HomeMy WebLinkAboutOrdinance 56331 116_20240822_ts24
Ordinance No. 5633
Ordinance of the Council of the City of Palo Alto Amending Chapter 4.64
(“Permits for Retailers of Tobacco Products”) Of Title 4 (Business Licenses and
Regulations).
The Council of the City of Palo Alto ORDAINS as follows:
SECTION 1. Findings and Declarations. The City Council finds and declares as follows:
A.The City of Palo Alto and the County of Santa Clara have a partnership to regulate tobacco
retailers and the sale of tobacco products in the City of Palo Alto. The City adopts the
County’s relevant ordinance and the County enforces the City’s ordinance.
B.The County adopted County Ordinance NS-517.96 in 2022 to amend its tobacco retailing
ordinance. The City intends to make the same changes to its own ordinance through
adoption of this ordinance.
C.This Ordinance amends Palo Alto Municipal Code Chapter 4.64 (Permits for Retailers of
Tobacco Products) to authorize denial of a permit to a Retailer whose permit was
previously revoked; impose conditions on permits to facilitate enforcement; increase
fines for violations; provide for impound and seizure of noncompliant products; require
posting of public notice during any suspension; and clarify the existing prohibition on the
sale of electronic cigarette products.
SECTION 2. The following sections of Chapter 4.64 (Permits for Retailers of Tobacco
Products) of Title 4 (Business Licenses and Regulations) are hereby amended as follows (new text
underlined, deleted text in strikethrough):
CHAPTER 4.64.
PERMITS FOR RETAILERS OF TOBACCO PRODUCTS
4.64.010 Intent.
(a) This cChapter is adopted to:
(1) Ensure compliance with the business standards and practices of the countyCity;
(2) Encourage responsible retailing of tTobacco pProducts;
(3) Discourage violations of laws related to tTobacco pProducts, especially those that
prohibit or discourage the sale or distribution of tTobacco pProducts and eElectronic
cCigarette pProducts to individuals under twenty- one;
(4) Respond to a new wave of addiction to eElectronic cCigarette pProducts;
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(5) Reduce vulnerability to unexplained illnesses associated with eElectronic
cCigarette pProducts; and
(6) Protect the public health and welfare.
(b) This cChapter 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.
4.64.020 Definitions.
For the purposes of this cChapter, the following definitions shall apply:
(a) "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 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 cChapter is not an arm's length transaction.
(b) "Department" means any department of the City of Palo Alto or County of Santa Clara
designated by the city manager to enforce or administer this chapter, including 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 cChapter.
(c) "Distribute or distribution" means the transfer, by any person other than a common
carrier, of a tTobacco pProduct to another person for sale or personal consumption.
(d) "Electronic cCigarette pProducts" means any of the following products:
(1) 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.
(2) Any component, part, or accessory of such a device or delivery system that is used
during its operation.
(3) 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.
(4) 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.
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(5) Electronic cCigarette 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 cCigarette 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
sSubsection, nicotine does not include any food products as that term is defined
pursuant to Section 6359 of the California Revenue and Taxation Code section 6359.
(e)Hearing Officer shall mean the hearing officer appointed by the Department in accordance
with County of Santa Clara Ordinance Code (“County Ordinance Code”) section A38-4.
(fe) “Impound” means the legal control exercised by the Department over the use, sale,
disposal, or removal of any Tobacco Products.
(efg) "Ownership" means possession of a ten 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.
(fgh) "Permit" means a valid permit issued by the Department to a person to act as a retailer.
(ghi) "Retailer" means any person who sells or distributes tTobacco pProducts 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 tTobacco pProducts
sold or distributed.
(hij) "School" means a public or private elementary, middle, junior high, or high school.
(ik) "Sale and sold" includes any sale, exchange, barter or offer for sale.
(jl) "Tobacco pProduct" means (unless specifically noted elsewhere) 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, and 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.
4.64.030 Requirements and prohibitions.
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(a) Permit required. It shall be unlawful for any person to act as a retailer without first
obtaining and maintaining a pPermit pursuant to this cChapter for each location at which
rRetailing occurs.
(b) Lawful business operation. It shall be a violation of this cChapter for any retailer to violate
any local, state, or federal law applicable to tobacco products or the retailing of such tTobacco
pProducts.
(c) Display of pPermit. Each pPermit shall be prominently displayed in a publicly visible place
at the location identified in the pPermit.
(d) Notice of minimum age for purchase of tTobacco pProducts. Retailers shall post
conspicuously, at each point of purchase, a notice stating that selling tTobacco pProducts to
anyone under twenty-one years of age is illegal and subject to penalties. Such notice shall be
subject to the approval of the public health d Department.
(e) Positive identification required. No retailer shall sell or distribute a tTobacco pProduct to
another individual who appears to be under thirty years of age without first examining the
individual's identification to confirm that the individual is at least the minimum age required
under sState law to purchase and possess the tTobacco pProduct.
(f) Minimum age for individuals selling tTobacco pProducts. No individual who is younger
than the minimum age established by state law for the purchase or possession of tTobacco
pProducts shall engage in retailing.
(g) False and misleading advertising prohibited. A retailer without a pPermit:
(1)Shall keep all tTobacco pProducts out of public view.
(2) Shall not display any advertisement relating to tTobacco pProducts that promotes
the sSale or dDistribution of such products from the rRetailer's location or that could
lead a reasonable consumer to believe that tTobacco pProducts can be obtained at that
location.
(h) Limitation on storefront advertising. No more than fifteen percent of the square footage
of the windows and clear doors of a physical storefront used for rRetailing tTobacco pProducts
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 (h) shall not apply to an establishment where there are no
windows or clear doors, or where existing windows are located only at a height that precludes a
view of the interior of the premises by an individual standing outside the premises.
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(i) Flavored Ttobacco pProducts.
(1)Except as permitted in paragraph (3) of this subsection (i), no No rRetailer shall
sell a tTobacco pProduct 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 tTobacco pProduct, smoke, or vapor produced by the tTobacco pProduct.
(2) A tTobacco pProduct shall be subject to a rebuttable presumption that the
product is prohibited by paragraph (1) of this subsection if:
(iA) The product's manufacturer or any other person associated with the manufacture or sale
of tTobacco pProducts 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
(iiB) 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.
(3) Except as provided in paragraph (4) of this subsection (i), paragraph (1) of this subsection
(i) shall not apply to any retailer that meets all the following criteria:
(i) Primarily sells tobacco products;
(ii) Generates more than sixty percent of its gross revenues annually from the sale of tobacco
products;
(iii) Does not permit any individual under twenty-one years of age to be present or enter the
premises at any time, unless accompanied by the individual's parent or legal guardian, as
defined in Section 6903 of the Family Code;
(iv) Does not sell alcoholic beverages or food for consumption on the premises; and
(v) Posts a sign outside the retail location that clearly, sufficiently, and conspicuously informs
the public that individuals under twenty-one years of age are prohibited from entering the
premises.
(4) No retailer that is issued a new permit after September 2, 2020 shall sell or distribute
flavored tobacco products under paragraph (3) of this subsection (i) after permit issuance. No
retailer that receives a permit renewal after September 2, 2020 shall sell or distribute flavored
tobacco products under paragraph (3) of this subsection (i) after permit renewal. Regardless of
the date of permit issuance or renewal, no retailer shall sell or distribute flavored tobacco
products after September 2, 2020.
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(j)Vending machines prohibited. No tTobacco pProduct shall be sSold or dDistributed 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.
(k)Prohibition on sSale or dDistribution of tTobacco pProducts to individuals under twenty-
one. No rRetailer shall sell or distribute any tTobacco pProduct to any individual who is under
twenty-one years of age.
(l)Prohibition on sSale or dDistribution of eElectronic cCigarette pProducts. No person,
whether or not issued a permit, shall Sell or Distribute Electronic Cigarette Products.No retailer
that is issued a new permit after September 2, 2020 shall sell or distribute electronic cigarette
products after permit issuance. No retailer that receives a permit renewal after September 2,
2020 shall sell or distribute electronic cigarette products after permit renewal. Regardless of
the date of permit issuance or renewal, no retailer shall sell or distribute electronic cigarette
products after September 2, 2020.
4.64.040 Eligibility requirements for a pPermit.
(a)No pPermit may be issued to authorize rRetailing at or from other than a fixed location.
For example, rRetailing by persons on foot or from vehicles is prohibited.
(b)No pPermit may be issued to authorize rRetailing at a temporary or recurring temporary
event. For example, rRetailing at flea markets and farmers' markets is prohibited.
(c)No pPermit may be issued to authorize rRetailing at any location where the profession of
pharmacy is practiced by a pharmacist licensed by the sState in accordance with the Business
and Professions Code and where prescription drugs are offered for sale.
(d)No pPermit may be issued to authorize rRetailing at any location within 1,000 feet of a
sSchool, as measured by a straight line between any point along the property line of any parcel
on which a sSchool is located and any point along the perimeter of the pPermit applicant's
proposed business location; provided, however, that the prohibition contained in this
subsection (d) shall not apply to the following:
(1)Any rRetailer of tTobacco pProducts (as such term was defined in the predecessor
Ordinance No. 5418) operating lawfully on June 30, 2018 provided that the rRetailer
obtaineds a pPermit prior to July 1, 2020 pursuant to Sections 4.64.050 and 4.64.060,
and timely reneweds its permit pursuant to Section 4.64.070(b);
(2) Any retailer of electronic smoking devices (as such term was defined in the
predecessor Ordinance No. 5418) operating lawfully on June 30, 2018 provided that the
retailer obtaineds a permit prior to July 1, 2020 pursuant to Sections 4.64.050 and
4.64.060, and timely renews its permit pursuant to Section 4.64.070(b); however, any
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such retailer is subject to the prohibition on the sale and distribution of eElectronic
cCigarette Pproducts established in Section 4.64.030(l); and
(3) Any lawfully operating rRetailer of tTobacco pProducts that would otherwise
become ineligible to receive or renew a pPermit due to the creation or relocation of a
school.
(e) No pPermit may be issued to authorize rRetailing at a location which is within 500 feet of
a location occupied by another retailer, as measured by a straight line between any point along
the perimeter of an existing retailer's business location and any point along the perimeter of
the pPermit applicant's proposed business location; provided, however, that the prohibition
contained in this subsection (e) shall not apply to:
(1) Any rRetailer of tTobacco pProducts (as such term was defined in the predecessor
Ordinance No. 5418) operating lawfully on June 30, 2018 provided that the rRetailer
obtaineds a pPermit prior to July 1, 2020 pursuant to Sections 4.64.050 and 4.64.060,
and timely renews its pPermit pursuant to Section 4.64.070(b); and
(2) Any rRetailers of electronic smoking devices (as such term was defined in the
predecessor Ordinance No. 5418) operating lawfully on June 30, 2018 provided that the
retailer obtaineds a permit prior to July 1, 2020 pursuant to Sections 4.64.050 and
4.64.060, and timely reneweds its permit pursuant to Section 4.64.070(b); however, any
such rRetailer is subject to the prohibition on the sSale and dDistribution of eElectronic
cCigarette pProducts established in Section 4.64.030(l).
(f) Any exemption granted to a rRetailer pursuant to subsections (d) and (e) shall cease to
apply upon the earlier of the following to occur:
(1) The rRetailer fails to timely renew the pPermit pursuant to Section 4.64.070(b).
(2) A new person obtains ownership in the business.
4.64.050 Application procedure.
(a) It is the responsibility of each rRetailer to be informed of all laws applicable to Rretailing,
including those laws affecting the issuance of a pPermit. No rRetailer may rely on the issuance
of a pPermit as a determination by the Citycity or County of Santa Clara that the rRetailer has
complied with all laws applicable to rRetailing. A pPermit issued contrary to this cChapter,
contrary to any other law, or on the basis of false or misleading information supplied by a
rRetailer shall be revoked pursuant to Section 4.64.060.
(b) All pPermit applications shall be submitted on a form supplied by the dDepartment.
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(c) A permitted retailer shall inform the dDepartment in writing of any change in the
information submitted on an application for a permit within fourteen calendar 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 (Government Code Section 6250 et seq.) or
any other applicable law, subject to the laws' exemptions.
4.64.060 Permit issuance, denial, and revocation.
(a) Upon the receipt of a complete application for a pPermit, the application fee, and the
annual pPermit fee, the dDepartment shall issue a pPermit 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.
(2) The application seeks authorization for rRetailing at a location for which this
cChapter prohibits issuance of a pPermit.
(3) The application seeks authorization for rRetailing by a person to whom this
cChapter prohibits issuance of a pPermit.
(4) The application seeks authorization for a Retailer whose Permit has previously
been revoked or who has otherwise violated any provision of this Chapter within the
last 60 months.
(45)The application seeks authorization for rRetailing that is prohibited pursuant to
this cChapter (e.g., mobile vending, eElectronic Ccigarette pProducts) or that is unlawful
pursuant to any other law.
(6) The application seeks authorization for Retailing by a Retailer who has failed to
pay any fees, penalties, or reinspection fees required by this Chapter.
(b) A permit shall be revoked if the dDepartment finds that one 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 permit was issued. Such a revocation shall be without prejudice to the filing of a new
pPermit application.
(c) A permit shall be permanently revoked if the Retailer has committed violations as
specified in section 4.64.130.
4.64.070 Permit term, conditions, renewal, and expiration.
(a) Term of pPermit. The term of a permit is one year. A pPermit is invalid upon expiration.
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(b) Conditions of pPermit. As conditions of pPermit issuance and retention, rRetailer shall:
(1)Allow compliance inspections as described in Section 4.64.110 and expressly
consent to inspection of all areas and records of a Retailer’s business required to effectuate the
purpose of this Chapter, including unlocking and allowing access to any area of Retailer’s
business requested by any individual authorized to monitor and facilitate compliance with this
Chapter.
(2)Comply with any order of the Department to impound any product not
authorized to be sold by this Chapter and cooperate with any Departmental seizure of any
product, subject to appeal of those actions.
(3)Failure to comply with these Permit conditions may result in Permit suspension
or revocation as described in Section 4.64.130.
(bc) Renewal of pPermit. The dDepartment shall renew a pPermit upon timely payment of
the annual pPermit fee provided that the rRetailer is in compliancecomplies with this cChapter,
as amended. The dDepartment may, in its discretion, agree to renew any expired pPermit
within the three-month period following expiration if the rRetailer pays the annual pPermit fee
and applicable late charges. For every calendar month, or fraction thereof, that a rRetailer fails
to renew an expired pPermit, a late charge equal to twenty percent of the annual pPermit fee
shall be assessed. A pPermit renewed within three calendar months of expiration shall be
treated as if timely renewed.
(cd) Issuance of pPermit after revocation or expiration of permit. To apply for a new pPermit
more than three calendar months after expiration of a pPermit or following revocation of a
pPermit that was wrongly issued, a rRetailer must submit a complete application for a pPermit,
along with the application fee and annual pPermit fee. The dDepartment shall issue a permit
pursuant to the requirements of Section 4.64.060.
4.64.080 Permits nontransferable.
(a) A pPermit may not be transferred from one person to another or from one location to
another. Whenever a new person obtains ownership in a business for which a pPermit has been
issued, a new pPermit shall be required, but any exemption granted pursuant to Section
4.64.040 shall cease to apply.
(b) Notwithstanding any other provision of this Cchapter, prior violations of this cChapter at
a location shall continue to be counted against a location and Ppermit ineligibility and
suspension periods shall continue to apply to a location unless:
(1) One hundred 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 or more new owners; and
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(2)The city Department is provided with clear and convincing evidence, including an
affidavit, that the business has been acquired in an aArm's lLength tTransaction.
4.64.090 Permit conveys a limited, conditional privilege.
Nothing in this cChapter shall be construed to grant any person obtaining and maintaining a
pPermit any status or right other than the limited, conditional privilege to act as a rRetailer at
the location in the city identified on the face of the pPermit. All pPermits are issued subject to
the cCity's right to amend this cChapter, and rRetailers shall comply with all provisions of this
cChapter, as amended.
4.64.100 Fees.
The dDepartment shall not issue or renew a pPermit prior tobefore full payment of any
applicable fees. The city County Board of Supervisors shall, from time to time, establish by
resolution or ordinance the fees to issue or to renew a pPermit. The fees shall be calculated so
as to recover the cost of administration and enforcement of this cChapter, including, for
example, issuing a pPermit, administering the pPermit program, rRetailer education, and
routine rRetailer inspection and compliance checks, documentation of violations, and
prosecution of violators, but shall not exceed the cost of the regulatory program authorized by
this cChapter. All fees and interest earned from such fees shall be used exclusively to fund
administration and enforcement of this cChapter.
4.64.110 Compliance monitoring.
(a)Compliance with this cChapter shall be monitored by the dDepartment. In addition, any
peace officer may enforce the penal provisions of this cChapter. The city managerDepartment
may designate any number of additional individuals to monitor and facilitate compliance with
this cChapter.
(b)The dDepartment or other individuals designated to enforce the provisions of this
cChapter shall check monitor each rRetailer at least once per twelve-month period to
determine if the rRetailer is complying with all laws applicable to retailing, other than those
laws regulating underage access to tTobacco pProducts. Nothing in this paragraph shall create a
right of action in any rRetailer or other person against the cCity, the County of Santa Clara, or its
agents.
(c) Any Retailer found to be in violation of this Chapter shall pay all costs related to
enforcement to ensure retailer’s compliance with this Chapter, including but not limited to,
fees for reinspection to determine compliance after a violation, enforcement costs, litigation
costs, and attorneys’ fees in any administrative or civil matter in which the Department prevails
pursuant to Division A1 of the County Ordinance Code or any other provision of law.
4.64.120 Prevention of underage sales.
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(a)The dDepartment or other departments or individuals designated to enforce the
provisions of this cChapter shall, in conjunction with the police department, check monitor each
rRetailer at least twice per twelve-month period to determine whether the rRetailer is
conducting business in a manner that complies with laws regulating youth access to tTobacco
pProducts. Nothing in this paragraph shall create a right of action in any rRetailer or other
person against the cCity, the County of Santa Clara, or its agents.
(b)The city Department or other departments or individuals designated to enforce the
provisions of this Chapter shall not enforce any law establishing a minimum age for tTobacco
pProduct purchases against an individual who otherwise might be in violation of such law
because of the individual's age ("yYouth dDecoy") if the potential violation occurs when:
(1) The yYouth dDecoy is participating in a compliance check supervised by a peace
officer or a code enforcement official of the cCity or County of Santa Clara;
(2) The yYouth dDecoy is acting as an agent of a dDepartment or individual
designated by the cCity or County of Santa Clara to monitor compliance with this
cChapter; or
(3) The yYouth dDecoy is participating in a compliance check funded in part, either
directly or indirectly through subcontracting, by the cCity, the County of Santa Clara, or
the California Department of Public Health.
4.64.130 Penalties for a violation by a rRetailer with a pPermit.
(a) Administrative fine. In addition to any other penalty authorized by law, an administrative
fine shall be imposed and a permit shall be suspended if any court of competent jurisdiction
determines, or the department finds based on a preponderance of the evidence that the a
rRetailer shall pay a fine if the Retailer, or any of the rRetailer's agents or employees, has
violatedviolates any of the requirements, conditions, or prohibitions of this cChapter, has pled
guilty, "no contest" or its equivalent to such a violation, or has admitted to a such a violation..
(b)Amount of fine. The amount of the administrative fine for each such violation of this
Chapter shall be as follows:
(1)A fine not to exceed one hundred dollars ($100.00) for a first violation within a
twelve-month period;A fine not to exceed $1,000 for each violation identified during the
first instance in which the Retailer has committed a violation or violations;
(2)A fine not to exceed two hundred dollars ($200.00) for a second violation within a
twelve-month period; A fine not to exceed $2,500 for each violation identified during a
subsequent instance if the Retailer has committed a previous violation or violations
within a 60-month period; and
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(3)A fine not to exceed five hundred dollars ($500.00) for each additional violation
within a twelve-month period A fine not to exceed $5,000 for each violation identified
during a subsequent instance after the Retailer twice committed a previous violation or
violations within a 60-month period.
(cb) Time period for permit Permit suspension. In addition to any other penalty authorized
by law, the Department may suspend a permit if the Department demonstrates that the
Retailer or any of the Retailer’s agents or employees has violated any of the requirements,
conditions, or prohibitions of this Chapter. The period of the suspension shall be as follows:
(1)For a first violation of this chapter at a location within any sixty-month period, the
permit shall be suspended for up to thirty calendar days. A suspension not to exceed 30
calendar days for an initial violation.
(2)For a second violation of this chapter at a location within any sixty-month period,
the permit shall be suspended for up to ninety calendar days.A suspension not to
exceed 180 calendar days if a Retailer commits a violation or violations during two
instances within a 60-month period.
(3)For each additional violation of this chapter at a location within any sixty-month
period, the permit shall be suspended for up to one year.When a permit is suspended
based on a violation of this Chapter, the 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:
(A)Posted in the front window of the storefront used for Retailing Tobacco Products
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 Retailing Tobacco Products within five feet of the front door; or
(C)Posted in a location approved by the Department to ensure proper notice to the
general public and to patrons of the physical location used for Retailing 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 Department or upon written
notification from the Department.
(c) Permanent Permit revocation. In addition to any other penalty authorized by law, the
Department shall permanently revoke a Permit if a retailer commits a violation or violations
during three instances within a 60-month period.
(d) Waiver or reduction of fines and penalties for first violation. The dDepartment may, in its
sole discretion, waive or reduce any fines and penalties for a rRetailer's first violation of any
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requirement, condition, or prohibition of this chaptersection, other than a violation of a law
regulating youth access to tobacco products, if the rRetailer admits the violation in writing and
agrees to forego a hearing on the allegations. Regardless of the dDepartment's waiver of
penalties for a first violation, the violation will be considered in determining the fines and
suspension periods or revocation penalties for any future violation. This subsection shall not
apply to any violation involving a law regulating youth access to Tobacco Products.
(e)Corrections period. The dDepartment shall have discretion to allow a rRetailer a period of
time to correct any violation of any requirement, condition, or prohibition of this cChapter,
other than a violation of a law regulating youth access to tTobacco pProducts. If the
dDepartment exercises its discretion to provide a corrections period, and a rRetailer's violation
is corrected within the time allowed for correction, no penalty shall be imposed under this
section.
(f)Written notice of penalties. Whenever a fine is issued and/or a pPermit is suspended or
revoked based on a violation of this cChapter, the dDepartment shall provide the rRetailer
written notice of the violation and the fine and suspension or revocation, including when the
suspension or revocation shall take effect.
(g)Appeals. Any penalties imposed under this section may be appealed pursuant to Section
4.64.150 of this Chapter.
(h) A timely appeal shall stay enforcement of the appealed penalties until the final
administrative decision of the Department is issued.
4.64.140 Penalties for retailing without a pPermit.
(a) Administrative fine. In addition to any other penalty authorized by law, an administrative
fine and an ineligibility period for application or issuance of a permit a rRetailer shall be
imposed pay a fine if a court of competent jurisdiction determines, or the dDepartment finds
based on a preponderance of evidencedemonstrates, that any the person rRetailer has
engaged in retailing at a location without a valid pPermit, either directly or through the
person's Retailer’s agents or employees., has pled guilty, "no contest" or its equivalent to such
a The amount of the administrative fine for each violation , or has admitted to such a
violation.of this Chapter shall be as follows:
(b) Amount of fine. The amount of the administrative fine for each such violation shall be as
follows:
(1)A fine not to exceed one hundred dollars ($100.00) for a first violation within a
twelve-month period; A fine not to exceed $2,500 for each violation identified during
the first instance in which the Retailer has committed a violation ofor violations without
a valid Permit;
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(2)A fine not to exceed two hundred dollars ($200.00) for a second violation within a
twelve-month period; and A fine not to exceed $5,000 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
(3)A fine not to exceed five hundred dollars ($500.00) for each additional violation
within a twelve-month period. A fine not to exceed $10,000 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.
(cb) Time period for pPermit ineligibility. The ineligibility period shall be as follows:
(1) For a first an initial violation of this section at a location within any sixty-month
period Chapter without a valid Permit, no new pPermit may be issued for to the person
Retailer or the location (unless ownership of the business at the location has been
transferred in an aArm's lLength tTransaction) until thirty calendar days have passed
from the date of the violation.
(2)For a second violation of this section at a location within any sixty-month period,
no new permit may be issued for the person or the location (unless ownership of the
business at the location has been transferred in an arm's length transaction) until ninety
calendar days have passed from the date of the violation. If a Retailer commits a
violation or violations during two instances within a 60-month period without a valid
Permit, no new Permit may be issued to the Retailer or the location (unless ownership
of the business at the location has been transferred in an Arms Length tTransaction)
until one year has passed from the date of the second violation.
(3)For each additional violation of this section at a location If a Retailer commits a
violation or violations during three instances within any sixty60-month period without a
valid Permit, no new permit may be issued for the person or the Retailer and the
location (unless ownership of the business at the location has been transferred in an
aArm's lLength tTransaction) shall be permanently ineligible for a Permit. until one year
has passed from the date of the violation.
(dc) Waiver of for reduction of fines and penalties for first violation. The dDepartment may,
in its sole discretion, waive or reduce any fines and penalties for a retailer's first violation of this
section, unless the violation also involves a violation of a law regulating youth access to tobacco
products, if the rRetailer admits the violation in writing and agrees to forego a hearing on the
allegations. Regardless of the dDepartment's waiver of fines or penalties for a first violation, the
violation will be considered in determining the penalties for any future violation 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.
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(ed) Written notice of penalties. Whenever a fine is issued and/or a pPermit is suspended
pursuant to this section, the dDepartment shall provide the rRetailer written notice of the fine
and suspension, including when the suspension shall take effect.
(fe) Appeals. Any penalties imposed under this section may be appealed pursuant to Section
4.64.150. A timely appeal shall stay enforcement of the appealed penalties while the appeal is
ongoing.
4.64.150 Appeals.
(a)Any rRetailer served with a written notice of penalties violation may request an
administrative hearing to appeal the existence of the violation, the amount of the fine, and/or
the length of the a suspension, a revocation of a Permit, the sustained impoundment of
Tobacco Products, and/or seizure of Tobacco Products by returning a completed hearing
request form to the Office of the County Hearing Officer within ten days from the date of the
written notice of penalties.
(b) The rRetailer shall include the following in or with the hearing request form:
(1) A statement indicating the reason the rRetailer contests the written notice of
penalties;
(2) Any evidence the rRetailer wants the hHearing oOfficer to consider;
(3) An advance deposit of the amount of any fine challenged; and
(4) The address of the rRetailer and, if available, an email address that can be used
for contact and correspondence by the Office of the County Hearing Officer and the
Department. The rRetailer may request service of notice by mail.
(c) The hearing request form shall be deemed filed on the date received by the Office of the
County Hearing Officer. A timely appeal shall stay enforcement of the appealed penalties while
the appeal is ongoing.
(d) After receiving a timely hearing request form, the Hearing Officer shall notify the
dDepartment as soon as practicable and then shall schedule an administrative hearing. The
Office of the County Hearing Officer shall provide the rRetailer and the dDepartment at least
ten calendar days' written notice of the date, time, and place of the administrative hearing and
the name of the hHearing oOfficer who will conduct the hearing. The notice shall be given to
the rRetailer either by email, if requested, or by first class mail, postage prepaid.
(e) Between the time the rRetailer requests the administrative hearing and the time of the
hHearing oOfficer's decision, the rRetailer, the dDepartment, and each of their representatives
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shall not engage in ex parte communications with the Office of the County Hearing Officer or
the hHearing oOfficer regarding the matters at issue in the hearing.
(f)The hearing shall be conducted by the hHearing oOfficer on the date, time, and place
specified in the notice to the rRetailer. A rRetailer'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.
(g)At the hearing, the rRetailer and the dDepartment shall have the opportunity to present
evidence, including witnesses, relevant to the hHearing oOfficer'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 hHearing oOfficer may admit any evidence, including witnesses, relevant to the
determination of the matter, except as otherwise provided in Section 4.64.160(c).
(h)The written notice of penalties and any other reports prepared by or for the
dDepartment concerning the violation shall be admissible and accepted by the hHearing
oOfficer as prima facie evidence of the violation and the facts stated in those documents.
(i)The hHearing oOfficer may continue the hearing from time to time, in his or herthe
Hearing Officer’s sole discretion, to allow for its orderly completion of the hearing. After
receiving the evidence submitted at the hearing, the hHearing oOfficer may further continue
the hearing and request additional information from either the dDepartment or the rRetailer.
(j)After considering the evidence and testimony submitted the hHearing oOfficer shall issue
a written decision regarding the matters properly raised in the request for administrative
hearing. The hHearing oOfficer's decision shall:
(1) Be based on a preponderance of the evidence.
(2) Include a statement of the reasons for the decision.
(3) Be issued within twenty calendar days of the close of the hearing.
(4) Be served on both the rRetailer and the dDepartment. The decision shall be given
to the rRetailer either by email, if requested, or by first class mail, postage prepaid.
(k) Based on the hHearing oOfficer's decision, the Office of the County Hearing Officer shall
promptly refund to the rRetailer any amount of the advance fine deposit the dDepartment is
not entitled to and shall provide the remainder to the dDepartment.
(l) The hearing officer's written decision shall constitute the final administrative decision of
the city.
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4.64.160 Enforcement.
(a) Any violation of this cChapter is hereby declared to be a public nuisance.
(b) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this
cChapter shall also constitute a violation of this cChapter.
(c) Whenever evidence of a violation of this cChapter is obtained in any part through the
participation of an individual under the age of twenty-one years old, such an individual shall not
be required over his or hertheir objection to appear or give testimony in any civil or
administrative process brought to enforce this cChapter and the alleged violation shall be
adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
(d) Violations of this cChapter may be remedied by a civil legal action brought by the city
attorney or County of Santa Clara Office of the County Counsel pursuant to dDivision A1 of the
Ordinance Code of the County of Santa Clara, including, but not limited to, administrative or
judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for
injunctive relief pursuant to XXXXX of this Code. For the purposes of the civil remedies provided
in this chapter, each day on which a tobacco product is offered for sSale in violation of this
cChapter, and each individual retail tobacco product that is sSold or dDistributed in violation of
this cChapter, shall constitute a separate violation of this cChapter.
(e) Any person found guilty of violating any provision of this chapter shall be deemed guilty
of an infraction, punishable as provided by California Government Code § 25132.
(e) Impoundment.
(1)Based upon inspection findings or other evidence, the Department may impound
Tobacco Products that are suspected of being or found to be offered for sSale or Distribution in
violation of this Chapter. The Department may affix a label to the product that shall be
removed only by the Department following final written determination by the Department as
described below.
(2)No impounded Tobacco Products shall be used, removed, disposed, or offered
for Sale unless the impoundment has been released. The decision by the Department may be
appealed pursuant to the procedures set forth in Section 4.64.150.
(3)Within 30 days of final determination whether the impounded products are
authorized for sale under this Chapter, the Department shall release the impounded materials
or order that unauthorized, impounded product shall be destroyed and properly disposed of at
the cost of the Retailer.
(f) Seizure. Tobacco Products offered for sale in violation of this Chapter are subject to
seizure by the Department and shall be forfeited after the Retailer of the Tobacco Products
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seized is given reasonable notice and an opportunity to demonstrate that the Tobacco Products
were not offered for sale in violation of this Chapter. The decision by the Department may be
appealed pursuant to the procedures set forth in Section 4.64.150. Forfeited Tobacco Products
shall be destroyed and properly disposed of at the cost of the Retailer after all internal appeals
have been exhausted and after the time in which to seek judicial review pursuant to Section
4.64.150 of this Chapter has expired.
(g) All Retailers are responsible for the actions of their employees relating to compliance
with this Chapter. The sale, offer to sell, or furnishing of any Tobacco Products by an employee
shall be considered an act of the Retailer.
(fh) The remedies provided by this cChapter are cumulative and in addition to any other
remedies available at law or in equity.
4.64.170. No conflict with federal or state lawNo conflict with federal or state
lawInterpretation.
(a)Nothing in this cChapter 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.
(b) Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of
a Tobacco Product by any person not engaged in the retailing of such products.
SECTION 3. If any section, subsection, clause or phrase of this Ordinance is for any
reason held to be invalid, such decision shall not affect the validity of the remaining portion or
sections of the Ordinance. The Council hereby declares that it should have adopted the
Ordinance and each section, subsection, sentence, clause or phrase thereof irrespective of the
fact that any one or more sections, subsections, sentences, clauses or phrases be declared
invalid.
SECTION 4. The Council finds that this project is exempt from the provisions of the
California Environmental Quality Act (“CEQA”), pursuant to Section 15061 of the CEQA
Guidelines, because it can be seen with certainty that there is no possibility that the ordinance
will have a significant effect on the environment.
//
//
//
//
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SECTION 5. This ordinance shall be effective 31 days after adoption.
____________________________
Mayor
APPROVED:
____________________________
INTRODUCED: SEPTEMBER 23, 2024
PASSED: OCTOBER 21, 2024
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
____________________________
City Clerk
APPROVED AS TO FORM:
____________________________
Assistant City Attorney
City Manager
____________________________
Director of Public Works
____________________________
Chief of Police
____________________________
Director of Administrative Services
BURT, KOU, LAUING, LYTHCOTT-HAIMS, STONE, TANAKA, VEENKER
Docusign Envelope ID: B5C77E6F-8335-4394-A855-B24B5B8C552C
Certificate Of Completion
Envelope Id: B5C77E6F83354394A855B24B5B8C552C Status: Completed
Subject: Ordinance 5633 - Tobacco retailers and products
Source Envelope:
Document Pages: 19 Signatures: 7 Envelope Originator:
Certificate Pages: 2 Initials: 0 Christine Prior
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Time Zone: (UTC-08:00) Pacific Time (US & Canada)
250 Hamilton Ave
Palo Alto , CA 94301
Christine.Prior@CityofPaloAlto.org
IP Address: 199.33.32.254
Record Tracking
Status: Original
10/22/2024 3:55:32 PM
Holder: Christine Prior
Christine.Prior@CityofPaloAlto.org
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Tim Shimizu
Tim.Shimizu@CityofPaloAlto.org
Assist. City Attorney
City of Palo Alto
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Lauren Lai
Lauren.Lai@CityofPaloAlto.org
Director Administrative Services/CFO
COPA
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Andrew Binder
Andrew.Binder@CityofPaloAlto.org
Chief
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Brad Eggleston
Brad.Eggleston@CityofPaloAlto.org
Director of Public Works
City of Palo Alto
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Ed Shikada
Ed.Shikada@CityofPaloAlto.org
Ed Shikada
City of Palo Alto
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Greer Stone
Greer.Stone@CityofPaloAlto.org
Vice Mayor
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Mahealani Ah Yun
Mahealani.AhYun@CityofPaloAlto.org
City Clerk
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