§ 94.23 ENFORCEMENT; APPEALS.
   (A)   (1)   The city and its licensing agent shall have authority to implement and enforce the provisions of §§ 94.20 through 94.23.
      (2)   Inspections. The city or its licensing agent may conduct an inspection of a business prior to issuing a license for the retail sale of tobacco products or alternative nicotine products. The city or its licensing agent shall annually inspect each licensee, upon proper identification and upon stating the purpose and necessity of an inspection. The city or its licensing agent may enter at reasonable times upon any public or private property, real or personal, to inspect or investigate, and examine or copy records to determine compliance with this chapter. The city or its licensing agent may apply for, and any judge of a court of record may issue, an appropriate search warrant necessary to achieve the purposes of this chapter within the court's territorial jurisdiction. If entry is refused or inspection or investigation is refused, hindered, or thwarted, the city or its licensing agent may suspend or revoke the license.
   (B)   For purposes of § 94.22(C)(1) and (D)(2):
      (1)   “Violation” including violation of § 135.17 of the Codified Ordinances or a substantially equivalent offense, does not require that the person has been criminally convicted of the violation of § 135.17 of the Codified Ordinances or substantially equivalent offense. The city or its licensing agent may determine that a violation has occurred even if no criminal charge has been filed. Acquittal or dismissal of a charge under § 135.17 of the Codified Ordinances, or any substantially equivalent offense, shall not necessarily absolve a licensee; §§ 94.20 through 94.24 are civil in nature, and so the city or its licensing agent may find a violation based upon a preponderance of evidence, rather than proof beyond a reasonable doubt, and are not otherwise required to observe rules of criminal procedure, the exclusionary rule, or confrontation of witnesses;
      (2)   Sale of multiple items in violation of § 135.17 of the Codified Ordinances, or substantially equivalent applicable law, where the sales occur in a single transaction, shall constitute one violation. For example: sale of three packs of cigarettes and a vial of liquid nicotine to a 19-year old in one transaction shall constitute one violation. Sale of one pack of cigarettes to one 19-year old, and one pack of cigarettes to the 18-year old next in line, in two transactions, shall constitute two violations.
   (C)   In addition to the denial, suspension, or revocation of a license, the city or its licensing agent may impose the following civil penalties for violations of §§ 94.21 or 94.22, or of § 135.17 of the Codified Ordinances or any substantially equivalent offense:
      (1)   For a first violation, $250.00;
      (2)   For second and additional violations within one year of the first violation, $500.00.
   (D)   When the city or its licensing agent determines to issue a civil penalty for a violation, to deny a permit application, or to suspend or revoke a permit, the city or licensing agent shall notify the violator, applicant, or licensee written notice of said decision by U.S. mail, electronic mail, by posting in a conspicuous place at the location, or other means reasonably calculated to promptly notify the violator, applicant, or licensee of the determination.
   (E)   The city or its licensing agent shall not be required to conduct an evidentiary hearing prior to issuing a determination provided for in division (D) of this section.
   (F)   The violator, applicant, or licensee may file a written notice of appeal with the city or its licensing agent, whichever issued the determination, within 14 days of the date of the determination provided pursuant to division (D) of this section. The determination shall take effect following the expiration of time to file the notice of appeal provided herein.
   (G)   If the city's licensing agent is Franklin County Public Health, the appeal provided in division (F) of this section shall be heard by the Board of Health, or the city. The Board of Health may designate a hearing officer to hear and decide the appeal on its behalf. If Franklin County Public Health is not the city's licensing agent, the appeal shall be to Council. The Mayor may designate a hearing officer to hear and decide the appeal on Council's behalf.
   (H)   In any appeal hearing under this section, the burden of proof by preponderance of the evidence shall be upon the city or its licensing agent. The hearing shall be recorded and exhibits marked to create a record for use in further appeal provided, however, that transcripts need not be ordered unless a notice of appeal to the Court of Common Pleas or Franklin County Municipal Court Environmental Division has been timely filed under R.C. Chapter 2506.
   (I)   The Board of Health or its Health Commissioner, Council, or a hearing officer hearing an appeal under this section shall rule on all preliminary and evidentiary matters, and in doing so shall not be strictly bound by the Rules of Evidence, the Rules of Civil Procedure, or the Rules of Appellate Procedure. The presiding officer of the Board of Health, the Health Commissioner, the Mayor, or the hearing officer may establish time limits for the presentation of evidence, determine any non-dispositive preliminary motion, and may continue any hearing on the motion of a party or on its own motion.
   (J)   Appeals from decisions under division (I) of this section shall proceed according to R.C. Chapter 2506.
(Ord. 24-17, passed 12-4-17)