§ 18-9. Regulation of the sale of non-traditional tobacco paraphernalia.

(a)

Definitions. For the purposes of this section, the following terms shall have the following meanings:

(1)

Additional line of devices shall refer to the following four separate lines of devices:

a.

Grinders;

b.

Any storage devices with false or hidden doors or compartments commonly associated with tobacco, vaping, or drug use;

c.

Weighing devices commonly associated with tobacco, vaping, or drug use; and

d.

Torch lighters;

(2)

Alternative nicotine product shall have the same definition as provided for said term in subsection 18-10(a)(2) of these ordinances;

(3)

Applicant shall mean all persons who are required to sign an application for a license to sell non-traditional tobacco paraphernalia as set forth herein in subsection 18-9(b);

(4)

City or City of Cumming shall mean the City of Cumming, Georgia;

(5)

Director shall mean the director of the city department of planning and zoning;

(6)

Non-traditional tobacco paraphernalia shall mean non-traditional instruments designed so to facilitate the smoking, consumption or ingestion of tobacco or nicotine in any form (such as bongs, hookah pipes, or faux jewelry, bracelets, or necklaces commonly associated with tobacco, vaping, or drug use, with one purpose of such items being the inhalation or ingestion of tobacco or drugs); provided, however, that the term "non-traditional tobacco paraphernalia" shall exclude alternative nicotine products, cigarette papers or wrappers, blunt wraps, traditional tobacco pipes (such as brand names Briar and Meerschaum), holders, cigarette rolling machines, or other products, devices, or substances used for the purpose of making tobacco cigarettes;

(7)

Person shall mean and refer to any individual, natural person, partnership, firm, corporation, joint venture, proprietorship, business entity, association, agency, group, organization or group of persons or any other entity;

(8)

Screened room shall mean a room separate from the public sales floor that is completely screened from view by the public such that persons entering into a regulated establishment shall not be able to observe any non-traditional tobacco paraphernalia except after entering the screened room; and

(9)

Vaping shall have the same definition as provided for said term in subsection 18-10(a)(6) of these ordinances.

(b)

Any person who offers for retail sale any item of non-traditional tobacco paraphernalia shall, by June 1 of each year, apply to the city planning and zoning department for a non-traditional tobacco paraphernalia license and shall pay an annual license fee. For the permit year from July 1, 2018, through June 30, 2019, and for every year thereafter until modified by the mayor and council, the annual license fee shall be $2,000.00. Any person required to obtain a license to sell non-traditional tobacco paraphernalia and who also offers for sale any additional line of devices shall pay an additional annual license fee of $250.00 per additional line of devices. For the purposes of this section, every person who obtains such a license shall be referred to as a "licensee." All applications shall be fully completed by the applicant and sworn to and signed by the applicant in the presence of a notary public or other officer authorized to administer oaths. If the application is filed on behalf of a partnership, then each partner shall sign the application in the presence of a notary public or other officer authorized to administer oaths. If the application is filed on behalf of a corporation selling any item of non-traditional tobacco paraphernalia, the majority stockholder and each principal officer of the corporation must sign the application in the presence of a notary public or other officer authorized to administer oaths. If the application is filed on behalf of a nonprofit tax exempt civic, patriotic, or social club or corporation which is organized and operated in the city as a mutual benefit membership group, the individual being primarily responsible for the club or corporation's compliance with this chapter must sign the application in the presence of a notary public or other officer authorized to administer oaths. If the application is filed on behalf of a private club, then each member of its governing body must sign the application in the presence of a notary public or other officer authorized to administer oaths. If the application is filed on behalf of a limited liability company, then each member of the limited liability company must sign the application in the presence of a notary public or other officer authorized to administer oaths.

(1)

All applications shall be accompanied by the following:

a.

A survey (dated no more than 180 days prior to submission of the application to the city), certified by a registered surveyor of this state, showing a scaled drawing of the premises, the location on the premises where the applicant desires to sell any item of non-traditional tobacco paraphernalia, and the distance in linear feet measured from the front door of the premise where any non-traditional paraphernalia is to be sold, to the property line of the tract upon which is located the nearest church building, school building, educational building, school grounds or college grounds or college campus building.

The distance referred to in this subsection shall be measured in the same manner as required by the City of Cumming Alcohol Ordinance.

b.

If the applicant is a partnership, a copy of the partnership agreement, including amendments, shall accompany the application.

c.

If the applicant is a corporation, a copy of the articles of incorporation and by-laws, including amendments, shall accompany the application.

d.

If the applicant is a nonprofit tax exempt civic, patriotic or social club or corporation which is organized and operated in the city as a mutual benefit membership group, a copy of the charter or articles of incorporation, as well as sufficient proof of the organization's tax-exempt status shall accompany the application.

e.

If the applicant is a private club, a copy of the articles of incorporation and by-laws, including amendments, shall accompany the application.

f.

If the applicant is a limited liability company, a copy of the operating agreement.

g.

As a prerequisite to the issuance of any license, the applicant shall furnish a complete set of fingerprints for all persons required to sign the application to be forwarded to the Georgia Bureau of Investigation and to the Federal Bureau of Investigation, as specified under Georgia law. Each person required to sign the application for an original license and/or renewal license, must authorize the city or its designated representatives to secure from any state, county, municipal or federal court, any police department and/or law enforcement agency his, her or its criminal history and civil history and further authorize the city, its officers and employees to use such information in determining whether or not a license for the sale of any item of non-traditional tobacco paraphernalia will be issued to the applicant. Further, the applicant must authorize the city, its officers and employees to use such information in a public hearing if necessary, to determine whether or not the applicant's license should be denied, voided, cancelled and/or revoked. Each applicant waives any right or rights he, she or it may have under state or federal law, statute and/or court ruling to preclude the city from securing such criminal and/or civil history from any source and waives any right he, she or it may have to preclude the city from using such information publicly in determining whether the license will be issued to such applicant.

h.

The application shall be accompanied by a certified or cashier's check for the full amount of the license fee combined with $175.00 for an investigative fee that may be paid with a credit or debit card for each individual fingerprinted. If the application is denied, or if the applicant withdraws the application prior to its approval, the license fee (without interest) shall be refunded to the applicant. All other fees paid to the city which were submitted as part of the application, including, but not limited to the investigative fee and any employee application permit fee(s) shall be retained by the city.

i.

The director may require any additional information and records he reasonably deems necessary. Failure to furnish such data shall automatically serve to dismiss the application. Any misstatement or concealment of fact in the application shall be grounds for denying a license or revoking an issued license, and shall make the applicant liable to prosecution for perjury under the laws of the State of Georgia.

j.

A valid email address and a valid mailing address that can be used for serving documents upon the applicant.

k.

Each applicant shall certify that applicant has read and understands this chapter and if the license is granted, each licensee shall maintain a copy of this chapter on the premises and shall require each of the licensee's employees to be familiar with this chapter.

(2)

No license for the sale of any item of non-traditional tobacco paraphernalia may be issued to an applicant under the following circumstances:

a.

An applicant who is not at least 21 years old.

b.

An applicant who has been convicted under any federal or state law of (1) a felony; or (2) any misdemeanor involving the usage, distribution, or possession of controlled substances, alcohol, or offenses involving moral turpitude within a five-year period immediately preceding application. For purposes of this subsection, a "conviction" shall include any plea of guilty or admission of guilt and subsequent sentence under the First Offender Act of O.C.G.A. §§ 42-8-60, 16-13-2 or 3-3-23.1(c), or any similar sentencing provision for first time offenders of any other state or of the United States. A plea of nolo contendre for any felony or misdemeanor of any state or of the United States, or any municipal ordinance, except traffic violations, or the forfeiture of a bond (except traffic offenses) when charged with a crime is also considered a conviction under this chapter.

c.

An applicant who has been held in civil or criminal contempt by any federal, state or local court if such citation indicates to the mayor and council that the applicant will not maintain the outlet for which he is seeking a license in conformity with federal, state or local laws, rules, and regulations.

d.

An applicant whom the director, or the mayor and council, determines, by reason of such applicant's business experience, financial standing, trade associations, personal associations, records of arrests, or reputation in any community in which he has resided, is not likely to maintain the outlet for which he is seeking a license in conformity with federal, state, or local laws.

e.

An applicant who is not the owner of the premises for which the license is held or the holder of the lease thereon for the period covered by the license. The applicant for a license for the sale any item of non-traditional tobacco paraphernalia, whether it be an individual, a partnership, a corporation, a nonprofit tax exempt civic, patriotic, or social club, limited liability company, or a private club, shall be the owner of the premises for which the license is held or the holder of the lease thereon for the period covered by the license. If the premises are leased, then the applicant shall provide information regarding the owner or landlord of the premise.

f.

An applicant or family member (by blood or marriage) of an applicant who has had a license suspended or revoked, or an applicant who has had an application for a license denied under the provisions of this chapter within one year from the final date of such denial, suspension or revocation. For purposes of this provision, the final date of a denial of license shall be the date of written notice of such denial if the denial is not appealed; or, if the denial is appealed, the date of written notice of denial of the appeal.

g.

An applicant who seeks to sell non-traditional tobacco paraphernalia in premises that are in or within 100 yards of any church building or in or within 200 yards of any school building, educational building, school grounds, or college campus, or in any premises for which there was a license to sell non-traditional tobacco paraphernalia that has been suspended or revoked until at least 12 months have passed since the suspension or revocation.

(3)

At the time the applicant makes application for a license, a sign shall be posted and furnished by the Applicant and will be painted or printed in black letters one and one-half inches in height, against an yellow background, on a two-face, back-to-back surface of not less than 24 × 30 inches in space, and shall be placed by the applicant with the base of the sign not more than three feet from the ground on the most conspicuous part of the premises. The sign shall state clearly the nature and purpose of the application, and the name of the person, partnership, organization, corporation or private club making the application.

(4)

Once an application, the accompanying documents described above, and the required investigative and license fees are filed with the city, the city police department shall conduct a criminal investigation of the application and produce a written criminal investigation report concerning all information relating to fingerprinting, criminal history, arrest data, and other matters pertaining to law enforcement. In the event the failure to obtain fingerprinting information from state and federal authorities delays completion of the written report, the police department may later supplement any fingerprinting information. If the fingerprinting information later reveals that the applicant fails to meet the requirements set by this chapter, this may be grounds for denying the application or revoking a license, despite an otherwise satisfactory written report. Upon production of the criminal investigation report, the chief of police or his designee shall make a determination as to compliance with the requirements of the ordinance codified in this section and section 18-10 as to the issues contained therein, and shall forward that determination to the director. The director shall cause the application forms and all accompanying documents required for consideration of the application to be assembled for review.

(5)

If the criminal investigation report shows that the applicant fails to meet the requirements set by this chapter, or if the director finds that the applicant fails to meet other qualifications outlined by this chapter, then the director shall inform the applicant, in writing, that the application has been denied, and shall set forth in reasonable detail the reasons for the denial and shall notify the applicant of his/her right to appeal to the mayor and council in accordance with subsection 18-9(c) of this chapter. If an applicant desires to appeal a denial by the director, the applicant must file a written request for an appeal hearing with the director within ten business days of the date of the written notice informing the applicant of the denial by the director.

(6)

Any application which the director determines to satisfy all the qualifications outlined in this chapter, including character requirements as contained in the criminal investigation report to the police department, shall be scheduled for review at the next regularly scheduled meeting of the mayor and council. In making its determination on whether to approve or deny the application, the mayor and council shall look to the qualifications set forth in this chapter and consider the public interest and welfare. The mayor and council shall have the sole discretion to grant or deny the application based on the information presented. A decision by the mayor and council shall be made at or within 30 days from the date of the city council meeting, unless the decision is postponed for purposes of the mayor and council obtaining additional information deemed necessary for consideration of the application. Notice of the decision by the mayor and council shall be mailed or emailed to the applicant. In the event the application is denied, written notification of such denial shall set forth in reasonable detail the reasons for the denial and shall notify the applicant of his right to appeal as set forth in subsection 18-9(c).

(7)

Upon approval by the mayor and council of the application for a license, the director shall issue a license in accordance with the approved application.

(c)

In the event the mayor and council deny the application for a license, suspend a license, or revoke a license, the applicant for a license or the licensee whose license was suspended or revoked may appeal to the mayor and council for reconsideration of the license denial, suspension or revocation by filing a written request for an appeal hearing with the director within ten business days of the date of the written notice informing the applicant of the denial, suspension or revocation. Any such appeal hearing shall be conducted according to the procedures set forth in the subsection below.

(1)

Upon receipt of a timely appeal (accompanied by a fee of $250.00 made payable to the city), the director shall schedule a hearing before the mayor and council and provide written notice to the applicant of the time, place and date of the scheduled hearing. The director shall also state in the written notice in reasonable detail the factual basis for the denial of the application or the suspension or revocation of the license. After notice of hearing, matters scheduled for hearing may only be continued by agreement of the director and the applicant and/or counsel for the applicant.

(2)

The mayor and council shall have the duty of conducting hearings concerning the timely filed appeal of the denial, suspension, or revocation of a license. The standard of proof on all issues in the hearing shall be a preponderance of the evidence and a determination will be made on the basis of the evidence presented at the hearing.

(3)

At the hearing, the director or his or her designee shall present the facts upon which the denial, suspension, or revocation of the license were based. After presentation of the case against the applicant, the applicant will have an opportunity to present his/her case, to rebut the allegations made against him/her, and present whatever defenses he/she has. The applicant shall have the right to be represented by an attorney, at the expense of the applicant, and to present evidence and cross-examine opposing witnesses.

(4)

At the conclusion of the hearing, the mayor and council shall determine whether the denial, revocation, or suspension of the license was warranted. The findings and conclusions of the mayor and council shall be forwarded to the director and it shall be the duty of the director to provide written notification to the adverse party of the actions of the mayor and council.

(5)

The decision of the mayor and council shall be final unless appealed to the Superior Court of Forsyth County, Georgia, within 30 days of the director providing written notification to the adverse party of the decision. Appeal shall be by certiorari.

(6)

For purposes of this chapter, notice shall be deemed delivered when personally served, when served by certified mail postage prepaid, or when served by email within three days after the date of deposit in the United States Mail.

(d)

All licenses granted under this chapter shall expire on June 30 of each year. An investigative fee of $175.00 shall be required for renewal applications pertaining to licenses that are to be issued for odd years in order to complete a criminal history report. In instances where a new, named licensee has been designated, a criminal history report and investigative fee shall be required regardless of the year. Persons holding a license for more than any one establishment and desiring to renew the license for such establishments shall pay only one investigative fee charge. Late applications will begin being processed at the time of receipt, but are not guaranteed renewal prior to July 1. If an application is submitted after July 31, a new application shall be required because renewal eligibility will not be considered past this date.

(1)

For applications in which there are no changes of information and data contained in the original application, licensees shall file a renewal application accompanied by the requisite license fee with the city upon forms prescribed by the city on or before the second Monday in June of each year without penalty. Applications for renewal filed after the second Monday in June shall be subject to a late charge of ten percent of the license fee.

(2)

Renewal applications must go before the mayor and council for review and approval.

(3)

Applicants shall be required to file a new application if changes have occurred in the information and data furnished with the original application. Any changes to an applicant's criminal history will be subject to subsection (b) of section 18-9.

(4)

Each application for renewal will show the date of the original application and that the applicant or applicants for the renewal are familiar with applicable Georgia laws and regulations and with the rules and ordinances of the city. The renewal application must be signed and sworn to by all applicants in the presence of a notary public or other officer authorized to administer oaths. The applicant will furnish all information required by the renewal application and failure to furnish the information will be grounds for denying the application. A false statement made on the renewal application will void the application and shall make the applicant liable to prosecution for false swearing under the laws of the State of Georgia.

(5)

Each application for renewal of a license shall be approved or denied in accordance with the procedures prescribed in this chapter.

(e)

No license for the sale of a non-traditional tobacco paraphernalia shall be transferable, except upon the death of a licensee, at which time such license may be transferred to the administrator, executor, or lawful adult heir or heirs of such deceased person. If the legal representatives of such deceased licensee cannot meet all the requirements of this chapter when the time arrives to renew the license, it shall not be renewed. Whenever a licensee doing business as a sole proprietorship loses its license as a result of the provision of this chapter, the licensee's successor in interest, upon filing an application for a new license, may continue to operate under the terms of the prior license until such time as the new application is approved or denied by the mayor and council; provided, however, no such continued operation shall be authorized until such time as a new application for license is made and the required fees paid to city to be forwarded to the director. Payment of fees shall not be required of a corporation whose predecessor in interest remains the named licensee under the new license.

(f)

Any suspension, revocation, or forfeiture of a license by the mayor and council shall occur only after notice and opportunity for a hearing before the mayor and council consistent with the procedures set for in subsection 18-9(c), above, and upon the following occurrences:

(1)

Any licensed outlet that is found to be in violation of this chapter shall be subject to license revocation or suspension and shall also be subject to citation and prosecution as outlined in section 18-9.

(2)

Every license issued by the city for the sale of non-traditional tobacco paraphernalia shall be immediately revoked in case of bankruptcy, receivership, levy of legal process, or failure to promptly account for and pay the excise tax levied on the sale of nontraditional tobacco paraphernalia.

(3)

Except as provided for transfers under subsection 18-9(f) above, any change in the ownership of any entity owning a licensed outlet shall cause the mayor and council to immediately revoke any license issued under this chapter.

(4)

All licensees must, within six months after the approval of said license, open for business the outlet referred to in the application for license, and begin the sale of the product or products authorized by the said license. Failure to open the outlet and begin the sales referred to within the six-month period, shall cause the mayor and council to immediately revoke the license and no refund of any fees paid pursuant to this chapter shall be made.

(5)

Any licensee who shall for a period of three consecutive months cease to operate the business and sale of the product or products authorized in the said license, shall, after said three months period, cause the mayor and council to immediately revoke the license, and no refund of any fees paid pursuant to this chapter shall be made.

(6)

A license may be immediately suspended or revoked by the mayor and council upon learning that a licensee furnished fraudulent or untruthful information in the application for a license, or omits information required in the application for a license, or fails to pay all fees, taxes, or other charges imposed under the provisions of this chapter.

(7)

Whenever the state shall revoke any permit or license to sell non-traditional tobacco paraphernalia, as is or may become applicable, the city license shall thereupon be immediately revoked.

(8)

The mayor and council shall immediately suspend or revoke the license of any outlet which does not meet the licensing qualifications set forth in this chapter at any time such knowledge becomes known to the mayor and council.

(9)

The mayor and council shall immediately revoke the license for any premises where non-traditional tobacco paraphernalia have been sold or distributed during a period of suspension.

(10)

It shall be a violation of this chapter for any licensee or any employee or agent of the licensee or licensed establishment to permit any person to engage in any activity on the premises for which the license is issued or within the place of business, which is in violation of the laws or regulations of any federal, state, county, or municipal governing authority or regulatory agency. A violation of this subsection shall subject the license to immediate suspension or revocation.

(11)

An act or omission of a licensee which constitutes a violation of federal or state law or regulation, relating to the sale of alcoholic beverages, taxes, gambling, violation of the Georgia Controlled Substances Act, or constitutes a crime of moral turpitude, shall subject the license to immediate suspension or revocation.

(12)

Any license shall automatically expire on June 30 of each year unless renewed in accordance with this chapter.

(g)

No licensee, employee of any licensee, or other person shall sell or permit to be sold any item of non-traditional tobacco paraphernalia to any person who is a minor (i.e. has not reached the age of 18).

(h)

Each licensee shall maintain their entire inventory of non-traditional tobacco paraphernalia and any additional line of devices in a screened room and shall not allow minors to enter into the screened room nor sell any non-traditional tobacco paraphernalia to any minor. It shall be unlawful for a licensee to allow any item of non-traditional tobacco paraphernalia or any additional line of devices to be in view of the public, except during actual sales transactions of such items.

(i)

Sworn officers of the police department, the chief of police, the city code enforcement officer, the Forsyth County Sheriff, sworn officers of the Forsyth County Sheriff's Department, and the director (or his/her designee) shall have the authority to inspect the outlet and premises licensed under this chapter during the hours when the outlet is open for business. These inspections shall be made for the purpose of verifying compliance with the requirements of this chapter and state law. This section is not intended to limit the authority of any other municipal, county, state or federal officer to conduct inspections authorized by other provisions of law.

(j)

Any license for the sale of non-traditional tobacco paraphernalia and any license for the sale of any additional line of devices shall be posted conspicuously in the place of business for which such license is issued.

(k)

Enforcement.

(1)

Any violation of this chapter, excluding sales to underage persons, shall subject the licensee to the following progressive actions by the mayor and council, except for those violations and occurrences set forth in subsection 18-9(f) above that provide for immediate suspension or revocation upon notice and hearing:

a.

The first violation shall result in a warning or a license suspension for a period of up to 60 days.

b.

The second violation within a consecutive 24-month period shall be punished as provided in section sections 1-10 and/or 1-11 and shall result in a license suspension for a period of not less than 60 days nor more than 90 days.

c.

The third violation within a consecutive 24-month period shall result in license suspension.

(2)

Sales to underage persons shall subject the licensee to the following progressive actions by the mayor and council:

a.

The first violation shall result in a mandatory hearing before the mayor and council, a license suspension for a period of up to 60 days, and a minimum fine in the municipal court of $500.00.

b.

The second violation within a consecutive 24-month period shall result in a mandatory hearing before the mayor and council, a license revocation, and a minimum fine in municipal court of $750.00.

(3)

For any vendor that is licensed to sell alcohol in the city, any violation of section 18-9 that results in a conviction, license suspension, or license revocation, excluding the sale of non-traditional tobacco paraphernalia to a minor, shall also count as a violation with respect to those actions or sanctions provided for in section 4-3 of the City of Cumming Ordinances governing alcoholic beverages. For purposes of this subsection, "conviction" shall have the same meaning as provided in subsection 18-9(b)(2)b.

(4)

For any vendor that is licensed to sell alcohol in the city, any conviction, license suspension, or license revocation resulting from the sale of nontraditional tobacco paraphernalia to a minor shall also count as a violation with respect to those actions or sanctions provided for in section 4-3 of the City of Cumming Ordinances governing alcoholic beverages. For purposes of this subsection, "conviction" shall have the same meaning as provided in subsection 18-9(b)(2)b.

(5)

For any license suspension of less than 30 days, the licensee will not be required to remove non-traditional tobacco paraphernalia from the premises, but shall be required to secure with lock and chain all non-traditional tobacco paraphernalia in an on-premises locked storage area out of view of the public. Nothing contained in this subsection shall be construed to preclude the mayor and council from suspending or revoking a license or non-traditional tobacco paraphernalia permit for a period exceeding those periods identified in section 18-9 above, or from revoking the license or non-traditional tobacco paraphernalia sale permit if the mayor and council determine in their discretion that such action is necessary and in the best interest of the public health, safety and welfare of the city. The suspension periods set forth above may be mitigated by the mayor and council upon presentation of evidence that the licensee established practices and procedures to prevent the violation from occurring and established procedures to properly train and supervise employees to prevent the violation from occurring.

(6)

In addition to the available actions to be taken by the mayor and council, any licensee, employee of a licensee, individual, or other person who violate this chapter shall be subject to citation and prosecution by the police department. Each violation of this chapter shall constitute a separate violation subject to a separate citation and penalties. The penalties may result in a fine not to exceed $1,000.00, imprisonment not to exceed 60 days, or both.

( Ord. of 5-1-2018, § 1(Exh. A) ); Ord. of 6-5-2018, § 1 )