1783.12 ENFORCEMENT AND PENALTIES; APPEALS.

   (a)    The City and/or its Commissioner of Health shall have authority to implement and enforce the provisions of this Chapter. All licensed premises must be open to inspection by Hamilton City Health Department inspectors or other authorized designees during regular business hours. The tobacco retail establishment may be subject to two (2) compliance checks per year. The City and/or its Commissioner of Health may enter at reasonable times to inspect or investigate and examine or copy records to determine compliance with this Chapter. The City and/or its Commissioner of Health 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. Compliance checks may also include the participation of a person at least eighteen (18) years of age, but under the age of twenty-one (21), to enter the licensed premises to attempt to purchase licensed products. Unannounced follow-up compliance checks of all non-compliant tobacco retail establishments are required within three (3) months of any violation of this ordinance. The results of all compliance checks shall be published by the Hamilton City Health Department at least annually and made available to the public upon request.

   (b)    If the Commissioner of Health denies the issuance of a license, or suspends or revokes a license, or issues a citation with or without civil penalty for violating this chapter, the Commissioner of Health shall send to the applicant, or licensee, by certified mail, return receipt requested, written notice of the action and the right to an appeal. Upon receipt of written notice of the denial, suspension, or revocation, the licensee subject to license denial or revocation or citation and civil fine shall have the right to appeal to the Board of Health. An appeal must be filed within thirty (30) days after the receipt of notice of the decision. The appellant shall bear the burden of proof. The Board of Health shall be the final, administrative decision maker.

   (c)    Civil Penalties. In addition to the denial, suspension, or revocation of a license, the Commissioner of Health may impose the following civil penalties for violations of this Chapter:

      (1)    For a first (1st) violation, a fine no less than five hundred dollars ($500.00).

      (2)    For a second (2nd) violation within a thirty-six (36)-month period, a fine no less than seven hundred fifty dollars ($750.00) and the license shall be suspended a minimum of thirty (30) days no more than sixty (60) days.

      (3)    For a third (3rd) violation within a thirty-six (36)-month period, a fine no less than one thousand dollars ($1,000) and the license shall be suspended for a minimum of thirty (30) days.

      (4)    For a fourth (4th) and any subsequent violations within a thirty-six (36)-month period, the license shall be revoked.

   (d)    Tobacco Retailing Without a Valid License. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Commissioner of Health finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any tobacco retailer has engaged in Tobacco Retailing at a location without a valid Tobacco Retailer's license, either directly or through the tobacco retailer's agents or employees, the tobacco retailer shall be ineligible to apply for, or to be issued, a Tobacco Retailer's license as follows:

      (1)    After a first (1st) violation of this section at a location within any thirty-six (36)-month period, no new license may issue for the tobacco retailer 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 (2nd) violation of this section at a location within any thirty-six (36)-month period, no new license may issue for the tobacco retailer or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until ninety (90) days have passed from the date of the violation.

      (3)    After of a third (3rd) or subsequent violation of this section at a location within any thirty-six (36)-month period, no new license may issue for the tobacco retailer or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until five (5) years have passed from the date of the violation.

   (e)    Additional Remedies. The remedies provided by this Chapter are cumulative and in addition to other remedies available at law or in equity.

(Ord. 2022-6-40. Passed 6-8-22.)