devices that rely on vaporization or aerosolization; and 2) any component, part, or accessory of a product or device defined in 1 above, including flavored vape juices and liquids used in such devices, even if sold separately.

"Enforcement agencies" means the city of Sierra Madre police department.

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

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, electronic cigarettes, vaping products, or any other preparation of tobacco, including Indian cigarettes called "bidis."

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

(Ord. 1260 § 2 (part), 2006)

(Ord. No. 1423, § 2, 1-14-20)

It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this [article/chapter] for each location at which that activity is to occur. No license may issue to authorize tobacco retailing at other than a fixed location; peripatetic tobacco retailing and tobacco retailing from vehicles are prohibited. Licenses are valid for one year and each tobacco retailer shall apply for the renewal of his/her tobacco retailer's license prior to its expiration.

(Ord. 1260 § 2 (part), 2006)

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

A. The application is incomplete or inaccurate; or

B. The application seeks authorization for tobacco retailing by a person or at a location for which a suspension is in effect pursuant to Section 5.58.080 of this chapter; or

C. The application seeks authorization for tobacco retailing that is unlawful pursuant to Chapter 17 of this code.

(Ord. 1260 § 2 (part), 2006)

Each licensee shall prominently display the license at each location where tobacco retailing occurs.

(Ord. 1260 § 2 (part), 2006)

The fee for a tobacco retailer's license shall be established by resolution of the city council and shall be calculated so as to no more than recover the cost of processing the license.

(Ord. 1260 § 2 (part), 2006)

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

(Ord. 1260 § 2 (part), 2006)

A. Grounds for Suspension or Revocation.

1. A tobacco retailer's license shall be revoked if the department finds, after notice and opportunity to be heard, that one or more of the basis for denial of a license under Section 5.58.040 of this chapter exists. The revocation shall be without prejudice to the filing of a new application for a license following correction of the conditions, which required revocation of the license.

2. A tobacco retailer's license shall be suspended pursuant to this section, the department finds, after notice and opportunity to be heard, that the licensee or his/her agent or employee has violated any local and/or state law (PC308 and STAKE Act), or display of tobacco (Lee Law).

B. Suspension of License. If the department finds that there are grounds for suspension of a license, the following sanctions shall be imposed:

1. Upon a first finding by the department of a violation by a licensee or any agent or employee of a licensee within any twelve-month period, the license shall be suspended for thirty days unless: (i) the licensee 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, or tobacco products, to minors, and, techniques to ensure future compliance with said laws; and (ii) the licensee 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 department of a violation by a licensee or by any agent or employee of a licensee within any twelve-month period, the license shall be suspended for ninety days.

3. Upon each subsequent finding by the department of a violation by a licensee or by any agent or employee of a licensee within any twelve-month period, the license shall be suspended for one year. For the duration of the one-year period, the licensee shall post a readily visible sign at each customer entrance with dimensions no less than two feet and with clear characters no less than two inches tall stating: "This retailer has violated important public health laws regulating tobacco. Tobacco sales are currently banned at this location."

C. Appeal of Suspension and/or Revocation. The decision of the department is appealable to the city council and must be filed with the city manager or his/her designee within ten days of receipt of the department's determination of violation. An appeal shall stay all proceedings in furtherance of the appealed action.

(Ord. 1260 § 2 (part), 2006)

A. Grounds for Fine. If the department finds, based on substantial record evidence, that any unlicensed person has engaged in tobacco retailing activities in violation of Section 5.58.030 of this chapter, the department shall fine that person as follows:

1. A fine not exceeding two hundred dollars for a first violation in any twelve-month period; or

2. A fine not exceeding four hundred dollars for a second violation in any twelve-month period; or

3. A fine not exceeding one thousand dollars for a third or subsequent violation in any twelve-month period. Each day that an unlicensed person offers tobacco, tobacco products or tobacco 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 a hearing before the department to contest the imposition of the fine. Any request for a hearing must be delivered to the department 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 thirty calendar days of written demand made in the manner specified above for a notice of 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 attorney's fees incurred by the city of Sierra Madre in enforcing the fine.

D. Notice of Hearing. If a hearing is requested pursuant to subsection B of this section, the department shall provide written notice, within forty-five 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 videotape. Any party to the hearing may, at his/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 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. A written decision and findings shall be rendered by the hearing officer within twenty 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 of Sierra Madre.

G. Appeal to Municipal Court. Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, within twenty 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 therein.

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 subsection C of this section.

(Ord. 1260 § 2 (part), 2006)

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

B. In addition to the administrative enforcement procedures provided by Section 5.58.080 of this chapter violations of this chapter may, in the discretion of the city prosecutor, be prosecuted as infractions, pursuant to Section 1.12.010 of this code.

C. Violations of this chapter are 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 by a civil action brought by the city attorney, including but not limited to administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

E. An action for injunction may be brought in a court of competent jurisdiction by any aggrieved person, or any person or entity that will fairly and adequately represent the interests of the class protected by this chapter.

(Ord. 1260 § 2 (part), 2006)

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this chapter or the rules adopted. The city council of the city of Sierra Madre declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

(Ord. 1260 § 2 (part), 2006)