(b) Inspections. The City or its licensing agent may conduct an inspection of a business prior to issuing a permit for the retail sale of tobacco products or alternative nicotine products. The City or its licensing agent shall annually inspect each permit 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 permit.
(c) For purposes of divisions (c)(1) and (d)(2) of Section 1179.07:
(1) “Violation” including violation of Section 537.20 or a substantially equivalent offense, does not require that the person has been criminally convicted of the violation of Section 537.20 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 Section 537.20 or any substantially equivalent offense, shall not necessarily absolve a permittee; Sections 1179.01 through 1179.08 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 Section 537.20 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 nineteen-year old in one transaction shall constitute one violation.
Sale of one pack of cigarettes to one nineteen-year old and one pack of cigarettes to the eighteen-year old next in line in two transactions shall constitute two violations.
(1) For a first violation, a written warning shall be provided to violator;
(2) For a second violation within five years of the first violation, two hundred fifty dollars ($250.00);
(3) For a third violation within five years of the first violation, five hundred dollars ($500.00);
(4) For a fourth violation within five years of the first violation, one thousand dollars ($1,000.00); and
(5) For a fifth violation within five years of the first violation, administrative permit review to determine if the permit should be suspended or revoked.
(e) 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 permittee by sending written notice of said decision by U.S. mail, electronic mail, or by posting in a conspicuous place at the location or by any other means reasonably calculated to promptly notify the violator, applicant, or permittee of the determination.
(f) The City or its licensing agent shall not be required to conduct an evidentiary hearing prior to issuing a determination provided for in division (e) of this section.
(g) The violator, applicant, or permittee may file a written notice of appeal with the City and the Cuyahoga County Board of Health within fourteen days of the date of the determination provided pursuant to division (e) of this section. The determination shall take effect following the expiration of time to file the notice of appeal provided herein.
(h) If the City's licensing agent is Cuyahoga County Board of Health, the appeal provided for in division (g) of this section shall be heard by the Board of Health. The Board of Health may designate a hearing officer to hear and decide the appeal on its behalf.
(i) The Cuyahoga County Board of Health has the power and ability to create rules and regulations to clarify processes including appeals.
(j) 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 any further appeal provided, however, that transcripts need not be ordered unless a notice of appeal to the court of common pleas or local Municipal Court with jurisdiction has been timely filed under Ohio R.C. Chapter 2506.
(k) The Board of Health or its Health Commissioner, Council (or other named board/commission), 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 President of Council, 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.
(l) Appeals from decisions under division (j) of this section shall proceed according to Ohio R.C. Chapter 2506.
(Ord. 109-2018. Passed 8-20-18; Ord. 3-2019. Passed 1-7-19.)