Chapter 5.100
TOBACCO RETAILERS LICENSE PROGRAM
Sections:
5.100.020 Self-service displays prohibited.
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.
5.100.120 Compliance monitoring.
5.100.130 Revocation of license.
5.100.150 Tobacco retailing without a license or with a suspended license.
5.100.170 Enforcement of state law regarding sales to minors.
5.100.180 Intent as to additional legal restrictions and remedies.
5.100.010 Definitions.
As used under this article, the following terms shall have the following meanings unless otherwise indicated from the context:
Area which minors Frequent shall mean 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 Pavilion located at 2000 Kirker Pass Road.
City Manager means the Concord City Manager, or his or her designee.
Person means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or other legal entity.
Self-service display means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A vending machine is a form of self-service display.
Tobacco paraphernalia means 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 means (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but 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 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 paraphernalia, or who distributes free or low cost samples of tobacco products or tobacco paraphernalia.
Tobacco retailing shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
(Code 1965, § 4840; Code 2002, § 38-61. Ord. No. 01-5; Ord. No. 06-10)
5.100.020 Self-service displays prohibited.
It shall be unlawful for any person within the city to 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)
5.100.030 Vendor assistance.
All tobacco products shall be offered for sale exclusively by means of vendor assistance. Tobacco products 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.
(Code 1965, § 4842; Code 2002, § 38-63. Ord. No. 01-5; Ord. No. 06-10)
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’s license pursuant to this article for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer’s 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 public 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).
(c) Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer’s 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 article 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)
5.100.050 Limits on tobacco retailer licenses.
(a) No license may issue to authorize tobacco retailing at other than a fixed location.
(Code 1965, § 4844; Code 2002, § 38-65. Ord. No. 01-5; Ord. No. 06-10)
5.100.060 Application procedure.
(a) Applications 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.
(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’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 article, 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 of this article. Nothing in this article 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.
(c) 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 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 article. 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 subparagraph (2) above.
(4) Proof that the location for which a tobacco retailer’s license is sought has been issued a valid state tobacco retailer’s license by the California Board of Equalization.
(5) Whether or not any proprietor has admitted violating, or has been found to have violated, this article or whose proprietorship has admitted violating, or has been found to have violated, this article, 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 article.
(7) All information required to be submitted in order to apply for a tobacco retailer’s license shall be updated with the department whenever the information changes. A tobacco retailer shall provide the department with any updates within ten (10) business days of a change.
(Code 1965, § 4845; Code 2002, § 38-66. Ord. No. 01-5; Ord. No. 06-10)
5.100.070 Issuance of license.
Upon the receipt of an application for a tobacco retailer’s license and the license fee required by this article, 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 article.
(b) The application seeks authorization for tobacco retailing for a proprietor to whom this article prohibits a license to be issued.
(c) The application seeks authorization for tobacco retailing that is prohibited pursuant to this article, 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)
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 his or her tobacco retailer’s license and submit the license fee no later than thirty (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 reinstate a license that has expired, or to renew a license not timely renewed pursuant to subparagraph (a), the proprietor must follow the application procedures set forth in Concord Municipal Code Section 5.100.060.
(Code 1965, § 4847; Code 2002, § 38-68. Ord. No. 01-5; Ord. No. 06-10)
5.100.090 Licenses 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 article, 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)
5.100.100 Fees for license.
The fee to issue or to renew a tobacco retailer’s 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 article. 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)
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 article 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.
(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 twenty-seven (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 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.
(Code 1965, § 4850; Code 2002, § 38-71. Ord. No. 01-5; Ord. No. 06-10)
5.100.120 Compliance monitoring.
(a) Compliance with this article shall be monitored by the Concord Police Department and any other designee of the City Manager. Any peace officer may enforce the penal provisions of this article.
(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)
5.100.130 Revocation of license.
(a) Grounds for Revocation. A tobacco retailer’s license may be revoked on any of the following grounds:
(1) One or more of the grounds for denial of a tobacco retailer’s license under Section 5.100.060 existed either when a license application was made or before the tobacco retailer’s license was issued;
(2) The tobacco retailer’s license fee is unpaid;
(3) The tobacco retailer’s license has been transferred in violation of Section 5.100.090; or
(4) The tobacco retailer has violated any section of this article, 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’s 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 twenty days and no later than forty-five days following the date the notice of revocation hearing is served.
(c) Revocation hearing. A tobacco retailer’s license may be revoked by the City Manager, after a tobacco retailer’s 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. A revocation is without prejudice to the filing of a new application for a tobacco retailer’s license. The City Manager’s decision is final.
(d) Final order. The tobacco retailer’s 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’s license shall be revoked if the Concord Police 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 issued. The hearing officer’s decision shall be final.
(Code 1965, § 4852; Code 2002, § 38-73. Ord. No. 01-5; Ord. No. 06-10)
5.100.140 License suspension.
(a) Grounds for suspension. A tobacco retailer’s license may be suspended for any violation of this Article of this code, or any state or federal tobacco-related laws.
(b) Notice of suspension hearing. If any grounds for suspension exist, the Concord Police 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’s 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 forty-five days following the date the notice of suspension hearing is served.
(c) Suspension hearing. A tobacco retailer’s license may be suspended by the City Manager, after a tobacco retailer’s 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’s 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’s 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’s license suspension may be up to thirty days for a first violation;
(2) A tobacco retailer’s license suspension may be up to ninety days for a second violation occurring within twenty-four months of the first violation;
(3) A tobacco retailer’s license suspension may be up to one year for each subsequent violation occurring within twenty-four months of the most recent prior determination.
(e) Final order. The tobacco retailer’s 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)
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 Concord Police 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’s 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 article at a location within any sixty (60) month period, no new license may issue for the person at the location until thirty (30) days have passed from the date of the violation.
(2) After a second violation of this article at a location within any sixty (60) month period, no new license may issue for the person at the location until ninety (90) days have passed from the date of the violation.
(3) After a third or subsequent violation of this article at a location within any sixty (60) month period, no new license may issue for the person at the location until five (5) years have passed from the date of the violation.
(b) In addition to any other penalty authorized by law, if the Concord Police 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’s 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 article at a location by tobacco retailing with a suspended license within any sixty (60) month period, the license may be suspended for an additional thirty (30) days.
(2) After a second violation of this article at a location by tobacco retailing with a suspended license within any sixty (60) month period, the license may be suspended for an additional ninety (90) days.
(3) After a third or subsequent violation of this article at a location by a tobacco retailing with a suspended license within any sixty (60) month period, the license may be revoked and no new license may issue for the tobacco retailer at the location until five (5) years have passed from the date of the violation.
(c) Tobacco products and tobacco paraphernalia offered for sale or exchanged in violation of this article 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 offered for sale or exchange in violation of this article. The decision may be appealed pursuant to the procedures set forth in Section 5.100.140(c). Forfeited tobacco products and tobacco paraphernalia shall be destroyed.
(d) Each day after the effective date of this article on which tobacco products or tobacco paraphernalia are offered for sale in violation of this article shall constitute a violation of this article separate and apart from any other violation of this article.
(Code 1965, § 4854; Code 2002, § 38-75. Ord. No. 01-5; Ord. No. 06-10)
5.100.160 Enforcement.
(a) The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity.
(b) Violations of this article are subject to a civil action brought by the City Attorney.
(c) Violations of this article may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.
(d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this article shall also constitute a violation of this article.
(e) Violations of this article are hereby declared to be public nuisances.
(f) In addition to other remedies provided by this article or by other law, any violations of this article may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
(Code 1965, § 4855; Code 2002, § 38-76. Ord. No. 01-5; Ord. No. 06-10)
5.100.170 Enforcement of state law regarding sales to minors.
If a clerk or employee sells a tobacco product to a minor, the retailer shall immediately notify the appropriate local law enforcement agency of the violation of Penal Code § 308 for enforcement under that statute.
(Code 1965, § 4856; Code 2002, § 38-77. Ord. No. 01-5; Ord. No. 06-10)
5.100.180 Intent as to additional legal restrictions and remedies.
Nothing in this article 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 article. The remedies set forth in this article are not exclusive. If any action prohibited by this article 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 article.
(Code 2002, § 38-78. Ord. No. 06-10)
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) or by the method specified in subsection (b). 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 pre-paid, 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)
5.100.200 Severability.
If any provision of this article or its application to any person or circumstance is declared invalid or unenforceable by a court of competent jurisdiction, this article, to the extent it can be given effect, or the application of this article 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 article are severable. If any provision of this article or its application to any person or circumstance is declared invalid or unenforceable by a court of competent jurisdiction, this article, to the extent it can be given effect, or the application of this article 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 article are severable.
(Code 2002, § 38-80. Ord. No. 06-10)