04 Attachment 1 - Redline of Town Code Section 18.60.020Sec. 18.60.020. Permits for retailers of tobacco products.
(a)Intent. This Section is adopted to:
(1)Ensure compliance with the business standards and practices of the Town;
(2)Encourage responsible Fet-a-iH-A-g--Retailing of ffiW€€6-�£-t5Products;
(3)Discourage violations of laws related to teea€€0-Tobacco �t-5Products, especially those that
prohibit or discourage the sale or distribution of teiaa€€6--Tobacco �t-5-Products and electroni-E
Electronic smoking devicesCigarette Products to persons under twenty-one {21);
(4)Respond to a new wave of addiction to el-e€tf.eni-€-Electronic ciga-Fette-Cigarett�_Ji-FOGt+a&Products;
(5)Reduce vulnerability to unexplained illnesses associated with e+ettf-eni-€-Electronic cigarette Cigarette
i}FOffi:+€t&Products; and
(6)Protect the public health and welfare.
This &e-Ct-iB-f!-Section does not expand or reduce the degree to which the acts regulated by federal or state
law are criminally proscribed or alter the penalties provided by such laws.
(b)Definitions. For the purposes of this s-ect+enSection, the following definitions shall apply:
(1)Arm's length transaction means a sale in good faith and for valuable consideration that reflects the fair
market value in the open market between two R-)-or more 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 ;i_section is not an 6i:trm's !,length Ilransaction.
(2)Department means the County of Santa Clara's Department of Environmental Health and any agency or
person designated by the Director of the Department of Environmental Health to enforce or administer
the provisions of this Section.
(3)Desiqnee means the agency selected or designated by the Town to enforce or administer the
provisions of this Section.
f�·H3-t-Q.e.5i§-l'l-e€-A'\€iffi5-t-he-agency selected or-des+gnate€!-e�+ewn-¾-e nfo rce or-administer the
j9fffi'i&i-efl-5--0:/4hi s sect i en
{3-}(4) Distribute or distribution means the transfer, by any person other than a common carrier, of a
-t,Iobacco �£reduct to another person for sale or personal consumption.
f4}(5) Electronic smoking device Electronic Cigarette Products means any of the following products:
a.Any device or delivery system that can be used to deliver nicotine in aerosolized or vaporized
form, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah.
b.Any component, part, or accessory of such a device or delivery system that is used during its
operation.
c.Any flavored or unflavored liquid or substance containing nicotine, whether sold separately or
sold in combination with any device or delivery system that could be used to deliver nicotine in
aerosolized or vaporized form.
d. Any product for use in an electronic nicotine device or delivery system whether or not it contains
nicotine or tobacco or is derived from nicotine or tobacco.
e.Electronic cigarette Cigarette Pproducts shall not include any battery, battery charger, carrying
case, or other accessory not used in the operation of the device if sold separately. Electronic
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ATTACHMENT 1
€-ig-aff:lt-t-e-Cigarette Pproducts shall not include any product that has been approved by the United
States Food and Drug Administration for sale as a tobacco cessation product or for other
therapeutic purposes where that product is marketed and sold solely for such approved use. See
21 U.S.C. § 387(a). As used in this _$.subsection, nicotine does not include any food products as
that term is defined pursuant to Section 6359 of the California Revenue and Taxation Code.
16)Hearing Officer shall mean the Gffice of thc-GEH¾Aty Hearing Officer for this Sect-+efl-efilY:hearing
officer appointed by the Town or its Designee to hear appeals. So long as the Town's Designee is
the Department, the Hearing Officer shall be the hearing officer appointed by the Department by
�-Fl:meffi..in accordance with County of Santa Clara Ordinance tEltl-fl-tV::Code ("County
Ordinance Code") �es--Ssection A38-4�. Nv-e-#l-e-meaning set forth i-A Chapter 1,Af-tide
t!-l,ef the Town Code.
(6)Impound means the legal control exercised by the 9em,-rtffieffi-Town or its Designee over the use, sale,
disposal, or removal of any Tobacco Products.
�(7) Ownership means possession of a ten (-l-G}percent or greater interest in the stock, assets, or income of
a business, other than a security interest for the repayment of debt. Notwithstanding any other
definition in this Code, an owner means a person who possesses ownership.
{6}(8} Permit means a valid permit issued by the TewR--eF-its designee Des-i-gA-e-eTown or its
pesignecDepartmc-rtt to a person to act as a r-et-ai+efRetailer.
(7)(9) Retailer means any person who sells or €H5-tfiffil-t€-5--distributes tiobacco p_l:l_roducts for any form of
consideration, whether or not they possess a current Permit. Retailing shall mean the doing of any of
these actions. This definition is without regard to the quantity of tiobacco pfroducts sold or
distributed.
f&}(l0)_School means a public or private elementary, middle, junior high or high school.
f9t(ll)_Tobacco fproduct means (unless specifically noted elsewhere):
a.Any product subject to subchapter IX [21 U.S.C. § 387 et seq. ("subchapter IX")) of the Federal
Food, Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b) (products subject to Subchapter IX); 21
C.F.R. §§ 1100.1-1100.3 (tobacco products subject to subchapter IX) and Electronic Cigarette
Products]. Products subject to subchapter IX include, but are not limited to, cigarettes, cigarette
tobacco, roll-your-own tobacco, smokeless tobacco, cigars, pipe tobacco, and waterpipe
tobacco.,a-nd electronic cigarette products. Products that are not subject to subchapter IX
include accessories of tobacco products, such as, but not limited to, ashtrays, spittoons, and
conventional matches and lighters that solely provide an external heat source to initiate but not
maintain combustion of a tobacco product.
(c)Requirements and prohibitions.
(1)Permit required. It shall be unlawful for any person to act as a retailer Retailer in the Town of Los Gatos
without first obtaining and maintaining a_-E_permit pursuant to this _$.section for each location at which
retailing Retailing occurs.
(2)Lawful business operation. It shall be a violation of this �section for any _Bfetailer to violate any local,
state, or federal law applicable to Itobacco ff}roducts, or the fetailiA-g-Retailing of such Itobacco
£woducts.
(3)Display of [:permit. Each ]:permit shall be prominently displayed in a publicly visible place at the
location identified in the _l:l_permit.
(4)Notice of minimum age for purchase of [tobacco f'.products. Retailers shall post conspicuously, at each
point of purchase, a notice stating that selling Itobacco £woducts to anyone under twenty-one (21)
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years of age is illegal and subject to penalties. Such notice shall be subject to the approval of the Town
or its designeeDcs-igfree&e�Town or its Designee.
(S)Positive identification required. No _Bretailer shall sell or distribute a te-ha€€e-Tobacco Pt}roduct Gf
eJ.e.€.tFGH-i€--5ff'.l-ek-i-fl-g--pfe€k:tc4 to a not her i n di vi d u a I ��i:--thlft.y+3-0t
y-eai:s of age without first examining the individual's-i�K-identification to confirm
that the i-H�individual is at least the minimum age required under s5-tate law to
purchase and possess the Itobacco ):t}roduct.
(6)Minimum age for individuals selling Itobacco f:JJroducts. No individual who is younger than the
minimum age established by state law for the purchase or possession of Itobacco £:>products shall
engage in _f3_fetailing.
(7)False and misleading advertising prohibited. A !3.fetailer without a _!)>ermit:
a.Shall keep all Itobacco ff)roducts out of public view.
b. Shall not display any advertisement relating to Itobacco _f:products that promotes the sale or
distribution of such products from the .[Yetailer's location or that could lead a reasonable
consumer to believe that Itobacco fproducts can be obtained at that location.
(8)Limitation on storefront advertising. No more than fifteen (15) percent of the square footage of the
windows and clear doors of physical storefront used for retailing Retailing Ttobacco ff.lroducts shall
bear advertising or signs of any sort, and all advertising and signage shall be placed and maintained in a
manner that ensures that law enforcement personnel have a clear and unobstructed view of the
interior of the premises, including the area in which the cash registers are maintained, from the
exterior public sidewalk or entrance to the premises. However, this latter requirement of this
subsection (8h shall not apply to an establishment where there are no windows or clear doors, or
where existing windows are �_±:located Q_!Jjy_at a height that precludes a view of the interior of the
premises by an individual standing outside the premises.
(9)Flavored [tobacco [:products.
a.No !3.fetailer shall sell a riobacco ff}roduct containing, as a constituent or additive, an artificial or
natural flavor or aroma (other than tobacco) or an herb or spice, including but not limited to
strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa,
chocolate, cherry, mint, menthol, or coffee, that is a characterizing flavor or aroma of the
Itoba�co ):f}roduct, smoke or vapor produced by the Itobacco fproduct.
b.A Itobacco fi,roduct shall be subject to a rebuttable presumption that the product is prohibited
by paragraph (a) of this .s_s-ubsection if:
(i)The product's manufacturer or any other person associated with the manufacture or sale
of Itobacco P.i,roducts makes or disseminates public statements or claims to the effect that
the product has or produces a characterizing flavor or aroma, other than tobacco; or
(ii)The product's label, labeling, or packaging includes a statement or claim including any text
and/or images used to communicate information that the product has or produces a
characterizing flavor or aroma other than tobacco.
(10)Vending machines prohibited. No Itobacco fi,roduct shall be sold or distributed to the public from a
vending machine or appliance, or any other coin or token operated mechanical device designed or
used for vending purposes, including, but not limited to, machines or devices that use remote control
locking mechanisms.
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(11)Prohibition on s�ale or dQistribution of [tobacco f.ftroducts to individualspersom under twenty-one (21)
years. No retailer shall sell or distribute any Il:obacco £:product to any individual who is under twenty
one (21) years of age.
(12)Prohibition on s�ale or 6'Qistribution of .f_electronic r;_dgarette f.ftroducts. No person, whether or not
issued a Permit. shall sSell or dDistribute Electronic Cigarette Products. retailer that is issued a new
permit after December 19, 2019, shall sell or distribute electroni€-€-i-ga-rette products after permit
issuance. No retailer that receives a permit renewal after December 19, 2019, shall sell or distribute
electronic cigarette products after permit renewal. Regardless of the date of permit issuance-ef
renewal, no retailer shall sell or distribute electronic cigarette-products after June 30, 2020.
(d)Eligibility requirements for a pe-i=mi-Wermit.
(1)No _!:'_permit may be issued to authorize B.retailing at or from other than a fixed location. For example,
r-eta+Ung-Retailing by persons on foot or from vehicles is prohibited.
(2)No _!:'_permit may be issued to authorize retailiRg-Retailing at a temporary or recurring temporary event.
For example, .Bretailing at flea markets and farmers' markets is prohibited.
(3)No £:'permit may be issued to authorize flretailing at any location where the profession of pharmacy is
practiced by a pharmacist licensed by the State in accordance with the Business and Professions Code
and where prescription drugs are offered for sale.
(4)No P.rermit may be issued to authorize B_retailing at any location within one thousand (1,000) feet of a
�school, as measured by a straight line between any point along the property line of any parcel on
which a �school is located and any point along the perimeter of the applicant's proposed business
location; provided, however, that the prohibition contained in this subsection (d)(4) shall not apply to
the following:
a.Any B_retailer of Itobacco P._products operating lawfully on January 1, 2018 (the effective date of
the predecessor Ordinance Code); and
b.Any B.retailer of �-fig-0€-vJ.€.esElectronic Cigarette Products operating lawfully on
January 1, 2018 (effective date of predecessor QGrdinanceted-e), however, any such Bretailer is
subject to the prohibition on the sale and distribution of �electronic _c;;cigarette fproducts
established in subsection (c)(12) of this section; and
c.Any lawfully operating B_fetailer of ffibac-€&-Tobacco Pproducts that would otherwise become
ineligible to receive or renew a £:permit due to the creation or relocation of a �school.
(5)No frJermit may be issued to authorizC-fB_etailing at a location which is within five hundred (500) feet
of a location occupied by another Bretailer, as measured by a straight line between any point along the
1¥�-0-R--which a Bretailer is locatedperimeter of an existing Retailer's business
location and any point along the perimeter of the £'..permit applicant's proposed business location,
provided, however, that the prohibition contained in this �subsection (d)(5) shall not apply to:
a.Any B.retailer of Itobacco f.J:7roducts operating lawfully on January 1, 2018 (effective date of
predecessor QGrdinance-Ged-e); and
b.Any IYetailers of Electronic Cigarette Products€+€-Ct� operating lawfully on
January 1, 2018 (effective date of predecessor QGrdinance-(-Od-e); however, any such B.retailer is
subject to the prohibition on the sale and distribution of _!;_-electronic rcigarette fJ:7roducts
established in in �subsection (c)(12) of this �section.
(6)Any exemption granted to a Bretailer pursuant to subsection (4) and (5) shall cease to apply upon the
earlier of the following to occur:
a.The Bretailer fails to timely renew the ppermit pursuant to this �5ection.
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b.A new person obtains Qownership in the business.
(e)Application procedure.
(1)It is the responsibility of each B.fetailer to be informed of all laws applicable to-FB.etailing, including
those laws affecting the issuance of a f13ermit. No _flr-etailer may rely on the issuance of a £permit as a
determination by the I.town that the !3.fetailer has complied with all laws applicable to-+!3.etailing. A
_f:Jc}ermit issued contrary to this )section, contrary to any other law, or on the basis of false or
misleading information supplied by a Bretailer shall be revoked pursuant to this �section.
(2)All fpermit applications shall be submitted on a form supplied by the +owfH3-f-i.t.s-� Town or its
_Qesjg_nee,..to implement this �section.
(3)A permitted B.fetailer shall inform the Town or its designee Town or its Designee in writing of any
change in the information submitted on an application for a £permit within fourteen (14) calendar days
of a change.
(4)All information specified in an application pursuant to this ?,Section shall be subject to disclosure under
the California Public Records Act (Government Code Section 6250 et seq.) or any other applicable law,
subject to the laws'a-AV exemptions.
(f)/.55+!-€fA€e-efpf_ermit issuance, denial, and revocation.
(1)Upon the receipt of a complete application for a fpermit, the application fee, and the annual f13ermit
fee, the Towf.H:lr its designee-Town or its Designee shall issue a £permit unless substantial evidence
demonstrates that one flt-or more of the following bases for denial exists:
a.The information presented in the application is inaccurate or false.
b.The application seeks authorization for r_Retailing at a location for which this �section prohibits
issuance of a _f:f}ermit.
c.The application seeks authorization for r.B_etailing by a person to whom this �section prohibits
issuance of a ):permit.
d.The application seeks authorization for a Retailer whose Permit has previously been revoked or
who has otherwise violated any provision of this Chapter Section within the last 60 months.
€he. The application seeks authorization for r!3.etailing that is prohibited pursuant to this ?,Section
(e.g., mobile vending, I;_electronic �€igarette fJ;,roducts) or that is unlawful pursuant to any other
law.
f.The application seeks authorization for Retailing by a Retailer who has failed to pay any fees,
penalties, or reinspection fees required by this Section.
(2)A ):permit shall be revoked if the !-1:-ewflf}ppartmentTown or its Designe� finds that_;:
@J one-fl-} or more of the bases for denial of a £permit under this �section existed at the time application
was made or at any time before the fJ;,ermit was issued. Such a revocation shall be without prejudice
to the filing of a new Permit application.j--Of
{3) A pPermit shall be permanently revoked if
�4wo-+�1=1he Retailer has committed three or more-violations of this Section withing 6G--ffifmth
jS€f-i-ofhas specified in paragraphlDl)14) of this Section .. Such a revocation shall be without prejudice to
tt.e filing of a new permit application.
(g)Permit term, conditions, renewal, and expiration.
(1)Term of fpermit. The term of a f}_f:ermit is one-{-1-} year. A [::permit is invalid upon expiration.
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•
(2)Conditions of Permit. As conditions of Permit issuance and retention, Retailer shall:
a.Allow €Compliance ilnspections as described in Subsection {kl and expressly consent to
inspection of all areas and records of a Retailer's business required to effectuate the purpose
of this Section, including unlocking and allowing access to any area of the Retailer's business
requested by any individual authorized to monitor and facilitate compliance with this
Section.
b.Comply with any order of the DepartrneA-t-Town or its Designee to impound any product not
authorized to be sold by this Section and cooperate with any �-seizure of any
product. subject to appeal of those actions.
c.Failure to comply with these Permit conditions may result in Permit suspension or
revocation as described in Subsection {ml.
f21(3) Renewal of fpermit. The +BWA-Of-f&€1esigneeTown or its Designee shall renew a-lfa+i.d £f)ermit upon
timely payment of the annual permit fee provided that the Retailer complies with this Section�.
The '.f-ElWfHtf-it-5-4€-5-igA-ee-Town or its Designee may, in its discretion, agree to renew any expired
£permit within the three-month period following expiration if the J3.fetailer pays the annual permit fee
and applicable late charges. For every calendar month, or fraction thereof, that a J3.fetailer fails to
renew an expired £rermit, a late charge equal to twenty {.;;y}}percent of the annual £permit fee shall
be assessed. A £permit renewed within three f--3-t calendar months of expiration shall be treated as if
timely renewed.
{-3-}(4) Issuance of £'.permit after revocation or expiration offyermit. To apply for a new-re-taHe+ f13ermit more
than three f3-t calendar months after expiration of a £permit or following revocation of a feta+lef
£:permit that was wrongly issued, a .efetailer must submit a complete application for a� _Epermit,
along with the application fee and annual P.permit fee. The +0WFl or its designee Town or its Designee
shall issue a feta+le+-fpermit pursuant to the requirements of this ;,section.
(h)Permits nontransferable.
(1)A_fpermit may not be transferred from one {.:.l:}person to another or from one-{-½ location to another.
Whenever a new person obtains OWR�Ownership in a business for which a £permit has been
issued, a new £'.permit shall be required, but any exemption granted pursuant to subsection (d) shall
cease to apply.
(2) Notwithstanding any other provision of this _$.section, prior violations of this ;,section at a location shall
continue to be counted against a location and fpermit ineligibility and suspension periods shall
continue to apply to a location unless:
a.One hundred f-lGG}-percent of the interest in the stock, assets, or income of the business, other
than a security interest for the repayment of debt, has been transferred to one+lf or more new
owners; and
b.The +e-w�nee DesigneeDeW:ftm-eHtTown or its Designee is provided with clear and
convincing evidence, including an affidavit, that the business has been acquired in an {l,arm's
L)ength Btiransaction.
(i)Permit conveys a limited, conditional privilege. Nothing in this ;,section shall be construed to grant any
person obtaining and maintaining a fJ)ermit any status or right other than the limited, conditional privilege
to act as a _8fetailer at the location in the Town identified on the face of the P.t,ermit. All E_f}ermits are issued
subject to the Town's right to amend this ;3-section, and !}fetailers shall comply with all provisions of this
-�section, as amended.
(j)Fees. The +ewfl-ef-i.M-e&tgRee-Town or its Designee_shall not issue or renew a £'.permit prior togefore full
payment of any applicable fees. The Town DepartmentCounty Board of Supervisors shall, from time to time,
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establish by resolution the fees to issue or to renew a r�+e-i:-£'.permit, and, so long as the Department is the
Town's Designee, the Town shall amend its fee schedule to reflect any changes to the County's schedule. The
fees shall be calculated so as to recover the cost of administration and enforcement of this �section,
including, for example, issuing a fpermit, administering the £:_permit program, €0-fl-du€t+Ftg-Bfetailer
education, �anq routine _Bfetailer inspection and compliance,� documentation of violatiow.;,
and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this
�section. All fees and interest earned from such fees shall be used exclusively to fund administration and
enforcement of this $.section.
(k)Compliance monitoring.
(1)Compliance with this 2section shall be monitored by the +oWR or its desigf,€€Town or its Designee. In
addition, any peace officer may enforce the penal provisions of this 5-e€t-i-efl�ction. The
Ge:wft-me-r1Hown or its DesigneeTown Manager may designate any number of additional individuals to
monitor and facilitate compliance with this _2section.
(2)The �g-Aee-Town or its Designee or other individuals designated to enforce the
provisions of this 2section shall rne€-k-monitor each Rretailer at least once per twelve-month period to
determine if the _Bfetailer is complying with all laws applicable to .Bretailing, other than those laws
regulating underage access to Itobacco £'_products. Nothing in this paragraph shall create a right of
action in any _Bretailer or other person against the Town, its designee its Designee, or tts--their agents.
(3)Any Retailer found to be in violation of this Section shall pay all costs related to enforcement to ensure
Retailer's compliance with this Section, including but not limited to, fees for reinspection to determine
compliance after a violation, enforcement costs, litigation costs, and attorney fees in any
administrative or civil matter in which the Town +own-e-r-i-t-s--designee or its Designee prevails.
(I)Prevention of underage sales.
(1)The +ewn,Town or its DesigneeGettflty-designees, +Acluding Tow-A--OF-its designee _shall rne€-k-monitor
each 1:.B_etailer at least twice per 12-month period to determine whether the .B_fetailer is conducting
business in a manner that complies with laws regulating youth access to Itobacco fproducts. Nothing
in this paragraph shall create a right of action in any .Bretailer or other person against the Town,_i_�
Q_g�g_o_ee, its designee, or thel!:+ts agents.
(2)The +GWl'H}F--� Town or its Designee shall not enforce any law establishing a minimum age
for Itobacco £>.product purchases against an individual who otherwise might be in violation of such law
because of the individual's age ("yemh--Youth DElecoy") if the potential violation occurs when:
a.The y.Y_outh dQ_ecoy is participating in a compliance check supervised by a peace officer or a code
enforcement official of the Town;
b.The y.Y_outh eQ_ecoy is acting as an agent of the Town to monitor compliance with this _$.section; or
c.The y_'(_outh dQ_ecoy is participating in a compliance check funded in part, either directly or
indirectly through subcontracting, by thej:ounty..:r-ew-A, or the California Department of Public
Health.
(m)Penalties for a violation by a retailer with a permit.
(1)Administrative fine. In addition to any other penalty authorized by law, a Retailer shall pay a fine if the
Retailer, or the Retailer's agents or employees, violates any of the requirements, conditions, or
pro h i bit ions of this Se ct ion . aH-J d mi n is t rat i ve--:f+ne-5-h-a 11 be i m posed a n d a �t-5�€€1-i--f
a-ny court of competent jurisdictiOA determines, or the +ewn or its designee finds--ea5e€1-tJH--a
preponderanrn-e-f-�e retailer, or any of-the retailer's agents or employees, has
Vffilated any of the requirements, conditions, or prohibitions of this section, has pied guilty, "no
€0+1-t-est '' or its e q ui-v�t-t o s u ch a vi o-1-aooA,ef-has-a�i-o-l-a-t+efl-:
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(2)Amount of fine. The amount of the administrative fine for each 5-tf€fl--violation of this Section shall be as
follow!;:
a.A fine not to exceed one thousand tlli-rH:l-f€€1-dollars ($1,000.00) for each violation identified
during the first instance in which the Retailer has committed a violation or violations; i3-fif&t
\%��
b.A fine not to exceed two thousand five hundred dollars ($2,500.00) for each violation identified
� a subsequent instance if the Retailer has committed a previous violation or violations
within a 60-month period; and �ion within a twelve month period; and
C. A fine not to exceed five thousand ffi+REl-f-e€1 dollars ($5,000.00) for each violation identified
during a subsequent instance after the Retailer twice committed a previous violation or violations
within a 60-month period. a£1ditional violation within a twelve month period.
(3)Time period for fpermit suspension. In addition to any other penalty authorized by law, the
f}ef}af-tcmeRt-Town or its Designee may suspend a Permit if the Town or its Designee Ge-partment
demonstrates that the Retailer or any of the Retailer's agents or employees has violated any of the
requirements, conditions, or prohibitions of this Section. The period of the suspension shall be as
follows:
a.A suspension not to exceed 30 calendar days for an initial violation. For a first violation of this
5€Ction at a location within any sixty month-peooa,the permit shall tl€-S-l¾spended for up to thtf-ty
{30) calendar day&:-
b.A suspension not to exceed 180 calendar days if a Retailer commits a violation or violations
during two instances within a 60-month period. For a seco�his section at a locatioo
Wlth»+JA-lr;-Htt-y..�� pcmo4, the porm1t ;nan ba sur;pnnd:jd for u� to nirrntv {90) coicmdar days.
c.When a Permit is suspended based on a violation of this Section, the�
Des±gn-ee--Town or its Designee Department shall post a placard at the physical location used for
Retailing Tobacco Products to notify the general public of the suspension. The placard shall be:
For each additional violation of this section at a location within any sixty month period, the
retailer peFmit shall be suspended for up to one (1) year.
{A) Posted in the front window of the storefront used for f-RRetailing Tobacco Peroducts
within five feet of the front door; or
(B)Posted in a display case mounted on the outside front wall of the physical location
used for f-RRetailing Tobacco Products within five feet of the front door; or
(C)Posted in a location approved by the Town or its DesigneeDirector to ensure proper
notice to the general public and to patrons of the physical location used for
f-RRetailing Tobacco Products.
(D)Once attached to a building or structure, a placard is not to be removed, altered, or
covered until done so by an authorized representative of the Town or its
OdesigneeTown or its DesignceDepartmem, or upon written notification from the
Town or its Wesj-gAeyTown or its Designee.Q.ewftffiffit:.
(4)Waiver or reduction of fines and penalties for first violation. The �-designeeTown or its
Designeef?:e:p-a-ftmeffi may, ).Q tlteifits sole discretion, waive or reduce any fines and penalties for a
£Yetailer's first violation of this Sect[Q..o.&e€t+oo any requirement, condition or prohibition of this seGtief:t.;
other than a violation of a law regulating youth access to tobacco products, if the _[ifetailer admits the
violation in writing and agrees to forego a hearing on the allegations. Regardless of the +awn's or its
designee's waiver of penalties for a first violation, the violation will be considered in determining the
fines and suspension periods or revocation for any future violation. penalties for any future V-tffia-t-kffi,
Created: 2022-06-16 15:23:49 [EST]
(Supp. No. 89)
Page 8 of 13
This Subsection shall not apply to any violation involving a law regulating youth access to Tobacco
Products or Electronic Cigarette ProStftt.5.
(5)Corrections period. The Town __ or its-0f-ft5de5fg-fl-€-e-DesJg_i:i_��-shall have discretion to allow a ]3retailer a
period of time to correct any violation of any requirement, condition or prohibition of this
Secj_ion5-ettioo, other than a violation of a law regulating youth access to Itobacco fproducts--ef
€-fe€tf.e.Aktrgarette Products. If the Town or its ElesigA-ee-Designee exercises its discretion to provide a
flretailer's corrections period and a flretailer's violation is corrected within the time allowed for
correction, no penalty shall be imposed under this section.
fet-Wfi#-eR--r+etice of penalties. Whenever ;:i.-f-ine is issued-a�J:}ef-ffiit is suspended based oo-a
violation of this section, the Town or its de-s-�--prn11ide the retailer \Vritten notiE:-€--Of--t-h�
violation and the fine and suspension, including •.vhen the suspension shall take effect.
(6)Written notice of penalties. Whenever a fine is issued and/or Permit is suspended or revoked based on
a violation of this Section, the Town or its DesigneeDepartmen-t shall provide the Retailer written
notice of the violation and the fine and suspension or revocation, including when the suspension or
revocation shall take effect.
iZ.L A-eppeals. Any penalties imposed under this Section may be appealed pursuant to Subsection (o) of
this Section.
UP) A timely appeal shall stay enforcement of the appealed penalties until the final administrative decision
of the +ovm or its designee DesigReeTown or its DesigneeG-e:@tlff'l€-fH is issued.
(n)Penalties for B_Fetailing without a pe-Fmi-t:Permit.
(1)Administrative fine. In addition to any other penalty authorized by law, a Retailer shall pay a fine if the
Tevm or its designee DesigneeTown or its DesigneeG-e:@tlff'l€-fH demonstrates that the Retailer has
engaged in Retailing at a location without a valid retailer permit, an administrative fine and an
ineligibility period for application or issuance of a pe-r-mit shall be imposed if a court of competent
jurisdiction determines, or the Town or its designee finds based-0�onderance of evidence,�
aft-Y--f}ef£0n has engaged in retailing at a location wi-tl=IWH valid permit, either directly or through the
person's agents or employees.,--has-pled guilty, "no ce�;:ilent to such a violation, or has
a-amitted to such a violation.
(2)Amount of fine. The amount of the administrative fine for each such violation of this Section shall be as
follows:
a.A fine not to exceed two thousand five e-n-e hundred dollars ($-±2,500.00) for each violation
identified during the first instance in which the Retailer has committed a violation or violations
without a valid Permit; a first violation within a h\1elve month p�
b.A fine not to exceed five thousand tw-0-fl-tf-11€ife€! dollars ($2:5,000.00) for each violation identified
during a subsequent instance if the Retailer has committed a previous violation or violations
within a 60-month period without a valid Permit; and a second violation within a tv,elve moffi-1:t
peRod;and
c.A fine not to exceed ten thousand five hundred dollars ($S10,000.00) for each violation identified
during a subsequent instance after the Retailer has twice committed a previous violation or
violations within a 60-month period without a valid Permit. a€1-ditional violation within--a--t-w€-l-ve-
month period.
(3)Time period for permit ineligibility.
a.
(Supp. No. 89}
For a first vio-1-a-:t�ocation within any si�-iod, no new perm-i-1: f.9J:
an initial violation of this Section without a valid Permit, no new Permit may be issued tof-or the
Created: 2022-06-16 15:23:49 [EST]
Page 9 of 13
person or t�Retailer or the location (unless ownership Ownership of the business at the
location has been transferred in an afnK-Arm's Uength Itransaction) until thirty {30) calendar
days have passed from the date of the violation.
b.For a second violation of this section at a location If a Retailer commits a violation or violations
during two instances within any sixty-month period without a valid permit. no new ff)ermit may
be issued for the Retailer or the location�n or the lo� (unless Qownership of the
business at the location has been transferred in an 6arm's ]Jength Itransaction) until ninety (90)
calendar days---4a-v-e one yea-s-y_ear_has passed from the date of the _second th€ violation.
c.For each additional violation of this section at a location 'Nithin anv sixty month p-cFiod, no new
permit may be issued for the person or If a Retailer commits a violation or violations during three
instances within a 60-2-4-month period, without a valid Permit, the Retailer and the location
(unless �Ownership of the business at the location has been transferred in an �arm's
_blength Itransaction) 1:1-A-t#-B-fle-{�om the date of the violation-, shall be
permanently ineligible for a Permit.
(4)Waiver or reduction of fines and penalties for first violation. The +own or its designee Town or its
Designee may, in itsi-t& sole discretion, waive or reduce any fines and penalties for a .!3.1:etailer's first
violation of this �section,t1nless the violatiOR-also involves a violation of a law regul-ati+lg youth access
�roducts, if the .!3.fetailer admits the violation in writing and agrees to forego a hearing on
the allegations. Regardless of �--it5-de&igHee+waiver of fines or penalties for a first
violation, the violation will be considered in determining �lties for any future violation. the
fines and suspension periods or revocation for any future violation. This Subsection shall not apply to
any violation involving a law regulating youth access to Tobacco Products�l-e€tfefti€...fi.gaf€-tte
�.
(5)Written notice of penalties. Whenever a fine is issued and/or a f}effl'ltt-Permit is suspended pursuant to
this �section, the department the Town or its �Designee shall provide the .!3.retailer
written notice of the fine and suspension, including when the suspension shall take effect.
(6)Appeals. Any penalties imposed under this �section may be appealed pursuant to tJ:i-e-app-ea-1-s-&Section
{Ql_ be 19 wf5--5&ti-oo. A-ti-meJ.y-a-p.p-eakJ:ial.k.tay-em-0-F�t-fle-a.J3J9€d+e€J.-.f) en a It i es w h i I e the a pp ea-I
t5--9flge+1-�fl€-fi.n.al administrative decision of the Count-y--+5--i-55tl€€h
(o)Appeals.
(1)Any flretailer served with a written notice of f3€-A-ctl�violation may request an administrative hearing
to appeal the existence of the violation, the amount of the fine, an-elfer the length of 2th€ suspension, a
revocation of a Permit, or the sustained impoundment and/or seizure of Tobacco Products by returning
a completed hearing request form to the Town or its designeeDepartmentOffice of the Coo-AW-Hearing
Officer within ten flG1-days from the date of the written notice of penalties.
(2)The B_retailer shall include the following in or with the hearing request form:
a.A statement indicating the reason the _Bretailer contests the written notice of penalties;
b.Any evidence the .!3.fetailer wants the Hearing Officer to consider;
c.An advance deposit of the amount of any fine challenged; and
d.The address of the B_retailer and, if available, an email address that can be used for contact and
correspondence by the TewFH3r its designeeOffi.ce of the CoLm:W:Hearing Officer, The _Bretailer
may request service of notice by mail.
Created; 2022-06-16 15:23:49 [EST]
(Supp. No. 89)
Page 10 of 13
(3)The hearing request form shall be deemed filed on the date received by the +ewft-Of--i..t.s
designeeDep-aftmentOffice e-f--tne-Countv Hearing Officer� A timely appeal shall stay enforcement of
the appealed penalties while the appeal is ongoing.
(4)After receiving a timely hearing request form, the Hearing Officer+�shall notify the
Town or its Designee as soon as practicable and then shall schedule an administrative hearing. The
Hearing Officer+own or designee _shall provide the _!:Yetailer at least ten f-1-0} calendar days' written
notice of the date, time, and place of the administrative hearing and the name of the Hearing Officer
who will conduct the hearing. The notice shall be given to the _fYetailer either by email, if requested, or
by first class mail, postage prepaid.
(5)Between the time the _f:sr-etailer requests the administrative hearing and the time of the Hearing
Officer's decision, the E_retailer, the Town or its DesigneeTown and its designee, and each of their
representatives shall not engage in ex parte communications with the Hearing Officer Hearing Officer
regarding the matters at issue in the hearing.
(6)The hearing shall be conducted by the Hearing Officer on the date, time, and place specified in the
notice to the E_r-etailer. A !3.r-etailer's failure to appear at the hearing shall constitute an abandonment of
the hearing request and a failure to exhaust administrative remedies as a precedent to judicially
challenge the existence of the violation and the imposition of the fine and suspension.
(7)At the hearing, the E_r-etailer and the Tov.m or its designee Town or its Designee shall have the
opportunity to present evidence, including witnesses, relevant to the Hearing Officer's determination
of the matter. Neither the provisions of the Administrative Procedure Act (Government Code Section
11500 et seq.) nor the formal rules of evidence in civil or criminal judicial proceedings shall apply to
such hearing. The Hearing Officer may admit any evidence, including witnesses, relevant to the
determination of the matter, except as otherwise provided in Subsection (p)(3) of this Section."
(8)The written notice of penalties and any other reports prepared by or for the Town or its Designee+awn
er-#5-€1-e&igAee-_concerning the violation shall be admissible and accepted by the Hearing Officer as
prima facie evidence of the violation and the facts stated in those documents. The Hearing Officer may
continue the hearing from time to time, in the Hearing Officer's sole discretion, to allow for its orderly
completion of the hearing.
(9)After receiving the evidence submitted at the hearing, the Hearing Officer may further continue the
hearing and request additional information from either the Town, its designee Town or its Designee or
the r-etakFRetailer.
(10)After considering the evidence and testimony submitted, the Hearing Officer shall issue a written
decision regarding the matters properly raised in the request for administrative hearing. The Hearing
Officer's decision, shall:
a.Be based on a preponderance of the evidence.
b.Include a statement of the reasons for the decision.
c.Be issued within twenty (20) calendar days of the close of the hearing.
d.Be served on both the Br-etailer and the �es-i-gA-eeTown or its Designee. The decision
shall be given to the B_retailer either by email, if requested, or by first class mail, postage prepaid.
(11)Based on the Hearing Officer's decision, the +ewA-ef--it-s-designee Town or its Designee shall promptly
refund to the Br-etailer any amount of the advance fine deposit the Towrl-ef-.tts designeeTown or its
pesignee is not entitled to and shall provide the remainder to the Town or its Designee.
(12)The Hearing Officer's written decision shall constitute the final administrative decision" of the Town.
(p)Enforcement.
Created: 2022-06-16 15:23:49 (EST]
{Supp. No. 89)
Page 11 of 13
(1)Any violation of this se-Et-i-efl..-Section is hereby declared to be a public nuisance.
(2)Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Se-Etiim-Section
shall also constitute a violation of this �section.
(3)Whenever evidence of a violation of this �section is obtained in any part through the participation of
an individual under the age of twenty-one� years old, such-+fl-€1-i-v.i-oo-at a person shall not be required
over their objection to appear or give testimony in any civil or administrative process brought to
enforce this �section and the alleged violation shall be adjudicated based upon the sufficiency and
persuasiveness of the evidence presented.
(4)Violations of this �section may be remedied by a e-v+!-l_g@!_action brought by the Town or its
DdesigneeTown or its Designee�. , including, but not limited-te,;:idministrative or judicial
nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.
For the purposes of the-8-'Ji-+-_remedies provided in this �s-ection, each day on which a producttf:l-9-3-CW
j3-F0GU€t is offered for sale in violation of this ;is-ection, and each individual product which is sold, or
distributed, in violation of this Section,-e-ac�ich a Tobacco Product is offere<:l for sale in
v-+e+at+Ofl-Of this Section, and each individual retail tob<lcco product that is-tlistributed, sold,-e+
a��titm-of this section, _shall constitute a separate violation of this ;isection.
� Any person-found guilty of violating an-y--pfBvision of this section shall be deemed guilty of an
infraction, punishable as provided by Californ+a--Gtwernment Code Section 25132.
(6)The remedies provided by this section are cumulative and in adchlion to any other remedies available
at law or�
(5) lmpoundment.
(A) Based upon inspection findings or other evidence, the �eeTown or its Designe_g
may impound Tobacco Products that are suspected of being or found to be offered for sale or
distribution in violation of this Section. The Town or its Designee may affix a label to the products
that shall be removed only by the Town or its Designee following final written determination by the
Town or its Designee as described below.
(Bl No impounded Tobacco Products shall be used, removed, disposed, or offered for sale unless the
impoundment has been released. The+s-decision by the Town or its Designee may be appealed
pursuant to the procedures set forth in Subsection (o).ifl-a.€w.r�Etie-A-.
(C) Within 30 days of final determination whether impounded products are authorized for sale
under this Section, the T9Wfl-ef�designeeTown or its Designee shall release the impounded
materials or order that unauthorized, impounded product shall be destroyed and properly disposed
of at the Retailer's expense after all internal appeals have been exhausted and the time in which to
seek judicial review pursuant to Subsection (o) has expired.
(6) Seizure. Tobacco Products offered for sale in violation of this Section are subject to seizure by the lewn
Gf-tt-5-designeeTown or its Designee and shall be forfeited after the Retailer of the Tobacco Products
seized is given reasonable notice and an opportunity to demonstrate that the Tobacco Products were not
offered for sale in violation of this Section. This decision may be appealed in accordance with the
procedure set forth this Section. Forfeited Tobacco Products shall be destroyed and properly disposed of
at Retailer's expense after all internal appeals have been exhausted and after the time in which to seek
judicial review has expired.
(7) Employees. All Retailers are responsible for the actions of their employees relating to compliance with
this Section. The sale, offer to sell, or furnishing of any Tobacco Products by an employee shall be
considered an act of the Retailer.
Created: 2022-06-16 15:23:49 [EST]
(Supp. No. 89}
Page 12 of 13
(8) Remedies. The remedies provided by this Section are cumulative and in addition to any other remedies
available at law or in equity.�
(q)No conflict with federal or state law. Nothing in this roap-tetc--Section shall be interpreted or applied so as to
create any requirement, power, or duty that is preempted by, or in conflict with, federal or state law, rules,
or regulations.
(r)Section applicable to Retailing only. Nothing in this Section shall be construed to penalize the purchase, use,
or possession of a Tobacco Product by any person not engaged in the Rfetailing of such products.
( Ord. No. 2297 , § I, 11-19-19; Ord. No. 2320 , § Ill, 9-7-21)
Editor's note(s)-Ord. No. 2297-, § I, adopted Nov. 19, 2019, repealed § 18.60.020 and enacted new provisions to
read as herein set out. Former§ 18.60.020 pertained to permits for retailers of tobacco products and/or
electronic smoking devices, and derived from Ord. No. 2259, § I, adopted May 16, 2017.
Created: 2022-06-16 15:23:49 [EST)
(Supp. No. 89}
Page 13 of 13