Chapter 5.54
TOBACCO RETAILERS
Sections:
5.54.020 General requirements and prohibitions.
5.54.030 Sale of flavored tobacco products, electronic smoking devices, and fluid prohibited.
5.54.040 Tobacco product pricing and packaging.
5.54.050 Limits on eligibility for a tobacco retailer license.
5.54.060 Application procedure.
5.54.080 License renewal and expiration.
5.54.090 Licenses nontransferable.
5.54.100 License conveys a limited, conditional privilege.
5.54.120 Compliance monitoring.
5.54.130 Suspension or revocation of license.
5.54.140 Tobacco retailing without a valid license.
5.54.010 Definitions.
The following words and phrases, whenever used in this chapter, 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 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 Chapter 5.54 BMC is not an arm’s length transaction.
B. “Cannabis” has the meaning set forth in California Business and Professions Code Section 26001(f), as that section may be amended from time to time.
C. “Cannabis product” has the meaning set forth in California Health and Safety Code Section 11018.1, as that section may be amended from time to time.
D. “Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three pounds per thousand.
E. “Cigarette” means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.
F. “Characterizing flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
G. “Commercial cannabis activity” has the meaning set forth in California Business and Professions Code Section 26001(f), as that section may be amended from time to time.
H. “Consumer” means a person who purchases a tobacco product for consumption and not for sale to another.
I. “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.
J. “Department” means Benicia police department and any agency or person designated by the department to enforce or administer the provisions of this chapter.
K. “Drug paraphernalia” has the meaning set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time.
L. “Flavored tobacco product” means any tobacco product that imparts a characterizing flavor.
M. “Full retail price” means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.
N. “Labeling” means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.
O. “Little cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand. “Little cigar” includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.
P. “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.
Q. “Package” or “packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.
R. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
S. “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.
T. “Sale” or “sell” means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.
U. “Self-service display” means the open display or storage of tobacco products or tobacco accessories in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
V. “Tobacco accessories” means any item designed or marketed for the consumption, use, or preparation of tobacco products.
W. “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 device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.
3. Notwithstanding any provision of subsections (W)(1) and (2) of this section to the contrary, “tobacco product” includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. “Tobacco product” does not include a 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 the product is marketed and sold solely for such an approved purpose.
X. “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 accessories, except those subject to Chapter 9.60 BMC. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco accessories sold, offered for sale, exchanged, or offered for exchange.
Y. “Youth-populated area” means a parcel within the city that is occupied by:
1. A private or public kindergarten, elementary, middle, junior high, or high school;
2. A library open to the public;
3. A playground open to the public;
4. A youth center, as defined in California Health and Safety Code Section 11353.1, as that section may be amended from time to time;
5. A recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes. “Recreation facility” includes, but is not limited to, a gymnasium, playing court, playing field, and swimming pool;
6. An arcade open to the public;
7. A park open to the public or to all the residents of a private community;
8. A licensed child care facility or preschool other than a small family day care facility as defined in California Health and Safety Code Section 1596.78. (Ord. 19-12 § 2).
5.54.020 General requirements and prohibitions.
A. Tobacco Retailer’s License Required. It shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this chapter for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer’s license 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 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 accessories, or tobacco retailing.
C. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
D. Positive Identification Required. No person engaged in tobacco retailing shall sell a tobacco product or tobacco accessories to another person who is 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 for sale of tobacco products as established by state law.
E. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.
F. On-Site Sales. All sales of tobacco products and tobacco accessories to consumers shall be conducted in person at the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to deliver tobacco products or tobacco accessories or to knowingly or recklessly sell tobacco products or tobacco accessories to any person that intends to deliver the tobacco product or tobacco accessories to a consumer in the city. For purposes of this subsection, “deliver” means the commercial transfer of tobacco products or tobacco accessories to a consumer at a location not licensed pursuant to this chapter.
G. False and Misleading Advertising Prohibited. A tobacco retailer without a valid tobacco retailer license or a proprietor without a valid tobacco retailer license, including, for example, a person whose license has been suspended or revoked:
1. Shall keep all tobacco products and tobacco accessories out of public view. The public display of tobacco products or tobacco accessories in violation of this provision shall constitute tobacco retailing without a license under BMC 5.54.140; and
2. Shall not display any advertisement relating to tobacco products or tobacco accessories 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.
H. Drug Paraphernalia. 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 regulating controlled substances or drug paraphernalia, such as, for example, California Health and Safety Code Section 11364.7, as that section may be amended from time to time.
I. Minimum Employee Age. Individuals employed by a person licensed under this chapter must be at least 18 years of age to sell tobacco, tobacco-related devices, electronic delivery devices, or other nicotine delivery products. (Ord. 19-12 § 2).
5.54.030 Sale of flavored tobacco products, electronic smoking devices, and fluid prohibited.1
A. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.
1. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.
2. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
a. Made a public statement or claim that the tobacco product imparts a characterizing flavor;
b. Used text and/or images on the tobacco product’s labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or
c. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
B. The sale, offer for sale, exchange, or offer to exchange of any electronic smoking device is prohibited where the electronic smoking device:
1. Is a new tobacco product;
2. Requires a premarket review under 21 U.S.C. 387j, as may be amended from time to time; and
3. Does not have a premarket review order under 21 U.S.C. 387j(c)(1)(A)(i), as may be amended from time to time.
C. The sale, offer for sale, exchange, or offer to exchange of any electronic smoking device fluid is prohibited. (Ord. 19-12 § 2).
5.54.040 Tobacco product pricing and packaging.
A. Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer’s packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements.
B. Display of Price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed to indicate the price of the product.
C. Prohibition of Tobacco Coupons and Discounts. No tobacco retailer shall:
1. Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price;
2. Sell any tobacco product to a consumer through a multiple-package discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or any other item; or
3. Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
D. Minimum Package Size for Little Cigars and Cigars. No tobacco retailer shall sell to a consumer:
1. Any little cigar unless it is sold in a package of at least 10 little cigars; or
2. Any cigar unless it is sold in a package of at least at least six cigars; provided, however, that this subsection shall not apply to a cigar that has a price of at least $5.00 per cigar, including all applicable taxes and fees.
E. Minimum Prices for Cigarettes, Little Cigars, and Cigars. No tobacco retailer shall sell to a consumer:
1. Cigarettes at a price that is less than $7.00 per package of 20 cigarettes, including all applicable taxes and fees;
2. Little cigars at a price that is less than $7.00 per package of little cigars, including all applicable taxes and fees; or
3. Cigars at a price that is less $5.00 per cigar, including all applicable taxes and fees.
4. The minimum prices established in this section shall be adjusted annually (percent change in the annual average, not seasonally adjusted) by the department in proportion with the Consumer Price Index: all urban consumers for all items for the San Francisco-Oakland-Hayward statistical area as reported by the United States Bureau of Labor Statistics or any successor to that index. (Ord. 19-12 § 2).
5.54.050 Limits on eligibility for a tobacco retailer license.
A. Mobile Vending. No license may issue to authorize tobacco retailing at other than a fixed location, including, but not limited to, tobacco retailing by persons on foot or from vehicles.
B. Licensed Cannabis Businesses. No license may issue, and no existing license may be renewed, to authorize tobacco retailing at a location licensed for commercial cannabis activity by the state of California in accordance with the Business and Professions Code Division 10, and the city in accordance with Chapter 17.84 BMC. 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 engage in commercial cannabis activity.
C. Pharmacies. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy. For the purposes of this subsection, “pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the state of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
D. Proximity to Youth-Sensitive Areas. No new license may issue to authorize tobacco retailing within 1,000 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.
E. Proximity to Other Tobacco Retailers. No new license may issue to authorize tobacco retailing within 600 feet of a tobacco retailer location already licensed pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing licensee’s business is located.
F. Proximity to Cannabis Retailers. No new license may issue to authorize tobacco retailing within 600 feet of a cannabis retailer as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing cannabis retailer is located. For the purposes of this subsection, “cannabis retailer” means any retail establishment permitted by the city pursuant to Chapter 17.84 BMC.
G. Population and Density. The issuing of tobacco retailer licenses is limited as follows:
1. The total number of tobacco retailer licenses within the city shall be limited to one for each 1,750, or fraction thereof, inhabitants of the city of Benicia.
2. For the purposes of this subsection, the total population of the city shall be determined by the most current published total available from the U.S. Census Bureau or the California State Department of Finance, whichever has been more recently updated, as of the date the license application is filed.
3. No new license may be issued to authorize tobacco retailing if the number of tobacco retailer licenses already issued equals or exceeds the total number authorized pursuant to subsection (G)(1) of this section.
H. Notwithstanding subsections (D) through (F) of this section, a tobacco retailer operating lawfully on the date the ordinance codified in this chapter is adopted that would otherwise be eligible for a tobacco retailer license for the location for which a license is sought may receive or renew a license for that location so long as all of the following conditions are met:
1. The license is timely obtained and is renewed without lapse or permanent revocation (as opposed to temporary suspension);
2. The tobacco retailer is not closed for business or otherwise suspends tobacco retailing for more than 60 consecutive days;
3. The tobacco retailer does not substantially change the business premises or business operation. A substantial change to the business operation includes, but is not limited to, the transferring of a location:
a. To a new proprietor(s) in an arm’s length transaction; or
b. For which a significant purpose is avoiding the effect of violations of this chapter; and
4. The tobacco retailer retains the right to operate under all other applicable laws.
5. If the city of Benicia determines that a tobacco retailer has substantially changed their business premises or operation and the tobacco retailer disputes this determination, the tobacco retailer bears the burden of proving by a preponderance of evidence that such change(s) do not constitute a substantial change. (Ord. 19-12 § 2).
5.54.060 Application procedure.
A. Application for a tobacco retailer’s license 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.
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 city 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 BMC 5.54.130(C). Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any provision of law.
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 license.
2. The business name, address, and telephone number of the single fixed location for which a license 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 chapter. 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 (A)(2) of this section.
4. Proof that the location for which a tobacco retailer’s license is sought has been issued a valid state license for the sale of tobacco products, if the tobacco retailer sells products that require such license.
5. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five years.
6. Such other information as the department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
7. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought.
B. A licensed tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer’s license within 10 business days.
C. All information specified in an application pursuant to this section shall be subject to disclosure under the Chapter 4.12 BMC relating to public information, the California Public Records Act (California Government Code Section 6250 et seq.), and/or any other applicable law. (Ord. 19-12 § 2).
5.54.070 Issuance of license.
Upon the receipt of a complete application for a tobacco retailer’s license and the license fee required by this chapter, the department shall issue a license 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 chapter;
B. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits a licensed to be issued;
C. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued; and/or
D. The application seeks authorization for tobacco retailing that is prohibited pursuant to other provisions of this code, and/or that is unlawful pursuant to any other state or federal law. (Ord. 19-12 § 2).
5.54.080 License renewal and expiration.
A. Renewal of License. A tobacco retailer’s license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the renewal of their tobacco retailer’s license and submit the license fee no later than 30 days prior to expiration of the term.
B. Expiration of License. A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subsection (A) of this section, the proprietor must:
1. Submit the license 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 accessories after the license expiration date and before the license is renewed; or
b. Has waited the period of time required by BMC 5.54.140(A) for tobacco retailing without a valid license before seeking renewal of the license. (Ord. 19-12 § 2).
5.54.090 Licenses nontransferable.
A. A tobacco retailer’s license may not be transferred from one person to another or from one location to another. A new tobacco retailer’s license is required whenever a tobacco retailing location has a change in proprietor(s).
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 transferred to new proprietor(s) in an arm’s length transaction; and
2. The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm’s length transaction. (Ord. 19-12 § 2).
5.54.100 License conveys a limited, conditional privilege.
Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the limited, conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including, but not limited to:
A. Any provision of this code (e.g., zoning ordinance, building codes, and business license tax ordinance); and/or
B. Any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. Obtaining a tobacco retailer’s license does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5. (Ord. 19-12 § 2).
5.54.110 Fee for license.
The fee to issue or to renew a tobacco retailer’s license shall be established from time to time by resolution of the city. 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, 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 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. 19-12 § 2).
5.54.120 Compliance monitoring.
A. Compliance with this chapter shall be monitored by the department. In addition, any peace officer may enforce the penal provisions of this chapter. The city may designate additional persons to monitor compliance with this chapter.
B. The department shall inspect each tobacco retailer at least two times per 12-month period. Nothing in this subsection shall create a right of action in any licensee or other person against the city or its agents.
C. The city does not intend and nothing in this chapter shall be interpreted to penalize the purchase, use, possession, or attempted purchase, use, or possession of tobacco products or tobacco accessories by persons under 21 years of age; provided, however, that persons under 21 years of age remain subject to generally applicable laws regulating such conduct without respect to the person’s age. (Ord. 19-12 § 2).
5.54.130 Suspension or revocation of license.
A. Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer’s license 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 licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee’s agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in BMC 5.54.020.
1. Upon a finding by the department of a first violation of this chapter at a location within any five-year period, the license shall be suspended for five days.
2. Upon a finding by the department of a second violation of this chapter at a location within any five-year period, the license shall be suspended for 10 days.
3. Upon a finding by the department of a third violation of this chapter at a location within any five-year period, the license shall be suspended for one year.
4. Upon a finding by the department of four or more violations of this chapter at a location within any five-year period, the license shall be revoked.
B. Appeal of Suspension or Revocation. A decision of the department to suspend or revoke a license is appealable to the city manager and any appeal must be filed in writing with the city clerk within 10 days of mailing of the department’s decision. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to the city manager is not available for a revocation made pursuant to subsection (C) of this section.
C. Revocation of License Wrongly Issued. A tobacco retailer’s license shall be revoked if the department finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under BMC 5.54.070 existed at the time application was made or at any time before the license 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 license application. (Ord. 19-12 § 2).
5.54.140 Tobacco retailing without a valid license.
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’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 retailer’s license as follows:
1. After a first violation of this section at a location within any five-year 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 30 days have passed from the date of the violation.
2. After a second violation of this section at a location within any five-year 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 90 days have passed from the date of the violation.
3. After a third or subsequent violation of this section at a location within any five-year 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. Tobacco products and tobacco accessories 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 licensee and any other owner of the tobacco products and tobacco accessories seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco accessories were not offered for sale or exchange in violation of this chapter. The decision by the department may be appealed pursuant to the procedures set forth in BMC 5.54.130(B). Forfeited tobacco products and tobacco accessories 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 lawsuit or, if such a suit is filed, after judgment in that suit becomes final.
C. For the purposes of the civil remedies provided in this chapter:
1. Each day on which a tobacco product or tobacco accessories is offered for sale in violation of this chapter shall constitute a separate violation of this chapter; and
2. Each individual retail tobacco product, and each individual retail item of tobacco accessories, that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter. (Ord. 19-12 § 2).
5.54.150 Additional remedies.
A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
B. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of 21 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.
C. Violations of this chapter are subject to a civil action brought by the city, punishable by a civil fine not less than $250.00 and not exceeding $1,000 per violation.
D. Violations of this chapter may, in the discretion of the city attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.
E. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
F. Violations of this chapter are hereby declared to be public nuisances.
G. 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 including, for example, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief. (Ord. 19-12 § 2).
5.54.160 Other laws.
This chapter does not intend and shall not be interpreted to regulate any conduct where the regulation of such conduct has been preempted by the United States or the state of California. (Ord. 19-12 § 2).
Code revisor’s note: Ord. 19-12 § 4 provides that Section 5.54.030 will take effect six months after its December 3, 2019 enactment.