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ARTICLE 19H: PERMITS FOR THE SALE OF TOBACCO
Sec. 1009.50. Findings.
Sec. 1009.51. Definitions.
Sec. 1009.52. Requirement for Tobacco Sales Permit.
Sec. 1009.53. Application Procedure: Inspection of Premises; Issuance and Display of Permit.
Sec. 1009.54. Fees for Permit.
Sec. 1009.55. Permit may not be Transferred to New Persons or Locations.
Sec. 1009.56. Enforcement and Inspection.
Sec. 1009.57. Conduct Violating San Francisco Health Code Section 1009.1 (Regulating Cigarette Vending Machines).
Sec. 1009.58. Conduct Violating San Francisco Police Code Section 4600.3 (Regulating the Self-Service Merchandising of Tobacco Products).
Sec. 1009.59. Conduct Violating San Francisco Health Code Section 1009.22 (Prohibiting Smoking in Enclosed Areas and Sports Stadiums).
Sec. 1009.60. Conduct Violating Tobacco Control Laws.
Sec. 1009.61. Conduct Violating California Penal Code Section 308 (prohibiting the Sale of Tobacco to Minors).
Sec. 1009.62. Conduct Violating California Labor Code Section 6404.5 (Prohibiting Smoking in Enclosed Places of Employment).
Sec. 1009.63. Fraudulent Permit Applications.
Sec. 1009.64. Selling Tobacco without a Permit.
Sec. 1009.65. Other Enforcement.
Sec. 1009.66. Time Period of Suspension of Permit.
Sec. 1009.67. Administrative Penalty.
Sec. 1009.68. Notice of Correction.
Sec. 1009.69. Notice of Initial Determination.
Sec. 1009.71. Payment of Administrative Penalties.
Sec. 1009.72. Appeals to Board of Appeals.
Sec. 1009.73. Other Remedies.
Sec. 1009.74. Authority to Adopt Rules and Regulations.
Sec. 1009.75. City Undertaking Limited to Promotion of the General Welfare.
Sec. 1009.76. Preemption.
Sec. 1009.77. Severability.
SEC. 1009.50. FINDINGS.
The Board of Supervisors of the City and County of San Francisco hereby finds and declares as follows:
A. State law prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors. (California Penal Code section 308.) State law also prohibits public school students from smoking or using tobacco products while on campus, attending school-sponsored activities, or under the supervision or control of school district employees. (California Education Code section 48901(a).) In addition, state law prohibits smoking in enclosed places of employment (California Labor Code section 6404.5). Moreover, San Francisco has adopted ordinances that ban cigarette vending machines in the City (San Francisco Health Code section 1009.1), prohibit the self-service merchandising of tobacco products, except in places to which access by minors is prohibited by law (San Francisco Police Code section 4600.3), and prohibit smoking in enclosed areas and sports stadiums (San Francisco Health Code section 1009.22).
B. Despite these state and local restrictions, minors continue to obtain cigarettes and other tobacco products at alarming rates. Children under the age of 18 consume 924 million packs of cigarettes annually in the United States. Over 29 million packs of cigarettes are sold to California children annually. More than 60 percent of all smokers begin smoking by the age of 14, and 90 percent begin by age 19.
C. In a 2002 California youth buying survey, 19.3 percent of retailers surveyed unlawfully sold tobacco products to minors compared to 17.1 percent in 2001.
D. California's rate of illegal tobacco sales to minors is steadily increasing. In 2002 the rate was 19.3 percent, up from 17.1 percent in 2001, and 12.8 percent in 2000.
E. The California Department of Health Services reports that 26.7 percent of California adolescents believe it is easy to buy a pack of cigarettes.
F. Despite active enforcement by the San Francisco Police Department, a significant number of retailers continue to sell tobacco illegally to minors. The rate of illegal tobacco sales documented by the Police Department during 2001 was 25.3 percent and 20.2 percent in 2002.
G. In a youth decoy operation conducted by the Police Department, 50 percent of the 12 bars visited illegally sold tobacco to a minor.
H. San Francisco has a substantial interest in promoting compliance with State laws prohibiting sales of cigarettes and tobacco products to minors, in promoting compliance with laws intended to discourage the purchase of tobacco products by minors, and in protecting our children from illegally obtained tobacco.
I. Requiring tobacco vendors to obtain a tobacco sales permit will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the City to regulate those establishments selling tobacco products to ensure that they comply with federal, state, and local tobacco laws.
J. This Article is designed to promote the public interest in ensuring that San Francisco businesses operate in compliance with applicable laws regulating tobacco, including laws prohibiting the sale of tobacco to minors and laws regulating smoking.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.51. DEFINITIONS.
The following words and phrases, whenever used in this Article, shall be construed as defined in this section. Words in the singular include the plural and words in the plural include the singular. Words in the present tense include the future.
(a) "Department" means the Department of Public Health.
(b) "Director" means the Director of Health or his or her designee.
(c) "Establishment" means any store, stand, booth, concession or any other enterprise that engages in the retail sale of tobacco products.
(d) "Permittee" means a person who has obtained a tobacco sales permit for a specific location pursuant to this Article.
(e) "Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
(f) "Tobacco products" means tobacco and any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco, including the cigarettes commonly known as bidis.
(g) "Tobacco sales" means sales, or any offer to sell or exchange, for any form of consideration, tobacco products to any person by any person who operates an establishment. "Tobacco sales" includes any display of tobacco products.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.52. REQUIREMENT FOR TOBACCO SALES PERMIT.
It shall be unlawful for any person to engage in tobacco sales, or to allow tobacco sales, in any establishment without first obtaining and maintaining a valid tobacco sales permit from the Department for each location where tobacco sales are conducted. Nothing in this Article shall be construed to grant any person obtaining and maintaining a tobacco sales permit any status or right other than the right to act as a tobacco retailer at the location identified on the face of the permit. The obtaining of a permit does not in and of itself transform a business into a retail tobacco or wholesale shop within the meaning of California Labor Code section 6404.5. It shall be unlawful for any person to engage in tobacco sales, or to allow tobacco sales, at an establishment for which the Director has suspended the tobacco sales while the period of suspension remains in effect. It shall be unlawful for any person to engage in or allow tobacco sales at an establishment for which the Director has revoked the tobacco sales permit for three years from the date of revocation. Permits are valid as long as the annual license fees are paid.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.53. APPLICATION PROCEDURE: INSPECTION OF PREMISES; ISSUANCE AND DISPLAY OF PERMIT.
(a) Application. An application for a tobacco sales permit shall be submitted in the name of the person(s) proposing to engage in the sale of tobacco products and shall be signed by each person or an authorized agent thereof. The application shall be accompanied by the appropriate fees as described in section 35 of the San Francisco Business and Tax Regulations Code. A separate application is required for each location where tobacco sales are to be conducted. All applications shall be submitted on a form supplied by the Department and shall contain the following information:
1. The name, address, and telephone number of the applicant;
2. The establishment name, address, and telephone number for each location for which a tobacco sales permit is sought;
3. Such other information as the Director deems appropriate, including the applicant's type of business, and whether the applicant has previously been issued a permit under this Article that is, or was at any time, suspended or revoked.
(b) Inspection by Director. Upon receipt of a completed application and fees, the Director may inspect the location at which tobacco sales are to be permitted. The Director may also ask the applicant to provide additional information that is reasonably related to the determination whether a permit may issue.
(c) Issuance of Permit. If the Director is satisfied that the applicant has met the requirements of this Article and that issuance of the permit will not violate any law, the Department shall issue the permit. No permit shall issue if the Director finds that the applicant is in violation of San Francisco Health Code section 1009.1 (regulating cigarette vending machines), San Francisco Police Code section 4600.3 (regulating the self-service merchandising of tobacco products), or if the applicant is a pharmacy prohibited from selling tobacco products under Article 19J. No permit shall issue if the application is incomplete or inaccurate.
(d) Display of Permit. Each permittee shall display the permit prominently at each location where tobacco sales occur. No permit that has been suspended shall be displayed during the period of suspension. A permit that has been revoked is void and may not be displayed.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003; Ord. 194-08, File No. 080594, App. 8/7/2008)
SEC. 1009.54. FEES FOR PERMIT.
(a) The Department shall charge every applicant for a tobacco sales permit a non-refundable application fee for the initial inspection and processing of the application and an annual license fee sufficient to cover the costs of annual inspections, as determined by the Director. The application and processing fee shall be $53 and is otherwise governed by section 35 of the San Francisco Business and Tax Regulations Code. The annual fee is listed in section 249.16 of the San Francisco Business and Tax Regulations Code.
(b) Beginning with fiscal year 2008-2009, fees set forth in this Section and referred to in this Section may be adjusted each year, without further action by the Board of Supervisors, as set forth in this Section.
Not later than April 1, the Director shall report to the Controller the revenues generated by the fees for the prior fiscal year and the prior fiscal year's costs of operation, as well as any other information that the Controller determines appropriate to the performance of the duties set forth in this Section.
Not later than May 15, the Controller shall determine whether the current fees have produced or are projected to produce revenues sufficient to support the costs of providing the services for which the fees are assessed and that the fees will not produce revenue which is significantly more than the costs of providing the services for which the fess are assessed.
The Controller shall, if necessary, adjust the fees upward or downward for the upcoming fiscal year as appropriate to ensure that the program recovers the costs of operation without producing revenue which is significantly more than such costs. The adjusted rates shall become operative on July 1.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003; Ord. 149-08, File No. 080744, App. 7/30/2008)
SEC. 1009.55. PERMIT MAY NOT BE TRANSFERRED TO NEW PERSONS OR LOCATIONS.
As described in section 77 of the San Francisco Business and Tax Regulations Code, tobacco permits may not be transferred or assigned.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.56. ENFORCEMENT AND INSPECTION.
The Director may enforce all provisions of this Article. Specific grounds for enforcement are set forth in sections 1009.57 through 1009.65. Upon presentation of proper credentials, the Director may enter and inspect at any time during regular business hours any establishment that is engaging in tobacco sales, or is suspected by the Director of engaging in such sales.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.57. CONDUCT VIOLATING SAN FRANCISCO HEALTH CODE SECTION 1009.1 (REGULATING CIGARETTE VENDING MACHINES).
(a) Upon a decision by the Director that the permittee or the permittee's agent or employee has engaged in any conduct that violates San Francisco Health Code section 1009.1 (regulating cigarette vending machines), the Director may suspend a tobacco sales permit as set forth in section 1009.66, impose administrative penalties as set forth in section 1009.67, or both suspend the permit and impose administrative penalties.
(b) The Director shall commence enforcement of this section by serving either a notice of correction under section 1009.68 of this Article or a notice of initial determination under section 1009.69 of this Article.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.58. CONDUCT VIOLATING SAN FRANCISCO POLICE CODE SECTION 4600.3 (REGULATING THE SELF-SERVICE MERCHANDISING OF TOBACCO PRODUCTS).
(a) Upon a decision by the Director that the permittee or the permittee's agent or employee has engaged in any conduct that violates San Francisco Police Code section 4600.3 (regulating the self-service merchandising of tobacco products), the Director may suspend a tobacco sales permit as set forth in section 1009.66, impose administrative penalties as set forth in section 1009.67, or both suspend the permit and impose administrative penalties.
(b) The Director shall commence enforcement of this section by serving either a notice of correction under section 1009.68 of this Article or a notice of initial determination under section 1009.69 of this Article.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.59. CONDUCT VIOLATING SAN FRANCISCO HEALTH CODE SECTION 1009.22 (PROHIBITING SMOKING IN ENCLOSED AREAS AND SPORTS STADIUMS).
(a) Upon a decision by the Director that the permittee or the permittee's agent or employee has engaged in any conduct that violates San Francisco Health Code section 1009.22 (prohibiting smoking in enclosed areas and sports stadiums), the Director may suspend a tobacco sales permit as set forth in section 1009.66, impose administrative penalties as set forth in section 1009.67, or both suspend the permit and impose administrative penalties.
(b) The Director shall commence enforcement of this section by serving either a notice of correction under section 1009.68 of this Article or a notice of initial determination under section 1009.69 of this Article.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.60. CONDUCT VIOLATING TOBACCO CONTROL LAWS.
(a) Upon a decision by the Director that the permittee or the permittee's agent or employee has engaged in any conduct that violates local, state, or federal law applicable to tobacco products or tobacco sales, the Director may suspend a tobacco sales permit as set forth in section 1009.66, impose administrative penalties as set forth in section 1009.67, or both suspend the permit and impose administrative penalties.
(b) The Director shall commence enforcement of this section by serving either a notice of correction under section 1009.68 of this Article or a notice of initial determination under section 1009.69 of this Article.
(Added by Ord. 194-08, File No. 080594, App. 8/7/2008)
SEC. 1009.61. CONDUCT VIOLATING CALIFORNIA PENAL CODE SECTION 308 (PROHIBITING THE SALE OF TOBACCO TO MINORS).
(a) Upon a decision by the Director that the permittee or the permittee's agent or employee has engaged in any conduct that violates California Penal Code section 308 (prohibiting the sale of tobacco to minors), the Director may suspend a tobacco sales permit as set forth in section 1009.66.
(b) The Director shall commence enforcement of this section by serving a notice of initial determination in accordance with section 1009.69 of this Article.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.62. CONDUCT VIOLATING CALIFORNIA LABOR CODE SECTION 6404.5 (PROHIBITING SMOKING IN ENCLOSED PLACES OF EMPLOYMENT).
(a) Upon a decision by the Director that the permittee or the permittee's agent or employee has engaged in any conduct that violates California Labor Code section 6404.5 (prohibiting smoking in enclosed places of employment), the Director may suspend a tobacco sales permit as set forth in section 1009.66.
(b) The Director shall commence enforcement of this section by serving a notice of initial determination in accordance with section 1009.69 of this Article.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.63. FRAUDULENT PERMIT APPLICATIONS.
(a) Upon a decision by the Director that the permittee or the permittee's agent or employee has obtained a tobacco sales permit from the Department by fraudulent or willful misrepresentation, the Director may suspend a tobacco sales permit as set forth in section 1009.66.
(b) Upon a final decision by the Director that the permittee or the permittee's agent or employee has obtained a tobacco sales permit from the Department by fraudulent or willful misrepresentation, the Director may impose administrative penalties as set forth in section 1009.67.
(c) Upon a final decision by the Director that the permittee or the permittee's agent or employee has obtained a tobacco sales permit from the Department by fraudulent or willful misrepresentation, the Director may revoke a tobacco sales permit.
(d) Upon a final decision by the Director that the permittee or the permittee's agent or employee has obtained a tobacco sales permit from the Department by fraudulent or willful misrepresentation, the Director may impose administrative penalties in addition to either suspending or revoking the tobacco sales permit.
(e) The Director shall commence enforcement of this section by serving a notice of initial determination in accordance with section 1009.69 of this Article.
(f) Any person who obtained a permit by fraud or misrepresentation may be prosecuted for either an infraction or a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200) for a second violation within one year, and five hundred dollars ($500) for a third and for each subsequent violation within one year.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.64. SELLING TOBACCO WITHOUT A PERMIT.
(a) Upon a final decision by the Director that any person has engaged in the sale of tobacco at any establishment without a permit, the Director may impose administrative penalties as set forth in section 1009.67. Persons with a permit application pending under section 1009.53 may sell tobacco without violating section 1009.64 until and unless their permit application is rejected by the Director.
(b) The Director shall commence enforcement of this section by serving a notice of initial determination in accordance with section 1009.69 of this Article. This Notice of Initial Determination may require that all tobacco sales cease and may impose an administrative penalty.
(c) The City Attorney may maintain an action for injunction to restrain any person from selling tobacco without a valid tobacco sales permit. In any such action, the City Attorney may seek civil penalties and may seek a judicial determination that a person must pay any administrative penalties. The person against whom an injunction issues also shall be liable for the costs and attorney's fees incurred by the City and County of San Francisco in bringing a civil action to enforce the provisions of this section.
(d) Any person who engages in tobacco sales without the required permit may be prosecuted for either an infraction or a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200) for a second violation within one year, and five hundred dollars ($500) for a third and for each subsequent violation within one year.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.65. OTHER ENFORCEMENT.
(a) Violations of this Article are hereby declared to be public nuisances and may be enforced as set forth in section 596 of the San Francisco Health Code.
(b) Violations of this Article are hereby declared to be unfair business practices and are presumed to damage each and every resident of the community in which the business operates.
(c) In addition to other remedies provided by this Article or by other law, any violation of this ordinance may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. The person against whom a successful civil action is brought shall be liable for the costs and attorney's fees incurred by the City and County of San Francisco.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.66. TIME PERIOD OF SUSPENSION OF PERMIT.
When this Article allows the Director to suspend a permit, the following sanctions may be imposed:
(a) The Director may suspend the permit for a maximum of 90 days for the first violation.
(b) If a second violation occurs within twelve months of the first violation, the Director may suspend the permit for a maximum of six months.
(c) Upon the third, and each subsequent violation, if within twelve months of the prior violation, the Director may suspend the permit for a maximum of one year.
(d) Each suspension is an independent sanction and is served consecutively.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.67. ADMINISTRATIVE PENALTY.
When this Article allows the Director to impose an administrative penalty, the Director may assess an administrative penalty not exceeding one hundred dollars ($100) for a first violation; not exceeding two hundred dollars ($200) for a second violation; and not exceeding five hundred dollars ($500) for the third and each subsequent violation. For purposes of administrative penalties, each day that tobacco sales occur without a permit shall constitute a separate violation.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.68. NOTICE OF CORRECTION.
When the Director commences an enforcement action with a notice of correction, the Director shall serve the notice on the permittee or the permittee's agent. The notice shall state that the Department has determined that a violation may have occurred and that reasonable grounds exist to support this determination. The notice may require corrective action immediately or upon a schedule required by the Director. The Director may require the permittee to post the notice of correction at the location where the Department alleges that violations have occurred. If the permittee fails to obey a notice of correction, the Director may serve a notice of initial determination in accordance with section 1009.69 of this Article.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.69. NOTICE OF INITIAL DETERMINATION.
When the Director sends a notice of initial determination, the Director shall serve the notice on the permittee or the permittee's agent. The Notice of Initial Determination may require that all tobacco sales cease. The notice shall state the basis for the Department's initial determination, including the alleged acts or failures to act that constitute a basis for suspension, revocation, and/or an administrative penalty as provided in this Article. After affording the permittee an opportunity to provide information contesting the initial determination, the Director shall issue a decision, including an order imposing an administrative penalty, if any. Copies of this decision and related order(s) shall be served upon the party served with the notice of initial determination. If no notice of appeal of the Director's decision is filed within the appropriate period, the decision shall be deemed final and shall be effective 15 days after it was issued.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.71. PAYMENT OF ADMINISTRATIVE PENALTIES.
Unless a timely notice of appeal of the Department's final decision is filed, the Department may require payment of any administrative penalty within 30 days of the Director's decision. The Department shall make a written demand for payment by personal delivery or certified mailed notice to the person sanctioned. Any administrative penalty assessed and received in an action brought under this Article shall be paid to the Treasurer of the City and County of San Francisco. The person against whom an administrative penalty is imposed also shall be liable for the costs and attorney's fees incurred by the City and County of San Francisco in bringing any civil action to enforce the provisions of this section, including obtaining a court order requiring payment of the administrative penalty.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.72. APPEALS TO BOARD OF APPEALS.
(a) Right of Appeal. The final decision of the Director to deny, suspend, or revoke a permit, or to impose administrative sanctions, as provided in this Article, may be appealed to the Board of Appeals in the manner prescribed in Article I of the San Francisco Business and Tax Regulations Code. An appeal shall stay the action of the Director.
(b) Hearing. The procedure and requirements governing an appeal to the Board of Appeals shall be as specified in Article I of the San Francisco Business and Tax Regulations Code.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.73. OTHER REMEDIES.
Nothing in this Article shall affect any other remedies which are available to the City and County under any law, including (1) San Francisco Health Code section 1009.1 (regulating cigarette vending machines); (2) San Francisco Police Code section 4600.3 (regulating the self-service merchandising of tobacco products); (3) San Francisco Health Code section 1009.22 (prohibiting smoking in enclosed areas and sports stadiums); (4) California Penal Code section 308 (regulating sales of tobacco products to minors), and (5) California Labor Code section 6404.5 (prohibiting smoking in enclosed places of employment).
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.74. AUTHORITY TO ADOPT RULES AND REGULATIONS.
The Director may issue and amend rules, regulations, standards, guidelines, or conditions to implement and enforce this Article.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.75. CITY UNDERTAKING LIMITED TO PROMOTION OF THE GENERAL WELFARE.
In undertaking the enforcement of this ordinance, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
(Added by Ord. 254-03, File No. 030869, App. 11/7/2003)
SEC. 1009.76. PREEMPTION.
In adopting this Article, the Board of Supervisors does not intend to regulate or affect the rights or authority of the State to do those things that are required, directed or expressly authorized by federal or state law. Further, in adopting this Article, the Board of Supervisors does not intend to prohibit that which is prohibited by federal or state law.