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Resolution 2014-57RESOLUTION NO. 2014-57 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GILROY SETTING THE ANNUAL TOBACCO RETAILER PERMIT FEE PURSUANT TO GILROY CITY CODE SECTION 13.72 WHEREAS, Chapter 13 of the City of Gilroy ( "City ") Code regulates Licenses and Permits, and WHEREAS, State law permits local governments to enact local tobacco retail permit or licensing ordinances and allows for the suspension or revocation of a local license or permit for a violation of any State tobacco control law; and WHEREAS, this fee resolution and its companion Tobacco Retailer Permit Ordinance are adopted to (1) ensure compliance with business standards and practices of the City, (2) to encourage responsible tobacco retailing; and (3) to discourage violations of tobacco - related laws, but not to expand or reduce the degree to which the acts regulated by Federal or State law are criminally proscribed or otherwise regulated; and WHEREAS, the density of tobacco retailers, particularly in neighborhoods surrounding schools, has been associated with increased youth smoking rates; and WHEREAS, it is the intent of the City Council in enacting this resolution to provide for the public health, safety and general welfare by regulating the operation of lawful businesses to avoid circumstances which facilitate violations of state, federal and local laws and by discouraging violations of laws forbidding the distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by state or federal law are criminally prescribed; and WHEREAS, California State law and Gilroy City Code Chapter 7.1 requires the City to ascertain and recover costs reasonably borne through fees and charges levied as a result of providing regulation and products or services, and allows the City to charge said fees so long as the amount of those fees and charges does not exceed the estimated cost required to provide the services for which the fees or charges are levied; and JFRO47 6083 Nt RESOLUTION NO.2014 -57 JH104706083 WHEREAS, the City Council at its duly noticed public meeting on November 3, 2014 considered Ordinance No. 2014 -14 the "Tobacco Retailer Permit Ordinance ", attached hereunto as Exhibit "A "; and WHEREAS, the fee to issue or to renew a Tobacco Retailer's Permit in said Ordinance shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover any amount up to the cost of administration of the ordinance, including the issuing of a permit and administering the permit program, but shall not exceed the cost of the regulatory program including enforcement and authorized training; and WHEREAS, this resolution is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Section 15060(c)(2) of the CEQA Guidelines (Title 14, Article 3 of the California Code of Regulations) because the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment, and Section 15060(c)(3) because the activity is not a project as defined in Section 15378 of the CEQA Guidelines because it has no potential for resulting in physical change to the environment, directly or indirectly; and WHEREAS, Ordinance No. 2014 -14 will be in full force and effect on December 17, 2014; and this Resolution No. 2014 -57 shall take effect on December 17, 2014 only if Ordinance No. 2014 -14 is in full force and effect; and NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF ILROY HEREBY RESOLVES that based on the estimated costs to administer and enforce the Tobacco Retailer Permit ordinance, the annual permit fee will be established at $100.00. This Resolution shall take effect only if, and upon the same date that Ordinance 2014 -14 "Tobacco Retailer License" takes effect. If said Ordinance does not take effect, then this Resolution shall be null and void without further action by the City Council. -2- 4M7-5676-1632v2 2v2 RESOLUTION NO. 2014 -57 ;1H104706083 PASSED AND ADOPTED this 3 day of November, 2014 by the following roll call vote: AYES: NOES: ABSENT: COUNCILMEMBERS: AULMAN, BRACCO, LEROE- MUNOZ, TUCKER, WOODWARD and GAGE COUNCILMEMBERS: COUNCILMEMBERS: -3- 4847- 5676- 1632v2 JH104706083 NONE ARELLANO APPROVED: r� Donald Gage, May RESOLUTION NO. 2014 -57 ORDINANCE NO. 2014-14 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY ADDING ANEW ARTICLE VIII ENTITLED "TOBACCO RETAILER PERMIT" TO GILROY CITY CODE CHAPTER 13 WHEREAS, State law permits local governments to enact local tobacco retail licensing or permitting ordinances and allows for the suspension or revocation of a local license or permit for a violation of any State tobacco control law; WHEREAS, this article is adopted to (1) ensure compliance with business standards and practices of the City, (2) to encourage responsible tobacco retailing; and (3) to discourage violations of tobacco - related laws, but not to expand or reduce the degree to which the acts regulated by Federal or State law are criminally proscribed or otherwise regulated; WHEREAS, the density of tobacco retailers, particularly in neighborhoods surrounding schools, has been associated with increased youth smoking rates; and WHEREAS, a study of California high school students found that the prevalence of smoking was higher at schools in neighborhoods with five or more tobacco outlets than at schools in neighborhoods without tobacco outlets; and WHEREAS, a California study found that the density of tobacco retailers near schools was positively associated with the prevalence of students reporting experimental smoking; and WHEREAS, it is the intent of the City Council, in enacting this ordinance, to provide for the public health, safety, and general welfare by regulating the operation of lawful businesses to avoid circumstances which facilitate violations of state, federal, and local laws and by discouraging violations of laws forbidding the distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by state or federal law are criminally proscribed, and 4820 - 7017.47525 -1- ORDINANCE NO. 2014-14 JH%04706038 WHEREAS, this ordinance is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Section 15060(c)(2) of the CEQA Guidelines (Title 14, Article 3 of the California Code of Regulations) because the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment, and Section 15060(c)(3) because the activity is not a project as defined in Section 15378 of the CEQA Guidelines because it has no potential for resulting in physical change to the environment, directly or indirectly. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I The Gilroy City Code Chapter 13 entitled "Licenses" is amended to add a new Article VIII entitled "Tobacco Retailer Permit" to read as follows: "TOBACCO RETAILER PERMIT" 13.66 Definitions. The following words and phrases, whenever used in this article, shall be construed as defined in this section: (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 informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this article is not an Arm's Length Transaction. (b) "City" means the City of Gilroy and each of its officers and employees designated to enforce or administer the provisions of this article. (c) "Electronic Smoking Device" means an electronic and/or battery- operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. "Electronic Smoking Device" includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. `Electronic Smoking Device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. (d) "Electronic Smoking Device Paraphernalia" means cartridges, cartomizers, e- liquid, smoke juice, tips, atomizers, Electronic Smoking Device batteries, Electronic Smoking Device chargers, and any other item specifically designed for the preparation, charging, or use of Electronic Smoking Devices. 4820- 70174752v5 -2- ORDINANCE NO. 2014-14 JFR04706038 (e) "Permittee" means a Tobacco Retailer or their authorized representative and/or employee with a valid Tobacco Retailer's Permit. (f) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. (g) "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10 %) or greater interest in the stock, assets, or income of a 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 day -to -day operations of a business. (h) "Self- Service Display" means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person -to- person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self - service display. (i) "Smoking" means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind). (j) "Smoking Paraphernalia" means Tobacco Paraphernalia, Electronic Smoking Devices, and Electronic Smoking Device Paraphernalia. (k) "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of Smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products. (1) "Tobacco Product' ' means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. (m) "Tobacco Retailer" means 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. 13.67 Purpose. This article is intended to set forth a local permit process for tobacco retailers to ensure that retailers comply with tobacco control laws and city business standards to protect the public health, safety and welfare. Individuals who wish to act as a tobacco retailer within the city 4820- 70174752v5 -3- ORDINANCE NO. 2014-14 JK04706038 must first obtain and maintain a valid Tobacco Retailer's Permit pursuant to these provisions for each location at which that activity is to occur. It is the responsibility of each proprietor to be informed of all laws applicable to tobacco retailing, including those laws affecting the issuance of a Tobacco Retailer's Permit. 13.68 General Regulations. Every person within the city who operates as a tobacco retailer is required to obtain and maintain a valid Tobacco Retailer's Permit. Every person within the city who operates as a Tobacco Retailer with a valid Tobacco Retailer's Permit shall comply with each of the following conditions: (a) Location. Tobacco retailing activities shall be conducted at a fixed location and within the enclosed area of the tenant space completely accessible to the general public during the hours of business operation; (b) Display of Permit. Each Tobacco Retailer Permit shall be prominently displayed in a publicly visible location at the permitted location; (c) 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; (d) Minimum Age for the Purchase of Tobacco. No person engaged in tobacco retailing shall sell or transfer tobacco product or tobacco paraphernalia to a person whose legal age is under minimum age established by state law for the purchase or possession of tobacco products; (e) Positive Identification Required. Persons engaged in tobacco retailing may not 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 identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess a tobacco product or tobacco paraphernalia; (f) Onsite Smoking Prohibited. Persons engaged in tobacco retailing shall not permit smoking inside or in any adjacent outdoor area owned, leased, or operated in the permitted premises. In addition, no person engaged in tobacco retailing shall permit smoking within twenty (20) feet of any doorway, window, opening, or other vent into the permitted premises. Further, no person engaged in tobacco retailing shall permit the presence or placement of usable ash receptacles within the permitted premises, such as ash trays or ash cans; (g) Self- Service Displays Prohibited. Tobacco retailing by means of a self - service display is prohibited; (h) Permit Nontransferable. A Tobacco Retailer's Permit may not be transferred from one person to another or from one location to another. A new Tobacco Retailer's Permit is required whenever the proprietor(s) of a tobacco retailing location change; and 4820- 70174752v5 -4- ORDINANCE NO. 2014-14 M04706038 (i) Tobacco Retailing is Prohibited Near Schools as Follows: (1) Except as provided in this section 13.68, no new tobacco retailer permit may be issued to authorize tobacco retailing within one thousand (1,000) feet of a school as measured by a straight line from the nearest point of property line of the parcel on which the school is located to the nearest point of the property line on which the applicant's business is located. For purposes of this section, school means a private or public elementary, middle, junior high or high school. (2) A tobacco retailer operating lawfully on the effective date of this ordinance is exempt from this requirement. (3) The sale to another individual, through an arm's length transaction, of a tobacco retail business operating lawfully on the effective date of this ordinance is exempt from this requirement. The new owner of such business is required to apply for and obtain a new Tobacco Retailer's Permit. 13.69 Application Procedure. All applications shall be submitted on a form supplied by the City of Gilroy Finance Department and shall contain all of the following information: (a) Application materials: (1) The name, address, and telephone number of each proprietor of the business seeking a permit; (2) The business name, address, and telephone number of the single fixed location for which a permit is sought; (3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address ") required by, authorized by, or convenient to the enforcement of this article. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above; (4) Proof that the location for which a Tobacco Retailer's Permit is sought has been issued a valid state tobacco retailer's permit by the California Board of Equalization; (5) Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this article and, if so, the dates and locations of all such violations within the previous five years; (6) The application shall be signed by each proprietor or an authorized agent thereof; (7) Such other information as the city deems necessary for the administration or enforcement of this article as specified on the application form required by this section; and 4820 - 7017 -4752v5 _5- ORDINANCE NO. 2014-14 JH104706038 (8) Proof of annual employee training, and proof of new employee training to the satisfaction of the Finance Director. (b) A permitted tobacco retailer shall inform the city in writing of any change in the information submitted on an application for a Tobacco Retailer's Permit within ten (10) business days of a change. (c) All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code section 6250 et seq.) or any other applicable law, subject to the laws' exemptions. 13.70 Issuance of Permit. Upon the receipt of a complete application for a Tobacco Retailer's Permit and the permit fee required by this article, the city shall issue a permit, except as otherwise provided in this article. The term of a Tobacco Retailer Permit is one year and may be renewed annually. A permit will not be issued if substantial evidence demonstrates that one or more of the following exists: (a) The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this article; (b) The application seeks authorization for tobacco retailing at a location for which a Tobacco Retailer Permit has been denied pursuant to this article. However, this subparagraph shall not constitute a basis for denial of a permit if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction, and is not associated with the previous applicant in any way; (c) The application seeks authorization for tobacco retailing for a proprietor to whom this article prohibits a permit to be issued; or (d) The application seeks authorization for tobacco retailing that is prohibited pursuant to this article (e.g., mobile vending), that is unlawful pursuant to the Gilroy City Code, or that is unlawful pursuant to any other law. 13.71 Permit Renewal and Expiration. (a) Renewal of Permit. Each tobacco retailer shall apply for a renewal of the Tobacco Retailer's Permit and submit the permit fee no later than thirty (3 0) days prior to expiration of the term. A Tobacco Retailer's Permit is invalid if the appropriate fee has not been paid in full or if the term of the permit has expired. (b) Expiration of Permit. A Tobacco Retailer's Permit not timely renewed shall expire at the end of its term. To renew a permit not timely renewed pursuant to subparagraph (a), the proprietor must: (1) (2) 4820 - 7017 -4752v5 JH104706038 Submit the permit fee and application renewal form; and, Submit a signed affidavit affirming that the proprietor: -6- ORDINANCE NO. 2014-14 (i) has not sold and will not sell any tobacco product or tobacco paraphernalia after the permit expiration date and before the permit is renewed; or (ii) has waited the appropriate ineligibility period established for tobacco retailing without a permit, as set forth in Section 13.82 of this article, before seeking renewal of the permit. 13.72 Fee for Permit. (a) The fee to issue or to renew a Tobacco Retailer's Permit shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover any amount up to the cost of administration of this article, including, for example, issuing a permit and administering the permit program, but shall not exceed the cost of the regulatory program, which includes enforcement and training authorized by this article. Fees are nonrefundable except as may be required by law. (b) All fees and civil penalties collected pursuant to this article shall be maintained in a separate city account to be used to implement this article, such as enforcement or training purposes. 13.73 Permit Conveys a Limited, Conditional Privilege. (a) Nothing in this article shall be construed to grant any person obtaining and maintaining a Tobacco Retailer's Permit any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. (b) Nothing in this article 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 limitation, the Gilroy City Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a Tobacco Retailer Permit does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5. 13.74 Compliance Monitoring. (a) Compliance with this article shall be monitored by the city. Any peace officer may enforce the penal provisions of this article. The city may designate any number of additional persons to monitor compliance with this article. (b) Inspections may be conducted so as to allow the city to determine, at a minimum, if a tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco products and paraphernalia. (c) The city shall not enforce any law establishing a minimum age for tobacco purchasers or possession against a purchaser of tobacco that otherwise might be in violation of such law because of the person's age if the potential violation occurs when: 4820- 70174752v5 -7- ORDINANCE NO. 2014-14 JH104706038 (1) The purchaser (hereinafter referred to as "youth decoy ") is participating in a compliance check supervised by a peace officer or a code enforcement official of the city; (2) The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this article; or (3) The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Santa Clara County Department of Health or the California Department of Health Services. 13.75 Tobacco Retailing without a Permit. (a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the city finds based on a preponderance of evidence, after notice and an opportunity to be heard consistent with Gilroy City Code Section 13.81 ct. seq. that any person has engaged in tobacco retailing at a location without a valid Tobacco Retailer's Permit, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a Tobacco Retailing Permit as follows: (1) After a first violation of this section at a location within any sixty (60) month period, no Tobacco Retailer Permit shall be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until thirty (30) days have passed from the date of the violation; (2) After a second violation of this section at a location within any sixty (60) month period, no Tobacco Retailer Permit shall be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until one calendar year has passed from the date of the second violation: (3) After a third or subsequent violation of this section at a location within any sixty (60) month period, no new permit may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until five (5) calendar years have passed from the date of the most recent violation: (b) Notwithstanding any other provision of this article, prior violations at a location shall continue to be counted against a location and permit ineligibility periods shall continue to apply to a location unless: (1) The location has been fully transferred to a new proprietor(s); and (2) The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction, and are not associated with the prior proprietor(s) in any way. 4820- 7017.4752v5 -g- ORDINANCE NO. 2014-14 JH104706038 (c) Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the city or any peace officer and shall be forfeited after the person, the person's agents or employees, or any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity, consistent with Section 13.80, to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this article. The decision by the city may be appealed pursuant to Section 13.81. Forfeited tobacco products and tobacco paraphernalia may be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law has expired without the filing of lawsuit or, if such a suit is filed, after judgment in that suit becomes final. (d) For the purposes of the civil remedies provided in this article: (1) Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this article constitutes a separate violation; or (2) Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this article constitutes a separate violation. 13.76 False and Misleading Advertising Prohibited. A tobacco retailer without a valid Tobacco Retailer Permit or whose permit has been revoked shall be unable to: (a) Keep tobacco products and tobacco paraphernalia within public view. (b) Display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location. 13.77 Penalties and Enforcement. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a permit has been issued, it shall be a violation of this article for a permittee, or any of the permittee's agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing. (a) The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity; (b) Whenever evidence of a violation of this article is obtained 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 administrative process brought to enforce this article and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented; (c) Violations of this article are subject to a civil action brought by the city attorney, punishable by a civil penalty not less than one thousand dollars ($1,000) and not exceeding five thousand dollars ($5,000) per violation; 4820- 70174752v5 -9- ORDINANCE NO. 2014-14 JH104706038 (d) Violations of this article may, in the discretion of the city attorney, be prosecuted as misdemeanors; (e) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this article shall also constitute a violation of this article; (f) Any tobacco retailer which is opened, operated or maintained contrary to the provisions of this article shall be deemed a public nuisance. In addition to, or in lieu of, any other available legal remedies; the city attorney may commence a civil legal action or actions in a court of competent jurisdiction to abate such nuisance and to enjoin the continued operation and maintenance of the tobacco retailer establishment in a manner prohibited by this article. (g) In addition to other remedies provided by this article or by other laws, any violation of this article may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief 13.78 Civil Penalties, Suspension or Revocation of Permit. A permit issued contrary to this article, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor may be suspended or revoked pursuant to section 13.80 of this article. Nothing in this article shall be construed to vest in any person obtaining and maintaining a Tobacco Retailer's Permit any status or right to act as a tobacco retailer in contravention of any provision of law. In addition to any other penalty authorized by this article or by other laws, civil penalties shall be imposed as set forth below. In addition, a Tobacco Retailer's Permit may be suspended and/or revoked as set forth below if any court of competent jurisdiction determines, or the city finds based on a preponderance of the evidence, after the permittee is afforded notice and an opportunity to be heard pursuant to Section 13.80, that the permittee, or any of the permittee's agents or employees, has violated subsection 13.68(d): (a) After a first violation of subsection 13.68(d) at a location, a civil penalty of one thousand dollars ($1,000) shall be imposed. In addition, the city may suspend the Tobacco Retailer Permit for a period no less than thirty (30) calendar days; (b) After a second violation of subsection 13.68(d) at a location within a sixty (60) month period, a civil penalty of two thousand five hundred dollars ($2,500) shall be imposed. In addition, the city may suspend the Tobacco Retailer Permit for a period no less than sixty (60) calendar days; (c) After a third violation of subsection 13.68(d) at a location within a sixty (60) month period, a civil penalty of five thousand dollars ($5,000) shall be imposed. In addition, the city may revoke the Tobacco Retailer Permit. 13.79 Revocation of a Wrongly Issued Permit. A Tobacco Retailer's Permit shall be revoked if the city finds, after the permittee is afforded notice and an opportunity to be heard consistent with the procedure set forth in Gilroy City Code Section 13.81 et seq., that one or more of the bases for denial of a permit under section 13.70 existed at the time application was made or at any time before 4840- 701747524 -10- ORDINANCE NO. 2014 -14 JFR04706038 the permit issued. The decision by the city to revoke shall be the final decision. Such a revocation shall be without prejudice to the filing of a new permit application. 13.80 Suspension or Revocation of a Tobacco Retailer Permit, or Forfeiture of Seized Tobacco and Tobacco Paraphernalia Process. The city may suspend or revoke a Tobacco Retailer's Permit pursuant to Section 13.78 or 13.79 or deem seized tobacco and/or tobacco paraphernalia as forfeit pursuant to Section 13.75(c). Before the city suspends or revokes a permit or deems seized tobacco and/or tobacco paraphernalia as forfeit, the city shall provide written notice of the suspension or revocation of a permit or the pending forfeiture by personal delivery or first class certified United States mail. The notice shall provide for the suspension or revocation of the permit or forfeiture of the seized items fifteen (15) calendar days after mailing or personal delivery of the notice unless the permittee requests a hearing. The notice shall instruct the permittee on how to file a request for a hearing consistent with Section 13.81 et. seq. The notice shall be addressed to the permittee at the address provided in the permittee's application, or other more reliable address if known to the city. If after the passage of fifteen calendar days from the mailing or personal delivery of the notice, the permittee has not requested a hearing, the suspension, revocation, or forfeiture shall become final. 13.81 Hearing. (a) The permittee may request a hearing before the city administrator on a decision of the city to suspend and/or revoke a Tobacco Retailer Permit or deem seized tobacco and tobacco paraphernalia. The request must be filed with the city clerk within fifteen (15) calendar days following the mailing or personal delivery of written notice of the suspension and/or revocation. (b) The city clerk shall schedule an administrative hearing with the city administrator or his or her designee. The administrative hearing shall be held pursuant to the city's Administrative Hearing Policy as set forth in Resolution No. 97 -17. 13.82 New Permit after Revocation. (a) After first revocation at a location within any sixty -month (60) period, no new permit may be issued for the location until one calendar year has passed from the date of revocation. (b) After second or more revocations at a location within any sixty -month (60) period, no new permit may be issued for the location until five calendar years have passed from the date of the most recent revocation. 13.83 Nondiscrimination. No person shall discharge, refuse to hire, or in any manner discriminate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this article." 4820- 70174752v5 -11- ORDINANCE NO. 2014-14 JH104706038 SECTION H If any section, subsection, subdivision, sentence, clause, or phrase of this Ordinance is for any reason held to be unconstitutional or otherwise void or invalid by any court of competent jurisdiction, the validity of the remaining portion of this Ordinance shall not be affected thereby. SECTION III Pursuant to Section 608 of the Charter of the City of Gilroy, this Ordinance shall be in full force and effect thirty (30) days from and after the date of its adoption. 4820 - 70174752x5 -12- ORDINANCE NO. 2014-14 JH104706038 I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Resolution No. 2014 -57 is an original resolution, or true and correct copy of a city Resolution, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 3rd day of November, 2014, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City o Gilroy this 4d' !ay of November, 2014. Shav�ma Freels, M City Clerk of the City of Gilroy (Seal)