Chapter 8.12
TOBACCO RETAILER PERMIT
Sections:
8.12.010 Definitions.
8.12.020 Requirement for a permit.
8.12.030 Application, issuance and renewal procedure.
8.12.040 Display of permit.
8.12.050 Fees for permit.
8.12.060 Permit is nontransferable.
8.12.070 Other requirements for tobacco retailer.
8.12.080 Compliance monitoring.
8.12.090 Enforcement of applicable law by a tobacco retailer.
8.12.100 Suspension of permit.
8.12.110 Enforcement.
8.12.010 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
“Applicant” means a person that submits an application for a tobacco retailer permit or the renewal of a tobacco retailer permit to the director.
“City” means the city of Foster City.
“Director” means the city manager or their designee.
“Permit” or “tobacco retailer permit” means a valid permit issued by the director to a person to act as a tobacco retailer in the city.
“Person” means any individual, partnership, cooperative association, private corporation, or any other legal entity.
“Retail location” means both of the following:
1. A building from which tobacco products are sold at retail.
2. A vending machine.
“Sale” or “sell” includes any transfer of title or possession for a consideration, exchange or barter, in any manner or by any means whatever.
“Self-service display” shall be defined as the open display or storage of tobacco products in a manner that is physically accessible to the general public without the assistance of the retailer or employee of the tobacco retailer and a direct face-to-face transfer between the purchaser and the retailer or employee of the retailer.
“Tobacco product” means a tobacco product as defined in Section 104495(a)(8) of the California Health and Safety Code, as that provision may be amended from time to time.
“Tobacco retailer” means a person who engages in the sale of tobacco products directly to the public from a retail location. “Tobacco retailer” includes a person who operates vending machines from which tobacco products are sold in the city of Foster City. (Ord. 656 § 2, 2022)
8.12.020 Requirement for a permit.
A. It shall be unlawful for any tobacco retailer or other person to sell or offer for sale any tobacco products in the city without first obtaining and maintaining a valid tobacco retailer permit for each retail location where such activities are conducted. Permits shall be valid for one year from the date of issuance and shall be renewed annually.
B. A tobacco retailer that is lawfully operating in the city at the time of adoption of this chapter shall have one year from the date the ordinance codified in this chapter is adopted to obtain a tobacco retailer permit in accordance with the process identified in Section 8.12.030. (Ord. 656 § 2, 2022)
8.12.030 Application, issuance and renewal procedure.
A. Application for a tobacco retailer permit shall be submitted in the name of the person(s) proposing to sell tobacco products at a retail location in the city and shall be signed by such person(s) or an authorized agent thereof. All applications shall be submitted on a form supplied by the director and shall contain, at a minimum, the following information:
1. The name, address, and telephone number of the applicant;
2. The business name, address, and telephone number of each retail location where tobacco products are offered for sale by the applicant; and
3. Such other information as the director determines is necessary for implementation of this chapter.
B. Upon the receipt of an application for a permit, the director shall review the application and shall issue a permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:
1. The information presented by the applicant is incomplete, inaccurate, or false. The submission of inaccurate or false information, or an omission of a material fact, shall be a violation of this chapter.
2. The applicant seeks authorization for a permit at a location for which the sale of tobacco products is prohibited pursuant to this chapter (e.g., mobile vending) or that is unlawful pursuant to some other provision of the city municipal code including, without limitation, the zoning regulations, building codes, and business license tax provisions or that is unlawful pursuant to any other law.
C. An applicant for renewal must follow the application procedures set forth in subsection A of this section. A renewal for a tobacco retailer permit may be denied if the application is for a person or tobacco retailer for which a suspension is in effect and/or if there are any outstanding fines issued as a result of violations of this chapter or if any basis for denial exists in subsection (B)(1) or (2) of this section.
D. Any determination by the director to deny an application for a tobacco retailer permit or to deny a renewal of a tobacco retailer permit may be appealed to the city council in accordance with the process identified in Section 8.12.100(D). The decision of the city council on appeal shall be a final administrative order, with no further administrative right of appeal. (Ord. 656 § 2, 2022)
8.12.040 Display of permit.
Upon issuance of a tobacco retailer permit by the director, the tobacco retailer shall prominently display the tobacco retail permit at the retail location for which the permit applies. (Ord. 656 § 2, 2022)
8.12.050 Fees for permit.
The fee for a tobacco retailer permit shall be established by resolution of the council. (Ord. 656 § 2, 2022)
8.12.060 Permit is nontransferable.
A tobacco retailer permit is nontransferable as between persons, retail locations, tobacco retailers, or otherwise. Any attempted transfer shall render the permit null and void. (Ord. 656 § 2, 2022)
8.12.070 Other requirements for tobacco retailer.
A. Lawful Business Operation. A tobacco retailer shall maintain the retail location in a manner that does not:
1. Violate any local, state, or federal law applicable to tobacco products, including any violation of Chapter 8.11 prohibiting the sale of flavored tobacco products and sale of electronic cigarettes as those terms are defined in Section 8.11.010.
2. Violate any local, state, or federal law regulating exterior, storefront, window, or door signage, as well as city regulations pertaining to outdoor display or storage of products or other personal property.
B. Positive Identification Required. No tobacco retailer shall sell a tobacco product to another person who appears to be under the age of twenty-one years without first examining the identification of the recipient to confirm that the recipient is twenty-one years of age.
C. Self-Service Displays Prohibited. No tobacco retailer shall display tobacco products by means of a self-service display or engage in tobacco retail sales by means of a self-service display, except for tobacco vending machines.
D. Smoking Prohibited. A tobacco retailer shall comply with the smoking regulations of Chapter 8.05 in the retail location. (Ord. 656 § 2, 2022)
8.12.080 Compliance monitoring.
A. Compliance with this chapter shall be monitored by the director and may be enforced by any department that is authorized to conduct enforcement on behalf of the city. One compliance check shall be conducted every twelve months and the costs of said compliance inspection shall be included in the permit fees. Any peace officer or code enforcement official or other person designated by the director may enforce the provisions of this chapter.
B. The director may develop procedures and policies for compliance monitoring, which may be amended from time to time by the director, which shall include, at a minimum, procedures for conducting periodic inspections of tobacco retailers with permits. (Ord. 656 § 2, 2022)
8.12.090 Enforcement of applicable law by a tobacco retailer.
If an agent or employee of a tobacco retailer violates any provisions of this chapter or any federal or state tobacco-related law, the tobacco retailer shall immediately report the violation to the director. (Ord. 656 § 2, 2022)
8.12.100 Suspension of permit.
A. Grounds for Suspension. A tobacco retailer permit may be suspended, as set forth in subsection B of this section, by the director upon a finding, after notice and opportunity to be heard, that either of the following occurred:
1. After the permit was issued it was determined that the application for the permit is incomplete or inaccurate.
2. The tobacco retailer has violated any provision of this chapter or any federal or state tobacco-related law.
B. Time Period of Suspension of Permit.
1. Upon the first time that the director makes the finding that either subsection (A)(1) or (A)(2) of this section has occurred, the permit shall be suspended for up to thirty days.
2. Upon the second time that the director makes the finding set forth in subsection (A)(1) or (A)(2) of this section within sixty months of the first determination, the permit shall be suspended for no less than thirty days and up to ninety days.
3. Upon the third and each subsequent time that the director makes the finding set forth in subsection (A)(1) or (A)(2) of this section within sixty months of a prior determination, the permit shall be suspended for no less than ninety days and up to one year.
C. Effective Date of Suspension.
1. If the director makes oral findings and issues an order of suspension at the hearing, the suspension will be effective ten days from the date of the hearing, unless a timely appeal is filed in accordance with subsection D of this section.
2. If the director makes written findings and issues an order of suspension by certified mail after the hearing, the suspension will be effective fifteen days from the date appearing on the notice of that finding and order of suspension, unless a timely appeal is filed in accordance with subsection D of this section.
D. Appeal of Suspension.
1. The decision of the director relating to suspension of the tobacco retailer permit is appealable to the city council.
2. The person wishing to appeal the decision of the director must file a written notice of appeal concisely stating the facts of the case and the grounds of appeal with the city clerk with any fee for appeal that may be established by the council.
3. An appeal must be received by the city clerk before the effective date of suspension provided by subsection (C)(1) or (C)(2) of this section, as may be applicable, in order to be considered. If a timely appeal is filed, the appeal hearing shall be scheduled at a regular meeting of the city council and the city clerk shall give the appellant written notice of the time and place of hearing at least five days before the hearing.
E. The filing of a timely appeal will stay a suspension pending a decision on the appeal by the city council.
F. The decision of the city council shall be a final administrative order, with no further administrative right of appeal. (Ord. 656 § 2, 2022)
8.12.110 Enforcement.
A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
B. Violations of this chapter are subject to administrative citations as set forth in Section 1.08.060.
C. Violations of this chapter are subject to fines which may be imposed by the director if the director finds that any retailer, individual, or entity who is an owner of a retail establishment: does not have a valid tobacco retailer permit; and offers for sale any tobacco or any other tobacco products.
1. Upon findings made under this section by the director, the tobacco retailer shall be subject to an administrative fine as follows: a fine not exceeding five hundred dollars for the first violation and one thousand dollars for each subsequent violation within one year.
2. Each day that tobacco products are offered for sale without a permit shall constitute a separate violation.
3. Notice of the fine(s) shall be served on the tobacco retailer by certified mail. The notice shall contain an advisement of the right to request a hearing before the director contesting the imposition of the fine(s). Said hearing must be requested within ten days of the date appearing on the notice of the fine(s). The decision of the director shall be a final administrative order, with no administrative right of appeal to the city council.
4. Failure to Pay Fine(s). If said fine(s) is/are not paid within thirty days from the date appearing on the notice of the fine(s) or of the notice of determination of the director, the director may take other legal action necessary to recover the fine(s). in addition, any outstanding fine(s) must be paid prior to the issuance or renewal of any tobacco retailer permit.
D. Violations of this chapter may, in the discretion of the city attorney or designee, be prosecuted as infractions or misdemeanors.
E. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
F. 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 or designee, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. 656 § 2, 2022)