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8.33.090 Penalties for violation.

A.    Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, an administrative fine shall be paid, and a tobacco retailer’s license may be suspended or revoked if the department finds, after notice to the licensee and opportunity to be heard, that the licensee, or his or her agents or employees, has or have violated the requirements or prohibitions of this chapter including the conditions of the license imposed pursuant to Section 8.33.080 of this chapter.

1.     Upon a finding by the department of a first license violation within any thirty-six month period, the tobacco retailer shall pay an administrative fine in the amount of two thousand five hundred dollars. The city may also conduct up to two compliance checks within twelve months of the first violation.

2.     Upon a finding by the department of a second license violation within any thirty-six-month period, the tobacco retailer shall pay an administrative fine in the amount of two thousand five hundred dollars and the license shall be suspended for sixty days. The city may also conduct up to two compliance checks within twelve months of the second violation.

3.     Upon a finding by the department of a third license violation within any thirty-six month period, the tobacco retailer shall pay an administrative fine in the amount of two thousand five hundred dollars and the license shall be suspended for one hundred twenty days. The city may also conduct up to two compliance checks within twelve months of the third violation.

4.     Upon a finding by the department of a fourth license violation within any thirty-six month period, the license shall be revoked, and the tobacco retailer shall pay an administrative fine in the amount of two thousand five hundred dollars. Further, the proprietor or proprietors who had been issued the license shall never again be issued a tobacco retailer’s license pursuant to this chapter.

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

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

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

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

6.     Any tobacco retailer who has paid a two thousand five hundred dollar administrative fine as required by subsections (A) (1), (2), (3) or (4) of this section will be eligible for a refund of five hundred dollars if, within ninety days following the payment of the fine, that person, and each proprietor and employee of that person, shall attend a one hour responsible vendor class, training, or other course of instruction approved by the department. “Responsible vendor” courses must include training related to the laws that restrict the sales of alcohol, tobacco products, tobacco paraphernalia, and electronic vapor devices, and other such products, including restrictions in this chapter. To be eligible for the refund the instructor must produce to the department a list of attendees and certificates for each person that successfully attends the training.

B.     Suspension of License for Failure to Pay Renewal Fee. A tobacco retailer’s license that is not timely renewed pursuant to Section 8.33.020(D) shall automatically be suspended by operation of law. If not renewed, a license shall be automatically revoked two years after the renewal date. To reinstate the paid status of a license that has been suspended due to the failure to timely pay the renewal fee, the proprietor must:

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

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

C.     Revocation of License Issued in Error. A tobacco retailer’s license shall be revoked if the department finds, after notice and opportunity to be heard, that one or more of the basis for denial of a license under Section 8.33.040 of this chapter existed at the time application was made or at any time before the license issued. The revocation shall be without prejudice to the filing of a new application for a license.

D.    Appeal of Suspension or Revocation. A decision of the department to revoke or suspend a license may be appealed by a proprietor or a tobacco retailer by means of an administrative hearing before an independent fact finder, including, but not limited to, an administrative law judge from the State Office of Administrative Hearings, other private service providing retired judges for arbitration, or city-appointed administrative hearing officer. The appeal may also include a challenge to any fine accompanying the suspension or revocation. Any appeal must be filed with the city clerk within ten calendar days of mailing of the department’s decision and be accompanied by the full amount of any applicable fine as provided in Section 1.14.100 (except as provided in Section 1.14.090). An appeal shall stay all proceedings in furtherance of the appealed action. A suspension or revocation pursuant to Section 8.33.090(B) of this chapter is not subject to appeal.

E.     Appeal of Fine. Any appeal of a fine not involving a suspension or revocation must be conducted pursuant to Sections 1.14.0801.14.110, each inclusive.

F.     An administrative hearing to appeal a decision of the department to issue a fine and revoke or suspend a license held pursuant to subdivision (A) paragraphs (2) through (4) of this section, and subdivision (D) of this section is civil in nature and therefore the burden of proof required is a preponderance of the evidence. In such an appeal the administrative hearing officer shall only determine whether the violations of this chapter occurred in the time periods set forth in subdivision (A), paragraphs (2), (3) or (4), or subdivision (D) of this section. The administrative hearing officer shall not consider the appropriateness of the amount of the fine or whether the length of suspension of a license, or revocation of the license, creates a financial hardship on the tobacco retailer; nor shall the administrative hearing officer grant the applicant any stay of execution or delay of enforcement of a suspension or revocation sustained following the hearing.

G.    The rules of evidence in an administrative hearing to appeal a decision of the department to revoke or suspend a license held pursuant to Section 8.33.090(A) or (D) shall be in accordance with California Government Code Sections 11513 and 11514 as those sections are amended from time to time. Except as provided in this subdivision (F), the provisions of administrative adjudication for the State of California (Chapter 5 of Part 1 of Division 3 of Title 2 of the California Government Code) shall not apply to any administrative hearing under this chapter.

(Ord. 5098 § 2, 2020.)