CC Ordinance No. 19-2190 Adding Chapter 5.50 to Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco Products and Repealing Chapter 10.27 of Municipal Code (Cigarette and-or Tobacco Vending Machines) ORDINANCE NO. 19-2190
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
ADDING CHAPTER 5.50 TO TITLE 5 (BUSINESS LICENSES AND
REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS AND
REPEALING CHAPTER 10.27 OF THE MUNICIPAL CODE (CIGARETTE AND/OR
TOBACCO VENDING MACHINES)
The City Council of the City of Cupertino finds that:
1. Tobacco use remains the number one preventable cause of death and disease in
California, causing nearly 40,000 deaths in California every year.
2. In Santa Clara County (County), one in eight deaths annually is attributed to
smoking-related illness or diseases, such as cancer, heart disease, and respiratory
diseases.
3. More than one in ten youth in the County currently use tobacco products,
including electronic smoking devices. Nearly one in three teens in the County
report they have used an e-cigarette at least once.
4. Neither federal nor California state laws restrict the sale of menthol cigarettes or
flavored non-cigarette tobacco products, such as little cigars, electronic smoking
devices, and the solutions used in these devices.
5. Mentholated and flavored products have been shown to be "starter" products for
youth who begin using tobacco.
6. By selling tobacco products, pharmacies reinforce positive social perceptions of
smoking, convey tacit approval of tobacco use, and send a message that it is not so
dangerous to smoke.
7. The density of tobacco retailers near schools has been associated with increased
youth smoking rates.
8. State law prohibits the sale of tobacco products to anyone under the age of 21 and
requires all tobacco retailers to be licensed by the Board of Equalization.
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9. State law explicitly permits cities and counties to enact local tobacco retail
licensing ordinances.
10. The County of Santa Clara has adopted a tobacco retail permit program in order
to encourage responsible retailing of tobacco products and to deter the sale and
distribution of tobacco products to persons under 21.
11. The County of Santa Clara reported that, in Cupertino, the percentage of stores
found to be selling tobacco to underage persons rose from 7.7% in 2018 to 24% in
2019 (11 of 46 visits in 2019).
12. This ordinance seeks to adopt tobacco prevention strategies that have been shown
to reduce youth access and exposure to tobacco products. The ordinance would
(1) require a local permit to sell tobacco products; (2) prohibit the sale of flavored
tobacco products, including menthol cigarettes; (3) prohibit the sale of tobacco
products at pharmacies; (4) prohibit new businesses from selling tobacco near
schools and reduce tobacco retailer density; and (5) impose additional operating
standards on tobacco retailers.Because vending machine sales of tobacco products
would be prohibited by this ordinance, Chapter 10.27 regarding cigarette and/or
tobacco vending machines is repealed.
13. The City Council of the City of Cupertino held a duly noticed public hearing on
November 51", 2019, and after considering all testimony and written materials
provided in connection with that hearing introduced this ordinance and waived
the reading thereof.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES
ORDAIN AS FOLLOWS:
SECTION 1. Adoption.
The Cupertino Municipal Code is hereby amended as set forth in Attachment A.
SECTION 2: Severability and Continuity.
The City Council declares that each section, sub-section, paragraph, sub-paragraph,
sentence, clause and phrase of this ordinance is severable and independent of every
other section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of
this ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause
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or phrase of this ordinance is held invalid, or its application to any person or
circumstance,be determined by a court of competent jurisdiction to be unlawful,
unenforceable or otherwise void, the City Council declares that it would have adopted
the remaining provisions of this ordinance irrespective of such portion, and further
declares its express intent that the remaining portions of this ordinance should remain
in effect after the invalid portion has been eliminated. To the extent the provisions of
this Ordinance are substantially the same as previous provisions of the Cupertino
Municipal Code, these provisions shall be construed as continuations of those
provisions and not as an amendment to or readoption of the earlier provisions.
SECTION 3: California Environmental Quality Act.
i Ordinance is not a project under the requirements of the California Quality Act of
This O d ante p l q Q ty
1970, together with related State CEQA Guidelines (collectively, "CEQA") because it
has no potential for resulting in physical change in the environment. In the event that
this Ordinance is found to be a project under CEQA, it is subject to the CEQA
exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen
with certainty to have no possibility that the action approved may have a significant
effect on the environment. CEQA applies only to actions which have the potential for
causing a significant effect on the environment. Where it can be seen with certainty that
there is no possibility that the activity in question may have a significant effect on the
environment, the activity is not subject to CEQA. In this circumstance, the amendments
to the City Code would have no or only a de minims effect on the environment. The
foregoing determination is made by the City Council in its independent judgment.
SECTION 4: Effective Date.
This Ordinance shall take effect thirty days after adoption as provided by Government
Code Section 36937.However, the Ordinance's requirements shall not become operative
until July 1, 2020, at which time all provisions and penalties shall be enforceable as to
tobacco retailers.
SECTION 5: Publication.
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The City Clerk shall give notice of adoption of this Ordinance as required by law.
Pursuant to Government Code Section 36933, a summary of this Ordinance may be
prepared by the City Clerk and published in lieu of publication of the entire text. The
City Clerk shall post in the office of the City Clerk a certified copy of the full text of the
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Ordinance listing the names of the City Council members voting for and against the j
ordinance.
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INTRODUCED at a regular meeting of the Cupertino City Council on
November 5, 2019 and ENACTED at a regular meeting of the Cupertino City Council
on November 19, 2019 by the following vote:
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Vote Members of the City Council
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AYES: Scharf, Chao, Paul, Willey
NOES: None
ABSENT: Sinks
ABSTAIN: None
SIGNED:
Steven
--
Steven Scharf, Mayor Date
City of Cupertino
ATTEST:
Grace Schmidt, City Clerk Date
APPROVED AS TO FORM:
M- ` \� 1�— a— �cl
Heather Minner, City Attorney Date
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Attachment A—An Ordinance of the City Council of the City of Cupertino Adding
Chapter 5.50 to Title 5 (Business Licenses and Regulations) to Regulate the Sale of
Tobacco Products and Repealing Chapter 10.27 of the Municipal Code (Cigarette
and/or Tobacco Vending Machines)
The sections of the Cupertino Municipal Code set forth below are amended or adopted as follows:
Text added to existing provisions is shown in bold double-underlined text (exam Ie
and text to be deleted in shown in strikethrough (example). Text in existing provisions
is not amended or readopted by this Ordinance. Text in italics is explanatory and is not
an amendment to the Code.
Where the explanatory text indicates that a new section is being added to the City Code,
the new section is shown in plain text.
This ordinance amends several portions of the Municipal Code. For ease of review, the
amendments advancing the primary objective are presented first followed by conforming
amendments. There is a separate heading in bold italics for each portion of the Code
being amended. Each portion is shown beginning on a separate page.
1. A new section is added to Title 5 concerning tobacco retailing:
5.50.010 Section Intent.
(a) This chapter is adopted to:
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(1) Ensure compliance with the business standards and practices of the city;
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(2) Encourage responsible retailing of tobacco products;
(3) Discourage violations of laws related to tobacco products, especially those that
prohibit or discourage the sale or distribution of tobacco products to persons under
twenty-one; and
(4) Protect the public health and welfare.
(b) This chapter 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.
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5.50.020 Definitions.
For the purposes of this chapter, 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
chapter is not an arm's length transaction.
(b) "Designee" means the agency selected or designated by the city to enforce and/or
administer the provisions of this chapter.
(c) "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.
(d) "School" means a public or private elementary, middle,junior high or high
school.
(e) "Retailer" means any person who sells, exchanges, or offers to sell or exchange, for
any form of consideration, tobacco products. "Retailing" shall mean the doing of any of
these things. This definition is without regard to the quantity of tobacco products sold,
exchanged, or offered for sale or exchange.
(f) "Tobacco product" means:
(1) Any product subject to: 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
IV); or 21 C.F.R. §§ 1100.1- 1100.3 ("tobacco products subject to Subchapter IX").
Products subject to Subchapter IX include,but are not limited to, cigarettes,
cigarette tobacco, roll-your-own tobacco, smokeless tobacco, cigars, pipe tobacco,
waterpipe tobacco, and electronic nicotine delivery systems (such as,but not limited to,
electronic cigarettes, electronic cigars, electronic hookahs, vape pens, personal
vaporizers, and electronic pipes). Products subject to Subchapter IX also include
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components or parts of tobacco products, such as,but not limited to, liquids that are for
use in an electronic nicotine delivery system and that contain tobacco or nicotine or are
derived from tobacco or nicotine ("e-liquids"), vials that contain e-liquids, and
atomizers. 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.
(2) Any product for use in an electronic nicotine delivery system, whether or not it
contains tobacco or nicotine or is derived from tobacco or nicotine.
5.50.030. Requirements and prohibitions.
(a) Permit required. It shall be unlawful for any person to act as a retailer
of tobacco products in the city without first obtaining and maintaining a valid retailer
permit pursuant to this chapter for each location at which that activity is to
occur. Tobacco product retailing without a valid tobacco retailer permit is a nuisance as
a matter of law.
(b) Lawful business operation. It shall be a violation of this chapter for any retailer to
violate any local, state, or federal law applicable to tobacco products or the retailing of
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such products.
(c) Display of permit. Each current retailer permit shall be prominently displayed in
a publicly visible place at the permitted location.
(d) Notice of minimum age for purchase of tobacco products. Retailers shall post {
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conspicuously, at each point of purchase, a notice stating that selling tobacco products
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to anyone under twenty-one years of age is illegal and subject to penalties. Such notice
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shall be subject to the approval of the city or its designee.
(e) Positive identification required. No retailer shall sell or transfer a tobacco product
to another person who appears to be under thirty years of age without first examining
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the customer's identification to confirm that the customer is at least the minimum age
required under state law to purchase and possess the tobacco product.
(f) False and misleading advertising prohibited. A retailer either without a valid
retailer permit or with a suspended retailer permit:
(1) Shall keep all tobacco products out of public view.
(2) Shall not display any advertisement relating to tobacco products that promotes
the sale or distribution of such products from the retailer's location or that could lead a
reasonable consumer to believe that tobacco products can be obtained at that location.
(g) Limitation on storefront advertising. No more than fifteen percent of the square
footage of the windows and clear doors of an establishment used for retailing 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 shall not apply to an establishment where there are no
windows, or where existing windows are located at a height that precludes a view of
the interior of the premises by a person standing outside the premises.
(h) Flavored tobacco products.
(1) No retailer shall sell a tobacco product containing, as a constituent or additive,
an artificial or natural flavor or aroma (other than tobacco ) or an herb or spice,
including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut,
licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor or aroma of
the tobacco product, smoke or vapor produced by the tobacco product.
(2) A tobacco product shall be subject to a rebuttable presumption that the product
is prohibited by paragraph(1) of this subsection(h) if:
(A) The product's manufacturer or any other person associated with the
manufacture or sale of tobacco products makes or disseminates public statements or
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claims to the effect that the product has or produces a characterizing flavor or aroma,
other than tobacco; or
(B) 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.
(i) Vending machines prohibited. No tobacco product shall be sold, offered for sale,
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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(j) Prohibition on sale or distribution of tobacco products to persons under twenty-
one years. No retailer shall sell, offer for sale, or distribute any tobacco product to any
individual who is under twenty-one years of age.
5.50.040. Eligibility requirements for a permit.
(a) No retailer permit may be issued to authorize retailing at other than a fixed
location. For example, retailing by persons on foot or from vehicles is prohibited.
(b) No retailer permit may be issued to authorize retailing at a temporary or
recurring temporary event. For example, retailing at flea markets and farmers' markets
is prohibited.
(c) No retailer permit may be issued to authorize retailing at any location where the
profession of pharmacy is practiced by a pharmacist licensed by the State of California
in accordance with the Business and Professions Code and where prescription drugs are
offered for sale.
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(d) No retailer permit may be issued to authorize retailing at any location within
one thousand feet of a school, as measured by a straight line between any point along
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the property line of any parcel on which a school is located and any point along the
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perimeter of the applicant's proposed business location;provided, however, that the
prohibition contained in this subsection (d) shall not apply to the following:
(1) Any retailer of tobacco products operating lawfully on the date immediately
prior to this chapter becoming effective; and
(2) Any lawfully operating retailer of tobacco products that would otherwise
become ineligible to receive or renew a retailer permit due to the creation or relocation
of a school.
(e) No retailer permit may be issued to authorize retailing at a location which is
within five hundred 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 applicant's proposed business
location, provided, however, that the prohibition contained in this subsection (e) shall
not apply to existing retailers of tobacco products operating lawfully on the date
immediately prior to this chapter becoming effective.
(f) Any exemption granted to a retailer pursuant to this chapter shall cease to apply
upon the earlier of the following to occur:
(1) The retailer fails to timely renew the retailer permit pursuant to this chapter.
(2) A new person obtains ownership in the business.
5.50.050 Application procedure.
(a) It is the responsibility of each retailer to be informed of all laws applicable to
retailing, including those laws affecting the issuance of a retailer permit. No retailer
may rely on the issuance of a retailer permit as a determination by the city that the
retailer has complied with all laws applicable to retailing. A retailer permit issued
contrary to this chapter, contrary to any other law, or on the basis of false or misleading
information supplied by a retailer shall be revoked pursuant to this chapter.
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(b) All retailer permit applications shall be submitted on a form supplied by the city
or its designee to implement this chapter.
(c) A permitted retailer shall inform the city or its designee in writing of any change
in the information submitted on an application for a retailer permit within fourteen
calendar days of a change.
(d) All information specified in an application pursuant to this chapter shall be
subject to disclosure under the California Public Records Act(Government Code
Section 6250 et seq.) or any other applicable law, subject to any exemptions.
5.50.060 Issuance of permit.
(a) Upon the receipt of a complete application for a retailer permit, the application
fee, and the annual permit fee, the city or its designee shall issue a retailer permit unless
substantial evidence demonstrates that one or more of the following bases for denial
exists:
(1) The information presented in the application is inaccurate or false.
(2) The application seeks authorization for retailing at a location for which this
chapter prohibits issuance of a retailer permit.
(3) The application seeks authorization for retailing by a person to whom this
chapter prohibits issuance of a retailer permit.
(4) The application seeks authorization for retailing that is prohibited pursuant to
this chapter (e.g., mobile vending) or that is unlawful pursuant to any other law.
(b) A retailer permit shall be revoked if the city or its designee finds that one or more
of the bases for denial of a retailer permit under this chapter existed at the time
application was made or at any time before the retailer permit issued. Such a revocation
shall be without prejudice to the filing of a new permit application.
(c) A decision to deny issuance of a retailer permit or to revoke a retailer permit that
has been wrongly issued may be appealed pursuant to this chapter.
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5.50.070 Permit term, renewal, and expiration.
(a) Term of permit. The term of a retailer permit is one year. A retailer permit is
invalid upon expiration.
(b) Renewal of permit. The city or its designee shall renew a valid retailer permit
upon timely payment of the annual permit fee. The city or its designee may, in its
discretion, agree to renew any expired retailer permit within the three-month period
following expiration if the retailer pays the annual permit fee and applicable late
charges. For every calendar month, or fraction thereof, that a retailer fails to renew an
expired retailer permit, a late charge equal to twenty percent of the annual permit fee
shall be assessed. A retailer permit renewed within three calendar months of expiration
shall be treated as if timely renewed.
(c) Issuance of permit after revocation or expiration of permit. To apply for a new
retailer permit more than three calendar months after expiration of a retailer permit or
following revocation of a retailer permit that was wrongly issued, a retailer must
submit a complete application for a retailer permit, along with the application fee and
annual permit fee. The city or its designee shall issue a retailer permit pursuant to the
requirements of this chapter.
5.50.080 Permits nontransferable.
(a) A retailer permit 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 retailer permit has been issued, a new retailer permit shall be required,but any
exemption granted pursuant to Section 5.50.040(d) or (e) shall cease to apply.
(b) Notwithstanding any other provision of this chapter, prior violations of this
chapter at a location shall continue to be counted against a location and permit
ineligibility and suspension periods shall continue to apply to a location unless:
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(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
(2) The city or its designee is provided with clear and convincing evidence,
including an affidavit, that the business has been acquired in an arm's length
transaction.
5.50.090 Permit conveys a limited, conditional privilege.
Nothing in this chapter shall be construed to grant any person obtaining and
maintaining a retailer permit any status or right other than the limited, conditional
privilege to act as a retailer at the location in the city identified on the face of the permit.
5.50.100 Fees.
The city or its designee shall not issue or renew a retailer permit prior to full payment
of any applicable fees. The city shall, from time to time, establish by resolution or
ordinance the fees to issue or to renew a retailer permit. The fees shall be calculated so
as to recover the cost of administration and enforcement of this chapter, including, for
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example, issuing a permit, administering the permit program, conducting retailer
education, performing retailer inspection and compliance checks, documenting
violations, and prosecuting violators,but shall not exceed the cost of the regulatory
program authorized by this chapter. All fees and interest earned from such fees shall be
used exclusively to fund administration and enforcement of this chapter.
5.50.110 Compliance monitoring.
(a) Compliance with this chapter shall be monitored by the city or its designee. In
addition, any peace officer may enforce the penal provisions of this chapter. The City
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Manager may designate any number of additional persons to monitor and facilitate
compliance with this chapter.
(b) The city or its designee shall check each retailer at least once per twelve-month
period to determine if the retailer is complying with all laws applicable to retailing,
other than those laws regulating underage access to tobacco products. Nothing in this
paragraph shall create a right of action in any retailer or other person against the city or
its agents.
5.50.120 Prevention of underage sales.
(a) The city or its designee shall check each retailer to determine whether the retailer
is conducting business in a manner that complies with laws regulating youth access
to tobacco products. Nothing in this paragraph shall create a right of action in any
retailer or other person against the city or its agents.
(b) The city or its designee shall not enforce any law establishing a minimum age
for tobacco product purchases against a person who otherwise might be in violation of
such law because of the person's age ("youth decoy") if the potential violation occurs
when:
(1) The youth decoy is participating in a compliance check supervised by a peace
officer or a code enforcement official of the city or its designee;
(2) The youth decoy is acting as an agent of a person designated by the city or its
designee to monitor compliance with this chapter; or
(3) The youth decoy is participating in a compliance check funded in part, either
directly or indirectly through subcontracting, by the city, or the California Department
of Public Health.
5.50.130 Penalties for a violation by a retailer with a permit.
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(a) In addition to any other penalty authorized by law, an administrative fine shall be
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imposed and a retailer permit shall be suspended if any court of competent jurisdiction
determines, or the city or its designee finds based on a preponderance of the evidence,
after the retailer is afforded notice and an opportunity to be heard, that the retailer, or
any of the retailer's agents or employees, has violated any of the requirements,
conditions, or prohibitions of this chapter, has pled guilty, "no contest" or its equivalent
to such a violation, or has admitted to such a violation.
(b) Amount of fine. Each such violation shall be subject to an administrative fine as
follows:
(1) A fine not to exceed one hundred dollars ($100.00) for a first violation;
(2) A fine not to exceed two hundred dollars ($200.00) for a second violation within
a twelve-month period; and
(3) A fine not to exceed five hundred dollars ($500.00) for each additional violation
within a twelve-month period.
(c) Time period for permit suspension.
(1) For a first violation of this chapter at a location within any twenty-four-month
period, the retailer permit shall be suspended for up to thirty calendar days.
(2) For a second violation of this chapter at a location within any twenty-four-
month period, the retailer permit shall be suspended for up to ninety calendar days.
(3) For each additional violation of this chapter at a location within any twenty-
four-month period, the retailer permit shall be suspended for up to one year.
(d) Waiver of penalties for first violation. The city or its designee may waive any
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penalties for a retailer's first violation of any requirement, condition or prohibition of
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this chapter, other than a violation of a law regulating youth access to tobacco products,
if the retailer admits the violation in writing and agrees to forego a hearing on the
allegations. Regardless of the city's or its designee's waiver of penalties for a first
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violation, the violation will be considered in determining the penalties for any future
violation.
(e) Corrections period. The city or its designee shall have discretion to allow a retailer
a period of time to correct any violation of any requirement, condition or prohibition of
this chapter, other than a violation of a law regulating youth access to tobacco products.
If a retailer's violation is corrected within the time allowed for correction, no penalty
shall be imposed under this chapter.
(f) Appeals. Any penalties imposed under this chapter may be appealed pursuant to
Section 5.50.150.
5.50.140 Penalties for retailing without a permit.
(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 retailer
permit shall be imposed if a court of competent jurisdiction determines, or the city or its
designee finds based on a preponderance of evidence, after notice and an opportunity
to be heard, that any person has engaged in retailing at a location without a valid
retailer permit, either directly or through the person's agents or employees, has pled
guilty, "no contest" or its equivalent to such a violation, or has admitted to such a
violation.
(b) Amount of fine. Each such violation shall be subject to an administrative fine as
follows:
(1) A fine not to exceed one hundred dollars ($100.00) for a first violation;
(2) A fine not to exceed two hundred dollars ($200.00) for a second violation within
a twelve-month period; and
(3) A fine not to exceed five hundred dollars ($500.00) for each additional violation
within a twelve-month period.
(c) Time period for permit ineligibility.
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(1) For a first violation of this chapter at a location within any twenty-four-month
period, no new retailer 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 thirty calendar days have passed from the date of the violation.
(2) For a second violation of this chapter at a location within any twenty-four-
month period, no new retailer 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
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transaction) until ninety calendar days have passed from the date of the violation.
(3) For each additional violation of this chapter at a location within any twenty-
four-month period, no new retailer 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 one year has passed from the date of the violation.
(d) Waiver of penalties for first violation. The city or its designee may waive any
penalties for a retailer's first violation of this chapter, unless the violation also involves a
violation of a law regulating youth access to tobacco products, if the retailer admits the
violation in writing and agrees to forego a hearing on the allegations. Regardless of the
city's or its designee's waiver of penalties for a first violation, the violation will be
considered in determining the penalties for any future violation.
(e) Appeals. Any penalties imposed under this chapter may be appealed pursuant to
this section.
5.50.150 Appeals.
(a) A decision to deny issuance of a retailer permit, to revoke a retailer permit that
has been wrongly issued, or to impose penalties for a violation of this chapter can be
appealed to a hearing officer, subject to the following requirements and procedures. The
hearing officer shall be the City Manager or its designee.
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(b) All appeals must be in writing, state the grounds asserted for relief and the relief
sought, and be filed with the city or its designee within ten calendar days of receipt of
notice of the appealed action. If such an appeal is made, it shall stay enforcement of the
appealed action.
(c) No later than fifteen calendar days after receipt of the appeal, the hearing officer
shall set an appeal hearing at the earliest practicable time and shall give notice of the
hearing to the parties at least ten calendar days before the date of the hearing.
(d) Neither the provisions of the Administration 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. At the hearing, the hearing officer may admit
any evidence, including witnesses, relevant to the determination of the matter, except as
otherwise provided in Section 5.50.160(c). A record of the hearing shall be made by any
means, including electronic recording, so long as a reasonably accurate and complete
written transcription of the proceedings can be made.
(e) The hearing officer may continue the hearing from time to time, in his or her sole
discretion, to allow for orderly completion of the hearing.
(f) After the conclusion of the hearing, the hearing officer shall issue a written
decision, which shall be supported by substantial evidence. Notice of the written
decision, including findings of facts, conclusions of law, and notification of the time
period in which judicial review may be sought pursuant to Code of Civil Procedure
Section 1094.6, shall be served upon all parties no later than twenty calendar days
following the date on which the hearing closed.Any decision rendered by the hearing
officer shall be a final administrative decision.
5.50.160 Enforcement.
(a) Any violation of this chapter is hereby declared to be a public nuisance.
An Ordinance Regulating the Sale of Tobacco Products
Ordinance No. 19-2190
Page 15
(b) Causing, permitting, aiding, abetting, or concealing a violation of any provision
of this chapter shall also constitute a violation of this chapter.
(c) Whenever evidence of a violation of this chapter is obtained in any part through
the participation of a person under the age of eighteen years old, such a person shall not
be required over his or her objection to appear or give testimony in any civil or
I
administrative process brought to enforce this chapter and the alleged violation shall be
i
adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
(d) Violations of this chapter may be remedied by a civil action brought by the city,
including,but not limited to, administrative or judicial nuisance abatement
proceedings, civil code enforcement proceedings, and suits for injunctive relief. For the
purposes of the civil remedies provided in this chapter, each day on which
a tobacco product is offered for sale in violation of this chapter, and each individual
retail tobacco product that is distributed, sold, or offered for sale in violation of this
chapter, shall constitute a separate violation of this chapter.
(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
§36900.
(f) The remedies provided by this chapter are cumulative and in addition to any
other remedies available at law or in equity.
2. Chapter 10.27 of the Municipal Code is repealed
-i n 27 0 n Short Title
This chat9ter- shall be known as the "Eigar-ette and/or tobacco vending Enael4ne
An Ordinance Regulating the Sale of Tobacco Products
Ordinance No. 19-2190
Page 16
-i n 27 020 intent and Fur-pose
PEE)EIUCtS among miners contr-aFy to existing state laws which prohibit the sal
eighteen. TkeFefore, the City Council AnEls an(4 Eleclares it necessary to enaet
chapteF to Fecognize the pfomote of such laws, an(4 to pfoteet the public health,, safety
10.27.030 Prohibition of Vending Maehine Sales.
oIentity=to�lciic, , ',-.stal � rv� ntai , Or Eontr-ol_-�ni L�,enEling ii iaekine o any other-
tobaeco products in any public place Nvithin the City.
D. for- f 04 nl-..,pter-, "p blie plaee" is defin l as any area to which any
members of the ,bli are invited, or in which any ,,-+1 F 1-h „blk "re
t.r SVl ll lt. VLAVll\. l.il l..
atio
facilities, med
r -------__, p, _ - - - - 1 1 1
faEilities, r-eeeption areas, restaurants, restaur-ant�baF eembinations, retail stores, retail.
service establishments, Fetail food preEluetions and inaFketing establishments, waiting
10.27.040 Exemptions,
Exempted from
the terms of this ehapter e those establishments which serve alEeho e
beverages pursuant to a Type 48, Type 61 or-Type 42 license fFom the Califer-pria Alcoh
Bever-age Contf ol Board, t4e tefms of which license pFohibit per-sons undef twenty one
eaFs of
e fFem
and
on the
J p entering remaining premises, comply
An Ordinance Regulating the Sale of Tobacco Products
Ordinance No. 19-2190
Page 17
seet4on. Gigar-ette vending maehines shall be leeated at least twenty five feet from any
entry into the premise.-
10.27.050 Violations Penalties.
Any peFson violating any pFevision E)f this chapter shall be guilty of an infraction anEI
1176337.1
An Ordinance Regulating the Sale of Tobacco Products
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, GRACE SCHMIDT, City Clerk and ex-officio Clerk of the City
Council of the City of Cupertino, California, do hereby certify the attached
to be a true and correct copy of Ordinance No. 19-2190, which was
enacted on November 19, 2019, and that it has been published or posted
pursuant to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this �day of November, 2019.
GRACE SCHMIDT, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California