HomeMy Public PortalAboutOrdinance 12-965CITY OF TEMPLE CITY
ORDINANCE NO. 12 -965
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY
ADDING ARTICLE D ( "TOBACCO RETAILER PERMIT ORDINANCE ") OF CHAPTER 2
( "BUSINESS PERMITS ") OF TITLE 5 ( "BUSINESS LICENSE AND REGULATIONS ") OF THE
TEMPLE CITY MUNICIPAL CODE.
WHEREAS, Section VII of Article XI of the California Constitution provides that a City
may make and enforce within its limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws; and,
WHEREAS, the California Legislature has recognized the danger of tobacco use and has
made reducing youth access to tobacco product a high priority, as evidenced by the facts that:
• The Legislature has declared that smoking is the single most important source of
preventable disease and premature death in California (Cal. Health & Safety Code
§118950);
• State law prohibits the sale or furnishing of cigarettes, tobacco products, and
smoking paraphernalia to minors, as well as the purchase, receipt, or possession of
tobacco products by minors (Cal. Pen. Code §308);
• State law requires that tobacco retailers check the identification of tobacco
purchasers who reasonably appear to be under 18 years of age (Cal. Bus. & Prof.
Code §22952) and provides procedures for the State Department of Public Health to
use minors to conduct onsite compliance checks of tobacco retailers (Cal. Bus. &
Prof. Code §22952);
• State law prohibits the sale of tobacco products and paraphernalia through self
service displays with limited exceptions for tobacco stores (Cal. Bus. & Prof. Code
§ §22960 and 22962);
• State law prohibits the sale of "bidis" (hand - rolled filter -less cigarettes imported
primarily from India and Southeast Asian countries) except in adult -only
establishments (Cal. Pen. Code §308.1); and,
• State law prohibits the manufacture, distribution, or sale of cigarettes in packages
less than 20 and prohibits the manufacture, distribution, or sale of "roll- your -own"
tobacco in packages containing less than 0.60 ounces of tobacco (Cal. Pen. Code
§308.2); and,
WHEREAS, State law requires all tobacco retailers to be licensed by the Board of
Equalization primarily to curb the illegal sale and distribution of cigarettes due to tax evasion and
counterfeiting (Cal. Bus. & Prof. Code § §22970.1 and 22972); and,
WHEREAS, despite the State's efforts to limit youth access to tobacco, minors are still
able to access cigarettes, as evidenced by the following determinations made by the United
States Department of Health and Human Services and /or the American Lung Association:
• Every day, nearly 4,000 children under 18 years of age smoke their first cigarette, and
almost 1,000 children under 18 years of age begin regular daily smoking;
• In 2007, 20% of high school students reported smoking within the previous 30 days
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a s k e d t o s h o w p r o o f o f a g e w h e n t h e y p u r c h a s e d o r a t t e m p t e d t o p u r c h a s e c i g a r e t t e s
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r e v o c a t i o n o f t h e l o c a l l i c e n s e f o r a n y v i o l a t i o n o f a s t a t e t o b a c c o c o n t r o l l a w ( C a l . B u s . & P r o f .
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C a l . 3 d 2 7 7 , a n d B r a v o V e n d i n g v . C i t y o f R a n c h o M i r a g e ( 1 9 9 3 ) 1 6 C a l . A p p . 4 t h 3 8 3 , h a v e
a f f i r m e d t h e p o w e r o f t h e l o c a l g o v e r n m e n t s t o r e g u l a t e b u s i n e s s a c t i v i t y i n o r d e r t o d i s c o u r a g e
v i o l a t i o n s o f l a w ; a n d ,
W H E R E A S , a p p r o x i m a t e l y s e v e n t y - e i g h t ( 7 8 ) c i t i e s a n d c o u n t i e s i n C a l i f o r n i a h a v e
p a s s e d t o b a c c o r e t a i l e r l i c e n s i n g o r d i n a n c e s i n a n e f f o r t t o s t o p m i n o r s f r o m s m o k i n g ; a n d ,
W H E R E A S , r e s e a r c h d e m o n s t r a t e s t h a t l o c a l t o b a c c o r e t a i l o r d i n a n c e s d r a m a t i c a l l y
r e d u c e y o u t h a c c e s s t o c i g a r e t t e s , a s e v i d e n c e d b y a r e v i e w o f t h i r t e e n C a l i f o r n i a c o m m u n i t i e s
w i t h s t r o n g t o b a c c o r e t a i l e r l i c e n s i n g o r d i n a n c e s i n 2 0 0 7 t h a t s h o w e d t h a t t h e y o u t h s a l e s r a t e
d e c l i n e d i n t w e l v e o f t h e t h i r t e e n c o m m u n i t i e s , w i t h a n a v e r a g e d e c r e a s e o f 6 8 % i n t h e y o u t h
s a l e s r a t e ; a n d ,
W H E R E A S , C a l i f o r n i a r e t a i l e r s c o n t i n u e t o s e l l t o b a c c o t o u n d e r a g e c o n s u m e r s , a s
e v i d e n c e d b y t h e f o l l o w i n g d e t e r m i n a t i o n s o f t h e U n i t e d S t a t e s D e p a r t m e n t o f H e a l t h a n d H u m a n
S e r v i c e s :
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2 0 0 7 a t a m u c h h i g h e r r a t e t h a n t h e s t a t e w i d e a v e r a g e , a s h i g h a s 1 6 % ;
" T e e n s s u r v e y e d i n 2 0 0 2 s a y t h e y b o u g h t t h e i r c i g a r e t t e s a t : g a s s t a t i o n s ( 5 8 % ) , l i q u o r
s t o r e s ( 4 5 % ) , a n d s u p e r m a r k e t s a n d s m a l l g r o c e r y s t o r e s ( 2 9 % c o m b i n e d ) ;
W H E R E A S , a r e q u i r e m e n t f o r a t o b a c c o r e t a i l e r p e r m i t w i l l n o t u n d u l y b u r d e n l e g i t i m a t e
b u s i n e s s a c t i v i t i e s o f r e t a i l e r s w h o s e l l o r d i s t r i b u t e c i g a r e t t e s o r o t h e r t o b a c c o p r o d u c t s t o a d u l t s .
I t w i l l , h o w e v e r , a l l o w t h e C i t y t o r e g u l a t e t h e o p e r a t i o n o f l a w f u l b u s i n e s s e s t o d i s c o u r a g e
v i o l a t i o n s o f F e d e r a l , S t a t e , a n d l o c a l t o b a c c o - r e l a t e d l a w s ; a n d ,
W H E R E A S , t h e C i t y h a s a s u b s t a n t i a l i n t e r e s t i n p r o m o t i n g c o m p l i a n c e w i t h F e d e r a l ,
S t a t e , a n d l o c a l l a w s i n t e n d e d t o r e g u l a t e t o b a c c o s a l e s a n d u s e ; i n d i s c o u r a g i n g i l l e g a l p u r c h a s e
o f t o b a c c o p r o d u c t s b y m i n o r s ; i n p r o m o t i n g c o m p l i a n c e w i t h l a w s p r o h i b i t i n g s a l e s o f c i g a r e t t e s
a n d t o b a c c o p r o d u c t s t o m i n o r s ; a n d f i n a l l y , a n d m o s t i m p o r t a n t l y , i n p r o t e c t i n g c h i l d r e n f r o m
b e i n g l u r e d i n t o i l l e g a l a c t i v i t y t h r o u g h t h e m i s c o n d u c t o f a d u l t s ; a n d ,
W H E R E A S , i t i s t h e i n t e n t o f t h e C i t y C o u n c i l i n e n a c t i n g t h i s o r d i n a n c e t o e n c o u r a g e
r e s p o n s i b l e t o b a c c o r e t a i l i n g a n d t o d i s c o u r a g e v i o l a t i o n s o f t o b a c c o - r e l a t e d l a w s , e s p e c i a l l y
t h o s e w h i c h p r o h i b i t o r d i s c o u r a g e t h e s a l e o r d i s t r i b u t i o n o f t o b a c c o a n d n i c o t i n e p r o d u c t s t o
m i n o r s , b u t n o t t o e x p a n d o r r e d u c e t h e d e g r e e t o w h i c h t h e a c t s r e g u l a t e d b y F e d e r a l o r S t a t e
l a w a r e c r i m i n a l l y p r o s c r i b e d o r t o a l t e r t h e p e n a l t i e s p r o v i d e d t h e r e i n .
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THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA, DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Article D ( "Tobacco Retailer Permit Ordinance ") of Chapter 2 ( "Business Permits ")
of Title 5 ( "Business License and Regulations ") of the Temple City Municipal Code is hereby
added as follows:
Article D. Tobacco Retailer Permit Ordinance
5250 Title.
This Article may be referred to as the "Tobacco Retailer Permit Ordinance" of the City of
Temple City.
5251 Purpose.
In enacting this Article, it is the intent of the City Council to encourage responsible
tobacco retailing and to discourage violations of tobacco related laws, especially those that
discourage the sale or distribution of tobacco and nicotine products to minors. There is no intent,
however, to expand or reduce the degree to which the acts regulated by Federal or State law are
criminally proscribed or to alter the penalties provided therein.
5252 Definitions.
The following words and phrases, whenever used in this article, shall have the meanings defined
in this section unless the context clearly requires otherwise:
Arm's length transaction shall mean 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
of which is under any compulsion to participate in the transaction. A sale between relatives,
related companies or partners, or a sale for which a significant purpose is avoiding the effect of
the violations of this article is not an arm's length transaction.
Department shall mean the Community Development Department, and any other agency or
person tasked by the City Manager of the City with enforcement of this Article.
Director shall mean the Community Development Director of the City and any other person
tasked by the City Manager of the City with enforcement of this Article.
Permittee shall mean any tobacco retailer or proprietor thereof holding a permit issued by the
City pursuant to the provisions of this Article.
Person shall mean any individual, partnership, copartnership, firm, association, joint stock
company, corporation, or combination of the above in whatever form or character.
Proprietor shall mean 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 (10) percent or greater
interest in the stock, assets, or income of a business other than the sole interest of security for
debt. A managerial interest shall be deemed to exist when a person can or does have or share
ultimate control over the day -to -day operations of a business.
Self - service display shall mean the open display or storage of tobacco products or tobacco
paraphernalia in a manner that is physically accessible in any way to the general public without
the assistance of the retailer or employee of the retailer and a direct person -to- person transfer
between the purchaser and the retailer or employee of the retailer. A vending machine is a form
of self- service display.
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Smoking shall mean possessing a lighted tobacco product, lighted tobacco paraphernalia, or any
other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind)
and means the lighting of a tobacco product, tobacco par aphernalia, or any other weed or plant
(including a pipe, cigar, hookah pipe, or cigarette of any kind).
Tobacco paraphernalia shall mean 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 shall mean any substance containing tobacco leaf, including but not limited to
cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus,
bidis, or any other preparation of tobacco; and 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 cessation product specifically approved by the United States Food and
Drug Administration for use in treating nicotine or tobacco dependence.
Tobacco retailer shall mean any person who sells, offers for sale, or does or offers to exchange
for any form of consideration, tobacco, tobacco products or tobacco paraphernalia.
Tobacco retailer permit shall mean a permit issued by the City authorizing a proprietor to
engage in tobacco retailing.
Tobacco retailing shall mean the doing of any of the activities mentioned in the definition of
tobacco retailer. This definition is without regard to the quantity of tobacco, tobacco products, or
tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
5253 Tobacco retailer permit required.
A. It shall be unlawful and a misdmeeanor for any person to act as a tobacco
retailer in the City without first obtaining and maintaining a valid tobacco retailer's permit pursuant
to this Article for each location at which that activity is to occur.
1. Except where noted otherwise in this Article, notwithstanding any other
provisions of this Code, the issuance, suspension, and revocation of a tobacco retailer permit,
and all related procedures, shall be governed solely by this Article.
5254 Limits on eligibility for a tobacco retailer permit.
A. No tobacco retailer permit may issue to authorize tobacco retailing at other than
a fixed location. Peripatetic tobacco retailing, tobacco retailng by persons on foot or from
vehicles is explicitly prohibited.
B. No tobacco retailer permit may be issued to authorize tobacco retailing at any
location that violates any provision of the Temple City Zoning Code.
5255 Tobacco retailer permit application procedure.
A. Any person seeking a tobacco retailer permit shall submit a completed
application, on a City- approved form, to the Department. Said application shall contain the
following information:
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Application for a tobacco retailer permit 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.
1. The name, address, and telephone number of each proprietor of the
business seeking a permit.
2. The business name, address, and telephone number of the single, fixed
location for which a permit is sought.
3. A single name and mailing address authorized by each proprietor to
receive all communications and notices (hereinafter, "Authorized Agent ") required by, authorized
by, or convenient to the enforcement of this Article. If an Authorized Agent is not supplied, each
proprietor shall be understood to consent to the provision of notice at the business address
specified in subparagraph 2, hereinabove.
4. Proof that the location for which a tobacco retailer permit is sought has
been issued a valid state tobacco retailer's license by the California Board of Equalization.
5. Whether any proprietor or any agent of the proprietor has been issued a
permit pursuant to this Article that is or was at any time suspended or revoked, and, if so, the
dates of the suspension period or the date of revocation.
6. Whether any proprietor or any agent of the proprietor has admitted
violating or has been determined to have violated any provision of this Article or any State or
Federal tobacco - related law, and, if so, the dates of all such violations within the preceding five
(5) years.
7. Such other information as the Department deems necessary for the
administration or enforcement of this Article as specified on the application form required by this
section.
B. No application for a tobacco retailer permit shall be accepted by the City unless
accompanied by payment of an annual fee in an amount established by resolution of the City
Council.
C. A permittee shall inform the Department in writing of any change in the
information submitted on an application for a tobacco retailer permit within ten (10) business days
of a change.
D. All information specified in an application pursuant to this section shall be subject
to disclosure under the California Public Records Act (California Government Code section 6250
et seq.) or any other applicable law, subject to the laws' exemptions.
5256 Issuance of tobacco retailer permit.
A. Upon the receipt of both a completed application for a tobacco retailer permit and the
corresponding permit fee, the Department shall issue a permit unless substantial evidence
demonstrates that one or more of the following bases for denial exists:
1. The information presented in the application is inaccurate or false.
Intentionally supplying inaccurate or false information shall be a violation of this Article.
2. The application seeks authorization for tobacco retailing at a location for
which this Article prohibits issuance of tobacco retailer permit. However, this subparagraph shall
not constitute a basis for denial of a permit if the applicant provides the City with documentation
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demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring
the location or business in an arm's length transaction.
3. The application seeks authorization for tobacco retailing for a proprietor
to whom this Article prohibits a permit to be issued.
4. The applicant or proprietor of the proposed tobacco retailer has had a
tobacco retailer permit revoked within the preceding twelve (12) months.
4. The application seeks authorization for tobacco retailing that is prohibited
pursuant to this Article, that is unlawful pursuant to this Code (including without limitation the
Zoning Code and business license regulations), or that is unlawful pursuant to any other law.
B. Any applicant aggrieved by a decision denying a tobacco retailer permit may
appeal the decision in the same manner as the appeal of a suspension or revocation pursuant to
the provisions of 5262.D and 5263 of this Article.
5257 Term and Renewal.
A. Term. A permit issued pursuant to this Article shall be valid for one (1) year,
unless the permit is revoked earlier in accordance with the provisions of this Article.
B. Renewal of permit. Each tobacco retailer who seeks to renew a tobacco retailer
permit shall submit a renewal application on a City- approved form and tender the annual permit
fee to the Department no later than thirty (30) calendar days prior to the expiration of the permit.
Any tobacco retailer permit that is not timely renewed shall expire and become null and void at
the end of its term.
5258 Permits nontransferable.
A. A permit holder shall not operate under a name, or conudct business under a
designation, not specified on the permit.
B. A tobacco retailer permit may not be transferred from one person to another or
from one location to another. A change in proprietor, business name, or location, or a change in
any other information from that which is shown on the permit application shall render the permit
null and void, and shall require the permit holder to obtain a new tobacco retailer permit in
accordance with the provisions of this Article.
C. Notwithstanding any other provision of this Article, prior violations at a location
shall continue to be counted against a location and permit 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; and
2. The new proprietor(s) provide(s) the City with clear and convincing
evidence that the new proprietor(s) has /have acquired or is acquiring the location in an arm's
length transaction.
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5259 Permit conveys a limited, conditional privilege.
Nothing in this Article shall be construed to grant any person obtaining and maintaining a tobacco
retailer permit any status or right other than the limited conditional privilege to act as a tobacco
retailer at the location in the City identified on the face of the permit. Nothing in this Article shall
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, including without limitation
Title 3, Chapter 2, Article C ( "Second -Hand Smoke Control ") and Title 9 ( "Zoning Regulations ")
and any condition or limitation on smoking in an enclosed place of employment pursuant to
California Labor Code section 6404.5. For example, obtaining a tobacco retailer registration does
not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor
Code section 6404.5.
5260 Operating requirements.
The following applicable operating requirements of this Section shall be deemed conditions of any
tobacco retailer permit issued pursuant to the provisions of this Article, and failure to comply with
every such requirement shall be grounds for suspension, revocation, and /or the imposition of
administrative fines in accordance with Section 5262 of this Article.
A. Knowledge of applicable laws. It is the responsibility of each permittee and
proprietor to be informed of the laws applicable to tobacco retailing, including those laws affecting
the issuance of a tobacco retailer permit. No person may rely on the issuance of a permit as a
determination by the City that the proprietor has complied with all laws applicable to tobacco
retailing. A permit 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 5262 of
this Article. Nothing in this Article shall be construed to vest in any person obtaining and
maintaining a tobacco retailer permit any status or right to act as a tobacco retailer in
contravention of any provision of law.
B. Lawful business operation. In the course of tobacco retailing or in the operation
of the business or maintenance of the location for which a tobacco retailer permit has been
issued, it shall be a violation of this Article for a permittee, or any of the permittee's agents or
employees, to violate any local, State, or Federal law applicable to tobacco products, tobacco
paraphernalia, or tobacco retailing.
C. Display of permit. Each tobacco retailer permit shall be prominently displayed in
a publicly visible location at the permitted location.
D. Retail sales to persons under eighteen prohibited. No person engaged in tobacco
retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco
product or tobacco paraphernalia to any person who is under the legal age of eighteen (18)
years.
E. Positive identification required. No person engaged in tobacco retailing shall sell
or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco product or tobacco
paraphernalia to another person who appears to be under the age of thirty (30) 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. The
permittee or the permittee's agent or employee shall refuse the sale or transfer of any tobacco
product or tobacco paraphernalia to any person who appears to be under the age of thirty (30)
years, who fails to present valid, legal photo identification prior to the sale or transfer.
F. Minimum aqe 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
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engage in tobacco retailing.
G. Self- service displays prohibited. Tobacco retailing by means of a self - service
display is prohibited.
H. Compliance with State - mandated sign requirements. Tobacco retailers shall post
and maintain all signage required by the California Labor Code, California Business &
Professions Code, California Penal Code, and any other applicable Federal, State, or local law.
False and Misleading Advertising Prohibited. A tobacco retailer or proprietor
without a current and valid tobacco retailer registration, including, but not limited to, a tobacco
retailer whose permit is suspended or has been revoked:
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 permit under Section 5253; and
2. Shall not display any advertisement relating to tobacco products or
tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco
retailer's location or that could lead a reasonable consumer to believe that such products can be
obtained at that location.
5261 Compliance monitoring and enforcement.
A. Compliance with this Article shall be monitored by the Los Angeles County
Sheriffs Department, the Public Safety Division and Code Enforcement personnel, the
Community Development Department, and permit investigators (hereinafter, collectively,
"Enforcement Officers "). The City Manager may designate any number of additional persons to
monitor compliance with this Article.
B. Enforcement Officers should check the compliance of each tobacco retailer at
least three (3) times per twelve -month period. Enforcement Officers may check the compliance of
tobacco retailers previously found to be in compliance with this Article a fewer number of times so
that Enforcement Officers may check the compliance of new permittees and tobacco retailers
previously found in violation of this Article more frequently. Nothing in this paragraph shall create
a right of action in any permittee or other person against the City or its agents.
C. Compliance checks shall be conducted so as to allow Enforcement Officers to
determine, at a minimum, if a tobacco retailer is complying with laws regulating youth access to
tobacco. Enforcement Officers may also conduct compliance checks to determine compliance
with other laws applicable to tobacco retailing.
D. Enforcement Officers shall have the right to enter, free of charge or restriction, at
any time, any place of business for which a permit is required by this Article, and to demand the
exhibition of such permit for the current term by any person engaged or employed in the
transaction of such business.
E. The Los Angeles County Sheriff's Department and /or the City Manager (or
designee thereof) may promulgate and adopt policies, procedures, and /or guidelines for the
particpation of persons under the age of eighteen (18) in compliance checks pursuant to this
Article (hereinafter, "Youth Decoy ").
F. The City shall not enforce any law establishing a minimum age for tobacco
purchases or possession against a Youth Decoy if the potential violation occurs when:
1. The Youth Decoy is participating in a compliance check supervised by a
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peace officer or Enforcement Officer;
2. The Youth Decoy is acting as an agent of an Enforcement Officer
3. The Youth Decoy is participating in a compliance check funded in part,
either directly or indirectly through subcontracting, by the city or the California Department of
Health Services.
5262 Suspension and revocation of tobacco retailer permit; imposition of administrative
fine
A. Suspension or revocation; Administrative Fine. In addition to any other penalty
authorized by law, a tobacco retailer permit shall be suspended or revoked and an administrative
fine shall be assessed against the tobacco retailer in accordance with the procedures set forth in
this Section if it is determined that the permittee or his or her agent or employee has violated any
of the conditions of the permit imposed pursuant to this Article or any other local, State or
Federal law pertaining to the sale of tobacco products or tobacco paraphernalia to persons
under eighteen (18) years of age.
1. First violation. Upon a determination by the Department of a first permit
violation within a sixty (60) month period, the permit shall be suspended for a period of
thirty (30) calendar days and an administrative fine in the amount of $500 (or as
otherwise set by resolution of the City Council) shall be assessed against the tobacco
retailer. The administrative fine shall be due and payable in full at the time that the
suspension becomes effective.
2. Second violation. Upon a determination by the Department of a second
permit violation within a sixty (60) month period, the permit shall be suspended for a
period of ninety (90) calendar days and an administrative fine in the amount of $1000 (or
as otherwise set by resolution of the City Council) shall be assessed against the tobacco
retailer. The administrative fine shall be due and payable in full at the time that the
suspension becomes effective.
3. Third violation. Upon a determination by the Department of a third permit
violation within a sixty (60) month period, the permit shall be revoked and an
administrative fine in the amount of $2500 (or as otherwise set by resolution of the City
Council) shall be assessed against the tobacco retailer. The administrative fine shall be
due and payable in full at the time that the revocation becomes effective.
B. Revocation of permit wrongly issued. A tobacco retailer permit shall be revoked
if the Department determines that one or more of the bases for denial of a permit under Section
5256.A of this Article existed at the time the application was made or at any time before the
permit was issued. No administrative fine shall accompany a revocation of a permit that had
been wrongly issued.
C. Order of Suspension /Revocation. Upon a determination by the Department that
the permittee or his or her agent or employee has violated any of the conditions of the permit
imposed pursuant to this Article, or any other local, State or Federal law pertaining to the sale of
tobacco products or tobacco paraphernalia to persons under the age of eighteen (18) years, the
Department shall serve a written Order of Suspension /Revocation of tobacco retailer permit
(hereinafter, "Order of Suspension /Revocation ") upon either (i) the Authorized Agent either via
personal service or via first class mail, postage prepaid to the adress provided on the tobacco
retailer permit application, or (ii) if an authorized agent was not listed on the tobacco retailer
permit application, to the permittee via personal service or via first class mail, postage prepaid to
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the business address.
1 The Order of Suspension /Revocation shall provide, at a minimum, the
following information:
a. The name of the permittee and tobacco retailer permit number;
b. A brief statement of the specific ground(s) for the suspension or
revocation;
c. If applicable, the term of the suspension;
d. If applicable, the amount of any administrative fine being
assessed;
e. If applicable, the dates and terms of any prior suspensions and
administrative fines within the preceding sixty (60) months;
f. The effective date of the suspension or revocation and the due
date of the administrative fine;
g If applicable, the date on which a permittee may apply for a new
tobacco retailer permit after revocation;
h. The time frame and manner in which the permittee may contest
the Order of Suspension /Revocation as set forth in Section 5262.D.1 of this Article;
A statement that the failure of the permittee to contest the Order
of Suspension /Revocation will constitute a waiver of the permittee's right to administratively
challenge the Order of Suspension /Revocation, and the Order of Suspension /Revocation shall be
deemed a final and binding administrative decision; and,
If applicable and in the possession of the Department, copies of
the following documents:
1) Permittee's application for tobacco retailer permit;
2) Permittee's tobacco retailer permit;
3) Permittee's Tobacco Retailer's License (as issued by the
State Board of Equalization); and,
4) Any law enforcement report, memorandum, and /or
photograph submitted by the Sheriff's Department or other law enforcement agency relied upon
by the Department in support of the suspension or revocation. These documents shall be
redacted as required or permitted by law.
2. Service of the Order of Suspension /Revocation shall be deemed to have
been completed on the date on which the Order of Suspension /Revocation is either personally
delivered to the Authorized Agent or permittee or the date on which the Order of
Suspension /Revocation is deposited with the United States Postal Service.
3. Failure of an Authorized Agent or permittee to receive a properly
addressed Order of Suspension /Revocation shall not invalidate any of the proceedings pursuant .
to this Article.
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D. Contest of Order of Suspension /Revocation.
1. Any permittee whose permit has been suspended or revoked pursuant to
the provisions of this Article may contest the Order of Suspension /Revocation by filing with the
Department a written request to contest the Order of Suspension /Revocation (including the
imposition of the corresponding administrative fine) within ten (10) calendar days of the Order of
Suspension /Revocation. The written request must include, at a minimum, the following:
a. The name of the permittee, the address of the business property,
and the tobacco retailer permit number that is subject to the Order of Suspension /Revocation;
b. The date on which the Order of Suspension /Revocation was
issued;
c. A brief statement in ordinary and concise language of the
specific action protested, together with any material facts claimed to support the contentions of
the permittee;
d. A brief statement in ordinary and concise language of the relief
sought, and the reasons why it is claimed the Order of Suspension /Revocation should be
reversed or otherwise set aside;
e. The signature of all proprietors who are contesting the Order of
Suspension /Revocation under penalty of perjury as to the contents of the request for appeal.
2. Notwithstanding Article I, Chapter 4 ( "Administrative Citations ") or any
other provision of the Temple City Municipal Code, an administrative fine assessed against a
tobacco retailer in conjunction with an Order of Suspension /Revocation, the assessment of the
administrative fine shall only be challenged as set forth in this Section.
3. Upon receipt of such written request for a hearing, the Department shall
give not less than five (5) business days written notice to the permittee to show cause at a time
and place fixed in the notice why the tobacco retailer permit should not be suspended or revoked
(as the case may be). The written notice of hearing shall be served upon the permittee in the
same manner as the Order of Suspension /Revocation.
4. Any Order of Suspension /Revocation and any assessment of a
corresponding administrative fine shall be stayed pending a Director's determination upon the
timely filing of a request for a hearing.
E. Administrative review hearing.
1. The Director shall conduct the administrative review hearing at the
designated time and place. The hearing is to be conducted informally, and formal rules of
evidence do not apply. If a Youth Decoy participated in the underlying investigation, the Youth
Decoy shall not be required to appear or to give testimony. At the hearing, the permittee shall
have the burden of showing cause why the tobacco retailer permit should not be suspended or
revoked, and the permittee shall be given an opportunity to present any evidence (testimonial,
documentary, or otherwise) as it pertains to whether a ground for suspension or revocation exists.
In determining whether a ground for suspension or revocation exists, the Director shall not
consider any evidence pertaining to "preventative measures" or "subsequent remedial measures"
(e.g., employee training, the termination of employment of the agent/employee that committed the
underlying violation, etc.).
2. Within thirty (30) calendar days of the conclusion of the administrative
review hearing, the Director shall serve the permittee with written notice of its determination as to
whether the tobacco retailer permit shall be suspended or revoked (and the corresponding
administrative fine shall be assessed). The written determination shall be served upon the
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permittee in the same manner as the Order of Suspension /Revocation. If the Director determines
that the tobacco retailer permit shall be suspended or revoked, the written determination shall
contain all of the information required pursuant to Section 5262.C.1 of this Article. A written
determination that the tobacco retailer permit shall be suspended or revoked shall also contain
the time frame and manner in which the permittee may contest the Director's determination as set
forth in Section 5263 of this Article, and, a statement that the failure of the permittee to contest
the Director's determination will constitute a waiver of the permittee's right to administratively
challenge the Director's determination, and the Director's determination to suspend or revoke the
tobacco retailer permit shall be deemed a final and binding administrative decision.
5263 Appeal of director's determination.
A. Request for appeal. Any permittee who has been aggrieved by a Director's
determination to affirm an Order of Suspension /Revocation and to suspend or revoke a tobacco
retailer permit (and impose the corresponding administrative fine) may appeal the Director's
determination by submitting a written request for appeal to the City Clerk within ten (10) calendar
days of the Director's written determination. The written request for appeal shall contain, at a
minimum, the following:
1. The name of the permittee, the address of the business property, and the
tobacco retailer permit number that is subject to the Director's determination to suspend or
revoke;
2. The date on which the Director's determination was issued;
3. A statement as to all grounds for appeal in ordinary and concise
language, together with any material facts claimed to support the contentions of the permittee (as
only the matters and issues raised in the written request will be considered on appeal);
4. A brief statement in ordinary and concise language of the relief sought,
and the reasons why it is claimed the Director's determination should be reversed or otherwise
set aside;
5. The signature of all proprietors who are contesting the Director's
determination under penalty of perjury as to the contents of the request for appeal.
B. Staving of suspension /revocation. A Director's determination to suspend or
revoke a tobacco retailer permit (and to pay the corresponding administrative fine) shall be stayed
pending a determination of the City Manager (or designee thereof) upon the timely filing of a
written request for appeal.
C. Notice of appeal hearing. Upon receipt of such written request for appeal, the
City Clerk shall give not less than five (5) business days written notice to the permittee of the date
and time of the appeal hearing. Service of the notice of appeal hearing shall be in the same
manner as the Order of Suspension /Revocation.
D. Appeal hearing. At the time and place set for the appeal hearing, the City
Manager (or designee thereof) shall proceed to hear testimony and to receive evidence from the
City, the permittee, and other competent persons respecting those matters or issues on appeal.
Only those matters or issues specifically raised by the permittee in the written request for appeal
shall be considered in the hearing of the appeal. The formal rules of evidence do not apply to this
proceeding. If a Youth Decoy participated in the underlying investigation, the Youth Decoy shall
not be required to appear or to give testimony. At the hearing, the permittee shall be given an
opportunity to present any evidence (testimonial, documentary, or otherwise) as it pertains to
whether a ground for suspension or revocation exists. In determining whether a ground for
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suspension or revocation exists, the Director shall not consider any evidence pertaining to
"preventative measures" or "subsequent remedial measures" (e.g., employee training, the
termination of employment of the agent/employee that committed the underlying violation, etc.).
E. Decision on appeal. If it is shown at the appeal hearing by a preponderance of
the evidence that one or more bases exist to suspend or revoke the tobacco retailer permit, the
City Manager (or designee thereof) shall affirm the Director's determination to suspend or revoke
the permit and to impose the corresponding administrative fine. The City Manager shall cause to
be served upon the permittee a written notice of decision, which shall contain the City Manager's
determination as to whether the tobacco retailer permit shall be suspended or revoked and the
corresponding administrative fine assessed, as well as findings of fact that support the
determination. The written notice of decision shall further inform the appellant that the decision is
a final decision and that the time for judicial review for the suspension or revocation is governed
by California Code of Civil Procedure Section 1094.6 et seq., and that the time for judicial review
for the imposition of the administrative fine is governed by Government Code Section 53069.4(b).
The notice of decision shall be served upon the appellant in the same manner as the Order of
Suspension /Revocation. A decision to affirm the Director's determination to suspend or revoke a
tobacco retailer permit shall become effective, and the permit shall be suspended or revoked,
immediately upon service of the written notice of decision. The corresponding administrative fine
shall be immediately due upon service of the written notice of decision.
5264 New permit after revocation.
A. Notwithstanding any other provision of this Article, no tobacco retailer's permit
shall be issued to a tobacco retailer (or proprietor thereof) whose permit has previously been
revoked pursuant to Section 5262.A of this Article for a period of twelve (12) months from the
date of the prior revocation.
B. Notwithstanding any other provision of this Article, no tobacco retailer's permit
shall be issued for any location where a tobacco retailer permit has previously been revoked
pursuant to Section 5262.A of this Article for a period of twelve (12) months from the date of the
prior revocation, unless ownership of the business at the location has been transferred in an
arm's length transaction.
C. The revocation of a tobacco retailer's permit pursuant to Section 5262.B of this
Article shall be without prejudice to the filing of a new tobacco retailer permit application. Any
such new application shall be reviewed in accordance with Section 5256 of this Article.
5265 Violations.
A. In addition to any other remedy, any person who causes, permits, aids, abets,
suffers, or conceals a violation of any provision of this Article, or who fails to comply with any
obligation or requirement of this Article, is guilty of a misdemeanor punishable in accordance with
Title 1, Chapter 2 of this Code.
B. Each violation of this Article is hereby declared to be a public nuisance.
C. The remedies provided by this Article are cumulative and in addition to any other
remedies available at law or in equity.
D. In addition to other remedies provided by this Article or by other law, any violation
of this Article may be remedied by administrative or civil action, including, but not limited to, civil
injunction or other abatement action.
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5266 Severability.
If any section, subsection, paragraph, sentence, clause or phrase of this Article is
declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such
decision shall not affect the validity of the remaining portions of this Article. The City Council
declares that it would have adopted this article, and each section, subsection, sentence, clause,
phrase or portion thereof, irrespective of the fact that any one or more sections, subsections,
phrases, or portions be declared invalid or unconstitutional.
SECTION 3. This Ordinance shall take effect thirty (30) days after its adoption, and
shall become operative on said date or January 1, 2013, whichever is later. The City Clerk, or
her duly appointed deputy, shall attest to the adoption of this Ordinance and shall cause this
Ordinance to be posted as required by law.
PASSED, APPROVED, AND ADOPTED this 4th day of December, 2012.
ATTEST:
May / or
APPROVED AS TO FORM:
I, Peggy Kuo, City Clerk of the City of Temple City, hereby certify that the foregoing Ordinance No.
12 -965 was introduced at the regular meeting of the City Council of the City of Temple City held on
the 20th day of November 2012, its second reading on December 4th, 2012, and was duly passed,
approved and adopted by said Council at the regular meeting held on December 4th, 2012 by the
following vote:
AYES: Councilmember- Chavez, Sternquist, Yu
NOES: Councilmember -Blum, Vizcarra
ABSENT: Councilmember -None
ABSTAIN: Councilmember -None
City Clerk
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