CC Ordinance No. 24-2257 AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTSAn Ordinance Regulating the Sale of Tobacco Products - Page 5
ORDINANCE NO. 24-2257
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND
REGULATIONS) 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 use 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 Surgeon General’s Report: E-Cigarette Use Among Youth and Young Adults,
Centers for Disease Control and Prevention (2016),
https://www.cdc.gov./tobacco/data_statistics/sgr/e-cigarettes/index.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.drugabuse.gov/publications/drugfacts/vaping-devices-electronic-
cigarettes). The pervasive use of these and other related electronic cigarette
products has given rise to a massive and multifaceted public health 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 high school students in Santa Clara County: Findings from the 2017-18
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 4th, 2020, and after considering all testimony and written materials
provided in connection with that hearing introduced this ordinance and waived
the reading thereof.
Ordinance No. 24-2257
Page 2
NOW, THEREFORE, THE CITY COUNCIL OF THE OF 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
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. Effective Date.
This Ordinance shall take effect thirty days after adoption as provided by Government
Code Section 36937.
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 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
Ordinance listing the names of the City Council members voting for and against the
ordinance.
INTRODUCED at a special meeting of the Cupertino City Council on April 3,
2024 and ENACTED at a regular meeting of the Cupertino City Council on April 16,
2024 by the following vote:
Ordinance No. 24-2257
Page 3
Members of the City Council
AYES: Mohan, Fruen, Chao, Moore, Wei
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
Sheila Mohan, Mayor
City of Cupertino
Date
ATTEST:
Kirsten Squarcia, City Clerk Date
APPROVED AS TO FORM:
Christopher D. Jensen, City Attorney Date
Christopher D. Jensen Apr 19, 2024
4/22/2024
4/22/2024
Ordinance No. 24-2257
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Attachment A – An Ordinance of the City Council of the City of Cupertino
Amending Chapter 5.50 of Title 5 (Business Licenses and Regulations) to Regulate
the Sale of Tobacco Products
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 (example)
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. Chapter 5.50 of Title 5 is amended as follows:
5.50.010 Intent.
A. This Chapter is adopted to:
1. Ensure compliance with the business standards and practices of the City;
2. Encourage responsible retailing of Tobacco Products;
3. Prevent violations of laws related to Tobacco Products, especially those that
prohibit or discourage the sale or distribution of Tobacco Products and
Electronic Cigarette Products to individuals under twenty-one;
4. Respond to a new wave of addiction to Electronic Cigarette Products;
5. Reduce vulnerability to unexplained illnesses associated with Electronic
Cigarette Products; and
6. Protect the public health and welfare.
Ordinance No. 24-2257
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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 in the transaction. A sale between relatives, related companies or
partners, or a sale for which a purpose is avoiding the effect of the violations of
this Chapter is not an arm's length transaction.
B. “Department” means the County of Santa Clara’s Department of Environmental
Health and any agency or person designated by the Director of the Department of
Environmental Health to enforce or administer the provisions of this Chapter.
C. “Distribute or Distribution” 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.
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,
carrying case, or other accessory not used in the operation of the device if sold
Ordinance No. 24-2257
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separately. Electronic Cigarette Products shall not include any product that has
been approved by the United States Food and Drug Administration for sale as
a tobacco cessation product or for other therapeutic purposes where that
product is marketed and sold solely for such approved use. See 21 U.S.C. §
387(a). As used in this 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. “Hearing Officer” means the hearing officer appointed by the Department in
accordance with County of Santa Clara Ordinance Code (“County Ordinance
Code”) section A38-2.
F. “Impound” means the legal control exercised by the Department over the use,
sale, disposal, or removal of any Tobacco Products.
G. “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.
H. “Permit” means a valid permit issued by the Department to a person to act as a
retailer.
I. “Retailer” means any person who sells, exchanges, offers to sell or exchange, or
distributes Tobacco Products for any form of consideration, whether or not they
possess a current Permit. “Retailing” shall mean the doing of any of these actions.
This definition is without regard to the quantity of Tobacco Products sold,
exchanged, distributed, or offered for sale or exchange.
J. “School” means a public or private elementary, middle, junior high, or high
school.
K. “Sale and sold” includes any sale, exchange, barter, or offer for sale.
L. “Tobacco Product” means (unless specifically noted elsewhere) any product
subject to Subchapter IX (21 U.S.C. § 387 et seq. (“Subchapter IX”)) of the Federal
Food, Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b) (products subject to
Subchapter IX); 21 C.F.R. §§ 1100.1- 1100.3 (tobacco products subject to
Subchapter IX)) and Electronic Cigarette Products. Products subject to Subchapter
IX include, but are not limited to, cigarettes, cigarette tobacco, roll-your-
own tobacco, smokeless tobacco, cigars, pipe tobacco, and waterpipe tobacco.
Ordinance No. 24-2257
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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 without
first obtaining and maintaining a Permit pursuant to this Chapter for each
location at which Retailing occurs.
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 Tobacco Products.
C. Display of Permit. Each 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
Department.
E. Positive identification required. No retailer shall sell or distribute
a Tobacco Product to another individual without first examining the individual's
identification to confirm that the individual is at least the minimum age required
under State law to purchase and possess the Tobacco Product.
F. Minimum age for individuals selling Tobacco Products. No individual who is
younger than the minimum 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 an individual
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,
cinnamon, 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
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.
J. Vending machines prohibited. No Tobacco Product shall be Sold 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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K. Prohibition on Sale or Distribution of Tobacco Products to individuals under
twenty-one. No Retailer shall Sell 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,
whether or not issued a Permit, shall Sell or Distribute Electronic Cigarette
Products.
5.50.040. Eligibility requirements for a Permit.
A. No 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 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 Permit may be issued to authorize Retailing at any location where the
profession of pharmacy is practiced by a pharmacist licensed by the State in
accordance with the Business and Professions Code and where prescription drugs
are offered for sale.
D. No 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 Permit 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 products (as such term was defined in Ordinance No.
20-2197) operating lawfully on the date immediately before this Chapter
becoming effective provided that the Retailer obtained a Permit before July 1,
2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit
pursuant to 5.50.070(B);
2. Any Retailer of electronic smoking devices (as such term was defined in
Ordinance No. 20-2197) operating lawfully on the date immediately before this
Chapter becoming effective provided that the Retailer obtained a Permit before
July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its
permit pursuant to 5.50.070(B); however, any such Retailer is subject to the
Ordinance No. 24-2257
Page 10
prohibition on the Sale and Distribution of Electronic Cigarette Products
established in Section 5.50.030; and
3. Any lawfully operating Retailer of Tobacco Products that would otherwise
become ineligible to receive or renew a Permit due to the creation or relocation
of a school.
E. No 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 Permit applicant's proposed
business location; provided, however, that the prohibition contained in this
paragraph shall not apply to:
1. Any Retailer of tobacco products (as such term was defined in Ordinance No.
20-2197) operating lawfully on the date immediately before this Chapter
becoming effective provided that the Retailer obtained a Permit before 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 Retailer of electronic smoking devices (as such term was defined in
Ordinance No. 20-2197) operating lawfully on the date immediately before this
Chapter becoming effective provided that the Retailer obtained a Permit before
July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renewed its
Permit pursuant to 5.50.070(B); however, any such Retailer is subject to the
prohibition on the Sale and Distribution of Electronic Cigarette Products
established in Section 5.50.030.
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 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 Permit. No Retailer may
rely on the issuance of a Permit as a determination by the City or the County of
Santa Clara that the Retailer has complied with all laws applicable to Retailing. A
Permit issued contrary to this Chapter, contrary to any other law, or on the basis
Ordinance No. 24-2257
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of false or misleading information supplied by a Retailer shall be revoked
pursuant to this Chapter.
B. All Permit applications shall be submitted on a form supplied by the Department.
C. A permitted retailer shall inform the Department in writing of any change in the
information submitted on an application for a Permit within fourteen calendar
days of a change.
D. All information included 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 the laws’ exemptions.
5.50.060 Permit issuance, denial, and revocation.
A. Upon the receipt of a complete application for a Permit, the application fee, and
the annual Permit fee, the Department shall issue a 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 Permit.
3. The application seeks authorization for Retailing by a Person to whom this
Chapter prohibits issuance of a Permit.
4. The application seeks authorization for a Retailer whose Permit has previously
been revoked or who has otherwise violated any provision of this Chapter
within the last 60 months.
5. The application seeks authorization for Retailing that is prohibited pursuant to
this Chapter (e.g., mobile vending, Electronic Cigarette Products) or that is
unlawful pursuant to any other law.
6. The application seeks authorization for Retailing by a Retailer who has failed
to pay any fees, penalties, or reinspection fees required by this Chapter.
B. A Permit shall be revoked if the Department finds that one or more of the bases
for denial of a Permit under this Chapter existed at the time application was made
or at any time before the Permit was issued. Such a revocation shall be without
prejudice to the filing of a new Permit application.
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C. A Permit shall be permanently revoked if the Retailer has committed violations as
specified in Section 5.50.130.
5.50.070 Permit term, conditions, renewal, and expiration.
A. Term of Permit. The term of a Permit is one year. A Permit is invalid upon
expiration.
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 areas 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 Department to impound any product not
authorized to be sold by this Chapter and cooperate with any Departmental
seizure of any product, subject to appeal of those actions.
3. Failure to comply with these permit conditions may result in Permit
suspension or revocation as described in Section 5.50.130.
C. Renewal of Permit. The Department shall renew a Permit upon timely payment of
the annual Permit fee provided that the Retailer complies with this Chapter, as
amended. The Department may, in its discretion, agree to renew any expired
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 Permit, a late charge
equal to twenty percent of the annual Permit fee shall be assessed. A 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
Permit more than three calendar months after expiration of a Permit or following
revocation of a Permit that was wrongly issued, a Retailer must submit a
complete application for a Permit, along with the application fee and annual
Permit fee. The Department shall issue a retailer permit pursuant to the
requirements of this Chapter.
5.50.080 Permits nontransferable.
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A. A 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
Permit has been issued, a new Permit shall be required, but any exemption
granted pursuant to Section 5.50.040 shall cease to apply.
B. Notwithstanding any other provision of this Chapter, prior violations of this
Chapter at a location shall continue to apply to a location and Permit ineligibility
and suspension periods shall continue to apply to a location unless:
1. One hundred percent of the interest in the stock, assets, or income of the
business, other than a security interest for the repayment of debt, has been
transferred to one or more new owners; and
2. The Department 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 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 shall
comply with all provisions of this Chapter, as amended.
5.50.100 Fees.
The Department shall not issue or renew a Permit before full payment of any
applicable fees. The County Board of Supervisors shall, from time to time, establish by
resolution or ordinance the fees to issue or to renew a 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 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 Department. In addition,
any peace officer may enforce the penal provisions of this Chapter. The
Department may designate any number of additional individuals to monitor and
facilitate compliance with this Chapter.
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B. The Department or other individuals designated to enforce the provisions of this
Chapter 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 underage access to Tobacco Products. Nothing in this
paragraph shall create a right of action in any Retailer or other person against the
City, the County of Santa Clara, or its agents.
C. Any Retailer found to be in violation of this Chapter shall pay all costs related to
enforcement to ensure Retailer’s compliance with this Chapter, including but not
limited to, fees for reinspection to determine compliance after a violation,
enforcement costs, litigation costs, and attorneys’ fees in any administrative or
civil matter in which the Department prevails pursuant to Division A1 of the
County Ordinance Code or any other provision of law.
5.50.120 Prevention of underage sales.
A. The Department of other departments or individuals designated to enforce the
provisions of this Chapter shall monitor each Retailer at least twice per twelve-
month period 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, the County of Santa Clara, or its agents.
B. The Department or other departments or individuals designated to enforce the
provisions of this Chapter shall not enforce any law establishing a minimum age
for Tobacco Product purchases against an individual who otherwise might be in
violation of such law because of the individual’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 department or individual
designated by the City or the County of Santa Clara 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, the County of Santa
Clara, or the California Department of Public Health.
Ordinance No. 24-2257
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5.50.130 Penalties for a violation by a Retailer with a Permit.
A. Administrative Fine. In addition to any other penalty authorized by law, a
Retailer shall pay a fine if the Retailer or any of the Retailer's agents or employees,
violates any of the requirements, conditions, or prohibitions of this Chapter.
The amount of the administrative fine for each violation of this Chapter shall be
as follows:
1. A fine not to exceed $1,000 for each violation identified during the first
instance in which the Retailer has committed a violation or violations;
2. A fine not to exceed $2,500 for each violation identified during a subsequent
instance if the Retailer has committed a previous violation or violations within
a 60-month period; and
3. A fine not to exceed $5,000 for each violation identified during a subsequent
instance after the Retailer twice committed a previous violation or violations
within a 60-month period.
B. Permit suspension. In addition to any other penalty authorized by law, the
Department may suspend a permit if the Department demonstrates that the
Retailer or any of the Retailer’s agents or employees has violated any of the
requirements, conditions, or prohibitions of this Chapter. The period of the
suspension shall be as follows:
1. 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, the
Department shall post a placard at the physical location used for Retailing
Tobacco Products to notify the general public of the suspension. The placard
shall be:
A) Posted in the front window of the storefront used for Retailing Tobacco
Products within five feet of the front door; or
B) Posted in a display case mounted on the outside front wall of the physical
location used for Retailing Tobacco Products within five feet of the front
door; or
Ordinance No. 24-2257
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C) Posted in a location approved by the Department to ensure proper notice
to the general public and to patrons of the physical location used for
Retailing Tobacco Products.
D) Once attached to a building or structure, a placard is not to be removed,
altered, or covered until done so by an authorized representative of the
Department or upon written notification from the Department.
C. Permanent Permit revocation. In addition to any other penalty authorized by law,
the Department shall permanently revoke a Permit if a retailer commits a
violation or violations during three instances within a 60-month period.
D. Waiver or reduction of fines and penalties for first violation. The Department
may, in its sole discretion, waive or reduce any fines and penalties for a Retailer's
first violation of this Chapter if the Retailer admits the violation in writing and
agrees to forego a hearing on the allegations. Regardless of the Department’s
waiver of penalties for a first violation, the violation will be considered in
determining 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.
E. Corrections period. The Department 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 the Department exercises its discretion to provide a
corrections period, and a Retailer’s violation is corrected within the time allowed
for correction, no penalty shall be imposed under this Chapter.
F. Written notice of penalties. Whenever a fine is issued and/or a Permit is
suspended or revoked based on a violation of this Chapter, the Department 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.
G. Appeals. Any penalties imposed under this section may be appealed pursuant to
Section 5.50.150 of this Chapter.
H. A timely appeal shall stay enforcement of the appealed penalties until the final
administrative decision of the Department is issued.
Ordinance No. 24-2257
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5.50.140 Penalties for retailing without a Permit.
A. Administrative fine. In addition to any other penalty authorized by law, a Retailer
shall pay a fine if the Department demonstrates that the Retailer has engaged in
Retailing at a location without a valid Permit, either directly or through the
Retailer's agents or employees. The amount of the administrative fine for each
violation of this Chapter shall be as follows:
1. A fine not to exceed $2,500 for each violation identified during the first
instance in which the Retailer has committed a violation or violations without a
valid Permit;
2. A fine not to exceed $5,000 for each violation identified during a subsequent
instance if the Retailer has committed a previous violation or violations within
a 60-month period without a valid Permit; and
3. A fine not to exceed $10,000 for each violation identified during a subsequent
instance after the Retailer has twice committed a previous violation or
violations within a 60-month period without a valid Permit.
B. Time period for Permit ineligibility. The ineligibility period shall be as follows:
1. For an initial violation of this Chapter without a valid Permit, no new Permit
may be issued to the Retailer or the location (unless Ownership of the business
at the location has been transferred in an Arm's Length Transaction) until 30
calendar days have passed from the date of the violation.
2. If a Retailer commits a violation or violations during two instances within a 60-
month period without a valid Permit, no new Permit may be issued to the
Retailer or the location (unless ownership of the business at the location has
been transferred in an Arm's Length Transaction) until one year has passed
from the date of the second violation.
3. If a Retailer commits a violation or violations during three instances within a
60-month period without a valid Permit, the Retailer and the location (unless
Ownership of the business at the location has been transferred in an Arm's
Length Transaction) shall be permanently ineligible for a Permit.
C. Waiver or reduction of fines and penalties for first violation. The Department
may, in its sole discretion, waive or reduce any fines and penalties for a Retailer's
first violation of this Chapter if the Retailer admits the violation in writing and
agrees to forego a hearing on the allegations. Regardless of the Department’s
Ordinance No. 24-2257
Page 18
waiver of fines or penalties for a first violation, the violation will be considered in
determining the fines and suspension periods or revocation for any future
violation. This subsection shall not apply to any violation involving a law
regulating youth access to Tobacco Products.
D. Written notice of penalties. Whenever a fine is issued and/or a Permit is
suspended pursuant to this section, the Department shall provide the Retailer
written notice of the fine and suspension, including when the suspension shall
take effect.
E. Appeals. Any penalties imposed under this Chapter may be appealed pursuant to
Section 5.50.150 of this Chapter. A timely appeal shall stay enforcement of the
appealed penalties until the final administrative decision of the County is issued.
5.50.150 Appeals.
A. Any Retailer served with a written notice of violation may request an
administrative hearing to appeal the existence of the violation, the amount of the
fine, the length of a suspension, a revocation of a Permit, the sustained
impoundment of Tobacco Products, and/or seizure of Tobacco Products by
returning a completed hearing request form to the Office of the County Hearing
Officer within 10 days from the date of the written notice of penalties.
B. The Retailer shall include the following in or with the hearing request form:
1. A statement indicating the reason the Retailer contests the written notice of
penalties, including a factual and/or legal basis for the appeal in sufficient
detail to put the Department on notice of the nature of the appeal and the
objections and arguments raised by the Retailer;
2. Any evidence the Retailer wants the Hearing Officer to consider;
3. Payment of the $250 filing fee.
4. An advance deposit of the amount of any fine challenged if less than $1,000.00,
and otherwise $1,000.00;
5. The address of the Retailer and, if available, an email address that can be used
for contact and correspondence by the Office of the County Hearing Officer
and the Department. The Retailer may request service of notice by mail; and
Ordinance No. 24-2257
Page 19
6. Notwithstanding the above requirements, a Retailer may seek a waiver or
reduction in the filing fee and/or deposit requirement by submitting a sworn
affidavit and supporting documents or materials demonstrating the Retailer’s
financial inability to pay the filing fee and/or advance deposit.
C. The hearing request form shall be deemed filed on the date received by the Office
of the County Hearing Officer. A timely appeal shall stay enforcement of the
appealed penalties while the appeal is ongoing.
D. After receiving a timely hearing request form, the Office of the County Hearing
Officer shall notify the Department as soon as practicable and then shall schedule
an administrative hearing. The Office of the County Hearing Officer shall provide
the Retailer and the Department at least ten calendar days’ written notice of the
date, time, and place of the administrative hearing and the name of the Hearing
Officer who will conduct the hearing. The notice shall be given to the Retailer
either by email, if requested, or by first class mail, postage prepaid.
E. Between the time the Retailer requests the administrative hearing and the time of
the Hearing Officer’s decision, the Retailer, the Department, and each of their
representatives shall not engage in ex parte communications with the Hearing
Officer regarding the matters at issue in the hearing.
F. The hearing shall be conducted by the Hearing Officer on the date, time, and
place specified in the notice to the Retailer. A Retailer’s failure to appear at the
hearing shall constitute an abandonment of the hearing request and a failure to
exhaust administrative remedies as a precedent to judicially challenge the
existence of the violation and the imposition of the fine and suspension.
G. At the hearing, the Retailer and the Department shall have the opportunity to
present evidence, including witnesses, relevant to the Hearing Officer’s
determination of the matter. 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. 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).
H. The written notice of penalties and any other reports prepared by or for the
Department concerning the violation shall be admissible and accepted by the
Hearing Officer as prima facie evidence of the violation and the facts stated in
those documents. The Hearing Officer may continue the hearing from time to
time, in the Hearing Officer’s sole discretion, to allow for its orderly completion
Ordinance No. 24-2257
Page 20
of the hearing. After receiving the evidence submitted at the hearing, the Hearing
Officer may further continue the hearing and request additional information from
either the Department or the Retailer.
I. After considering the evidence and testimony submitted, the Hearing Officer
shall issue a written decision regarding the matters properly raised in the request
for administrative hearing. The Hearing Officer’s decision shall:
1. Be based on a preponderance of the evidence.
2. Include a statement of the reasons for the decision.
3. Be issued within twenty calendar days of the close of the hearing.
4. Be served on both the Retailer and the Department. The decision shall be given
to the Retailer either by email, if requested, or by first class mail, postage
prepaid.
J. Based on the Hearing Officer’s decision, the Office of the County Hearing Officer
shall promptly refund to the Retailer any amount of the advance fine deposit the
Department is not entitled to and shall provide the remainder to the Department.
K. The Hearing Officer’s written decision shall constitute the final administrative
decision of the Department.
5.50.160 Enforcement.
A. Any violation of this Chapter is hereby declared to be a public nuisance.
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 an individual under the age of twenty-one years old, such an
individual shall not be required over their objection to appear or give testimony
in any civil or administrative process brought to enforce this Chapter and the
alleged violation shall be adjudicated based upon the sufficiency and
persuasiveness of the evidence presented.
D. Violations of this Chapter may be remedied by a legal action brought by the
County of Santa Clara Office of the County Counsel pursuant to Division A1 of
the Ordinance Code of the County of Santa Clara. For the purposes of the civil
remedies provided in this Chapter, each day on which a product is offered for
Ordinance No. 24-2257
Page 21
Sale in violation of this Chapter, and each individual retail product that is Sold or
Distributed in violation of this Chapter, shall constitute a separate violation of
this Chapter.
E. Impoundment.
1. Based upon inspection findings or other evidence, the Department may
impound Tobacco Products that are suspected of being or found to be offered
for Sale or Distribution in violation of this Chapter. The Department may affix
a label to the product that shall be removed only by the Department following
final written determination by the Department as described below.
2. No impounded Tobacco Products shall be used, removed, disposed, or offered
for Sale unless the impoundment has been released. The decision by the
Department may be appealed pursuant to the procedures set forth in Section
5.50.150.
3. Within 30 days of final determination whether impounded products are
authorized for sale under this Chapter, the Department shall release the
impounded materials or order that unauthorized, impounded product shall be
destroyed and properly disposed of at the cost of the Retailer.
F. Seizure. Tobacco Products offered for sale in violation of this Chapter are subject
to seizure by the Department and shall be forfeited after the Retailer of the
Tobacco Products seized is given reasonable notice and an opportunity to
demonstrate that the Tobacco Products were not offered for sale in violation of
this Chapter. The decision by the Department may be appealed pursuant to the
procedures set forth in Section 5.50.150. Forfeited Tobacco Products shall be
destroyed and properly disposed of at the cost of the Retailer after all internal
appeals have been exhausted and after the time in which to seek judicial review
pursuant to Section 5.50.150 of this Chapter has expired.
G. All Retailers are responsible for the actions of their employees relating to
compliance with this Chapter. The Sale, offer to sell, or furnishing of any Tobacco
Products by an employee shall be considered an act of the Retailer.
H. The remedies provided by this Chapter are cumulative and in addition to any
other remedies available at law or in equity.
Ordinance No. 24-2257
Page 22
5.50.170 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 Product by any Person not engaged in the retailing of
such products.
Ordinance No. 24-2257
Final Audit Report 2024-04-19
Created:2024-04-19
By:Araceli Alejandre (aracelia@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAAIlCu1FRpXdAs5lo_dazbI5YKaEzIGeJf
Ordinance No. 24-2257" History
Document created by Araceli Alejandre (aracelia@cupertino.org)
2024-04-19 - 6:25:29 PM GMT- IP address: 64.165.34.3
Document emailed to christopherj@cupertino.org for signature
2024-04-19 - 6:26:23 PM GMT
Email viewed by christopherj@cupertino.org
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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: 2024-04-19 - 6:48:01 PM GMT - Time Source: server- IP address: 136.24.22.111
Agreement completed.
2024-04-19 - 6:48:01 PM GMT
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.
24-2257 which was enacted on April 16, 2024, 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 27th day of March 2024.
____________________________________________
KIRSTEN SQUARCIA, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California