Chapter 5.100
TOBACCO RETAILER LICENSE PROGRAM
Sections:
5.100.020 Self-service displays prohibited.
5.100.030 Vendor assistance required.
5.100.040 Tobacco retailer license required.
5.100.050 Limits on tobacco retailer licenses.
5.100.060 Application procedure.
5.100.070 Issuance of license.
5.100.080 License renewal and expiration.
5.100.090 Licenses nontransferable.
5.100.110 Other requirements and prohibitions.
5.100.115 Tobacco product pricing and packaging.
5.100.120 Compliance monitoring.
5.100.130 Revocation of license.
5.100.150 Tobacco retailing without a license or with a suspended license.
5.100.160 Nuisance and enforcement.
5.100.170 Enforcement of state law regarding sales to minors.
5.100.180 Intent as to additional legal restrictions and remedies.
5.100.200 Severability – Preemption.
5.100.010 Definitions.
As used under this chapter, the following terms shall have the following meanings unless otherwise indicated from the context:
Area which minors frequent. Any public or private kindergarten, elementary, middle school, junior high, or high school, preschool, public library, public playground or playground area in a public park and the Concord Pavilion located at 2000 Kirker Pass Road.
Cigar. (1) Any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco; and (2) any paper or wrapper that contains tobacco and can be used for smoking or ingestion of tobacco, marijuana, or other plant products. For the purposes of this subsection, “cigar” includes, but is not limited to, tobacco products known or labeled as cigar, cigarillo, little cigar, blunt, blunt wrap, or cigar wrap.
Cigarette. (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.
City Manager. The Concord City Manager, or their designee.
Coupon. 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.
Delivery sale. The sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a tobacco retail establishment. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, any app-based service, or any other delivery (whether by licensees or third parties) by any means, including curbside pickup.
Department. The City of Concord Police Department and any other city department, company, or person designated by the Department to enforce or administer the provisions of this chapter.
Display. The open, visible, or public display of any tobacco products or tobacco paraphernalia.
Electronic smoking device. Any device that may be used to deliver any aerosolized or vaporized substance to any individual inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
Flavored tobacco product. Any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, alcoholic beverage, herb, or spice. The term “flavored tobacco product” includes the term “presumptive flavored tobacco product.” The term “flavored tobacco product” does not include premium cigars.
Full retail price. The price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.
Hookah or hookah pipe. A water pipe with a flexible hose(s) and mouthpiece(s) used to smoke specially made flavored tobacco products.
Hookah product. Any flavored tobacco product intended for use in hookahs.
Manufacturer. 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 in or into the United States.
Mobile vending or movable place of business. Any form of business that is operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and not a fixed address storefront or other permanent type of structure authorized for sales transactions. The terms “mobile vending” and “movable place of business” include the term “delivery sale.”
Person. Any individual, firm, partnership, cooperative association, public or private corporation, personal representative, receiver, trustee, assignee, parent, successor, or other legal entity.
Premium cigar. A cigar that is handmade, has a tobacco leaf wrapper, has a wholesale price of no less than $12.00, does not have a filter, tip, or nontobacco mouthpiece, and is capped by hand.
Presumptive flavored tobacco product. A public statement or claim made or disseminated by the manufacturer of a tobacco product or tobacco paraphernalia, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product or tobacco paraphernalia, that such tobacco product has, or the tobacco paraphernalia imparts, a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.
Program. The tobacco retailer license program established pursuant to this chapter.
Proprietor. 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 has or shares ultimate control over the day-to-day operations of a business.
Sale or sell or sold. Any transfer, exchange, barter, gift, exchange, sale, distribution, or offer of tobacco products or tobacco paraphernalia for a commercial purpose, in any manner or by any means whatsoever, including free or low cost samples thereof.
Self-service display. The open, visible, or public display of any tobacco products or paraphernalia in a manner that is accessible to the general public without the assistance of the tobacco retailer or employee of the tobacco retailer. A vending machine is a form of self-service display.
Smoking. Inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated product containing, made, or derived from nicotine, tobacco, or any tobacco product, whether natural or synthetic, that is intended for inhalation. “Smoking” includes using an electronic smoking device.
Tobacco paraphernalia. Cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.
Tobacco product. (1) Any substance containing tobacco, tobacco leaf or nicotine, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; (2) any electronic smoking device and any substances that may be aerosolized or vaporized by such device to inhale substances containing nicotine; and/or (3) any component, part, or accessory of subsection (1) or (2) of this definition including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes. Tobacco product does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence. Tobacco product includes any flavored tobacco product. To the extent any hookah lounge sells or displays any hookah or hookah products for off-site use or consumption, such hookah or hookah products shall be deemed to be included in the definitions of tobacco products and tobacco paraphernalia.
Tobacco retailer. Any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products, or tobacco paraphernalia, or who sells free or low cost samples of tobacco products or tobacco paraphernalia. Tobacco retailer includes a proprietor (as defined above), and any agent or employee of a tobacco retailer or proprietor. Except as expressly provided in Section 5.100.050(a)(6), the term “tobacco retailer” includes hookah lounges.
Tobacco retailer license or license. A City of Concord license issued by the Department to a tobacco retailer pursuant to this chapter.
Tobacco retailing. The doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold or displayed.
Vending machine. Any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin, paper bill, or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco paraphernalia.
(Code 1965, § 4840; Code 2002, § 38-61. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.020 Self-service displays prohibited.
It shall be unlawful for any person within the city to offer, or engage in tobacco retailing by means of, a self-service display.
(Code 1965, § 4841; Code 2002, § 38-62. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.030 Vendor assistance required.
All tobacco products and tobacco paraphernalia shall be sold exclusively by means of vendor assistance. Tobacco products and tobacco paraphernalia shall be located exclusively in a locked case, located behind counters out of reach from customers, or in a similar location that is inaccessible to customers, requiring vendor assistance for the customer to obtain access to the tobacco products and tobacco paraphernalia.
(Code 1965, § 4842; Code 2002, § 38-63. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.040 Tobacco retailer license required.
(a) It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer license pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer license is a public nuisance.
(b) A tobacco retailer or proprietor without a valid tobacco retailer license, including a person whose license has been revoked or suspended:
(1) Shall keep all tobacco products and tobacco paraphernalia out of public view. The display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under Section 5.100.090(a).
(2) Shall not display or sell any tobacco products or tobacco paraphernalia.
(c) 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 privilege to act as a tobacco retailer at the location in the city identified on the face of the permit and for the period of time designated. This chapter shall not be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to any provision of this Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5.
(Code 1965, § 4843; Code 2002, § 38-64. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.050 Limits on tobacco retailer licenses.
(a) Prohibitions.
(1) Self-service displays are expressly prohibited.
(2) Mobile vending and movable places of business are expressly prohibited. No license may issue to authorize tobacco retailing at other than a fixed location. No tobacco retailer license will be issued to a tobacco retailer who intends to or does engage in mobile vending, has or intends to have a movable place of business, or who intends to or does offer self-service displays.
(3) Flavored tobacco products prohibited. It shall be unlawful for any tobacco retailer to sell or possess with intent to sell any flavored tobacco product.
(4) Electronic smoking devices prohibited. It shall be unlawful for any tobacco retailer to sell or possess with intent to sell any electronic smoking device.
(5) Coupons are expressly prohibited.
(6) Hookah lounges are expressly prohibited from selling hookah products for off-site use or consumption. The legal, nonconforming uses located at 3425 Chestnut Avenue and 1120 Contra Costa Boulevard may sell hookah products strictly for on-site use and consumption at such premises, so long as their respective tobacco retailer licenses are continuously maintained in good standing, as determined by the Department.
(Code 1965, § 4844; Code 2002, § 38-65. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.060 Application procedure.
(a) Applications for a tobacco retailer 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.
(b) 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 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 Section 5.100.130. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer license any status or right to act as a tobacco retailer in contravention of any provision of law.
(c) All applications shall be submitted on a form supplied by the Department and will be verified and processed by the Finance Department, Business Licensing. It shall contain the following information:
(1) The name, address, and telephone number of each proprietor of the business that is 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 (c)(2) of this section.
(4) Proof that the location for which a tobacco retailer license is sought has been issued a valid state tobacco retailer license by the California Board of Equalization.
(5) Whether or not any proprietor has admitted violating, or has been found to have violated, this chapter or whose proprietorship 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 six years.
(6) Such other information as the Department deems necessary for the administration or enforcement of this chapter.
(7) All information required to be submitted in order to apply for a tobacco retailer license shall be updated with the Department whenever the information changes. A tobacco retailer shall provide the Department with any updates within 10 business days of a change.
(Code 1965, § 4845; Code 2002, § 38-66. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.070 Issuance of license.
Upon the receipt of an application for a tobacco retailer 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 incomplete, inaccurate, or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.
(b) The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.
(c) The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful pursuant to this Code, which includes but is not limited to the city’s zoning ordinance, building codes, and business license tax ordinance, or that is unlawful pursuant to any other law.
(d) Failure to pay an outstanding fine.
(Code 1965, § 4846; Code 2002, § 38-67. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.080 License renewal and expiration.
(a) Renewal of license. 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. Each tobacco retailer shall apply for the renewal of their tobacco retailer license and submit the license fee no later than 30 days prior to expiration of the term.
(b) Expiration of license. A tobacco retailer 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 follow the application procedures set forth in Section 5.100.060.
(Code 1965, § 4847; Code 2002, § 38-68. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.090 Licenses nontransferable.
(a) A tobacco retailer license may not be transferred from one person to another or from one location to another. Whenever a tobacco retailer has a change in proprietors or location, a new tobacco retailer license is required. Hookah lounges are no longer permitted in the city and so their associated tobacco retailer licenses cannot be transferred from one location to another.
(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 a new proprietor or fully transferred to entirely new proprietors.
(Code 1965, § 4848; Code 2002, § 38-69. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.100 Fees for license.
The fee to issue or to renew a tobacco retailer license shall be established in the resolution establishing various municipal fees and charges. The fee shall be calculated so as to recover the total cost of both license administration and license enforcement, including issuing the 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 shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.
(Code 1965, § 4849; Code 2002, § 38-70. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.110 Other requirements and prohibitions.
(a) 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:
(1) Violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
(2) Violate any local, state, or federal law regulating exterior, storefront, window, or door signage including with respect to tobacco, tobacco products, tobacco paraphernalia or advertising thereof.
(3) Violate any local, state, or federal law regulating display of tobacco, tobacco products, or tobacco paraphernalia.
(b) Display of license. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
(c) Positive identification required. 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.
(d) Minimum age for persons selling tobacco. No individual who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.
(e) Minimum legal sales age. No person engaged in tobacco retailing shall sell a tobacco product to any individual under 21 years of age.
(f) On-site sales. All sales of tobacco products shall be conducted in person in the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of their agents or employees to engage in the delivery sale of tobacco products or to knowingly or recklessly sell or provide tobacco products to any person that engages in or intends to engage in the delivery sale of the tobacco product in the city.
(Code 1965, § 4850; Code 2002, § 38-71. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.115 Tobacco product pricing and packaging.
(a) Packaging and labeling. No tobacco retailer shall sell any tobacco product to any consumer unless the tobacco product: (1) is sold in the manufacturer’s packaging intended for sale to consumers; and (2) conforms to all applicable state and federal labeling requirements.
(b) Indication of price. The price of each tobacco product sold or displayed shall be clearly and conspicuously indicated on the tobacco product or on any related shelving, posting, or advertising at the location where the item is sold or displayed.
(c) Tobacco samples or promotional items. It is unlawful for any person to sell free or nominally priced tobacco products or tobacco paraphernalia.
(d) Prohibition of tobacco coupons or 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 or tobacco paraphernalia for less than the full retail price;
(2) Sell any tobacco product or tobacco paraphernalia 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, tobacco paraphernalia, or any other item; or
(3) Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product or tobacco paraphernalia.
(e) Minimum package size and price requirements for cigars. No tobacco retailer shall sell:
(1) Any cigar unless it is sold in a package of at least 10 cigars.
(2) Cigars at a price that is less than $10.00 per package, including all applicable taxes and fees.
(3) This subsection shall not apply to the sale of a single cigar that has a price of at least $5.00, including all applicable taxes and fees.
(f) Minimum package size and price requirements for cigarettes. No tobacco retailer shall sell:
(1) Any cigarette unless it is sold in a package of at least 20 cigarettes.
(2) Cigarettes at a price that is less than $10.00 per package of 20 cigarettes, including all applicable taxes and fees.
(g) Adjustment of minimum price. The prices established in this section may be adjusted automatically by the Department in proportion with the Consumer Price Index, using a system established by the Department: 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. No. 23-3, § 6 (Exh. A))
5.100.120 Compliance monitoring.
(a) Compliance with this chapter shall be monitored by the Department and any other city department, company, or person designated by the Department to enforce or administer the provisions of this chapter. Any peace officer may enforce the penal provisions of this chapter.
(b) Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance check shall determine compliance with other laws applicable to tobacco retailing.
(Code 1965, § 4851; Code 2002, § 38-72. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.130 Revocation of license.
(a) Grounds for revocation. A tobacco retailer license may be revoked on any of the following grounds:
(1) One or more of the grounds for denial of a tobacco retailer license under Section 5.100.060 existed either when a license application was made or before the tobacco retailer license was issued;
(2) The tobacco retailer license fee is unpaid;
(3) The tobacco retailer license has been transferred in violation of Section 5.100.090; or
(4) The tobacco retailer has violated any section of this chapter, or any state or federal tobacco-related laws.
(b) Notice of revocation hearing. If any grounds for revocation exist, the Police Department may issue a notice of revocation hearing. A notice of revocation hearing will be served to a tobacco retailer and will include all of the following information:
(1) The address or a definite description of the location where the tobacco retailer license is issued;
(2) The grounds for revocation;
(3) The date of the revocation hearing before the City Manager. The notice of revocation hearing will set the hearing date no sooner than 20 days and no later than 45 days following the date the notice of revocation hearing is served.
(c) Revocation hearing. A tobacco retailer license may be revoked by the City Manager, after a tobacco retailer license revocation hearing. At the hearing, the licensee will be given the opportunity to testify and to present evidence concerning the grounds set forth in the notice of revocation hearing. After considering the testimony and evidence submitted at the hearing, the City Manager will issue a written decision to revoke or not revoke the license and will list in the decision the reason or reasons for that decision. The written decision will be served as specified in Section 5.100.190. The City Manager’s decision is final.
(d) Final order. The tobacco retailer license revocation becomes a final administrative order at one of the following times:
(1) On the date of the revocation hearing, if a tobacco retailer fails to appear at a scheduled revocation hearing;
(2) On the date of the decision by the City Manager, if a tobacco retailer appears at a scheduled appeal hearing before the City Manager.
(e) Revocation of license issued in error. A tobacco retailer license shall be revoked if the Department finds, after the license is afforded reasonable notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.100.060 existed at the time application was made or at any time before the license was issued. The Hearing Officer’s decision shall be final.
(f) Resubmittal prohibited within 12 months. For a period of 12 months following the revocation of a tobacco retailer license, no application for the same or substantially similar tobacco retailer or tobacco retailer license shall be submitted, unless the revocation was made without prejudice, and so stated in the record.
(Code 1965, § 4852; Code 2002, § 38-73. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.140 License suspension.
(a) Grounds for suspension. A tobacco retailer license may be suspended for any violation of this chapter, or any state or federal tobacco-related laws.
(b) Notice of suspension hearing. If any grounds for suspension exist, the Department may issue a notice of suspension hearing. The notice of suspension hearing will be served to a tobacco retailer as specified in Section 5.100.190 and will include all of the following information:
(1) The date of the violation;
(2) The address or other description of the location where the violation occurred;
(3) The code section(s) violated, or applicable state or federal law violated, and a description of the violation;
(4) The time period of the tobacco retailer license suspension;
(5) The date of the suspension hearing before the City Manager. The notice of suspension hearing will set the hearing date no sooner than twenty days and no later than 45 days following the date the notice of suspension hearing is served.
(c) Suspension hearing. A tobacco retailer license may be suspended by the City Manager, after a tobacco retailer license suspension hearing. At the hearing, the licensee will be given the opportunity to testify and to present evidence concerning the notice of suspension hearing. After considering the testimony and evidence submitted at the hearing, the City Manager will issue a written decision to suspend or not suspend the tobacco retailer license. The City Manager will list in the decision the reason or reasons for the decision and will list the time period of the tobacco retailer license suspension, if applicable. The written decision will be served as specified in Section 5.100.190. The City Manager’s decision is final.
(d) Time period of license suspension.
(1) A tobacco retailer license suspension may be up to 30 days for a first violation;
(2) A tobacco retailer license suspension may be up to 90 days for a second violation occurring within 24 months of the first violation;
(3) A tobacco retailer license suspension may be up to one year for each subsequent violation occurring within 24 months of the most recent prior determination.
(e) Final order. The tobacco retailer license suspension becomes a final administrative order at one of the following times:
(1) On the date of the suspension hearing, if a tobacco retailer fails to appear at a scheduled suspension hearing;
(2) On the date of the decision by the City Manager, if a tobacco retailer appears at a scheduled appeal hearing.
(f) During a period of license suspension, the tobacco retailer must remove from public view all tobacco products.
(Code 1965, § 4853; Code 2002, § 38-74. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.150 Tobacco retailing without a license or with a suspended license.
(a) In addition to any other penalty authorized by law, if the Department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for or be issued a tobacco retailing license for that location as follows:
(1) After a first violation of this chapter at a location within any 60-month period, no new license may issue for the person at the location until 30 days have passed from the date of the violation.
(2) After a second violation of this chapter at a location within any 60-month period, no new license may issue for the person at the location until 90 days have passed from the date of the violation.
(3) After a third or subsequent violation of this chapter at a location within any 60-month period, no new license may issue for the person at the location until five years have passed from the date of the violation.
(b) In addition to any other penalty authorized by law, if the Department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location with a suspended tobacco retailer license, either directly or through the person’s agents or employees, any suspension period shall be extended or, if the license is no longer suspended, a new suspension period shall be imposed as follows:
(1) After a first violation of this chapter at a location by tobacco retailing with a suspended license within any 60-month period, the license may be suspended for an additional 30 days.
(2) After a second violation of this chapter at a location by tobacco retailing with a suspended license within any 60-month period, the license may be suspended for an additional 90 days.
(3) After a third or subsequent violation of this chapter at a location by a tobacco retailing with a suspended license within any 60-month period, the license may be revoked and no new license may issue for the tobacco retailer at the location until five years have passed from the date of the violation.
(c) Tobacco products, tobacco paraphernalia, hookah, and hookah products sold or displayed in violation of this chapter are subject to seizure and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not sold or displayed in violation of this chapter. The decision may be appealed pursuant to the procedures set forth in Section 5.100.140(c). Forfeited tobacco products, tobacco paraphernalia, hookah, and hookah products shall be destroyed.
(d) Each day after the effective date of this chapter on which tobacco products or tobacco paraphernalia are sold or displayed in violation of this chapter shall constitute a violation of this chapter separate and apart from any other violation of this chapter.
(Code 1965, § 4854; Code 2002, § 38-75. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.160 Nuisance and enforcement.
(a) Any violation of this chapter is hereby declared to be a public nuisance pursuant to Chapter 8.25 (Neighborhood Preservation), Article I (Public Nuisances).
(b) Causing, permitting, aiding, or abetting a violation of any provision of this chapter shall also constitute a violation of this chapter. Any violation of this chapter by an agent or employee of a tobacco retailer or proprietor shall be imputed to the tobacco retailer or proprietor, as determined by the Department.
(c) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this chapter. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person’s effort to achieve compliance with this chapter.
(d) No person or employer shall discharge, refuse to hire, or in any manner retaliate against any person, employee, or applicant for employment because such person exercises any rights afforded by this chapter.
(e) Private right of enforcement. Any person, including a legal entity or organization acting for the interests of itself, its members, or the general public, may bring a civil action to enforce this chapter by way of a conditional judgment or an injunction to prevent future such violations and may sue to recover such actual or statutory damages as they may prove. In any such action, administrative proceeding, or special proceeding to abate a nuisance, the prevailing party may recover attorneys’ fees.
(f) City discretion. In addition to the civil, criminal, and administrative remedies available, the City Attorney or Chief of Police, in their sole discretion, may abate the violation including under the procedure set forth in Section 8.25.080, may issue citations and fines under Section 8.25.070, and may pursue any and all legal and equitable remedies for the recovery of fines, costs, and/or associated charges owed to the city as set forth in Chapter 8.25 (Neighborhood Preservation), Article I (Public Nuisances). Pursuit of one remedy does not preclude the pursuit of any other remedies until the total fines and abatement charges have been recovered.
(g) Nothing in this chapter shall create a right of action in any person against the city or its agents to compel city or other public entity enforcement of this chapter against private parties. Neither the city, any member of the city, or any other officer, official, employee, or agent of the city shall be liable for any person’s breach of this chapter, any other breach of this chapter, or the city’s failure to enforce all or any portion of this chapter.
(Code 1965, § 4855; Code 2002, § 38-76. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.170 Enforcement of state law regarding sales to minors.
If a clerk or employee sells a tobacco product to a minor, the tobacco retailer shall immediately notify the appropriate local law enforcement agency of the violation of Penal Code Section 308 for enforcement under that statute.
(Code 1965, § 4856; Code 2002, § 38-77. Ord. No. 01-5; Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.180 Intent as to additional legal restrictions and remedies.
Nothing in this chapter is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards, tobacco advertising or any other matter covered by this chapter. The remedies set forth in this chapter are not exclusive. If any action prohibited by this chapter is also unlawful under any other law, the penalties and remedies under such other laws may be pursued in addition to those provided in this chapter.
(Code 2002, § 38-78. Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.190 Service.
All notices or decisions required to be served by this chapter will be served either by the method specified in subsection (a) of this section or by the method specified in subsection (b) of this section. The failure of a person to receive a properly addressed service shall not affect the validity of the proceedings.
(a) Certified mail. Certified mail will be addressed to the tobacco retailer at the address shown on the license application. Service is deemed complete upon the deposit of the notice or decision, postage prepaid, in the United States mail. Simultaneously, the same notice or decision may be sent by regular mail. If a notice or decision sent by certified mail is returned unsigned, then service is deemed effective pursuant to regular mail on the date mailed.
(b) Personal service. Personal service is deemed complete on the date the notice or decision is personally served.
(Code 2002, § 38-79. Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))
5.100.200 Severability – Preemption.
If any provision of this chapter or its application to any person or circumstance is declared invalid or unenforceable by a court of competent jurisdiction, this chapter, to the extent it can be given effect, or the application of this chapter to persons other than the person to whom it is held invalid, shall not be affected thereby, and to this end, the provisions of this chapter are severable. If any provision of this chapter or its application to any person or circumstance is declared invalid or unenforceable by a court of competent jurisdiction, this chapter, to the extent it can be given effect, or the application of this chapter to persons other than the person to whom it is held invalid, shall not be affected thereby, and to this end, the provisions of this chapter are severable. If there is any ambiguity in terms of whether the provisions of this chapter or state or federal law apply, the more stringent shall control. If any provision of this chapter is preempted by state or federal law, the applicable state or federal law provisions shall apply, and for such purposes are incorporated herein by this reference.
(Code 2002, § 38-80. Ord. No. 06-10; Ord. No. 23-3, § 6 (Exh. A))