REVISED PURSUANT TO CITY COUNCIL

DIRECTION AT MARCH 18 2008 MEETING

Wl i

8t s 4 u f 0 APPROVED AS TO R ND LEG ITY

Introduced by councilmember LARRY REID

City Attorney

Ordinance No 12 8 6 7 C
S
M

ORDINANCE REQUIRING THE LICENSURE OF TOBACCO RETAILERS AND

CODIFYING SAID REQUIREMENTS AT OAKLAND MUNICIPAL CODE CHAPTER

AND
91 AND ADOPTING A TOBACCO LICENSING APPLICATION FEE OF
5 00
50

A TOBACCO LICENSING FEE OF 500 ANNUALLY TO COVER

1
00
AND SIMILAR COSTS
ADMINISTRATION INSPECTION COMPLIANCE

than 000 people

440 die in the United States from tobacco
WHEREAS more

it the nation
s leading cause of preventable death and
relateddiseases every year making

tobacco
WHEREAS the World Health Organization WHO estimates that by 2030
will account for 10 million deaths per year making it the greatest cause of death worldwide
and

the California has recognized the danger of tobacco use

WHEREAS Legislature
evidenced by
and has made reducing youth access to tobacco products a high priority as

the fact that

The Legislature has declared that smoking is the single most significant source

of preventable disease and premature death in California Cal Health Safety

Code 118950 and

the sale tobacco products and

State law prohibits or furnishing of cigarettes

smoking paraphernalia to minors as well as the purchase receipt or posses

sion of tobacco minors Cal Pen Code 308 and

products by
State law requires that tobacco retailers check the identification of tobacco pur

Prof
chasers who reasonably appear to be under 18 years of age Cal Bus

Code 22956 and provides procedures for using persons under 18 years of

checks of tobacco retailers Cal Bus Prof

age to conduct onsite compliance
Code 22952 and

435542 7 1
 self
State law prohibits the sale of tobacco products and paraphernalia through
services in only establishments Cal
adult Bus Prof Code
displays except
22962 and

State law prohibits the sale of bidis less cigarettes imported

rolled filter
hand

primarily from India and Southeast Asian countries except in adult estab
only
Pen Code 1
308 and
lishments Cal
sale of cigarettes in pack
State law prohibits the manufacture distribution or

manufacture distribution sale of roll

ages of less than 20 and the or
prohibits
own
your tobacco in packages containing less than 0
60 ounces of tobacco

Cal Pen Code 3

308 and

state law all tobacco retailers to be licensed by the Board of

WHEREAS requires
in order to curb the illegal sale and distribution of cigarettes which deprive the
Equalization
state yearly of hundreds of millions of tax dollars that fund local and state programs such

research and education programs

as health services antismoking campaigns cancer

Bus Prof Code 1 22972

22970 and
Cal

cities and counties to enact local tobacco re

WHEREAS state law explicitly permits
tail and allows for the suspension revocation of a local license for a
licensing ordinances or

violation of any state tobacco control law Bus Prof Code 3

22971 and
Cal

WHEREAS California courts in such cases as Cohen v Board of Supervisors 40

Cal 3d 277 1985 and Bravo Vending v City of Rancho Mirage 16 Cal App 4th 383

1993 have affirmed the power of local governments to regulate business activity in order

to discourage violations of law and

WHEREAS despite the state

s efforts to limit youth access to tobacco minors are

still able to access cigarettes as evidenced by the fact that

Nearly half of all youth smokers nationwide buy the cigarettes they smoke either

from retailers vending machines or by giving money to others to pur

directly or

chase the for them and

cigarettes
Minors consume 924 million packs of cigarettes each year nationwide yielding
from and
the tobacco industry 480 million in profits underage smokers
Most adults who have evertried smoking have tried theirfirst cigarette underthe

age of 18 and are on average under the age of 16 and

2
435542 7
 WHEREAS research demonstrates that local tobacco retail ordinances dramatically
reduce youth access to cigarettes as evidenced by the following

A youth sales of tobacco moved from base

study of several states found that a

line of 70 of retailers selling to minors before the adoption of the ordinance to

less than 5 in the year and a half after enactment and

A study of the effect of licensing and enforcement methods used in the Philadel

phia area revealed a decrease in sales to minors from 85 in 1994 to 43 in

1998 and

A study of several Minnesota cities found that an increased licensing fee in con

junction with strict enforcement of youth access laws led to a decrease from

8 to 4
39 9 in the number of youth able to purchase tobacco and

WHEREAS the implementation of tobacco

licensing requirements is supported by
most Californians as evidenced by the following

73 of California adults think tobacco retailers should be licensed

65 of California
skey of to
opinion leaders surveyed support implementation
licensing requirements
bacco and

Over 90 of enforcement agencies surveyed in 2000 rated license suspension

or revocation after repeated violations as an effective strategy to reduce youth
access to tobacco

seventy cities
WHEREAS one and counties in California have passed tobacco re

taller licensing ordinances in an effort to stop minors from smoking and

WHEREAS 615 communities in the United States require a license to sell tobacco

products and provide penalties such as suspension or revocation of the license for illegal
conduct g selling
e tobacco to minors and

WHEREAS California retailers continue to sell tobacco to underage consumers evi

denced by the following

14 of all tobacco retailers unlawfully sold to minors in 2004

5
31 traditional tobacco retailers such
of non as deli meat and produce markets

sold to minors in 2004 and

435542 7 3
 Teens surveyed in 2002 say they bought their cigarettes at gas stations 58 liq
stores and supermarkets and small grocery stores 25
uor 45

tobacco retailer license will not burden legiti

WHEREAS a requirement for a unduly
mate business activities of retailers who sell or distribute cigarettes or other tobacco products
businesses to dis
to adults It will however allow the City to regulate the operation of lawful
and local tobacco
related and
courage violations of federal state laws

WHEREAS the City has a substantial interest in promoting compliance with federal
the illegal
state and local laws intended to regulate tobacco sales and use in discouraging

purchase of tobacco products by minors in promoting compliance with laws prohibiting

minors and and most importantly in
sales of cigarettes and tobacco products to finally
children from being lured into illegal activity through the misconduct of adults
protecting

WHEREAS the City Council finds and determines that the adoption of this ordi

is from CEQA under Sections 3 15301

b
15061 and 15303 of the CEQA
Hance exempt
Guidelines

NOW THEREFORE The City Council of the City of Oakland does ordain as

follows

SECTION 1 The City Council finds and determines the foregoing recitals to be true
and correct and hereby makes them part of this Ordinance

SECTION 2 Chapter 91 is
5 hereby added to Title 5 Building Taxes Permits and

Regulations of the Oakland Municipal Code as follows

Chapter 91 LICENSURE OF TOBACCO RETAILERS

5

91 DEFINITIONS The
5
010 following definitions apply to this Chapter

s
Arm Length Transaction as used in this Chapter shall mean a sale in good faith

and for valuable consideration that reflects the fair market value in the open market

between two 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 viola

tions of this Chapter is not an s

Arm Length Transaction

435542 7 4
 City Administrator as used in this Chapter shall mean the City Administrator for the

of the title of any officer to any office

City of Oakland further provided that the use or

shall refer to such officer or office of the City of Oakland

Department as used in this Chapter shall mean the Oakland Police Department

Drug Paraphernalia used in this shall have the same definition set forth
as Chapter
under California Health and Code section 5as
11364 amended from time to
Safety
time

Person as used in this Chapter shall mean any natural person partnership coopera

tive association corporation limited liability company personal representative

receiver trustee assignee or any other legal entity

Proprietor as used in this Chapter shall mean a Person with an ownership or mana

gerial interest in a business An ownership interest shall be deemed to exist when a

Person has interest in the stock assets income of a

a ten percent 10 or greater or

business other than the sole interest of security for debt A managerial interest shall be

deemed to exist when a Person can or does have or share ultimate control over the

to operations
day of a business

Public Nuisance as used in this Chapter shall have the same definition as set forth

under California Civil Code Section 3490 as amended from time to time

Service Display
Self as used in this Chapter shall mean the open display of Tobacco
Products Tobacco Paraphernalia in that is accessible to the
or a manner general public
without the assistance of the retailer or employee of the retailer A Vending Machine is

a form of Self
Service Display

used in this Chapter shall Tobacco Product

Smoking as mean possessing a lighted
lighted Tobacco Paraphernalia or any other lighted weed or plant including a lighted
hookah of any the of a Tobacco Product
pipe cigar pipe or cigarette kind lighting

435542 7 5
 hookah
Tobacco Paraphernalia or any other weed or plant including a pipe cigar
pipe or cigarette of any kind

Tobacco Paraphernalia as used in this Chapter shall mean cigarette papers orwrap

pers pipes holders of smoking materials of all types cigarette rolling machines and
of To
any other item designed for the smoking preparation storing or consumption
bacco Products

Tobacco Product as used in this Chapter shall mean 1 any substance containing
tobacco leaf including but not limited to cigarettes cigars pipe tobacco hookah to

bacco snuff chewing tobacco dipping tobacco bidis or any other preparation of

tobacco and 2 any product or formulation of matter containing biologically active

amounts of nicotine that is manufactured sold offered for sale or otherwise distrib

uted with the expectation that the product or matter will be introduced into the human

body but does not include any product specifically approved by the United States

Food and Drug Administration for use in treating nicotine or tobacco product depend
ence

Tobacco Retailer as used in this Chapter shall mean any Person who sells offers for

sale or does or offers to exchange for any form of consideration tobacco Tobacco

Products or Tobacco Paraphernalia Tobacco Retailing shall mean the doing of any
of these things This definition is without regard to the quantity of tobacco Tobacco

Products or Tobacco Paraphernalia sold offered for sale exchanged or offered for

exchange

Vending Machine as used in this Chapter shall mean a machine appliance or other

mechanical device operated by currency token debit card credit card or any other

form of payment that is designed or used for vending purposes including but not lim

ited to machines devices that remote control mechanisms

or use locking

435542 7 5
 91TOBACCO RETAILER LICENSE
Sec 020
5 REQUIRED

A It shall be unlawful for any Person to act as a Tobacco Retailer without first obtain

valid Tobacco Retailer

s license pursuant to this for each
ing and maintaining a Chapter
Tobacco valid Tobacco Re
location at which that activity is to occur Retailing without a

s license is
tailer a Public Nuisance as defined in the Oakland Municipal Code This
to all and future Tobacco Retailers in the City The City Adminis
Chapter applies existing
tratorshall have power to rules of procedure and regulations not inconsistent with
adopt
the of this Chapter for the purpose of carrying out the provisions of this Chap
provisions
regulations shall be on file and available for
ter and a copy of such rules of procedure and

public examination at the Department

B A Tobacco Retailer or Proprietor without a valid Tobacco Retailer license including

without limitation a Person whose license has been suspended or revoked

Tobacco Products and Tobacco out of public view

1 Shall keep all Paraphernalia
The of Tobacco Products Tobacco Paraphernalia in violation of this
public display or

shall constitute Tobacco Retailing without license under Section 120

91
5
provision a

2 Shall not display any advertisement relating to Tobacco Products or Tobacco

that promotes the sale distribution of such products from the Tobacco
Paraphernalia or

s location
Retailer or that could lead a reasonable consumer to believe that such prod
ucts can be obtained at that location

C Nothing in this Chapter shall be construed to grant any Person obtaining and main

Tobacco Retailer
s license any status right other than the right to act
taining a or as a

Tobacco Retailer at the location in the City identified on the face of the license For exam

ple nothing in this Chapter shall be construed to render inapplicable supersede or apply
in lieu of any other provision of applicable law including but not limited to any provision
of this Code the Oakland Planning Code including the conditional use permit if applica
ble any condition limitation smoking in enclosed of
or or on an place employment
pursuant to California Labor Code section 6404
5 For example obtaining a Tobacco Re

435542 7
 taller license does not make the retailer a retail or wholesale tobacco shop for the pur

poses of California Labor Code section 6404

5

91 LIMITS ON TOBACCO RETAILER LICENSES

Sec 030
5

A No license may issue to authorize Tobacco at other than fixed location

Retailing a

For example Tobacco Retailing by Persons on foot or from vehicles is prohibited

B No license may issue to authorize Tobacco Retailing at any location where Drug

Paraphernalia is sold offered for sale or displayed for sale

91 APPLICATION PROCEDURE
Sec 040
5

Application for a slicense shall be submitted in the

Tobacco Retailer name of each

Proprietor proposing to conduct retail tobacco sales and shall be signed by each Proprietor or
an authorized agent thereof and shall include the license application fee set forth under Sec

tion 080
91
5

It is the responsibility of each Proprietor to be informed regarding all laws applicable to

Tobacco Retailing including those laws affecting the issuance of a Tobacco Retailer
s li

cense No Proprietor may rely on the issuance of a license as a determination by the City that
the Proprietor has complied with all laws applicable to Tobacco Retailing A license issued

to this to any other law the basis of false or misleading in

contrary Chapter contrary or on

formation supplied by a Proprietor shall be revoked pursuant to Section 91 of this

5
D
110
Chapter in this shall be construed to vest in any Person obtaining and
Nothing Chapter
Tobacco Retailer
s license any status or right to act as a Tobacco Retailer in
maintaining a

contravention of any provision of law

All applications shall be submitted on a form supplied by the Department and shall con

tain at a minimum the following information

A The name slicense or similar identification

address telephone number driver in

date of birth of each of the business that is seeking license

cluding Proprietor a

435542 7 8
 6 The business name address telephone number and business hours of the single
fixed location for which a license is sought

C If the single fixed location is leased a copy of the lease and the name of the owner

of single fixed location

each Proprietor to receive all

D A single name and mailing address authorized by
communications and notices the Authorized Address required by authorized by or

convenient to the enforcement of this Chapter If an Authorized Address is not supplied

each shall be understood to consent to the provision of notice at the business
Proprietor
address specified in subparagraph B above

E Proof that the location for which a slicense is

Tobacco Retailer sought has been is

sued a valid state tobacco s

retailer license by the California Board of Equalization

F Whether or not any Proprietor or prior Proprietor sknowl

to the best of applicant

has admitted has been found to have violated this Chapter or whose
edge violating or

proprietorship has admitted violating or has been found to have violated this Chapter

and if so the dates and locations of all such violations within the previous six years

G All criminal violations and any prior violations under this Chapter of each Proprietor
or
prior Proprietor to the best of sknowledge
applicant

H Such other information the deems necessary for the administration

as Department
or enforcement of this Chapter

I All information required to be submitted in order to apply for a Tobacco Retailer

sli

shall be with the whenever the information changes A

cense updated Department
Tobacco Retailer shall provide the Department with any updates within ten 10 business

days of a change

435542 7 9
 to
J A copy of the Major Conditional Use Permit if applicable or an explanation as

why such permit is not required

is will be sold
K A statement signed by each Proprietor that no Drug Paraphernalia or

at the business seeking the license

91 ISSUANCE OF LICENSE
Sec 050
5

slicense and the license fee

Upon the receipt of an application for a Tobacco Retailer
this the shall issue a license unless substantial evidence
required by Chapter Department
demonstrates that one or more of the following bases for denial exists

In
A The information presented in the application is incomplete inaccurate orfalse

tentionally supplying inaccurate orfalse information shall be a violation of this Chapter

seeks authorization for Tobacco at location for which

B The application Retailing a

issuance of Tobacco Retailer licenses However this subparagraph

this Chapter prohibits
shall not constitute a basis for denial of a license if the applicant provides the City with

documentation convincing evidence that the applicant has

demonstrating by clear and ac

quired or is acquiring the location or business in an s

Arm Length Transaction

C The application seeks authorization for Tobacco Retailing for a Proprietorto whom
this Chapter prohibits a license to be issued

D The application seeks authorization for Tobacco Retailing that is prohibited pursu

mobile that is unlawful pursuant to any provision of this

ant to this Chapter g
e vending
Code or that is unlawful pursuant to any other law

E The Department or the investigating official acting thereon determines in its rea

sonable discretion that the applicant is not a fit and proper person either for financial

moral or other reasons to conduct or maintain the business establishment place or

other thing to which the application pertains that the applicant has not complied with the

provisions of this code which pertain directly to the maintenance or conduct of the busi

435542 7 to
 other in for the violation of any law apper
Hess establishment place or thing question or

hereinafter in this specifically set

taining thereto or for any other reason Chapter more

forth In denying the license the Department shall consider the character of
granting or

and all pertinent acts which

the applicant with respect to morality honesty and integrity
may concern the health safety and general welfare of the public

F A denial of license shall be in writing citing the reasons for such de

a application
to the per the appeal provisions set forth in
nialand shall be appealable City Administrator
91 of this
Section 110
5 Chapter

91LICENSE RENEWAL AND EXPIRATION

Sec 060
5

A RENEWAL OF LICENSE A Tobacco Retailer license is invalid unless the appropri

ate fee has been in full and the term of the license has not expired The term of a
paid
Tobacco Retailer license is one year Each Tobacco Retailer shall apply for the renewal of

his or s license and submit the license fee

her Tobacco Retailer no later than thirty 30

days prior to expiration of the license term

B EXPIRATION OF LICENSE A Tobacco Retailer

s license that is nottimely renewed

shall end of its term To reinstate license that has expired to renew a li
expire at the a or

the must
cense not timely renewed pursuant to subparagraph A Proprietor

1 Submit the license fee plus a reinstatement fee of ten percent 10 of the li

cense fee

Submit signed affidavit affirming that the Proprietor

2 a

i has not sold and will not sell any Tobacco Product or Tobacco Paraphernalia
after the license expiration date and before the license is renewed or

appropriate ineligibility period established for Tobacco Retail

ii has waited the

ing without a license as set forth in Section 91 of this Chapter

5
A
120 before

435542 7 11
 seeking renewal of the license

91 LICENSES NONTRANSFERABLE
Sec 070
5

A A Tobacco Retailer
s license may not be transferred from one Person to another or

location to another Whenever Tobacco location has change in

from one a Retailing a

Proprietors a new Tobacco Retailer

s license is required

B any other provision of this Chapter prior violations at a location

Notwithstanding
shall continue to be counted against a location and license ineligibility periods shall con

tinue to apply to a location unless

1 the location has been fully transferred to a new Proprietor or fully transferred to

entirely new Proprietors and

2 the new sprovide

Proprietor the City with clear and convincing evidence that

the new shave acquired

Proprietor or is acquiring the location in an s
Arm Length
Transaction

Sec 080
91 FEES FOR LICENSE
5

A AMOUNT OF FEES The fee shall be 00

50 and the licensing and
application re

newal fee shall be 00

1500 or as the application licensing and renewal fees may be

amended in the City master fee

s schedule The fees shall be calculated so as to recover

the total cost of both license administration and license enforcement including for exam

ple issuing the license administering the license program retailer education retailer

inspection and compliance checks documentation of violations and prosecution of viola

tors but shall not exceed the cost of the regulatory program authorized by this Chapter
All fees shall be used exclusively to fund the program and shall be separately accounted
for Fees are nonrefundable as may be required by law
except

435542 7 12
 B FEES DUE AND PAYABLE The application fee is due and payable atthe time the

All renewal fees shall be due and pay

application is submitted to the City licensing and
determined The amount of fees shall be deemed a
able to the City as by the Department
debt to the An action may be commenced in the name of the City in any court of
City
for the amount of any delinquent fees An action to collect the fee
competent jurisdiction
must be commenced within three years of the date the fee becomes due An action to col

lect the for of the fee must be commenced within three years of the
penalty nonpayment
date the penalty accrues

C FEES ASSESSED AGAINST THE BUSINESS PROPERTY The amount of fee

penalty and interest imposed under the provisions of this Chapter may be assessed

the business which the fee is imposed in those instances where the
against property on

business and the business and the If the fees are

Proprietor of the property are one same

and interest shall constitute assessment against

not paid when due such fee penalty an

such business and shall be a lien on the property for the amount thereof which
property
lien shall continue until the amount thereof including all penalties and interest are paid or
until it is discharged of record

D TOBACCO RETAILERS SUBJECT TO DEEMED APPROVED ALCOHOLIC

BEVERAGE SALE REGULATIONS Any Tobacco Retailer subject to annual inspection

fees for alcoholic retail establishments as set forth in the master fee schedule
beverage
shall not pay licensing and renewal fees under this Chapter Such Tobacco Retailer

s license and pay the application fee set forth

however shall apply for a Tobacco Retailer

of this Section
under paragraph a

91OTHER REQUIREMENTS AND PROHIBITIONS

Sec 090
5

A LAWFUL BUSINESS OPERATION In the course of Tobacco Retailing or in the

operation of the business or maintenance of the location forwhich a license issued it shall

be a violation of this Chapter for a licensee or any of the licensee

sagents or employees
to

435542 7 13
 1 Violate any local state or federal law applicable to Tobacco Products Tobacco
Paraphernalia Tobacco Retailing Smoking including without limitation Oakland Mu

nicipal Code Chapter 30

8

2 Violate any local state or federal law regulating exterior storefront window or

door signage

state federal law regulating the sale offer for sale dis
3 Violate any local or or

play for sale of any Drug Paraphernalia

in any that affects the health safety welfare of

4 Operate manner adversely or

persons residing orworking in the surrounding area or in any mannerthat constitutes a Pub

lic Nuisance

B DISPLAY OF LICENSE Each Tobacco Retailer license shall be prominently dis

in visible location at the licensed location

played a publicly

C POSITIVE IDENTIFICATION REQUIRED No Person engaged in Tobacco Retailing

shall sell or transfer a Tobacco Product or Tobacco Paraphernalia to another Person who

appears to be under the age of twenty

seven 27 years without first examining the identi
fication of the recipient to confirm that the recipient is at least the minimum age under

state law to purchase and possess the Tobacco Product or Tobacco Paraphernalia

D MINIMUM AGE FOR PERSONS SELLING TOBACCO No Person who is younger

than the minimum age established by state law for the purchase or possession of Tobacco
Products shall engage in Tobacco Retailing

SERVICE DISPLAYS PROHIBITED No Tobacco Retailer shall

E SELF display To
bacco Products or Tobacco Paraphernalia by means of aSelf
Service Display or engage

in Tobacco Retailing by means of aSelf

Service Display

Sec 100
91 COMPLIANCE MONITORING
5

435542 7 14
 A Compliance with this Chapter shall be monitored by the Department Any peace of

ficer may enforce the penal provisions of this Chapter

of action in any Tobacco Retailer licen

B Nothing in this Chapter shall create a right
other Person the City or its agents
see or against

C checks shall determine at a minimum if the Tobacco Retailer is con

Compliance
ducting business in a manner that complies with tobacco laws regulating youth access to

tobacco When the checks shall determine compliance with other

appropriate compliance
laws applicable to Tobacco Retailing

91 DENIAL OR REVOCATION OF LICENSE

Sec 110
5

A DENIAL OR REVOCATION OF LICENSE In addition to any other penalty author

ized by law or this Chapter a sapplication

Proprietor shall be denied by the Department or
Tobacco Retailer
s license shall be revoked Administrator in his her
a by the City as or

discretion may for any for which granting of such license might be law
seem just reason a

fully denied or for any other reason hereinafter in this Chapter specifically provided
including but not limited to any violation of law designated in Section 91 of this
5
A
090
Chapter An appeal of a denial or a revocation of a license under this Chapter shall be

made only upon a hearing held before the City Administrator afterten 10 days written no

tice by S mail to such

U Proprietor applying for the license or Tobacco Retailer
s license

holder as applicable stating generally the grounds of complaint against him or her and

stating the time and place where such hearing will be held In the event of revocation of

the license any certificate issued in connection with the granting of such license shall by
the holder thereof be forthwith surrendered to the City Administrator

B HEARINGS ON REVOCATION OF LICENSE OR APPEAL OF DENIAL Any inves

tigation inquiry or hearing which the City Administrator has power to undertake or to hold

may be undertaken or held by such member of the City Administrator

s staff as he or she

may designate and to whom the matter is assigned The person to whom a matter is as

435542 7 15
 shall be deemed Officer In any matter assigned the Hearing Officer
signed a Hearing so

conducting the investigation inquiry or hearing shall report within thirty 30 days after the

hearing his her findings and recommendations

conclusion of the investigation inquiry or or

to the City Administrator

after the of the of

1 Within sixty 60 days filing findings and recommendations
the Hearing Officer the City Administrator shall confirm adopt modify or set

without notice enter his

aside the findings of the Hearing Officer and with or or

her order findings decision or award based upon the record in the case

and inquiries by the City Administrator or a

2 In such hearings investigations
Hearing Officer he or she shall not be bound in the conduct thereof by the

law rules of evidence and but inquiry shall be

common or statutory procedure
made in the oral and records which is best calcu
manner through testimony
and carry out
lated to ascertain the substantial rights of the public parties justly
the and of this Chapter
spirit provisions

3 No informality in any proceeding or the manner of taking testimony shall in

validateany other decision award or rule made as specified in this Chapter No

order decision award or rule shall be invalidated because of the admission into

the record and the use as any proof of any fact in dispute or any evidence not

admissible under the common law or statutory rules of evidence and procedure

C APPEALS TO CITY COUNCIL Any Proprietor excepting to any denial of a To

bacco Retailer license any Tobacco Retailer license holder to any revocation
or excepting
of such license held by him or her pursuant to the provisions of this Chapter may appeal
in writing to the City Council by filing with the City Clerk a written notice of such appeal set

tingforth the specific grounds thereof Such notice must be filed within fourteen 14 days
after notice of such action appealed from is posted in the United States mail Upon receipt
of such notice of appeal the Council shall set the time for consideration thereof The City
Clerk shall notice thereof to be given A to the and to the adverse
cause appellant B
or to the attorney spokesman of such
party or parties or representative party or parties
not less than five days prior to such hearing At such hearing the appellant shall show

435542 7 16
 in the notice of the action excepted to should
cause on the grounds specified appeal why
the be continued over from time to time
not be approved Such hearing may by Council

and its findings on the appeal shall be final and conclusive in the matter

D REVOCATION OF LICENSE ISSUED IN ERROR A Tobacco Retailer

s license

shall be revoked if the Department or City Administrator finds after the licensee is af

forded reasonable notice and an opportunity to be heard that one or more of the bases for

denial of license under Section 050

91 of this
5 existed at the time application
a Chapter
was made or at any time before the license issued The decision by the Department or the
City Administrator shall be the final decision of the City The revocation shall be without

prejudice to the filing of a new license application

E NEW LICENSE AFTER REVOCATION

first violation of this Chapter at a location within any

1 After revocation for a sixty
license may issue for the location until ten 10 days have
month 60 period no new

passed from the date of revocation

2 After revocation for a second violation of this Chapter at a location within any

month 60 period
sixty no new license may issue forthe location until thirty 30 days
have passed from the date of revocation

3 After revocation for a third violation of Chapter at a location within any sixty
month 60 period no new license may issue for the location until ninety 90 days
have passed from the date of revocation

4 After revocation for four or more violations of this Chapter at a location within

any month 60 period

sixty no new license may issue for the location until five 5
years have passed from the date of revocation

91 TOBACCO RETAILING WITHOUT A LICENSE

Sec 120
5

435542 7 17
 authorized if the finds
a In addition to any other penalty by law Department or any

after notice and opportunity to be heard

court of competent jurisdiction determines an

in Tobacco Retailing at location without a valid Tobacco

that any Person has engaged a

s
Retailer license either directly or through the Person
sagents or employees the Person

Tobacco license for that location

shall be ineligible to apply for or be issued a Retailing as

follows

1 After a first violation of this section at a location within any month 60

sixty pe

riod no new license may issue for the Person at the location until thirty 30 days have

passed from the date of the violation

2 After a second violation of this section at a location within any month 60

sixty

period no new license may issue for the Person at the location until ninety 90 days
have passed from the date of the violation

third section at location within any

3 After of a or subsequent violation of this a

license may issue for the Person at the location until

month 60 period
sixty no new

five years have passed from the date of the violation

5

Tobacco Products and Tobacco Paraphernalia offered for sale or exchange in vio
b
lation of this Chapter are subject to seizure by the Department or any peace officer and

shall be forfeited after the licensee and any other owner of the Tobacco Products or To

reasonable notice and to demonstrate that

bacco Paraphernalia is given an
opportunity
the products were not offered for sale or exchange in violation of this Chapter The deci

sion by the Department may be appealed pursuant to the procedures set forth in Section

91 Forfeited
5
C
110 Tobacco Products and Tobacco Paraphernalia shall be destroyed
by the Department

c For the purposes of the civil remedies provided in this Chapter

1 each day on which a Tobacco Product Tobacco Paraphernalia or Drug Para

phernalia is offered for sale in violation of this Chapter or

435542 7 18
 2 each individual retail Tobacco Product and each individual retail item of To

that is distributed sold offered for sale

bacco Paraphernalia or Drug Paraphernalia or

in violation of this Chapter

whichever is shall constitute separate violation of this Chapter

greater a

91 SETTLEMENT IN LIEU OF HEARING

Sec 130
5

For a first or second alleged violation of this Chapter within any sixty
month 60 period
authorized in settlement negotiations and may
the City Administrator or designee may engage
Tobacco Retailer to have violated this Chap
enter into a settlement agreement with a alleged
the Notice of any settlement shall be provided to the
terwithout approval from City Council

Department and no hearing shall be held The Tobacco Retailers license shall be suspended
After the settlement has been
until adoption of this settlement agreement agreement
the license shall continue under the terms unless oth
adopted same prior to the settlement
erwise stated Settlements shall not be confidential and shall contain the following minimum

terms

a After a first alleged violation of this Chapter at a location within any month
sixty

60 period

1 an agreement to stop acting as a Tobacco Retailer for at least one 1 day

2 a settlement payment to the City of at least one thousand dollars 1

0 00 and
admission that the violation occurred and that the violation will
3 an a stipulation
be counted when what penalty will be assessed for any future violations
considering

After a second of this Chapter at location within any month

sixty
b alleged violation a

60 period

to stop acting as a Tobacco Retailer for at least ten 10 days

1 an agreement

2 a settlement payment to the City of at least five thousand dollars 000 and
5

435542 7 19
 admission that the violation occurred and a stipulation that the violation will
3 an

be counted when considering what penalty will be assessed for any future violations

91 ENFORCEMENT
Sec 140
5

All officials departments and employees of the City vested with the authority to issue

this Tobacco
permits certificates or licenses shall adhere to and require conformance with
Retail Licensing Ordinance

A Violations and penalties

Infractions who violates causes permits another person to violate

1 Any person or

infraction unless otherwise

any provision of this Ordinance is guilty of an provided

2 Separate Offenses for Each Day Any violator shall be guilty of a separate offense
for each and every day during any portion of which any violation of any provision of this Ordi

Hance is committed continued permitted or caused by such violator and shall be punishable

accordingly

3 Any Violation a Public Nuisance In addition to the penalties provided in this section

any use or condition caused or permitted to exist in violation of any of the provisions of this

Chapter shall be and is declared to be a Public Nuisance and may be summarily abated as

such by the City

Additional violation of any of this Ordinance

4 Injunction as Remedy Any provision
shall be and is declared to be contrary to the public interest and shall at the discretion of the

City create a cause of action for injunctive relief

5 Penalties Any person convicted of an infraction underthe provisions of this section

shall be punishable by a fine to the maximum permitted under Oakland Municipal Code 1
28

Any violation beyond the second conviction within cone

year period may be charged by the

435542 7 20
District misdemeanor and the penalty for conviction shall be punishable by a
Attorney as a

fine to the maximum permitted under Oakland Municipal Code 1

28
or imprisonment

In addition to the violator is li

6 Liability for Expenses punishment provided by law a

able for such costs expenses and disbursements paid or incurred by the City or any of its

contractors in correction abatement and prosecution of the violation Reinspection fees to

ascertain with previously noticed or cited violations shall be charged against the
compliance
owner s License Fees shall be in the amount described in Section
of the Tobacco Retailer

The official shall give the owner or other

9
5
1
B 1 for charged reinspections
060 inspection
of such affected written notice showing the itemized cost of such
responsible party premises a
chargeable service and requesting payment thereof

B Enforcement The City designates the Department to enforce the provisions of this Or
dinance The City Administrator shall have power to adopt rules of procedure and regulations
not inconsistent with the provisions of this Chapter for the purpose of carrying out the provi
sions of this Chapter and a copy of such rules of procedure and regulations shall be on file

and available for public examination at the Department

C Inspection and right of entry The Department or their duly authorized representatives
may enter on any site or into any structure for the purpose of investigation provided they shall
do so in a reasonable manner whenever they have cause to suspect a violation of any provi
sion of this Ordinance An thereof who refuses to permit such
owner or occupant or agent
entry and investigation shall be guilty of infringing upon the violations and penalties as out

lined in Section 91 and subject

5
A
140 to related penalties thereof

D Remedies are Cumulative The remedies provided by this Chapterare cumulative and

in addition to any other remedies available at law or in equity

E Youth Decoy Participation Whenever evidence of a violation of this Chapter is ob

tained in any part through the participation of a Person under the age of eighteen 18 years

old such a Person shall not be required to appear or give testimony in any civil or administra
tive process brought to enforce this Chapter and the alleged violation shall be adjudicated
based upon the sufficiency and persuasiveness of the evidence presented

435542 7 21
 Section 3 SEVERABILITY If any article section subsection sentence clause or

this ordinance exhibit is held to be invalid unconstitutional the offending por

phrase of or or

tion shall be severed and shall not affect the of remaining portions which shall remain
validity
in full force and effect

Section 4 EFFECTIVE DATE This Ordinance shall become effective ninety 90

this Ordinance the Council of Oakland
days after final adoption of by City

Section 5 AUTHORITY This Ordinance is enacted pursuant to the City of Oakland

s

the City of Oakland and Article XI of

general police powers Section 106 of the City Charter of
the California Constitution

IN COUNCIL OAKLAND CALIFORNIA PR

DATE 12O X008

Passed By The Following Vote

AYES BROOKS BRUNNER CHANG KERNIGHAN NADEL QUAN REID AND

PRESIDENT DE LA FUENTE

NOES

ABSENT

ABSTENTION

DATE OF ATTES T AT I O N
b

Introduction mate 1 ppg A x

Ullu
LATONDA SIMMONS

CITY CLERK AND CLERK OF THE COUNCIL OF

THE CITY OF OAKLAND CALIFORNIA

435542 7 2z