A. Any permittee, other than cigar lounges and hotels, that wishes to operate a tobacco and electronic cigarette retailer on or after January 1, 2021, may apply for one hardship exemption as provided for in this section.
B. A permittee must submit a complete application for a hardship exemption at least ninety (90) days before the permit is set to expire, but no sooner than six (6) months before the permit is set to expire. Such application shall be made in writing on a form prescribed by the Director of Finance and shall be accompanied by the filing fee established by resolution of the City Council. The permittee shall bear the burden of proof in establishing by a preponderance of the evidence, that the application of section 4-2-2115 of this article to the permittee's business is unreasonable, and will cause significant hardship to the permittee by not allowing the permittee to recover his or her investment backed expectations. The permittee applying for the exemption shall furthermore be required, in order to meet its burden of proof, to submit the documents set forth in this section.
C. A complete application for a hardship exemption shall include the following:
1. The permittee's name and street address of business;
2. The address to which notice is to be mailed, at the permittee's option, a telephone number and/or email address;
3. The permittee's signature;
4. A declaration, under penalty of perjury, that all the information in the application is true and correct;
5. The term of the requested extension;
6. Documentation relevant to the information requested in subsection D of this section; and
7. The required filing fee.
D. In determining whether to grant a hardship exemption to the permittee, and in determining the appropriate length of time that the permittee will be authorized to continue to operate as a retailer, the Hearing Officer, or City Council on appeal by the applicant, may consider, among other factors:
1. The percentage of the retail sales over the last three (3) years that have been derived from tobacco products and tobacco and electronic cigarette paraphernalia;
2. The amount of investment in the business;
3. The present actual and depreciated value of any business improvements dedicated to the retail sale of tobacco products and tobacco and electronic cigarette paraphernalia;
4. The applicable Internal Revenue Service depreciation schedule or functional non-confidential equivalent;
5. The remaining useful life of the business improvements that are dedicated to the sale of tobacco products and tobacco and electronic cigarette paraphernalia;
6. The remaining lease term of the business, if any;
7. The ability of the tobacco and electronic cigarette retailer to sell other products;
8. The opportunity for relocation of the business and the cost of relocation; and
9. A business plan demonstrating how long the business will need to sell tobacco products and tobacco and electronic cigarette paraphernalia to recoup any investment backed expectations, and a plan for phasing out the sale of those products.
E. The hardship exemption hearing shall be conducted by an Administrative Hearing Officer appointed pursuant to section 1-3-317 of this Code and shall be conducted pursuant to the procedures set forth in section 4-2-2113 of this article. Written notice of the time and place of the hearing shall be given at least ten (10) calendar days prior to the date of the hearing to the permittee by the City either by causing a copy of such notice to be delivered to the permittee personally or by mailing a copy thereof, postage prepaid, addressed to the permittee at the address shown on the hardship exemption application.
F. Within forty five (45) days after a completed application is filed, the Hearing Officer shall open the hearing on the hardship exemption. The Hearing Officer shall receive and consider evidence presented by the permittee, and shall determine whether to grant or deny the hardship exemption, and if granting the hardship exemption, the length of time that the tobacco and electronic cigarette retailer will be permitted to operate. The Hearing Officer shall make written findings in support of the decision. The decision of the Hearing Officer shall be final and conclusive, unless a timely and complete appeal is filed by the applicant with the City Clerk pursuant to subsection G of this section.
G. Any decision of the Hearing Officer may be appealed by the applicant by filing a complete notice of appeal with the City Clerk within fifteen (15) days after notice of the decision was mailed to the applicant. To be deemed complete, the notice of appeal shall be signed by the applicant, shall state the grounds for disagreement with the decision of the Hearing Officer, and shall be accompanied by the filing fee established by resolution of the City Council.
H. Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the hardship exemption.
I. A retailer may continue to sell tobacco, tobacco products, or tobacco and electronic cigarette paraphernalia while a hardship exemption application is pending before a Hearing Officer or on appeal to the City Council.
J. Only those matters or issues specifically raised by the appellant in the appeal notice shall be considered in the hearing of the appeal. (Ord. 19-O-2783, eff. 7-5-2019)