Chapter 6.17
LICENSURE OF TOBACCO RETAILERS

Sections:

6.17.010    Definitions.

6.17.020    Requirement for tobacco retailer license.

6.17.030    Application procedure.

6.17.040    Issuance of license.

6.17.050    Other requirements and prohibitions.

6.17.060    Fees for license.

6.17.070    Licenses nontransferable.

6.17.080    License violation and compliance monitoring.

6.17.090    Suspension or revocation of license.

6.17.100    Administrative fine.

6.17.110    Enforcement.

6.17.120    Severability.

6.17.010 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. “Department” means the community development department.

B. “Electronic cigarette” means an electronic cigarette as defined in California Health and Safety Code Section 119405 or similar device intended to emulate smoking that permits a person to inhale vapors or mists that may or may not include nicotine.

C. “Person” shall have the definition set forth in SBMC 1.04.010.

D. “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 can or does share, ultimate control over the day-to-day operations of a business.

E. “Tobacco product” means: (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, dipping tobacco, bidis, hookahs, 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 federal Food and Drug Administration for use in treating nicotine or tobacco product dependence.

F. “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.

G. “Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, tobacco paraphernalia, or electronic cigarettes. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, tobacco paraphernalia, or e-cigarettes sold, offered for sale, exchanged, or offered for exchange. (Ord. 450 § 6, 2014; Ord. 403 § 11, 2009)

6.17.020 Requirement for tobacco retailer license.

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 chapter for each location at which that activity is to occur.

B. No license may issue to authorize tobacco retailing at any location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited.

C. No license may issue to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g., an “on-sale” license issued by the California Department of Alcoholic Beverage Control) and no license may issue to authorize tobacco retailing at any location offering food for sale for consumption by guests on the premises. For example, tobacco retailing in bars and restaurants is prohibited.

D. The license fee established pursuant to SBMC 6.17.060 confers paid status upon a license for a term of one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license no later than 30 days prior to expiration of the payment term.

E. 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 license. 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. (Ord. 403 § 11, 2009)

6.17.030 Application procedure.

A. Application for 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 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 SBMC 6.17.090(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.

2. The business name, address, and telephone number of the single fixed location for which a tobacco retailer’s license is sought.

3. 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 (A)(2) of this section.

4. 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.

5. Such other information as the department deems necessary for the administration or enforcement of the ordinance codified in this chapter. (Ord. 403 § 11, 2009)

6.17.040 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; or

B. The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect pursuant to SBMC 6.17.090; or

C. The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect pursuant to SBMC 6.17.090; or at a location which has had a license revoked pursuant to SBMC 6.17.090(A)(4); provided, however, this subsection shall not constitute a basis for denial of a license if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the premises or business in an arm’s length transaction. For the purposes of this subsection, an “arm’s length transaction” is defined as a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter that occurred at the location, is presumed not to be an “arm’s length transaction”;

D. The application seeks authorization for tobacco retailing that is prohibited pursuant to SBMC 6.17.020 (e.g., mobile vending), or that is unlawful pursuant to any other local, state, or federal law. (Ord. 403 § 11, 2009)

6.17.050 Other requirements and prohibitions.

A. Display of License. Each license shall be prominently displayed in a publicly visible location at the licensed premises.

B. Positive Identification Required. No person shall engage in tobacco retailing without first examining the identification of the purchaser, if the purchaser reasonably appears under the age of 27 years old, and confirming that the proposed sale is to a purchaser who is at least the minimum age in state law for being sold the tobacco product or tobacco paraphernalia.

C. Minimum Age for Persons Selling Tobacco. No person shall engage in tobacco retailing if the person is younger than the minimum age in state law for being sold or for possessing any tobacco product. (Ord. 403 § 11, 2009)

6.17.060 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 the total cost of both license administration and license enforcement, including, for example, 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 total program. All fees shall be used to fund the program. Fees are nonrefundable except as may be required by law. (Ord. 403 § 11, 2009)

6.17.070 Licenses nontransferable.

A tobacco retailer’s license is nontransferable. If the information required in the license application pursuant to SBMC 6.17.030(A)(1), (2), or (3) 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. 403 § 11, 2009)

6.17.080 License violation and compliance monitoring.

A. Violation of Tobacco-Related Laws. It shall be 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.

1. Compliance with this chapter shall be monitored by the department. Any peace officer or code enforcement official also may enforce this chapter.

2. The department shall check the compliance of each tobacco retailer at least one time per 12-month period and shall conduct additional compliance checks within that period as warranted. The compliance checks shall be conducted to determine, at a minimum, if the tobacco retailer is complying with tobacco laws regulating underage sales. The department, or the police department, in assisting the department in performing compliance checks, shall use youth decoys and comply with protocols for the compliance checks developed in consultation with the San Diego County department of health and human services and the San Diego County district attorney. When appropriate, the compliance checks shall determine compliance with other tobacco-related laws.

3. The city shall not enforce any tobacco-related minimum-age law against a person who otherwise might be in violation of such law because of the person’s age (hereinafter “youth decoy”) if the potential violation occurs when:

a. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official; or

b. The youth decoy is participating in a compliance check funded in part by the San Diego County department of health and human services or funded in part, either directly or indirectly through subcontracting, by the California Department of Health Services. (Ord. 403 § 11, 2009)

6.17.090 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 or prohibitions of this chapter including the conditions of the license imposed pursuant to SBMC 6.17.080.

1. Upon a finding by the department of a first license violation within any 60-month period, the license shall be suspended for 30 days unless, at the election of the tobacco retailer, the tobacco retailer pays an administrative fine in accordance with SBMC 6.17.110(C). The payment of a fine 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 60-month period, the license shall be suspended for 90 days and (if the violation occurs within 12 months of the first violation) the tobacco retailer shall be fined an administrative fine for a second violation in accordance with SBMC 6.17.110(C).

3. Upon a finding by the department of a third license violation within any 60-month period, the license shall be suspended for one year and (if the violation occurs within 12 months of the first violation) the tobacco retailer shall be fined an administrative fine for a third violation in accordance with SBMC 6.17.110(C).

4. Upon a finding by the department of a fourth license violation within any 60-month period, the license shall be revoked, if the violation occurs within 12 months of the first violation the tobacco retailer shall be fined an administrative fine for a fourth violation in accordance with SBMC 6.17.110(C), 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.

5. A tobacco retailer with a suspended or revoked license:

a. Shall remove all tobacco products and tobacco paraphernalia from public view; and

b. Shall not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products at the tobacco retailer location or that would lead a reasonable consumer to believe that such products can be obtained at the tobacco retailer location, including any use of the terms, “tobacco,” or “smoke shop,” or similar references in the name of the business operated by the tobacco retailer;

c. Except that for a first or second suspension within any 60-month period, instead of complying with subsections (A)(5)(a) and (A)(5)(b) of this section, the tobacco retailer may elect to post a clear and legible sign at each point of sale and at every public entrance stating in 72 point type or larger: “TOBACCO PRODUCTS NOT FOR SALE because this store has violated a public health law regulating tobacco” and such signs must be present and remain free of obstructions for the entire duration of the suspension period.

B. Suspension of License for Failure to Pay Renewal Fee. A tobacco retailer’s license that is not timely renewed pursuant to SBMC 6.17.020(D) shall automatically be suspended by operation of law. If not renewed, a license shall be automatically revoked two years after the renewal date. To reinstate the paid status of a license that has been suspended due to the failure to timely pay the renewal fee, the proprietor must:

1. Submit the renewal fee plus a reinstatement fee of 10 percent of the renewal fee; and

2. Submit a signed affidavit affirming that the proprietor has not sold any tobacco product or tobacco paraphernalia during the period the license was suspended for failure to pay the renewal fee.

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 SBMC 6.17.040 existed at the time application was made or at any time 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 may be appealed by a proprietor or a tobacco retailer by means of an administrative hearing before an independent fact finder, including, but not limited to, an administrative law judge from the state Office of Administrative Hearings. Any appeal must be filed with the city clerk within 10 calendar days of mailing of the department’s decision and be accompanied by the full amount of any applicable fine as provided in SBMC 1.18.070. 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.

E. An administrative hearing to appeal a decision of the department to revoke or suspend a license held pursuant to SBMC 6.17.100(B) is civil in nature and therefore the burden of proof required is a preponderance of the evidence.

F. The rules of evidence in an administrative hearing to appeal a decision of the department to revoke or suspend a license held pursuant to SBMC 6.17.100(B) shall be in accordance with California Government Code Sections 11513 and 11514 as those sections are amended from time to time. (Ord. 403 § 11, 2009)

6.17.100 Administrative fine.

A. Grounds for Fine. In addition to any other remedies available at law or in equity, 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 SBMC 6.17.020, the department shall impose an administrative fine on that person pursuant to SBMC 6.17.110(C).

B. Appeal to Superior Court of Limited Jurisdiction. Notwithstanding the provisions of Section 1094.5 or Section 1094.6 of the Code of Civil Procedure, and in accordance with SBMC 1.18.120, within 20 days after mailing or personal service of the hearing officer’s decision and findings, 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.

C. 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 SBMC 1.18.110. (Ord. 403 § 11, 2009)

6.17.110 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 chapter shall constitute a violation.

B. Violations of this chapter shall constitute an infraction except that, notwithstanding any provision of this section, any violation may, in the discretion of the city attorney, be charged and prosecuted as a misdemeanor in accordance with SBMC 1.16.010.

C. Any person violating this chapter is subject to a civil action brought by the city attorney, punishable by a fine of $1,000 for each violation. Any continuing violation shall constitute a separate offense for each day of the violation.

D. Violations of this chapter are hereby declared to be public nuisances.

E. Violations of this chapter are hereby 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.

F. 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.

G. 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. 403 § 11, 2009)

6.17.120 Severability.

The provisions of this chapter are declared to be severable and if any provision, sentence, clause, section or part of this chapter is held illegal, invalid, unconstitutional or inapplicable to any person or circumstances, such illegality, invalidity or unconstitutionality or inapplicability shall not affect or impair any of the remaining provisions, sentences, clauses, sections or parts of this chapter or their application to persons and circumstances. (Ord. 403 § 11, 2009)