A. No person, firm, or corporation shall locate, install, keep, maintain, or use or permit the location, installation, keeping, maintenance, or use on his, her, or its premises of any tobacco vending machine for the purpose of selling or distributing any tobacco product therefrom.
B. Any tobacco vending machine in use on the effective date of this chapter shall be removed within ninety (90) days after the effective date. Notwithstanding the previous sentence, any tobacco vending machine which is the subject of a written contract authorizing its installation which was entered into prior to the enactment of this chapter shall be removed within fifteen (15) days after the date specified in subsections (B)(1) or (B)(2) of this section, whichever occurs later:
1. The first date on which permissive termination of the written contract by the party on whose premises the tobacco vending machine is located could take effect if said party elected to terminate, or the expiration date of the contract term in effect on the enactment date of this chapter if no provision of the agreement authorizes permissive termination;
2. Ninety (90) days after the effective date of the ordinance codified in this chapter.
Within thirty (30) days after the effective date of this chapter, any machine owner who contends that a prohibited tobacco vending machine is entitled to remain in use pursuant to this subsection shall present a copy of the written contract and an application for extension of use which sets forth the applicant's calculation of the later of the two dates specified above to the director of finance. The director, or the director's designee, shall review the submittals and issue a written notice within sixty (60) days after submittal of the application which states the last date upon which the machine may be operated. A copy of the notice shall be posted on the machine in plain view by the machine owner.
C. Within thirty (30) days after the effective date of this chapter, any person, firm, or corporation who purchased a tobacco vending machine less than thirty-two (32) months prior to the enactment of this chapter for the purpose of using the tobacco vending machine to sell or distribute tobacco products exclusively within the city and who has not or will not have recovered his, her, or its investment therein by the date on which discontinuance of use is required pursuant to subsection (B) of this section may apply to the director of finance for a use extension based on financial hardship. A use extension shall be granted if the director of finance, or the director's designee appointed to consider the application, makes all of the following findings:
1. That the machine was intended for use only with the city;
2. That the machine owner has not or will not have recovered his, her, or its investment therein before the date of required discontinuance;
3. That the machine owner has no practical way to recover the investment in the machine other than its continued use within the city as a tobacco vending machine; and
4. That the investment not yet recovered exceeds ten (10) percent of the cost of the machine.
The length of the use extension shall not exceed that additional time period estimated to be necessary to allow recovery of the owner's investment; provided, however, that no use extension shall be granted which allows the total time during which the machine will be in use within the city to exceed three years. The tobacco vending machine owner shall bear the burden of proof on each issue. The director shall issue a written decision and notice within sixty (60) days after submittal of the application which states the last date upon which the machine may be operated. A copy of the notice shall be posted on the machine in plain view by the machine owner.
D. Any applicant aggrieved by the decision of the director pursuant to subsection B or C of this section may appeal the decision to the city manager by filing a written notice of appeal with the city manager within ten (10) days after the date of the director's written decision. The notice of appeal shall contain a brief statement of the grounds for the appeal. The city manager, or the city manager's designee, shall review the application and the notice of appeal and may, by written decision, confirm or modify the chief's determination. The decision of the city manager shall be final.
E. Each application submitted pursuant to subsection B or C of this section shall be accompanied by a non-refundable application fee of fifty dollars ($50.00) per machine.
F. Violation of subsection A of this section is a misdemeanor. Violation of any other provision of this chapter is an infraction. (Prior code § 37.02.103)