741.12 ENFORCEMENT AND PENALTIES; APPEALS.

   (a)   The Department shall have authority to implement and enforce the provisions of this Chapter. All licensed premises must be open to inspection by the Department inspectors or other authorized designees during regular business hours. The tobacco retail establishment shall 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 Department 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 followup compliance checks of all non-compliant tobacco retail establishments are required within three (3) months of any violation of this chapter. The results of all compliance checks shall be published by the Department at least annually and made available to the public upon request.

   (b)    If the Department 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 Department 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 Department. 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 Department shall be the final, administrative decision maker.

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

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

      (2)    For a second 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 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 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 Department 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 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 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 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. 003-2023. Passed 1-17-23.)