Chapter 5.60
TOBACCO RETAILING LICENSE

Sections:

5.60.010    Purpose and application.

5.60.020    Definitions.

5.60.030    Mandatory tobacco retail license.

5.60.040    Issuance of tobacco retail license.

5.60.050    Applications for a tobacco retail license.

5.60.060    Issuance of a tobacco retail license.

5.60.070    License renewal and expiration.

5.60.080    License nontransferable.

5.60.090    Inspections, investigations and enforcement.

5.60.100    Suspension or revocation of license.

5.60.110    Notice of intended decision.

5.60.120    Appeal procedures.

5.60.130    Penalties for tobacco retailing without a license.

5.60.140    Stipulated fine in lieu of hearing.

5.60.150    Severability.

5.60.010 Purpose and application.

(A)    In promoting the health, safety, and general welfare of its residents, the County of Santa Cruz has a substantial interest in encouraging compliance with Federal, State, and local laws regulating tobacco sales and use.

(B)    State law permits local governments to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a local license for a violation of any State tobacco control law.

(C)    This chapter is adopted to (1) ensure compliance with business standards and practices of the County; (2) to encourage responsible tobacco retailing; and (3) to discourage violations of tobacco-related laws, but not to expand or reduce the degree to which the acts regulated by Federal or State law are criminally proscribed or otherwise regulated. [Ord. 5088 § 1, 2011].

5.60.020 Definitions.

For the purpose of this chapter, the following words and terms shall have the following meaning:

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

(B)    “Department” means the Santa Cruz County Health Services Agency.

(C)    “Health Officer” means the Health Officer of the County of Santa Cruz or his/her designee.

(D)    “Drug paraphernalia” shall have the definitions set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time.

(E)    “Electronic smoking device” means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. “Electronic smoking device” includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

(F)    “License” means a tobacco retailer license issued by the County pursuant to this chapter.

(G)    “Licensee” means any proprietor holding a license issued by the County pursuant to this chapter.

(H)    “License fee” means the charge established by resolution of the Board of Supervisors, calculated to recover the reasonable regulatory costs of issuing and administering licenses, retailer education, performing investigations, inspections, and the administrative enforcement and adjudication thereof.

(I)    “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 share ultimate control over the day-to-day operations of a business.

(J)    “Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed or used for the consumption, use or preparation of tobacco products.

(K)    “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, chewing tobacco, pipe tobacco, snuff; and

(2)    Any electronic smoking device.

(3)    Notwithstanding any provision of subsections (K)(1) and (2) of this section 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.

(L)    “Tobacco retailer” means any person or business who sells, offers for sale or distribution, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, distributed, exchanged, or offered for exchange.

(M)    “Tobacco retailing” means 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. 5231 § 1, 2016; Ord. 5088 § 1, 2011].

5.60.030 Mandatory tobacco retail license.

(A)    Any person intending to act as a tobacco retailer shall, within 90 days of the effective date of the ordinance codified in this chapter, obtain a tobacco retailing license for each location at which tobacco retailing is to occur.

(B)    Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

(C)    Nothing in this chapter shall be construed to grant any licensee any status or right other than to act as a tobacco retailer at the location identified on the face of the license, subject to compliance with all other applicable laws, regulations, or ordinances. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law. [Ord. 5231 § 1, 2016; Ord. 5088 § 1, 2011].

5.60.040 Issuance of tobacco retail license.

(A)    No license shall be issued to authorize tobacco retailing at other than a fixed business place.

(B)    No license shall be issued to authorize tobacco retailing at any location for which a tobacco retailer license suspension is in effect or during a period of ineligibility following a revocation.

(C)    Tobacco retailing is prohibited near schools and areas with youth populations as follows:

No new license may issue to authorize tobacco retailing within 600 feet of a youth-populated area as measured by a straight line from the nearest point of the property line of the parcel on which the youth-populated area is located to the nearest point of the property line of the parcel on which the applicant’s business is located. For the purposes of this subsection, a “youth-populated area” means a parcel in the County that is occupied by a private or public kindergarten, elementary, middle, junior high, or high school.

(D)    In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, State, or Federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing. This includes but is not limited to violations of Chapter 7.89 SCCC (prohibiting tobacco retailing by self-service display), as that chapter may be amended from time to time.

(E)    No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of 27 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 or tobacco paraphernalia.

(F)    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.

(G)    No person engaged in tobacco retailing shall sell, permit to be sold or offer for sale drug paraphernalia. [Ord. 5231 § 1, 2016; Ord. 5088 § 1, 2011].

5.60.050 Applications for a tobacco retail license.

(A)    All applications for a license shall be submitted to the Department in the name of each proprietor proposing to conduct tobacco retailing and signed by each prospective proprietor or an authorized agent. Each license application must be accompanied by the required license fee which is set by resolution of the Board of Supervisors. A proprietor proposing to conduct tobacco retailing at more than one location shall submit a separate application for each location.

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’s license. No proprietor may rely on the issuance of a license as a determination by the County that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to SCCC 5.60.100.

Every application 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 the license is sought;

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

(4)    Proof that the location for which a tobacco retailing license is sought has been issued a valid State tobacco retailer’s license by the California Board of Equalization;

(5)    A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought;

(6)    A statement signed by each proprietor that the proprietor is informed of the laws affecting tobacco retailing licenses; and

(7)    Such other information as the County deems necessary for the administration of this chapter.

(B)    All information required to be submitted in order to apply for a tobacco retailer’s license shall be updated whenever the information changes. A tobacco retailer shall provide the Department with any updates within 10 business days of a change. [Ord. 5231 § 1, 2016; Ord. 5088 § 1, 2011].

5.60.060 Issuance of a tobacco retail license.

(A)    Upon the receipt of a complete application for a tobacco retailer’s license and the license fee required by this chapter, the Health Officer shall issue a tobacco retail license unless one or more of the following exists:

(1)    The application seeks authorization for tobacco retailing at a location for which a suspension is in effect pursuant to this chapter, for which a license has been revoked pursuant to this chapter, or for which this chapter otherwise prohibits issuance of tobacco retailer licenses;

(2)    The application seeks authorization for tobacco retailing for a proprietor to whom a suspension is in effect pursuant to this chapter for the subject location or another location, whose license has been revoked pursuant to this chapter for the subject location or another location, or to whom this chapter otherwise prohibits a tobacco retailer license to be issued;

(3)    The Department has information that the proprietor or his or her agent or employee has violated any local, State or Federal tobacco control law, including this chapter, within the preceding 12 months; or

(4)    The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is otherwise unlawful pursuant to this code, or that is unlawful pursuant to any other local, State, or Federal law.

(B)    Any denial of an application shall be in writing setting forth the reasons for denial of the permit. Such denial shall be subject to appeal in accordance with SCCC 5.60.120. [Ord. 5231 § 1, 2016; Ord. 5088 § 1, 2011].

5.60.070 License renewal and expiration.

(A)    A tobacco retailer license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a tobacco retailer license is one year beginning each fiscal year on July 1st and ending on June 30th of the following year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license and submit the license fee no later than 30 days prior to expiration of the term.

(B)    A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To reinstate a license that has expired, or to renew a license not timely renewed pursuant to subsection (A) of this section, the proprietor must:

(1)    Submit the license fee;

(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 license expiration date and before the license is renewed; or

(b)    Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in this chapter, before seeking renewal of the license. [Ord. 5088 § 1, 2011].

5.60.080 License nontransferable.

(A)    A tobacco retailer’s license may not be transferred from one person to another or from one location to another. Whenever a tobacco retailing location has a change in proprietors, a new tobacco retailer’s license is required.

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

(1)    The location has been fully transferred to an entirely new proprietor or fully transferred to entirely new proprietors; and

(2)    The new proprietor(s) provides the department with clear and convincing evidence that the new proprietor(s) has acquired or is acquiring the location in an arm’s length transaction. As used in this section, the term “arm’s length transaction” shall mean a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and wiling 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 chapter is not an arm’s length transaction. [Ord. 5088 § 1, 2011].

5.60.090 Inspections, investigations and enforcement.

(A)    Compliance with this chapter shall be monitored by the Department or any law enforcement officer. Employees of the Department or a law enforcement officer may conduct inspections and investigations, including but not limited to youth decoy operations, and enforce the penal provisions of this chapter.

(B)    Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of 18 years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. [Ord. 5088 § 1, 2011].

5.60.100 Suspension or revocation of license.

(A)    In addition to any other remedy authorized by law after notice and opportunity to be heard pursuant to SCCC 5.60.110, a tobacco retailer’s license may be suspended or revoked as provided in this section if the Health Officer finds that the licensee, or any of the licensee’s agents or employees, has:

(1)    Violated any of the requirements, conditions or prohibitions of this chapter; or

(2)    Pleaded guilty, “no contest” or its equivalent, or admitted to any of the following:

(a)    The original or renewal application contained incorrect, false, or misleading information; or

(b)    One or more of the bases for denial listed in SCCC 5.60.060 existed before the license was issued; or

(c)    A licensee is convicted of a misdemeanor or felony violation of any Federal, State, or local tobacco retailing law or regulation, including any provision of this chapter.

(B)    During any period of suspension or revocation, the licensee:

(1)    Shall remove all tobacco products and tobacco paraphernalia from public view. Failure to do so may be considered a subsequent violation.

(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. Failure to comply may be considered a subsequent violation.

(C)    When the Health Officer finds a violation as set forth in subsection (A) of this section, the license shall be suspended or revoked as follows:

(1)    Upon finding by the Health Officer of a first license violation, the license shall be suspended for 60 days;

(2)    Upon a finding by the Health Officer of a second license violation within any 60-month period, the license shall be suspended for 120 days;

(3)    Upon a finding by the Health Officer of a third license violation in any 60-month period, the license shall be suspended for 180 days; and

(4)    Upon a finding by the Health Officer of a fourth license violation within any 60-month period, the license shall be revoked and no new license shall issue for the location until five years have passed from the date of revocation.

(D)    Violation by a licensee at one location shall not be construed as a violation at another location of the same licensee, nor shall violations by a prior licensee at the same location be accumulated against a subsequent licensee at the same location.

(E)    A tobacco retailer’s license shall be revoked if the Health Officer or designee finds that one or more of the bases for denial of a license under SCCC 5.60.060 existed at the time the application was made or at any time before the license was issued. [Ord. 5231 § 1, 2016; Ord. 5088 § 1, 2011].

5.60.110 Notice of intended decision.

(A)    Upon determining the existence of any of the grounds for the denial, suspension or revocation of a license pursuant to this chapter, the Health Officer or designee shall issue to the license applicant or holder a notice of intended decision. The notice shall be provided by personal service or by first class mail, postage prepaid, including a copy of the affidavit or certificate of mailing.

(B)    The notice of intended decision shall state all the grounds upon which the denial, revocation or suspension is based.

(C)    The notice of intended decision shall specify the effective date of the action.

(D)    The notice of intended decision shall advise the license applicant or holder that the suspension or revocation shall become final unless the person files a written request for administrative review within 14 calendar days of the date of service of the notice of intended decision. [Ord. 5088 § 1, 2011].

5.60.120 Appeal procedures.

An applicant or licensee dissatisfied with a determination made by the Health Officer or designee may file a written appeal as follows:

(A)    A person served with a notice of determination issued pursuant to this chapter may appeal that determination by filing a request in writing with the Health Officer within 14 calendar days of service of the notice. Failure to timely file an appeal shall be deemed a waiver of the right to challenge the determination and a failure to exhaust administrative remedies. The Board of Supervisors shall provide independent contractor hearing officers to hear the appeals, to issue subpoenas, to receive evidence to administer oaths, to rule on questions of law and the admissibility of evidence, to prepare a record of the proceedings, and to issue orders with regard to violations.

(B)    After receiving a timely request, the hearing officer shall schedule a hearing within 20 calendar days of receipt of the written request.

(1)    Written notice of the time, date and location of a hearing before the hearing officer shall be given by personal service or by first class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the appellant.

(2)    The notice of hearing shall also identify the hearing officer designated to conduct the hearing and advise the appellant of his or her right to submit within 10 business days of the date of the notice of hearing a written objection to the designated hearing officer. In the event of such a disqualification, a new hearing officer shall be randomly selected from the panel of alternate hearing officers established by the Board of Supervisors. Each party shall only have the right to disqualify one hearing officer for a particular matter.

(3)    Hearing Procedures.

(a)    Requirements for Taking Testimony. In any proceeding before a hearing officer, oral testimony offered as evidence shall be taken only on oath or affirmation, and the hearing officer, his/her clerk, or other designee have the power to administer oaths and affirmations and to certify to official acts. Oaths of witnesses may be given individually or en masse. Witnesses shall be asked to raise their right hands and to swear or affirm that the testimony they shall give will be the truth, the whole truth, and nothing but the truth.

(b)    Continuances. The hearing officer may continue the hearing as determined appropriate by the hearing officer.

(c)    Administrative Interpretations. In conducting the hearing, the hearing officer shall consider the previously established interpretation of an ordinance provision by the Department charged with its enforcement unless that interpretation is shown to be clearly erroneous or unauthorized.

(d)    Hearing Officer Decisions. At the conclusion of the hearing held on the alleged violation(s), the hearing officer shall have the authority, subject to the limitations set forth in this section, to render a decision, supported by written findings, which determines whether the person given notice has committed, maintained, or permitted the alleged violation(s).

(e)    Within 10 calendar days after the close of the hearing, the hearing officer shall issue a written decision, including a statement of the basis for the decision. The reviewing officer’s written decision shall constitute the final administrative decision of the County.

(f)    In the event a civil action is initiated to obtain enforcement of the decision of the hearing officer, and judgment is entered to enforce the decision, the person against whom the order of enforcement has been entered shall be liable to pay the County’s total costs of enforcement, including reasonable attorney’s fees.

(C)    At the administrative review, the Department has the burden of proving by a preponderance of the evidence that the alleged violation occurred.

(D)    The failure to appear at the administrative review shall constitute an abandonment of the review request and a failure to exhaust administrative remedies. [Ord. 5088 § 1, 2011].

5.60.130 Penalties for tobacco retailing without a license.

(A)    In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Health Officer finds based on a preponderance of evidence, after notice and an opportunity to be heard pursuant to SCCC 5.60.110, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer’s license, 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 license as follows:

(1)    After a first violation of this section at a location, no new license 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 60 days have passed from the date of the violation.

(2)    After a second violation of this section at a location within any 60-month period, no new license 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 180 days have passed from the date of the violation.

(3)    After a third or subsequent violation of this section at a location within any 60-month period, no new license 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)    Any person subject to a penalty imposed under this section may appeal the determination within 14 calendar days of service of the notice of the decision. The request must be made to the Health Officer in writing. An appeal hearing shall be held pursuant to the provisions of SCCC 5.60.120. [Ord. 5088 § 1, 2011].

5.60.140 Stipulated fine in lieu of hearing.

For a first or second alleged violation of this chapter within any 60-month period, the Health Officer may allow a tobacco retailer alleged to have violated this chapter to stipulate to the penalties provided in this section in lieu of the penalties that would otherwise apply under this chapter and to forego a hearing on the allegations. Notice of any stipulation shall be provided to the Sheriff’s Office and no hearing shall be held. Stipulations shall not be confidential and shall contain the following terms plus any other noncriminal provisions established by the Health Officer in the interests of justice:

(A)    After a first alleged violation of this chapter at a location:

(1)    An agreement to stop acting as a tobacco retailer for one day;

(2)    An administrative penalty of $1,000; and

(3)    An admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violation.

(B)    After a second alleged violation of this chapter at a location within any 60-month period:

(1)    An agreement to stop acting as a tobacco retailer for 10 days;

(2)    An administrative penalty of at least $5,000; and

(3)    An admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violations. [Ord. 5088 § 1, 2011].

5.60.150 Severability.

If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of this chapter or the application of such provision to other persons or circumstances shall not be affected thereby. [Ord. 5088 § 1, 2011].