SEC. 19H.17. SELLING TOBACCO WITHOUT A PERMIT.

   (a)   Upon a final decision by the Director that any person has engaged in the sale of tobacco at any Establishment without a permit, the Director may impose administrative penalties as set forth in Section 19H.20. Persons with a permit application pending under Section 1009.531 may sell tobacco without violating Section 1009.641 until and unless their permit application is rejected by the Director.

   (b)   The Director shall commence enforcement of this section by serving a notice of initial determination in accordance with Section 19H.22 of this Article. This Notice of Initial Determination may require that all tobacco sales cease and may impose an administrative penalty.

   (c)   The City Attorney may maintain an action for injunction to restrain any person from selling tobacco without a valid tobacco sales permit. In any such action, the City Attorney may seek civil penalties and may seek a judicial determination that a person must pay any administrative penalties. The person against whom an injunction issues also shall be liable for the costs and attorney's fees incurred by the City and County of San Francisco in bringing a civil action to enforce the provisions of this section.

   (d)   Any person who engages in tobacco sales without the required permit may be prosecuted for either an infraction or a misdemeanor punishable by a fine not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200) for a second violation within one year, and five hundred dollars ($500) for a third and for each subsequent violation within one year.

(Added as Sec. 1009.64 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated and amended by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)

CODIFICATION NOTE

1.   The sections referenced in the last sentence of division (a) were redesignated as Sec. 19H.4 and this Sec. 19H.17, respectively, by Ord. 259-14 .

SEC. 19H.18. OTHER ENFORCEMENT.

   (a)   Violations of this Article are hereby declared to be public nuisances and may be enforced as set forth in Section 596 of the San Francisco Health Code.

   (b)   Violations of this Article are hereby declared to be unfair business practices and are presumed to damage each and every resident of the community in which the business operates.

   (c)   In addition to other remedies provided by this Article or by other law, any violation of this ordinance may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. The person against whom a successful civil action is brought shall be liable for the costs and attorney's fees incurred by the City and County of San Francisco.

(Added as Sec. 1009.65 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)

SEC. 19H.19. TIME PERIOD OF SUSPENSION OF PERMIT.

   When this Article allows the Director to suspend a permit, the following sanctions may be imposed:

   (a)   The Director may suspend the permit for a maximum of 90 days for the first violation.

   (b)   If a second violation occurs within twelve months of the first violation, the Director may suspend the permit for a maximum of six months.

   (c)   Upon the third violation, if within twelve months of the prior violation, the Director may suspend the permit for a maximum of one year.

   (d)   Each suspension is an independent sanction and is served consecutively.

(Added as Sec. 1009.66 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated and amended by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)

SEC. 19H.20. ADMINISTRATIVE PENALTY.

   When this Article allows the Director to impose an administrative penalty, the Director may assess an administrative penalty not exceeding one hundred dollars ($100) for a first violation; not exceeding two hundred dollars ($200) for a second violation; and not exceeding five hundred dollars ($500) for the third and each subsequent violation. For purposes of administrative penalties, each day that tobacco sales occur without a permit shall constitute a separate violation.

(Added as Sec. 1009.67 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)

SEC. 19H.21. NOTICE OF CORRECTION.

   When the Director commences an enforcement action with a notice of correction, the Director shall serve the notice on the Permittee or the Permittee's agent. The notice shall state that the Department has determined that a violation may have occurred and that reasonable grounds exist to support this determination. The notice may require corrective action immediately or upon a schedule required by the Director. The Director may require the Permittee to post the notice of correction at the location where the Department alleges that violations have occurred. If the Permittee fails to obey a notice of correction, the Director may serve a notice of initial determination in accordance with Section 19H.22 of this Article.

(Added as Sec. 1009.68 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated and amended by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)

SEC. 19H.22. NOTICE OF INITIAL DETERMINATION.

   When the Director sends a notice of initial determination, the Director shall serve the notice on the permittee or the permittee's agent. The Notice of Initial Determination may require that all tobacco sales cease. The notice shall state the basis for the Department's initial determination, including the alleged acts or failures to act that constitute a basis for suspension, revocation, and/or an administrative penalty as provided in this Article. After affording the permittee an opportunity to provide information contesting the initial determination, the Director shall issue a decision, including an order imposing an administrative penalty, if any. Copies of this decision and related order(s) shall be served upon the party served with the notice of initial determination. If no notice of appeal of the Director's decision is filed within the appropriate period, the decision shall be deemed final and shall be effective 15 days after it was issued.

(Added as Sec. 1009.69 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)

SEC. 19H.23. PAYMENT OF ADMINISTRATIVE PENALTIES.

   Unless a timely notice of appeal of the Department's final decision is filed, the Department may require payment of any administrative penalty within 30 days of the Director's decision. The Department shall make a written demand for payment by personal delivery or certified mailed notice to the person sanctioned. Any administrative penalty assessed and received in an action brought under this Article shall be paid to the Treasurer of the City and County of San Francisco. The person against whom an administrative penalty is imposed also shall be liable for the costs and attorney's fees incurred by the City and County of San Francisco in bringing any civil action to enforce the provisions of this section, including obtaining a court order requiring payment of the administrative penalty.

(Added as Sec. 1009.71 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)

SEC. 19H.24. APPEALS TO BOARD OF APPEALS.

   (a)   Right of Appeal. The final decision of the Director to deny, suspend, or revoke a permit, or to impose administrative sanctions, as provided in this Article, may be appealed to the Board of Appeals in the manner prescribed in Article I of the San Francisco Business and Tax Regulations Code. An appeal shall stay the action of the Director.

   (b)   Hearing. The procedure and requirements governing an appeal to the Board of Appeals shall be as specified in Article I of the San Francisco Business and Tax Regulations Code.

(Added as Sec. 1009.72 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)

SEC. 19H.25. OTHER REMEDIES.

   Nothing in this Article shall affect any other remedies which are available to the City and County under any law, including (1) Health Code Article 19D (regulating cigarette vending machines); (2) Police Code Section 4600.3 (regulating the self-service merchandising of tobacco products); (3) Health Code Article 19F (prohibiting smoking in enclosed areas and sports stadiums); (4) California Penal Code section 308 (regulating sales of tobacco products to minors); and (5) California Labor Code section 6404.5 (prohibiting smoking in enclosed places of employment).

(Added as Sec. 1009.73 by Ord. 254-03, File No. 030869, App. 11/7/2003; redesignated and amended by Ord. 259-14 , File No. 141098, App. 12/19/2014, Eff. 1/18/2015)