CC Ordinance No. 23-2251 Amending Chapter 5.50 to Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco ProductsORDINANCE N0. 23-2251
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING CHAPTER 5.50 0F TITtE 5 (BUSINESS tICENSES AND
REGUI,ATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS
The City Council of the City of Cupertino finds that:
1. Electronic cigarettes, also known as e-cigarettes, e-vaporizers, or electronic
nicotine delivery systems, are battery-operated devices that people 'iise to inhale
an aerosol that typically contains nicotine. In addition to nicotine, the aerosol from
e-cigarettes may include up to 31 other components, including formaldehyde,
acetaldehyde, glycidol, acrolein, acetol, and diacetyl. Several of these compounds
are likely carcinogens, and acrolein is a powerful irritant. (See 2016 S'ttrgeon
General's Report: E-Cigarette useAmong Youth and Yo'tmgAdtdts, Centers for Disease
Control and Prevention (20'I6),
littps://www.cdc.gov./tobacco/data statistics/sgr/e-cigarettes/ii'idex.htm'). These
products can resemble traditional tobacco cigarettes (cig-a-likes), cigars, or pipes,
or even everyday items like pens or USB memory sticks. (See Vaping Devices
(Electronic Cigarettes), National Institute for Drug Abuse (2020),
https://www.drug-abuse.gov/publications/drugfacts/vaping-devices-electronic-
). The pervasive use of these and other related electronic cigarette
products has given rise to a massive and multifaceted public liealth crisis. In
addition, the Surgeon General has declared the use of e-cigarettes among youth an
"epidemic." Nearly 1 in 3 Santa Clara County teens -31.6 percent-report that
they have used an e-cigarette at least once. (See Zhu S-H, et al., Tobacco use among
liigh school students inn Santa Clarct Courtty: Findings froy'i'x the20l7-18 California Student
Tobacco Survey, Center for Research and Intervention in Tobacco Control (2019)).
2. The City Council of the City of Cupertino held a duly noticed public hearing on
February 4", 2020, and after considering all testimony and written materials
provided in connection with that hearing introduced this ordinance and waived
the reading thereof.
An Ordinance Regulating the Sale of Tobacco Products - Page 5
Ordiiiance No. 23-2251
Page 2
NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO
DOES ORDAIN AS FOt[OWS:
SECTION 1. .
The Cupertino Municipal Code is hereby amended as set forth in Attachment A.
SECTION 2: Severabilitv and Continuity
The City Council dedares that each section, sub-section, paragraph, sub-paragraph,
sentence, clause and phrase of this ordinance is severable and indepertdent 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
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.
SECTION 3: California Envitonmental 0uality Act-
This Ordinance is not a project under the requirements of the California Quality Act of
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
possibffity 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 minimis 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 reqriirements shall not become operative
as to tobacco retailers until November 16, 2023, which means that the City, or its
An Ordinance Regulating the Sale of Tobacco Products
Oranance No. 23-2251
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designee, will not begin to enforce the provisions and penalties under the Ordinance
until November 16, 2023.
SECTION 5: Publication.
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 zd 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
Ordinance listing the names of the City Council members voting for and against the
ordinance.
INTRODUCED at a regular meeting of the Cupertino City Council on
September 19, 2023 and ENACTED at a regular meeting of the Cupertino City Coincil
on October 17, 2023 by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABST AIN:
Wei, Mohan, Chao, Fruen, Moore
None
None
None
SIGNED:
Hing Wei, Mayor
City of Cupertino
Date
ATTEST:
Kirsten Squarcia, City Clerk Date
APPROVED AS TO FORM:
,,=A,, p Oct 25, 2023
Christopher D. Jensen, City Attorney Date
An Ordinance Regulating the Sale of Tobacco Products
10/26/23
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Ordinance No. 23-2251
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6. 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.
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 iri 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 or public entity selected or designated by the City to
enforce and/or administer the provisions of this Chapter.
C. "Distribute or Distributior't" means the transfer, by any person other than a
common carrier, of a tobacco product to another person for sale or personal
consumption.
D. "Electronic cigarette products" 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.
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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.
5. Electronic cigarette products shall not include any battery, battery charger,
carrymg case, or other accessory not used in the operation of the device if sold
separately. Electronic cigarette products shall not include any product that has
been approved by the United States Food and Drug Administrahon 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. §
387a. As used in this paragraph, nicotine does not include any food products as
that term is defined pursuant to Section 6359 of the California Revenue and
Taxation Code.
E. "Impound" means the legal control exercised by the City over the use, sale,
disposal, or removal of any Tobacco Products.
F. "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.
G. "Permit" means a valid permit issued by the City or its designee to a person to act
as a retailer.
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H. "Retailer" means any person who sells, exchanges, or offers to sell or excliange, for
any form of consideration, whether or not they possess a current permit.
"Retailiiig" shall mean the doing of any of these thii'igs. This definition is without
regard to the quantity of tobacco products sold, exchanged, distributed, or offered
for sale or ex*ange.
I. "School" means a public or private elementary, middle, junior high, or high
school.
J. "Tobacco product" means:
1. Any product subject to: 21 U.S.C. f§ 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]"); or 21 C.F.R. §§ 1100.1- 1100.3 ("[tobacco products] are 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. 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.
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 retailing
occurs. Tobacco product retailing without a valid tobacco retailer permit is a
nuisance as a matter of law.
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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 such products.
C. Display of permit. Each current retailer permit shall be prominently displayed in
a publicly visible place at the location identified in the permit.
D. Notice of minimum age for purchase of tobacco products. Retailers shall post
conspicuously, at each point of purchase, a notice stating that
selling tobacco products to anyone under twenty-one years of age is illegal and
subject to penalties. Such notice shall be subject to the approval of the City or its
designee.
E. Positive identification required. No retailer shall sell or distribute
a tobacco product to another person without first examining the ciistomer's
identification to confirm that the customer is at least the minimum age required
inder state law to purchase and possess the tobacco product.
F. Minimum age for individuals selling tobacco products. No individual who is
younger than the rninirnun age established by state law for the purchase or
possession of tobacco products shall engage in retailing.
G. False and misleading advertising prohibited. A retailer without a 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.
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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 retailing
tobacco products 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 paragraph 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 a person standing
outside the premises.
I. 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 but not limited to strawberry, grape, orange, clove, cir'u'iamon,
pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, mint, menthol, 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 subparagraph (1) of this paragraph 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 claims to the effect that the product has or produces a
characterizing flavor or aroma, other than tobacco; or
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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 chaiacterizing flavor or aroma other
than tobacco.
J. 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, madiines or devices that use remote control locking
mechanisms.
K. 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.
L. Prohibition on sale or distribution of electronic cigarette products. No person in
the City, whether or not issued a Permit, shall sell or distribute electronic cigarette
products.
5.50.040. Eligibility requirements for a permit.
A. No retailer permit may be issued to authorize retailing at or from 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
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California in accordance with the Business aiid Professions Code and where
prescription drugs are offered for sale.
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
the property line of any parcel on which a school is located and any point along
the perimeter of the applicant's proposed business location; provided, however,
that the prohibition contained in this paragraph shall not apply to the following:
1. Any retailer of tobacco ptoducts operating lawfully on the date immediately
prior to this Chapter becoming effective provided that the retailer obtains a
permit prior to July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and
timely renews its permit pursuant to 5.50.070(B); 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
paragraph shall not apply to existing retailers of tobacco products operating
lawfully on the date immediately prior to this Chapter becoming effective
provided that the retailers obtain a permit prior to July 1, 2020 pursuant to
sections 5.50.050 and 5.50.060, and timely renew their permits pursuant to
5.50.070(B).
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F. Any exemption granted to a retailer pursuant to this Chapter shall cease to apply
upon tlte 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 responsibihty 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
pirsuant to this Chapter.
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 inder the California Public Records Act (Government Code
Section 6250 et seq.) or any other applicable law, subject to any exemptions.
5.50.060 Permit issuance, denial, and revocation.
A. Upon the receipt of a complete application for a retailer permit, the application
fee, and the aru"iual permit fee, the City or its designee shall issue a retailer permit
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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 authorizahon for a retailer whose permit has previously
been revoked or who has otherwise violated aiiy provision of this Chapter
within the last 60 months.
5. The application seeks authorization for retailing that is prohibited pursuant to
this Chapter or that is unlawful pursuaiit 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 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 rinder 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 violation of this Chapter may result in suspension or permanent revocation of a
permit pursuant to Section 5.50.130.
5.50.070 Permit term, conditions, renewal, and expiration.
A. Term of permit. The term of a retailer permit is one year. A retailer permit is
invalid upon expiration.
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B. Conditions of permit. As conditions of permit issuance and retention, retailer
shall:
1. Allow compliance inspections as described in this Chapter and expressly
consent to inspection of all area and records of 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 City to impoind any product not authorized to
be sold by this Chapter and cooperate with any City 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 5.120.
C. Renewal of permit. The City or its designee shall renew a valid retailer permit
upon timely payment of the annual permit fee provided that the retailer complies
with this Chapter, as amended. 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.
D. 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
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retailer must submit a complete application for a retailer pern'ut, 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
aPPl)'-
B. Notwithstandu'ig 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:
1. One hindred 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. All permits are issued subject to the City's right to amend this chapter, and
retailers shan comply with all provisions of this Chapter, as amended.
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5.50.100 Fees.
The City or its designee shall not issue or renew a retailer permit before 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 of this Chapter, including, for example, issuing a
permit, administering the permit program, conducting retailer education, routine
retailer inspection and compliance, but shan not exceed the cost of the regiilatory
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. hi
addition, any peace officer may enforce the penal provisions of this Chapter. The
City Manager may designate any number of additional persons to monitor and
facilitate compliance with this Chapter.
B. The City or its designee shall monitor 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 u"iderage access to tobacco products.
Nothing in this paragraph shan 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 monitor each retailer to determine whether the
retailer is conducting business in a manner that complies with Jaws 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.
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B. The City or its designee shall not enforce any law establishiiig 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 subcontracttng, by the City, or the California
Department of Public Health.
5.50.130 Permit suspension or revocation.
A. Permit suspension. In addition to any other penalty authorized by law, the City
may suspend a permit if tlie City 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. A suspension not to exceed 30 calendar days for an initial violation.
2. 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. When a Permit is suspended based on a violation of this chapter, tlie City 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:
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(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 mointed 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 Director to ensure proper notice to the
general public and to patrons of the physical location used for retailing
tobacco products.
(D)Oitce 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 City
or upon written notification from the City.
B. Permanent permit revocation. In addition to any other penalty authorized by law,
the City shall permanently revoke a permit if a retailer commits a violation or
violations during three instances within a 60-month period.
C. Waiver or reduction of fines and penalties for first violation. The City or its
designee may, in its sole discretion, waive or reduce any fines and penalties for a
retailer's first violation of this section, if the retailer adrnits the violation in writirig
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 deterrnining the fines and suspension periods or revocation for any future
violation. This paragraph shall not apply to any violation involving a law
regulating youth access to tobacco products.
D. 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
Aa'i Ordinance Regulating the Sale of Tobacco Products
Ordinance No. 23-2251
Page 19
prohibition of this Chapter, other than a violation of a law regulating youth access
to tobacco products. If the City or its designee exercises its discretion to provide a
corrections period and a retailer's violation is corrected within the time allowed
for correction, no penalty shan be imposed under this Chapter.
E. Written notice of penalties. Whenever an admiiiistrative citation is issued and/or
a permit is suspended or revoked based on a violation of this Chapter, the City or
its designee shall provide the retailer written notice of the violation and the fine
and suspension or revocation, including when the suspension or revocation shall
take effect.
F. Appeals. The suspension or revocation of a permit may be appealed in the same
manner as the appeal of an administrative citation pursuant to Section 1.10.090.
G. A timely appeal shall stay enforcement of the appealed penalties until the final
administrative decision of the City is issued.
5-50.140 Enforcement.
A. Any violation of this Cliapter is subject to administrative citation pursuant to
Chapter 1.10.
B. Any violation of this Chapter is hereby declared to be a public nuisance.
C. Causing, permitting, aiding, abetting, or concealing a violation of any provision
of this Chapter shall also constitute a violation of this Chapter.
D. 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 administrative process brought to enforce this Chapter and the alleged
An Ordinance Regulating the Sale of Tobacco Products
Ordiitance No. 23-2251
Page 20
violation shall be adjudicated based upon the sufficiency and persuasiveness of
the evidence presented.
E. Violations of this Chapter may be remedied by a civil action brought by the City.
F. For the purposes of the civil and administrative remedies provided in this
Chapter, eadi day on which a product is offered for sale in violation of this
Chapter, and each individual product that is distributed, sold, or offered for sale
in violation of this Chapter, shan constitute a separate violation of this Chapter.
G. Impoundment.
1. Based upon inspection findings or other evidence, the aty may irnpound
tobacco products that are suspected of being or found to be offered for sale or
distribution in violation of this Chapter. The City may affix a label to the
product that shall be removed only by the City following final written
determination by the City as described below-
2. No impounded tobacco products shall be used, removed, disposed, or offered
for sale inless the impoundment has been released.
3. Within 30 days of final determination whether impounded products are
authorized for sale under this Chapter, the City shall release the impounded
materials or order that unauthorized, impounded product shall be destroyed
and properly disposed of at the cost of the retailer. The decision by the City
may be appealed pursuant to the procedures set forth in Section 1.10.090.
H. Seizure. Tobacco products offered for sale in violation of this Chapter are subject
to seizure by the City and shall be forfeited after the retailer of the tobacco
products seized is given reasonable notice and an opportunity to demonstrate
An Ordinance Regulating the Sale of Tobacco Products
Ordinance No. 23-2251
Page 21
that the tobacco products were not offered for sale in violation of this Chapter.
The decision by the City may be appealed pursuant to the procedures set forth in
Section 1.10.090. Forfeited tobacco products shall be destroyed and properly
disposed at the cost of the retailer after all administrative appeals have been
exhausted and the time in whid'i to seek judicial review has expired.
I. All retailers are responsible for the actions of their employees relating to
compliance with this Chapter. The sale, offer to sale, or furnishing of any tobacco
products by an employee shall be considered an act of the retailer.
J. 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 City prevails.
K. The remedies provided by tins Cliapter are cumulative and iit addition to any
other remedies available at law or in eq'i'iity.
5.50.150 Interpretation.
A. Nothing in this Chapter 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 prodtict by any person not engaged in the retailing of
such products.
An Ordinance Regulating the Sale of Tobacco Products
ORDINANCE 23-2251 Amending Chapter 5.50
of Title 5 (Business Licenses and Regulations)
Final Audit Report 2023-10-25
Created:2023-10-25
Araceli Alejandre (aracelia@cupertino.org)
Status:Signed
Transaction ID:lwvD54BPGYxJRkqailiepCe
"ORDINANCE 23-2251 Amending Chapter 5.50 of Title 5 (Busin
ess Licenses and Regulations)" History
5 Document created by Araceli Alejandre (aracelia@cupertino.org)
2023-10-25 - 10:33:06 PM GMT- IP address: 71.204.144.228
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2023-10-25 - 10:38:13 PM GMT
5 Email viewed by christopherj@cupertino.org
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4 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen
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#@ Document e-signed by Christopher D. Jensen (christopherj@cupertino.org)
Signature Date: 2023-10-25 - 10:41:11 PM GMT - Time Source: server- IP address: 64.165.34.3
@ Agreement completed.
2023-10-25 - 10:41:11 PM GMT
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STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, KIRSTEN SQUARCIA, 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. 23-2251which was enacted on October 17, 2023, 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 26th day of October 2023.
____________________________________________
KIRSTEN SQUARCIA, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California