The purpose of this chapter is to encourage responsible tobacco retailing and discourage violations of tobacco related laws that prohibit the sale or distribution of tobacco products, including all smoking materials as defined in Section 8.70.020, to minors. This chapter is not intended to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalty provided therefore.
(Ord. 449 § 1, 2018)
When used in this chapter, the following definitions shall have
the meanings given by this section, whether or not these words or
phrases are capitalized:
shall have the meaning set forth in Health and Safety Code
Section 11014.5, as that section may be amended from time to time.
means an electronic and/or battery-operated device, the use
of which may resemble smoking, which can be used to deliver an inhaled
dose of nicotine or other substances by delivering a vaporized or
heated solution. Electronic smoking device includes any such device,
whether manufactured, distributed marketed or sold as an electronic
cigarette, an e-cigarette, an electronic cigar, electronic cigarillo,
an electronic pipe, an electronic hookah, vaporizer, vape pen, heated
tobacco product, or any product name or descriptor, including any
component, part or accessory of such a device, whether or not sold
separately. Electronic smoking device 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.
means cartridges, cartomizers, e-liquid, smoke juices, tips,
atomizers, electronic smoking device batteries, electronic smoking
device chargers and any other item specifically designed for the preparations,
charging or use of electronic smoking devices.
means the impartial hearing officer designated to serve in
this capacity.
means engaging in tobacco retailing at other than a fixed
location.
means a tobacco retail license issued by the city pursuant
to this chapter.
means a person to whom a license has been issued.
means any individual, firm, partnership, joint venture, limited
liability company, association, social club, fraternal organization,
corporation, estate, trust, business trust, receiver, trustee, syndicate,
or any other group or combination acting as a unit.
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
has, or can have, sole or shared control over the day-to-day operations
of a business.
means tobacco products, electronic smoking device, electronic
smoking device paraphernalia, and any other product containing tobacco
or nicotine that releases gases, particles or vapors into the air
as a result of combustion, heating, electrical ignition or vaporization,
when the apparent or usual purpose is human inhalation of the byproducts.
includes cigarette papers or wrappers, blunt wraps, pipes,
holders of smoking materials of all types, cigarette rolling machines,
and any other item or instrument designed for the smoking, consumption,
use or ingestion of tobacco products.
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, chewing tobacco, pipe tobacco, snuff; and (2)
any electronic smoking device. (3) Notwithstanding any provision of
subsections (1) and (2) to the contrary, "tobacco product" includes
any component, part, or accessory of a tobacco product, whether or
not sold separately. "Tobacco product" 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 such product is marketed and sold solely for such an approved
purpose.
means any person who sells, offers for sale, exchanges, or
offers to exchange for any form of consideration, tobacco, tobacco
products, or tobacco paraphernalia without regard to the quantity
sold, offered for sale, exchanged, or offered for exchange.
shall mean selling, offering for sale, exchanging, or offering
to exchange for any form of consideration, tobacco, tobacco products,
or tobacco paraphernalia without regard to the quantity sold, offered
for sale, exchanged, or offered for exchange.
(Ord. 449 § 1, 2018)
A.
It shall
be unlawful for any person to act as a tobacco retailer in the city
without first obtaining and maintaining a valid tobacco retail license
pursuant to this chapter for each location at which tobacco retailing
is to occur. No tobacco retail license will be issued to an authorized
tobacco retailer at any location other than a fixed location. No license
will be issued for itinerant tobacco retailing or tobacco retailing
from vehicles.
B.
Nothing
in this chapter shall be construed to grant any person obtaining a
tobacco retail license any status or right other than the right to
act as a tobacco retailer at the location in the city identified on
the face of the license, subject to compliance with all other applicable
laws, regulations, and ordinances. Nothing in this chapter shall be
construed to render inapplicable, supersede, or apply in lieu of any
other provision of applicable law, including, without limitation,
any condition or limitation on indoor smoking made applicable to business
establishments by Labor Code Section 6404.5.
C.
No person
who is younger than the minimum age established by California law
for the purchase or possession of tobacco products shall engage in
tobacco retailing without the supervision of a person over the age
of twenty-one.
(Ord. 449 § 1, 2018)
A.
An application
for a tobacco retail license shall be submitted to the city in the
name of each proprietor proposing to conduct a tobacco retailing business
and shall be signed by each proprietor or an authorized agent thereof.
A proprietor proposing to conduct tobacco retailing at more than one
location shall submit a separate application for each location.
B.
All
applications shall be submitted on a form supplied by the city and
shall contain the following information:
1.
The
name, address, and telephone number of each proprietor.
2.
The
business name, address and telephone number of the fixed location
for which a tobacco retail license is sought.
3.
The name and mailing address authorized by each applicant to receive all license-related communications and notices (the "authorized address"). Failure to supply an authorized address shall be understood to consent to the provision of notice at the business address specified in subsection (B)(2) of this section.
4.
Whether
or not any applicant has previously been issued a license pursuant
to this chapter, or other permit, license or entitlement issued by
the city to operate the business, that is or was at any time suspended
or revoked, or whether the applicant has previously had a tobacco
retail license issued by another jurisdiction denied, suspended or
revoked, and, if so, the dates of such denial, suspension or revocation.
5.
Such
other information as the city manager deems necessary for the administration
or enforcement of this chapter.
6.
Any
and all additional information required by the city to be included
in a tobacco retail license application.
(Ord. 449 § 1, 2018)
A.
Upon
the receipt of an application for a tobacco retail license and the
payment of a tobacco retail license fee, the city shall issue a license
unless:
1.
The
application is incomplete or inaccurate.
2.
The
application seeks authorization for tobacco retailing at an address
that appears on a license that is suspended, has been revoked, or
is subject to suspension or revocation proceedings for violation of
any of the provisions of this chapter. Notwithstanding the foregoing,
this subparagraph shall not constitute a basis for denial of a license
if either or both of the following apply:
a.
The applicant provides the city with documentation demonstrating
that the applicant has acquired or is acquiring the premises or business
in an arm's length transaction. For the purposes of this subparagraph,
an "arm's length transaction" is defined as 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
under any compulsion to participate in the transaction. A sale between
relatives, related companies or partners, or a sale for the primary
purpose of avoiding the effect of the violations of this chapter that
occurred at the location, is presumed not to be an "arm's length transaction."
b.
It has been more than three years since the most recent license for
that location was revoked.
3.
The
application seeks authorization for tobacco retailing by a proprietor
for which or whom a suspension is in effect or by a proprietor which
or who has had a license revoked, pursuant to this chapter.
4.
The
application seeks an authorization for tobacco retailing that is unlawful
pursuant to this chapter, or that is unlawful pursuant to any other
local, state or federal law.
5.
The
city has information that the applicant or his or her agents or employees
have violated any local, state, or federal tobacco control law at
the location for which the license or renewal of the license is sought
within the preceding thirty-day period.
6.
The
city has information that the applicant 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.
7.
The
issuance of a tobacco retail license would be in conflict with any
other city ordinance.
B.
Beginning from the effective date of this chapter, all tobacco retailers have until December 31, 2019 to obtain a license. An application to renew such license shall be made no later than thirty days prior, but no earlier than sixty days prior to the expiration of the license. The city has no obligation to issue notification of impending expiration of any license. The applicant shall follow all of the procedures and provide all of the information required by Section 8.70.040. The city shall process the application according to the provisions of this section. A license may be renewed annually by submitting a tobacco retail license application to the city along with payment of the annual tobacco retail licensing fee; provided, however, a tobacco retail license that is suspended, has been revoked, or is subject to suspension or revocation proceedings shall not be renewed pending the final outcome of such suspension or revocation.
C.
If the
information required in the license application pursuant to any subsection
of this chapter changes, a new tobacco retail license is required
before the business may continue to act as a tobacco retailer. For
example, if a proprietor to whom a license has been issued changes
business location, that proprietor must apply for a new license prior
to acting as a tobacco retailer at the new location. If the business
is sold, the new owner must apply for a license for that location
before acting as a tobacco retailer.
D.
A tobacco
retail license that is not timely renewed pursuant to this chapter
shall be automatically suspended by operation of law. If not renewed,
a license shall be automatically revoked six months after the renewal
date. Additionally, civil, criminal and/or administrative citations
may be issued during this interim period for failure to maintain the
appropriate license. To reinstate the paid status of a license that
has been suspended due to the failure to timely renew the license
or pay the renewal fee, the tobacco retailer must:
1.
Submit
the license renewal application and fee plus a reinstatement fee of
ten percent of the license renewal fee; and
2.
Submit
a signed affidavit affirming that he or she has not sold any tobacco
product or tobacco paraphernalia during the period the license was
suspended for failure to pay the license renewal fee.
(Ord. 449 § 1, 2018)
Each license shall be prominently displayed in a publicly visible
location at the licensed premises. Failure to properly display the
license will result in the issuance of a citation.
(Ord. 449 § 1, 2018)
The fee for issuance or renewal of a tobacco retail license
shall be established by resolution of the city council and shall be
in addition to the city's business license fee and any other license
or permit fee imposed by this code upon the applicant. The tobacco
retail license fee shall be paid to the city at the time the license
application is submitted. The fee shall be calculated so as to recover
the cost of administration and enforcement of this chapter, including,
for example, issuing a license, administering the license program,
tobacco retailer education, tobacco 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 chapter. 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. 449 § 1, 2018)
A tobacco retail license is nontransferable and subject to the
provisions of this section. Nothing in this chapter shall be construed
to grant any person obtaining and maintaining a tobacco retailer license
any status or right other than the limited conditional privilege to
act as a tobacco retailer at the location within the city's jurisdictional
boundaries identified on the face of the license, subject to compliance
with the terms and conditions of this chapter.
(Ord. 449 § 1, 2018)
A.
It is
a violation of a tobacco retail license for a tobacco retail licensee
or his or her agents or employees to violate any local, state or federal
tobacco-related law.
B.
It is
a violation of this chapter for any tobacco retail licensee or any
of the licensee's agents or employees to violate any local, state,
or federal law regulating controlled substances or drug paraphernalia
including, but not limited to, California Health and Safety Code Section
11364.7, as that section may be amended from time to time.
C.
In addition
to the provisions of this code, compliance with this chapter shall
be monitored by the San Diego County sheriff's department. Any peace
officer or municipal code compliance official also may enforce this
chapter. The San Diego County sheriff's department shall check compliance
of each tobacco retailer at least one time per twelve month period
and shall conduct additional compliance checks as warranted. The compliance
checks shall be conducted to determine, at a minimum, if the tobacco
retailer is complying with tobacco laws regulating underage sales.
The San Diego County sheriff's department shall use youth decoys and
comply with protocols for the compliance checks developed in consultation
with the San Diego County department of health and human services
and the San Diego district attorney. When appropriate, the compliance
checks shall determine compliance with other tobacco-related laws.
D.
The
city shall not enforce any tobacco related minimum age law against
a person who otherwise might be in violation of such law because of
a 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
2.
The
youth decoy is participating in a compliance check funded in part
by the San Diego County department of health and human services or
funded in part, either directly or indirectly through subcontracting,
by the California Department of Health Services; or
3.
The
youth decoy has a letter of permission for such compliance check activity
from the district attorney's office.
(Ord. 449 § 1, 2018)
A.
In addition
to any other penalty authorized by law, and including the provisions
of this code, a tobacco retail license may be suspended or revoked
if the city finds, after notice to the tobacco retail licensee and
opportunity to be heard, that the tobacco retail licensee or his or
her agents or employees has or have violated any of the provisions
of this chapter; provided, however, violations by a licensee at one
location may not be accumulated against other locations of that same
tobacco retail licensee, nor may violations accumulated against a
prior tobacco retail licensee at a licensed location be accumulated
against a new tobacco retail licensee at the same licensed location.
2.
Upon
a finding by the city of a second license violation within any three-year
period, the city shall:
a.
Require the licensee to provide documentation to the city that all
employees engaged in the retail sale of tobacco have received training
in a city approved program within sixty days after the warning, or
such other time as shall be set by the city; and
b.
Assess an additional fine against the licensee for violation of this
chapter.
3.
Upon
the finding by the city of a third license violation within any three-year
period, the city may suspend or revoke the license.
B.
A tobacco
retail license shall be revoked if the city finds, after notice and
opportunity to be heard, that any one of the conditions listed below
exist. The revocation shall be without prejudice to the filing of
a new application for a tobacco retail license.
1.
One or more of the bases for denial of a tobacco retail license under Section 8.70.050 existed at the time the tobacco retail license application was made or at any time before the tobacco retail license was issued.
2.
The application is incomplete for failure to provide the information required by Section 8.70.040.
3.
Any
information contained in the application, including supplemental information,
if any, is found to be false in any material respect.
4.
The
application seeks authorization for tobacco retailing that is unlawful
pursuant to this code, or that is unlawful pursuant to any other local,
state or federal law.
C.
In the event the city suspends or revokes a tobacco retail license, written notice of the suspension or revocation shall be served upon the tobacco retail licensee within five days of the suspension or revocation in a manner prescribed in Section 8.70.040. The notice shall contain:
1.
A
brief statement of the specific grounds for such suspension or revocation;
2.
A statement that the tobacco retail licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of Section 8.70.110, to the city, within ten calendar days of the date of the service of the notice; and
3.
A
statement that the failure to appeal the notice of suspension or revocation
will constitute a waiver of all rights to an administrative appeal
hearing, and the suspension or revocation will be final.
(Ord. 449 § 1, 2018)
A.
Any
tobacco retail license applicant or licensee aggrieved by the decision
of the city in denying, suspending, or revoking a tobacco retail license,
may appeal the decision, by submitting a written appeal to the city
clerk within ten calendar days from the date of service of the notice
of denial, suspension, or revocation. The written appeal shall contain:
1.
A
brief statement of the specific action protested, together with any
material facts claimed to support the contentions of the appellant;
2.
A
brief statement of the relief sought, and the reasons why it is claimed
the protested action should be reversed or otherwise set aside;
3.
The
signatures of all parties named as appellants and their official mailing
addresses; and
4.
The
verification (by declaration under penalty of perjury) of at least
one appellant as to the truth of the matters stated in the appeal.
B.
The
appeal hearing shall be conducted by a hearing officer.
C.
Upon
receipt of any appeal filed pursuant to this section, the city clerk
shall transmit said appeal to the hearing officer who shall calendar
it for a hearing. The hearing officer shall give the parties at least
fifteen calendar days' written notice of the time and place of the
hearing either by causing a copy of such notice to be delivered to
the appellant personally or by mailing a copy thereof, postage prepaid,
addressed to the appellant at the address shown on the appeal. Upon
good cause, the hearing officer may grant one extension for the date
of the hearing not to exceed fifteen days from the original date set
for the hearing.
D.
Only
those matters or issues specifically raised by the appellant in the
notice of appeal shall be considered in the hearing of the appeal.
E.
Failure
of any person to file a timely appeal in accordance with the provisions
of this section shall constitute an irrevocable waiver of the right
to an administrative hearing and a final adjudication of the notice
and order, or any portion thereof.
F.
Following
the hearing on the appeal by the hearing officer, the decision of
the hearing officer may be appealed to the city manager or his or
her designee. A decision of the city manager or his or her designee
shall be the final decision of the city.
G.
During
a period of license suspension, the tobacco retail licensee must remove
from public view all tobacco products and tobacco paraphernalia at
the address that appears on the suspended or revoked tobacco retail
license.
(Ord. 449 § 1, 2018)
A.
At the
time set for hearing, the hearing officer shall proceed to hear the
testimony of material witnesses, the appellant, and other competent
persons, including members of the public, respecting those matters
or issues specifically listed by the appellant in the notice of appeal.
B.
The
proceedings at the hearing shall be electronically recorded. Either
party may provide a certified shorthand reporter to maintain a record
of the proceedings at the party's own expense.
C.
The
hearing officer may, upon the request of the appellant or upon the
request of the city, grant continuances from time to time for good
cause shown, or upon his or her own motion.
(Ord. 449 § 1, 2018)
A.
Hearings need not be conducted in accordance to the technical rules relating to evidence and witnesses. Government Code Section 11513, subsections (a), (b) and (c), or as such section may be amended from time to time, shall apply to hearings under this chapter.
B.
Oral
evidence shall be taken only upon oath or affirmation.
C.
Irrelevant
and unduly repetitious evidence shall be excluded.
D.
Each
party shall have these rights, among others:
1.
To
call and examine witnesses on any matter relevant to the issues of
the hearing.
2.
To
introduce documentary and physical evidence.
3.
To
cross-examine opposing witnesses on any matter relevant to the issues
of the hearing.
4.
To
impeach any witness regardless of which party first called the witness
to testify.
5.
To
rebut evidence presented against the party.
6.
To
represent himself, herself, or itself, or to be represented by anyone
of his, her, or its choice who is lawfully permitted do so.
E.
In reaching
a decision, official notice may be taken, either before or after submission
of the case for decision, of any fact that may be judicially noticed
by the courts of this state or that may appear in any of the official
records of the city of any of its departments.
(Ord. 449 § 1, 2018)
A.
If it
is shown, by a preponderance of the evidence, that one or more bases
exist to deny, suspend, or revoke the tobacco retail license, the
hearing officer shall affirm the city's decision to deny, suspend,
or revoke the tobacco retail license. The decision of the hearing
officer shall be in writing and shall contain findings of fact and
a determination of the issues presented.
B.
The
decision of the hearing officer shall inform the appellant that the
decision may be appealed to the city manager by filing a written appeal
with the hearing officer within ten days of receipt of the decision
of the hearing officer. The written appeal shall be forwarded to the
city manager upon receipt.
C.
Within
fifteen days of receipt of the written appeal, the city manager shall
review the record of the hearing and issue a written decision to grant
or deny the appeal. A decision of the city manager shall be final.
The city manager shall provide appellant with a copy of his or her
decision and that the time for judicial review is governed by California
Code of Civil Procedure Section 1094.6, or as such section may be
amended from time to time. Copies of the decision shall be delivered
to the parties personally or sent by certified mail to the address
shown on the appeal. The decision shall be final when signed by city
manager and served as provided in this section.
(Ord. 449 § 1, 2018)
A.
In addition
to any other remedy, any person violating any provision of this chapter
shall be guilty of a misdemeanor for each day a violation continues.
B.
Any
violation of this chapter may be remedied by a civil action brought
by the city attorney. The city may recover attorneys' fees and costs
of suit, including witness fees, in any civil action brought by the
city attorney to remedy any violation of this chapter.
C.
Violations
of this chapter are hereby declared to be public nuisances subject
to abatement by the city.
D.
In addition to criminal sanctions and other remedies set forth in this chapter, civil and administrative penalties may be imposed pursuant to Chapter 1.24 of this code against any person violating any provision of this chapter. Imposition, enforcement, collection and administrative review of administrative penalties imposed shall be conducted pursuant to Chapter 1.24 of this municipal code.
(Ord. 449 § 1, 2018)
If any section, subsection, subdivision, paragraph, sentence,
clause, or phrase in this chapter or any part thereof is for any reason
held to be unconstitutional or invalid or ineffective by any court
of competent jurisdiction, that decision shall not affect the validity
or effectiveness of the remaining portions of this chapter or any
part thereof. The city council hereby declares that it would have
passed each section, subsection, subdivision, paragraph, sentence,
clause, or phrase thereof irrespective of the fact that any one or
more subsections, subdivisions, paragraphs, sentences, clauses, or
phrases be declared unconstitutional, or invalid, or ineffective.
(Ord. 449 § 1, 2018)
