South Pasadena Municipal Code Art. VI Tobacco Retailer Permit

The following words and phrases, whenever used in this article, 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 in the open market 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 article is not an arm’s length transaction.

(b) “Department” means the finance department and any agency or person designated by the department to enforce or administer the provisions of this article.

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

(d) “Proprietor” means 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 dayto-day operations of a business.

(e) “Self-service display” means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer and a direct person-to-person transfer between the purchaser and the retailer. A vending machine is a form of self-service display.

(f) “Smoking” means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind), and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind).

(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; and any product or formulation of matter 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 cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

(h) “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” means the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. A tobacco retailer can be a primary or accessory land use (as defined in SPMC 36.700.020 or its successor). (Ord. No. 2258, § 23, 2013.)

(a) Tobacco Retailer Permit Required. It is unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer permit (“permit”) pursuant to this article for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer permit is a nuisance as a matter of law.

(b) Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a permit issued, it shall be a violation of this article for a permittee, or any of the permittee’s agents or employees, to violate any local, state, or federal law applicable to tobacco products or tobacco retailing.

(c) Display of Permit. Each tobacco retailer permit shall be prominently displayed in a publicly visible location at the permitted location.

(d) Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product to another person who appears to be under the age of twenty-seven years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product.

(e) Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.

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

(g) False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer permit, including, for example, a person whose permit has been suspended or revoked:

(1) Shall keep all tobacco products out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a permit under Section 18.112; and

(2) Shall not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer’s location or that could lead a reasonable consumer to believe that such products can be obtained at that location. (Ord. No. 2184, § 2, 2009.)

(a) No permit may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

(b) No tobacco retailer may be located within five hundred feet of any public school as measured from the closest point on the property line of the parcels containing the retailer’s establishment and the school. Such measurement shall be in a straight line without regard to intervening structures. No existing business within five hundred feet of a public school may begin operation as a tobacco retailer after the effective date of the ordinance codified in this section. (Ord. No. 2258, § 23, 2013.)

(a) Application for a tobacco retailer permit 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 regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer permit. No proprietor may rely on the issuance of a permit as a determination by the city that the proprietor has complied with all state and federal laws applicable to tobacco retailing. A permit issued contrary to this article, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 18.111(d) of this article. Nothing in this article shall be construed to vest in any person obtaining and maintaining a tobacco retailer permit any status or right to act as a tobacco retailer in contravention of any provision of law.

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

• (1) The name, address, and telephone number of each proprietor of the business seeking a permit;

(2) The business name, address, and telephone number of the single fixed location for which a permit 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 article. 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 (c)(2);

(4) Proof that the location for which a tobacco retailer permit is sought has been issued a valid state tobacco retailer permit by the California Board of Equalization;

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

(6) A nonrefundable application fee, as set and as may be amended from time to time by city council resolution;

(7) Such other information as the department deems necessary for the administration or enforcement of this article as specified on the application form required by this section.

(d) A permitted tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer permit within ten business days of a change.

(e) All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law, subject to the laws’ exemptions. (Ord. No. 2258, § 24, 2013.)

Upon the receipt of a complete application for a tobacco retailer permit and the permit fee required by this article, the department shall issue a permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:

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

(b) The application seeks authorization for tobacco retailing at a location for which this article prohibits issuance of tobacco retailer permits. However, this subsection shall not constitute a basis for denial of a permit if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm’s length transaction;

(c) The application seeks authorization for tobacco retailing for a proprietor to whom this article prohibits a permit to be issued;

(d) The application seeks authorization for tobacco retailing that is prohibited pursuant to this article (e.g., mobile vending), that is unlawful pursuant to this Code including, without limitation the zoning code, building code, and business license tax code, or that is unlawful pursuant to any other law. (Ord. No. 2184, § 2, 2009.)

(a) Renewal of Permit. A tobacco retailer permit is invalid if the appropriate fee has not been timely paid in full or if the term of the permit has expired. The term of a tobacco retailer permit is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer permit and submit the permit fee no later than thirty days prior to expiration of the term.

(b) Expiration of Permit. A tobacco retailer permit that is not timely renewed shall expire at the end of its term. To renew a permit not timely renewed pursuant to subsection (a), the proprietor must:

• (1) Submit the permit fee and application renewal form; and

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

(A) Has not sold and will not sell any tobacco product or tobacco paraphernalia after the permit expiration date and before the permit is renewed, or

(B) Has waited the appropriate ineligibility period established for tobacco retailing without a permit, as set forth in Section 18.112(a) of this article, before seeking renewal of the permit. (Ord. No. 2258, § 24, 2013.)

(a) A tobacco retailer permit may not be transferred from one person to another or from one location to another. A new tobacco retailer permit is required whenever a tobacco retailing location has a change in proprietorship.

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

(1) The location has been or is being fully transferred to a new proprietor in an arm’s length transaction; and

(2) The new proprietor provides the city with clear and convincing evidence that the new proprietor has acquired or is acquiring the location in an arm’s length transaction. (Ord. No. 2258, § 24, 2013.)

Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer permit any status or right other than the limited conditional privilege to act as a tobacco retailer at the location identified on the face of the permit. For example, nothing in this article shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including, but not limited to, any provision of this Code including without limitation the zoning code, building codes, and business license tax code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer permit does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5. (Ord. No. 2258, § 24, 2013.)

The initial fee to issue or to renew a tobacco retailer permit is hereby established at one hundred twenty dollars or as set and amended from time to time by city council resolution. The fee shall be calculated so as to recover the cost of administration and enforcement of this article, including, for example, issuing a permit, administering the permit program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this article. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. (Ord. No. 2258, § 24, 2013.)

(a) Compliance with this article shall be monitored by the finance department. In addition, any peace officer may enforce the penal provisions of this article. The city may designate any number of additional persons to monitor compliance with this article.

(b) The department or other person designated to enforce the provisions of this article shall check the compliance of each tobacco retailer at least one time per twelve-month period. The department may check the compliance of new permit and tobacco retailers previously found in violation of the licensing law more frequently. Nothing in this subsection shall create a right of action in any permittee or other person against the city or its agents.

(c) Compliance checks shall be conducted so as to allow the department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco. When the department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

(d) The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a person who otherwise might be in violation of such law because of the person’s age (hereinafter “youth decoy”) if the potential violation occurs when:

(1) The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the city of South Pasadena;

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

(3) The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Los Angeles County department of health and/or Pasadena health department; or

(4) The youth decoy has an immunity letter from the district attorney’s office. (Ord. No. 2258, § 25, 2013.)

(a) Suspension of Permit for Violation. In addition to any other penalty authorized by law, a tobacco retailer permit shall be suspended or revoked if any court of competent jurisdiction determines, or the department finds based on a preponderance of the evidence, after the permittee is afforded notice and an opportunity to be heard, that the permit, or any of the permittee’s agents or employees, has violated any of the requirements, conditions, or prohibitions of this article or has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in Section 18.102 of this article. A tobacco retailer or proprietor whose permit has been suspended is deemed not to have a valid tobacco retailer permit during the suspension period for purposes of this article.

• (b) Tobacco Retailer Permit Suspension/Revocation.

(1) After suspension for a first violation of this article at a location within any twelve-month period, no person may engage in tobacco retailing at the location until fifteen days have passed from the date of suspension.

(2) After suspension for a second violation of this article at a location within any twenty-four-month period, no person may engage in tobacco retailing at the location until thirty days have passed from the date of suspension.

(3) After suspension for a third violation of this article at a location within any thirty-six-month period, no person may engage in tobacco retailing at the location until ninety days have passed from the date of suspension.

(4) After revocation for four or more violations of this article at a location within any forty-eight-month period, no new permit may issue for the location until one year has passed from the date of revocation.

(c) Appeal of Suspension/Revocation. A decision of the department to suspend or revoke a permit is appealable to the city manager and must be filed with the city clerk within ten days of mailing of the department’s decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the city manager is not available for a suspension or revocation made pursuant to subsection (d) of this section.

(d) Revocation of Permit Wrongly Issued. A tobacco retailer permit shall be revoked if the department finds, after the permittee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a permit under Section 18.105 existed at the time application was made or at any time before the permit issued. The decision by the department shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new permit application.

(e) Notice of City Manager Decision. The decision of the city manager (or of the department in the event of revocation pursuant to Section 18.111(d)) shall be mailed to the permittee within five working days of the hearing and shall be final. The decision shall make reference to the time limitation to file a writ to challenge the decision in Sections 1094.5 and 1094.6 of the Code of Civil Procedure. (Ord. No. 2258, § 25, 2013.)

(a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the department finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer permit, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailing permit as follows:

(1) After a first violation of this section at a location within any sixty-month period, no new permit may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until thirty days have passed from the date of the violation.

(2) After a second violation of this section at a location within any sixty-month period, no new permit may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until ninety days have passed from the date of the violation.

(3) After a third or subsequent violation of this section at a location within any sixty-month period, no new permit may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until five years have passed from the date of the violation.

(b) Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the department or any peace officer and shall be forfeited after the permittee and any other owner of the tobacco products and tobacco paraphernalia seized are given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this article. The decision by the department may be appealed pursuant to the procedures set forth in Section 18.111(c). Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law has expired without the filing of a writ or, if such a writ is filed, after judgment in that writ becomes final.

(c) For the purposes of the civil remedies provided in this article, the following shall constitute a separate violation of this article:

(1) Each day on which any tobacco product or tobacco paraphernalia is offered for sale in violation of this article; or

(2) Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this article. (Ord. No. 2258, § 25, 2013.)

(a) Violations of this article are subject to a civil action brought by the city prosecutor or the city attorney, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

(b) Violations of this article may, in the discretion of the city prosecutor, be prosecuted as infractions or misdemeanors when the interests of justice so require.

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

• (d) Any violation of this article is hereby declared to be public nuisances.

(e) The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity. In addition to other remedies provided by this article or by other law, any violation of this article may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. No. 2258, § 25, 2013.)