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(1) Suspension or Revocation – Administrative Fine. In addition to any other penalty authorized by law, a tobacco retailer permit shall be suspended or revoked and an administrative fine shall be assessed against the tobacco retailer in accordance with the procedures set forth in this section if it is determined that the permittee or his or her agent or employee has violated any of the conditions of the permit imposed pursuant to this article or any other local, state or federal law pertaining to the sale of tobacco products or tobacco paraphernalia to persons under 21 years of age.

(a) First Violation. Upon a determination by the department of a first permit violation within a 60-month period, the permit shall be suspended for a period of 30 calendar days and an administrative fine in the amount of $500.00 (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the suspension becomes effective.

(b) Second Violation. Upon a determination by the department of a second permit violation within a 60-month period, the permit shall be suspended for a period of 90 calendar days and an administrative fine in the amount of $1,000 (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the suspension becomes effective.

(c) Third Violation. Upon a determination by the department of a third permit violation within a 60-month period, the permit shall be revoked and an administrative fine in the amount of $2,500 (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the revocation becomes effective.

(2) Revocation of Permit Wrongly Issued. A tobacco retailer permit shall be revoked if the department determines that one or more of the bases for denial of a permit under CMC 5.08.1830 or 5.08.1850(1) existed at the time the application was made or at any time before the permit was issued. No administrative fine shall accompany a revocation of a permit that had been wrongly issued.

(3) Order of Suspension/Revocation. Upon a determination by the department that the permittee or his or her agent or employee has violated any of the conditions of the permit imposed pursuant to this article, or any other local, state or federal law pertaining to the sale of tobacco products or tobacco paraphernalia to persons under the age of 21 years, the department shall serve a written order of suspension/revocation of tobacco retailer permit (hereinafter, “order of suspension/revocation”) upon either (a) the authorized agent either via personal service or via first class mail, postage prepaid, to the address provided on the tobacco retailer permit application, or (b) if an authorized agent was not listed on the tobacco retailer permit application, to the permittee via personal service or via first class mail, postage prepaid, to the business address.

(a) The order of suspension/revocation shall provide, at a minimum, the following information:

(i) The name of the permittee and tobacco retailer permit number;

(ii) A brief statement of the specific grounds for the suspension or revocation;

(iii) If applicable, the term of the suspension;

(iv) If applicable, the amount of any administrative fine being assessed;

(v) If applicable, the dates and terms of any prior suspensions and administrative fines within the preceding 60 months;

(vi) The effective date of the suspension or revocation and the due date of the administrative fine;

(vii) If applicable, the date on which a permittee may apply for a new tobacco retailer permit after revocation;

(viii) The time frame and manner in which the permittee may contest the order of suspension/revocation as set forth in subsection (4)(a) of this section;

(ix) A statement that the failure of the permittee to contest the order of suspension/revocation will constitute a waiver of the permittee’s right to administratively challenge the order of suspension/revocation, and the order of suspension/revocation shall be deemed a final and binding administrative decision; and

(x) If applicable and in the possession of the department, copies of the following documents:

(A) Permittee’s application for tobacco retailer permit;

(B) Permittee’s tobacco retailer permit;

(C) Permittee’s tobacco retailer’s license (as issued by the State Board of Equalization); and

(D) Any law enforcement report, memorandum, and/or photograph submitted by the sheriff’s department or other law enforcement agency relied upon by the department in support of the suspension or revocation. These documents shall be redacted as required or permitted by law.

(b) Service of the order of suspension/revocation shall be deemed to have been completed on the date on which the order of suspension/revocation is either personally delivered to the authorized agent or permittee or the date on which the order of suspension/revocation is deposited with the United States Postal Service.

(c) Failure of an authorized agent or permittee to receive a properly addressed order of suspension/revocation shall not invalidate any of the proceedings pursuant to this article.

(4) Contest of Order of Suspension/Revocation.

(a) Any permittee whose permit has been suspended or revoked pursuant to the provisions of this article may contest the order of suspension/revocation by filing with the department a written request to contest the order of suspension/revocation (including the imposition of the corresponding administrative fine) within 10 calendar days of the order of suspension/revocation. The written request must include, at a minimum, the following:

(i) The name of the permittee, the address of the business property, and the tobacco retailer permit number that is subject to the order of suspension/revocation;

(ii) The date on which the order of suspension/revocation was issued;

(iii) A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the permittee;

(iv) A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the order of suspension/revocation should be reversed or otherwise set aside;

(v) The signature of all proprietors who are contesting the order of suspension/revocation under penalty of perjury as to the contents of the request for appeal.

(b) Notwithstanding Chapter 1.40 CMC (Administrative Fines and Citations) or any other provision of the Cudahy Municipal Code, an administrative fine assessed against a tobacco retailer in conjunction with an order of suspension/revocation shall only be challenged as set forth in this section.

(c) Upon receipt of such written request for a hearing, the department shall give not less than five business days’ written notice to the permittee to show cause at a time and place fixed in the notice why the tobacco retailer permit should not be suspended or revoked (as the case may be). The written notice of hearing shall be served upon the permittee in the same manner as the order of suspension/revocation.

(d) Any order of suspension/revocation and any assessment of a corresponding administrative fine shall be stayed pending the city manager’s determination upon the timely filing of a request for a hearing.

(5) Administrative Review Hearing.

(a) The director shall conduct the administrative review hearing at the designated time and place. The hearing is to be conducted informally, and formal rules of evidence do not apply. If a youth decoy participated in the underlying investigation, the youth decoy shall not be required to appear or to give testimony. At the hearing, the permittee shall have the burden of showing cause why the tobacco retailer permit should not be suspended or revoked, and the permittee shall be given an opportunity to present any evidence (testimonial, documentary, or otherwise) as it pertains to whether grounds for suspension or revocation exist. In determining whether grounds for suspension or revocation exist, the director shall not consider any evidence pertaining to preventative measures or subsequent remedial measures (e.g., employee training, the termination of employment of the agent/employee that committed the underlying violation, etc.).

(b) Within 30 calendar days of the conclusion of the administrative review hearing, the director shall serve the permittee with written notice of its determination as to whether the tobacco retailer permit shall be suspended or revoked (and the corresponding administrative fine shall be assessed). The written determination shall be served upon the permittee in the same manner as the order of suspension/revocation. If the director determines that the tobacco retailer permit shall be suspended or revoked, the written determination shall contain all of the information required pursuant to subsection (3)(a) of this section. A written determination that the tobacco retailer permit shall be suspended or revoked shall also contain the time frame and manner in which the permittee may contest the director’s determination as set forth in CMC 5.08.1920, and a statement that the failure of the permittee to contest the director’s determination will constitute a waiver of the permittee’s right to administratively challenge the director’s determination, and the director’s determination to suspend or revoke the tobacco retailer permit shall be deemed a final and binding administrative decision. (Ord. 695 § 1, 2018).