Ventura Municipal Code Ch. 6.410 Tobacco Retailer Licenses

It is the intent of the city, in enacting this chapter, to discourage violations of laws which prohibit or regulate the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by state or federal law are criminally proscribed or to alter the penalty provided therefor. (Ord. No. 2020-002, § 4, 1-13-20)

The following words, phrases and terms, as used in this chapter, shall be defined as follows:

“City” means the city of San Buenaventura, California.

“Electronic smoking device” means an electronic or battery-operated device that delivers vapors of nicotine and/or other substances for inhalation. This term includes every variation and type of such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, a vapor cigarette, an electronic hookah, a heated tobacco unit, or any other similar product. This term does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment or prevention of diseases.

“Enforcement agency” means the city’s code enforcement division.

“Hearing officer” means the city employee designated by the city manager to serve in this capacity.

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

“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 10 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 can or does share, ultimate control over the day-to-day operations of a business.

“School” means a building or group of buildings and associated grounds used for educational and/or classroom purposes operated by the Ventura Unified School District and/or other public or private educational institutions offering a general course of study at primary, secondary, or high school levels (grades K through 12). Preschool, vocational or trade programs shall be considered schools only when incidental to the primary use as a school defined herein. Excluded from this definition are buildings operated by public or private education institutions in which total student enrollment is less than 15 students and private residences at which students participate in home-based or independent study programs.

“Tobacco licensing administrator” means the city employee so designated by the city manager.

“Tobacco paraphernalia” means any item designed or marketed for the consumption, use, or preparation of tobacco products, including, but not limited to, cigarette papers or wrappers, pipes, cigarette rolling machines, and any accessories used with electronic smoking devices, such as, but not limited to, cartridges, cartomizers, atomizers, e-liquid, smoke juice, tips, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices.

“Tobacco product” means:

1. Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, cigarillos, chewing tobacco, pipe tobacco, snuff;

2. Any electronic smoking device;

3. Notwithstanding any provision of subsections (1) and (2) of this definition to the contrary, “tobacco product” includes tobacco paraphernalia and any component, part, product, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. “Tobacco product” does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

“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. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

“Tobacco retailer license” means the regulatory license issued by the city pursuant to this chapter to a tobacco retailer. The initial tobacco retailer license and annual renewal is made expressly contingent upon the tobacco retailer’s ongoing compliance with all of the requirements of this chapter and any regulations adopted by the city governing the sale and distribution of tobacco products. (Ord. No. 2020-002, § 4, 1-13-20)

A. It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer license pursuant to this chapter for each location at which that activity is to occur.

B. A tobacco retailer license may only be issued to authorize tobacco retailing at a fixed location. Itinerant tobacco retailing and tobacco retailing from vehicles is prohibited.

C. No license will be issued to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises. Tobacco retailing in bars and restaurants serving alcoholic beverages is prohibited.

D. No tobacco retailer license will be issued to authorize tobacco retailing within 1,000 feet of any school except as authorized in Section 6.410.130. (Ord. No. 2020-002, § 4, 1-13-20)

A. An application for a tobacco retailer license, along with a license fee, shall be submitted to the tobacco licensing administrator for each location of a tobacco retailer. All applications submitted shall be on a form supplied by the tobacco licensing administrator and shall contain the following information:

1. The name, address, and telephone number of each proprietor.

2. The business name of the tobacco retailer, and the address and telephone number of the fixed location for which a tobacco retailer’s license is sought.

3. Whether or not any proprietor has previously been issued a tobacco retailer license pursuant to this chapter that is, or was at any time, suspended or revoked, and, if so, the dates of the suspension period or the date of revocation.

4. A copy of the tobacco retailer’s city business license.

5. Such other information as the tobacco licensing administrator deems necessary for enforcement of this chapter.

B. Tobacco retailers operating lawfully as of the effective date of this chapter must submit an application within 30 days of the effective date of this section. If a timely application is submitted, tobacco retailers may continue operating temporarily until a tobacco retailer’s license is either issued or denied. (Ord. No. 2020-002, § 4, 1-13-20)

The fee for issuance or renewal of a tobacco retailer license shall be set by resolution of the city council to cover the costs of processing the renewal application, together with any costs incurred by the city to administer the program under this chapter. The license fee shall be paid to the city at the time the tobacco retailer license application or renewal is submitted. (Ord. No. 2020-002, § 4, 1-13-20)

A. Once the application for a tobacco retailer license is deemed complete, the tobacco licensing administrator shall issue a tobacco retailer license within 30 calendar days unless any of the following grounds for denial exist:

1. The application is inaccurate;

2. The application contains false or misleading information;

3. The application seeks authorization for tobacco retailing at an address that appears on a tobacco retailer license that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of this code;

4. The application seeks authorization for tobacco retailing in an area where tobacco retailing is not permitted under the city’s zoning code or the restrictions in this chapter, or that is unlawful pursuant to any other local, state, or federal law.

B. If the tobacco licensing administrator determines grounds for denial exist, the tobacco licensing administrator shall issue a written denial to the applicant within 30 days of the date the application was deemed complete.

C. The applicant may appeal the denial of a tobacco retailer license to a hearing officer designated by the city manager subject to the requirements of Sections 6.410.100 and 6.410.110. If the appeal is denied by the hearing officer, the applicant may file an appeal to the city council subject to the requirements of Sections 6.410.100 and 6.410.110. The decision of the city council shall be final. (Ord. No. 2020-002, § 4, 1-13-20)

A. A tobacco retailer license is valid for one year and a complete application for renewal must be submitted not later than 60 days prior to the expiration of the tobacco retailer license.

B. The renewal application shall contain all the information required for new applicants under Section 6.410.040.

C. The applicant shall pay a fee under Section 6.410.050.

D. The tobacco licensing administrator shall issue a renewed tobacco retailer license within 30 calendar days after the renewal application is deemed complete unless, after a hearing under Section 6.410.090, any of the grounds in Sections 6.410.060(A)(1) through (A)(4) are determined to exist. (Ord. No. 2020-002, § 4, 1-13-20)

A tobacco retailer license may be suspended or revoked if it is determined after a hearing required by Section 6.410.090 that:

A. There have been more than two violations of this chapter and/or any law, rule and/or regulation within any one-year period.

B. There have been more than four violations of this chapter and/or any law, rule, and/or regulation within any five-year period.

C. The information contained in the application, including supplemental information, if any, is found to be false in any material respect. (Ord. No. 2020-002, § 4, 1-13-20)

A. Upon a determination that there may be grounds to deny renewal of, revoke, or suspend a tobacco retailer license, the tobacco licensing administrator shall schedule a hearing before a hearing officer designated by the city manager. The tobacco licensing administrator shall set a time and place for the hearing and shall notify the tobacco retailer license holder, in writing, of such date and time, not later than 10 working days before the date of the scheduled hearing. The hearing notice shall specify the allegations in support of denying renewal of, revoking, or suspending the tobacco retailer license.

B. At the hearing, the tobacco retailer license holder shall be provided the opportunity to present evidence why the tobacco retailer license should not be denied renewal, revoked or suspended, or, where subject to denial of renewal or revocation, why a suspension of the tobacco retailer license with conditions should be considered instead. The hearing shall be an informal hearing. The formal rules of evidence provided for in any state law are inapplicable to this hearing. Either party may present witnesses or documents in support of their position.

C. The hearing officer may suspend the tobacco retailer license with conditions for reinstatement or grant the renewal of the license with conditions, if the hearing officer determines there are sufficient facts that the violations can be remedied in a timely manner. Should the tobacco retailer license holder fail to timely comply with the imposed conditions for reinstatement, the tobacco retailer license shall be revoked.

D. Within 10 working days after the hearing, the hearing officer shall issue a determination in writing, specifying the conclusions and supporting reasons for or against the denial of renewal, revocation, or suspension. The determination notice shall be sent registered or certified mail and first-class mail to the tobacco retailer license holder and any other party that has requested notice.

E. The determination of the hearing officer may be appealed to the city council subject to the requirements of Sections 6.410.100 and 6.410.110. The decision of the city council shall be final.

F. If the tobacco retailer license holder fails to appeal within 10 calendar days of the date the determination notice was delivered, then the denial of renewal, revocation, or suspension shall become final with no further right to appeal or review. (Ord. No. 2020-002, § 4, 1-13-20)

A. Within 10 calendar days after the date of an adverse decision by the tobacco licensing administrator or hearing officer, a written appeal may be filed with the city clerk setting forth the factual and legal basis for the appeal.

B. At the time of filing the appeal the appellant shall pay the designated appeal fee, established by resolution of the city council. (Ord. No. 2020-002, § 4, 1-13-20)

A. Upon receipt of the written appeal, the matter shall be set for a hearing before the appropriate appeals authority. The matter shall be heard de novo and the hearing shall be conducted pursuant to the procedures set forth by the city.

B. The city shall set a time and place for the appeal hearing and shall notify the tobacco retailer license holder, in writing, of such date and time, not later than 10 working days before the date of the scheduled appeal hearing. The appeal hearing shall be conducted within 60 days of the filing of the appeal.

C. The formal rules of evidence and procedure applicable in a court of law shall not apply to the hearing. Either party may present witnesses or documents in support of their position.

D. The city shall notify the appellant of the appropriate appeals authority’s decision, in writing, within 10 working days of the appeal hearing. (Ord. No. 2020-002, § 4, 1-13-20)

Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed tobacco retailer. (Ord. No. 2020-002, § 4, 1-13-20)

A tobacco retailer operating lawfully within 1,000 feet of any school on the date this chapter is effective shall be permitted to continue selling tobacco products and tobacco paraphernalia so long as all of the following conditions are met:

A. The tobacco retailer complies with all the requirements of this chapter.

B. The tobacco retailer applies for a tobacco retailer license within 30 days of the effective date of this section.

C. The tobacco retailer license is timely renewed annually thereafter under Section 6.410.070, without lapse or permanent revocation (as opposed to temporary suspension).

D. The tobacco retailer has not closed for business or has not ceased tobacco retailing for more than 60 consecutive days.

E. The tobacco retailer does not substantially change the business premises or business operation for the purpose of increasing the sale or display of tobacco products.

F. The tobacco retailer retains the right to operate under all other applicable local, state, and federal laws.

G. The tobacco retailer has not been sold, transferred or assigned since the effective date of this chapter. (Ord. No. 2020-002, § 4, 1-13-20)

A tobacco retailer license is nontransferable. If the tobacco retailer changes business location, the tobacco retailer must apply for a new tobacco retailer license. If the tobacco retailer is sold, the new owner must apply for a tobacco retailer license for that location. (Ord. No. 2020-002, § 4, 1-13-20)

Compliance with this chapter shall be monitored by the enforcement agency. At least two compliance checks of each tobacco retailer shall be conducted during each 12-month period. The cost of compliance monitoring shall be incorporated into the tobacco retailer license fee. (Ord. No. 2020-002, § 4, 1-13-20)

A. Each and every violation of this chapter by any person is a misdemeanor and may be punished as such according to the provisions of Chapter 1.150.

B. Each and every violation of the provisions of this chapter is hereby deemed unlawful and a public nuisance.

C. Each and every violation of this chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by this code. Additionally, as a nuisance per se, any violation of this chapter shall be subject to injunctive relief. Violators shall be liable for payment to the city of any monies unlawfully obtained, costs of abatement, costs of investigation, attorney’s fees, and any other relief or remedy available at law or in equity. The city may also pursue any and all remedies and actions available and applicable under state and local laws.

D. The remedies provided herein are not to be construed as exclusive remedies. The city is authorized to pursue any proceedings or remedies provided by law. (Ord. No. 2020-002, § 4, 1-13-20)