Chapter 5.06
LICENSURE OF TOBACCO RETAILERS
Sections:
5.06.020 Requirement for tobacco retailer license.
5.06.030 Application procedure.
5.06.070 Licenses nontransferable.
5.06.090 Suspension or revocation of license.
5.06.010 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:
“Department” means the community and economic development department of the city of San Pablo as to the issuance of tobacco retailer license and that department or other enforcing department pursuant to Section 5.06.080.
“Electronic smoking device” means an electronic device which can be used to deliver an inhaled dose of flavored tobacco, nicotine or other substance, including any component, part or accessory of such a device, whether or not sold separately. “Electronic smoking device” includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.
“Flavored tobacco product” means any tobacco product that imparts 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 (“characterizing flavor”). 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:
1. Made a public statement or claim that the tobacco product imparts a characterizing flavor;
2. 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
3. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
“Person” means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
“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 ten 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 can or does share, ultimate control over the day-to-day operations of a business.
“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 or ingestion of tobacco products.
“Tobacco product” means any substance 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, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, flavored tobacco or any other preparation of tobacco.
“Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, flavored tobacco products, including menthol tobacco, tobacco paraphernalia or electronic smoking device. “Tobacco retailing” means 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. Tobacco retailer includes any of the tobacco retailer’s agents or employees. (Ord. 18-006 §§ 2, 3, 2018; Ord. 04-007 § 2 (part), 2004)
5.06.020 Requirement for tobacco retailer license.
A. It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this chapter, as well as a use permit pursuant to the provisions of Section 17.62.180 of this code, for each location at which that activity is to occur. No license may be issued to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles is prohibited.
B. The tobacco retailer’s license shall be paid at the same time as a business license is obtained or renewed pursuant to Chapter 5.04 of this code. The payment of the license fee designated in Section 5.06.060 confers paid status upon a license for the same term as the business license is valid. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license no later than thirty days prior to expiration of the business license.
C. 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 right to act as a tobacco retailer at the location in the city identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code Section 6404.5.
D. Sale of Flavored Tobacco Products Prohibited. No tobacco retailer shall sell any flavored tobacco product.
E. Minimum Pack Size. The following shall be the minimum pack size for the sale of cigars, cigarillos, and little cigars:
1. Cigars—a minimum pack of six;
2. Cigarillos—a minimum pack of twenty-five; and
3. Little cigars—a minimum pack of twenty.
F. Minimum cost per cigar: ten dollars. (Ord. 18-006 § 4, 2018; Ord. 10-003 § 1, 2010; Ord. 04-007 § 2 (part), 2004)
5.06.030 Application procedure.
Application for a tobacco retailer’s license shall be submitted, at the same time as an initial or renewed business license application, 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 of the laws affecting the issuance of a tobacco retailer’s license. A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section 5.06.090(C) of this chapter. All applications shall be submitted on a form supplied by the department and shall contain the following information:
A. The name, address and telephone number of each proprietor;
B. The business name, address, and telephone number of the single fixed location for which a tobacco retailer’s license is sought;
C. The name and mailing address authorized by each proprietor to receive all license-related communications and notices (the “authorized address”). 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 B of this section;
D. Whether or not any proprietor has previously been issued a license pursuant to this chapter that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation;
E. Such other information as the department deems necessary for the administration or enforcement of this chapter. (Ord. 04-007 § 2 (part), 2004)
5.06.040 Issuance of license.
Upon the receipt of an application for a tobacco retailer’s license and the license fee, the department shall issue a license unless substantial record evidence demonstrates one of the following bases for denial:
A. The application is incomplete or inaccurate;
B. The application seeks authorization for tobacco retailing by a proprietor for which a suspension is in effect pursuant to Section 5.06.080 of this chapter; or by a proprietor which has had a license revoked pursuant to Section 5.06.090(A)(4) of this chapter; or
C. The application seeks authorization for tobacco retailing that is prohibited pursuant to Section 5.06.020 of this chapter (e.g., mobile vending), that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state or federal law. (Ord. 04-007 § 2 (part), 2004)
5.06.050 Display of license.
Each license shall be prominently displayed in a publicly visible location at the licensed premises. (Ord. 04-007 § 2 (part), 2004)
5.06.060 Fees for license.
The fee to issue or to renew a tobacco retailer’s license shall be established by resolution of the city council. The fee shall be calculated so as to recover no more than the total cost of license administration and enforcement, including, for example, but not limited to, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators. Fees are nonrefundable except as may be required by law. (Ord. 04-007 § 2 (part), 2004)
5.06.070 Licenses nontransferable.
A tobacco retailer’s license is nontransferable. If the information required in the license application pursuant to Section 5.06.030, subsections A, B or C, changes, a new tobacco retailer’s license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. Or if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer. (Ord. 04-007 § 2 (part), 2004)
5.06.080 License violation.
A. Violation of Tobacco-Related Laws. It is a violation of a tobacco retailer’s license for a licensee or his or her agent or employee to violate any local, state, or federal tobacco-related law.
B. License Compliance Monitoring. Compliance with this chapter shall be monitored by the code enforcement division. Any peace officer may also enforce this chapter. (Ord. 04-007 § 2 (part), 2004)
5.06.090 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 the department finds, after notice to the licensee and opportunity to be heard, that the licensee or his or her agents or employees has or have violated the requirements of this chapter or other conditions of the license imposed pursuant to Section 5.06.080 of this chapter. The department director shall appoint a hearing officer to conduct hearings under this section. Notice shall be provided and the hearing conducted in substantially the form and manner set forth in Sections 8.02.070 through 8.02.140 of this code.
1. Upon a finding by the department of a first license violation within any sixty-month period, the license shall be suspended for up to thirty days, depending on the willfulness of the violations and the need to deter further violations. At the election of the tobacco retailer, the tobacco retailer may pay a penalty of one thousand dollars in lieu of such suspension. The payment of a penalty in lieu of suspension does not expunge the violation and the violation will be counted for the purposes of a future finding that a second or subsequent violation has occurred.
2. Upon a finding by the department of a second license violation within any sixty-month period, the license shall be suspended for ninety days, depending on the willfulness of the violations and the need to deter further violations.
3. Upon a finding by the department of a third license violation within any sixty-month period, the license shall be suspended for one year, depending on the willfulness of the violations and the need to deter further violations.
4. Upon a finding by the department of a fourth license violation within any sixty-month period, the license shall be revoked and the proprietor or proprietors who had been issued the license shall never again be issued a tobacco retailer’s license pursuant to this chapter.
B. Suspension of License for Failure to Pay Renewal Fee. A tobacco retailer’s license that is not timely renewed pursuant to Section 5.06.020(B) shall automatically be suspended by operation of law. If not renewed, a license shall be automatically revoked two years after the renewal date.
C. Revocation of License Issued in Error. A tobacco retailer’s license shall be revoked if the department finds, after notice and opportunity to be heard, that one or more of the bases for denial of a license under Section 5.06.040 existed at the time application was made or at anytime before the license issued. The revocation shall be without prejudice to the filing of a new application for a license.
D. Appeal of Suspension or Revocation. A decision of the department to revoke or suspend a license is appealable to the city manager and must be filed with the city manager within ten days of mailing of the department’s decision. An appeal shall stay all proceedings in furtherance of the appealed action. A suspension or revocation pursuant to subsection B of this section is not subject to appeal. Except as set forth in this chapter, and insofar as applicable, the provisions of Sections 8.02.130 and 8.02.140 shall govern such appeals. (Ord. 04-007 § 2 (part), 2004)
5.06.100 Administrative fine.
A. Grounds for Fine. If the department finds, based on substantial evidence, that any unlicensed person, including a person named on a revoked or suspended license, has engaged in tobacco retailing in violation of Section 5.06.020 of this chapter, the department may fine that person as follows:
1. A fine not exceeding one hundred dollars for a first violation in any twelve-month period;
2. A fine not exceeding two hundred dollars for a second violation in any twelve-month period; or
3. A fine not exceeding five hundred dollars for a third or subsequent violation in any twelve-month period.
Each day that such a person engages in tobacco retailing shall constitute a separate violation.
B. Notice of Violation. A notice of violation and of intent to impose a fine shall be personally served on, or sent by certified mail to, the person or persons subject to the fine. The notice shall state the basis of the department’s determinations and include an advisement of the right to request a hearing to contest the fine. Any request for a hearing must be in writing and must be received by the department within ten calendar days of personal service of the notice on the person or persons subject to a fine or within fifteen calendar days if the person or persons subject to a fine are served by mail.
C. Imposition of Fine. If no request for a hearing is timely received, the department’s determination on the violation and the imposition of a fine shall be final and payment shall be made within thirty calendar days of written demand made in the manner specified in this section for a notice of violation. If the fine is not paid within that time, the fine may be collected, along with interest at the legal rate, in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the person or persons subject to the fine shall also be liable for the costs of the suit and attorney’s fees incurred by the city in collecting the fine.
D. Notice of Hearing. If a hearing is requested pursuant to subsection B of this section, the department shall provide written notice, within forty-five calendar days of its receipt of the hearing request, to the person or persons subject to a fine of the date, time, and place of the hearing in the manner specified in subsection B for a notice of violation.
E. Hearing Decision. The hearing officer shall render a written decision and findings within twenty working days of the hearing. Copies of the decision and findings shall be provided to the person or persons subject to a fine in the manner specified in this section for a notice of violation.
F. Finality of the Hearing Officer’s Decision. The decision of the hearing officer shall be final.
G. Appeal to Superior Court of Limited Jurisdiction. Notwithstanding the provisions of Section 1094.5 or Section 1094.6 of the Code of Civil Procedure, within twenty days after personal service of the hearing officer’s decision and findings, or within twenty-five days if served by mail, any person subject to a fine may seek review of the hearing officer’s decision and findings by the superior court of limited jurisdiction. A copy of the notice of appeal to the superior court shall be timely served in person or by first-class mail upon the department by the contestant. The appeal shall be heard de novo, except that the contents of the department’s file in the case shall be received in evidence. A copy of the records of the department of the notices of the violation and of the hearing officer’s decision and findings shall be admitted into evidence as prima facie evidence of the facts stated therein.
H. Failure to Pay Fine. If no timely notice of appeal to the superior court is filed, or the department is not timely served with a copy of a notice of appeal, the hearing officer’s decision and findings shall be deemed confirmed and the fine shall be collected pursuant to subsection C of this section. (Ord. 04-007 § 2 (part), 2004)
5.06.110 Enforcement.
The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
A. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this ordinance shall constitute a violation.
B. In addition to the administrative enforcement procedures provided by Section 5.06.090 of this chapter, violations of this chapter may, in the discretion of the city attorney, be prosecuted as infractions.
C. Violations of this chapter are declared to be public nuisances.
D. Violations of this chapter are declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates.
E. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
F. Any person acting for the interests of itself, its members, or the general public may bring an action for injunctive relief to prevent future such violations or to recover such actual damages as he or she may prove. (Ord. 04-007 § 2 (part), 2004)