Attachment II-d
Staff Responses to Grounds for Appeal submitted by Everest Smoke Shop, 24703 Amador St Number Grounds for Appeal Staff Response
1 Disproportionality of Penalty. Full revocation
is the most severe penalty available and
should be reserved for the most egregious and
willful violations. The violations at issue;
possession of flavored tobacco products,
vaping products, and other prohibited
products, as well as expired licensing do not
rise to a level that justifies the permanent loss
of my license. No evidence of willful conduct,
actual sales to minors, or criminal activity was
presented to warrant the maximum penalty. I
respectfully request that the City Council
consider a less severe remedy, such as a fine,
a period of suspension, or a stayed revocation
with compliance conditions.
Penalty is consistent with Section 10-1.2794
HMC. Section 10-1.2794 HMC requires that
the license be revoked if there are three
violations in five years. The evidence in
attachment II-b shows that there were four
violations within the five-year period.
Additionally, the business owner did not
request a lessor penalty from the Planning
Commission or provide clear and convincing
evidence that a lessor penalty was warranted.
Suspension in this case is not a viable option
due to pattern of non-compliance. The pattern
of non-compliance demonstrates a disregard
for public health measures intended to
protect youth from harmful tobacco and
nicotine products. Revocation recommended.
2 Remediation and Good Faith Compliance
Efforts. I have taken steps to bring my
business into compliance and have acted in
good faith in addressing the cited violations.
Full revocation does not account for my
remediation efforts and does not serve the
rehabilitative purpose of the Tobacco Retail
License enforcement program. A penalty that
allows me to continue operating under strict
compliance conditions would better serve the
City's regulatory objectives.
Pattern of non-compliance. SEC. 10-1.2783
HMC requires that all Tobacco Retail Sales
Establishments comply with local, State,
and/or Federal laws related to sales,
advertising or display of tobacco products,
electronic smoking devices, imitation tobacco
products and/or tobacco paraphernalia,
including, but not limited to, posting
prominently near the cash register or other
point of sale and at the entrances to the
establishment the legal age to purchase
tobacco products and checking the
identification of purchasers to ensure they are
of legal age to promote public health and
provide regulatory protection for the City's
youth from harmful tobacco and nicotine
products. The business owner’s pattern of
non –compliance and the presence of
concealed storage areas containing
prohibited products demonstrates willful noncompliance and intent to conceal unlawful merchandise. Offering remediation and a
good faith effort to comply as reasons for a
lessor penalty demonstrates the business
owner does not understand that it is their
obligation to understand and fully comply
with the applicable laws.
Attachment II-d
3 Hardship and Economic Impact. Full
revocation will result in the permanent
closure of my business and the loss of my
livelihood and that of those who depend on it.
I respectfully ask the City Council to weigh the
severe economic consequences of revocation
against the nature and severity of the
violations, and to impose a remedy that is
proportionate to the conduct at issue.
No Hardship Provisions Related to
Revocation. There are no hardship provisions
in the Tobacco Retail Sales Establishment
Ordinance. Economic hardship does not
address the business owner’s pattern of noncompliance or provide clear and convincing evidence that a lessor penalty is warranted.
The pattern of non-compliance demonstrates
a disregard for public health measures
intended to protect youth from harmful
tobacco and nicotine products.
4 Span of Violations Over Extended Period.
The three violations span a period of nearly
two years, from March 2024 through January
2026. The extended timeframe between
violations, and the absence of any evidence of
a continuous or systematic pattern of willful
noncompliance, further supports a finding
that full revocation is excessive under the
circumstances.
Span of violations is consistent with
Section 10-1.2794 HMC. Span of violations is
consistent with Section 10-1.2794 HMC which
requires a license to be revoked if there are
three violations in five years. The consecutive
annual violations demonstrate continuous
pattern of willful noncompliance.
5 Violations at Issue. The City’s record
identifies the following four violation dates:
• March 29, 2024 – Annual Inspection.
Case CE-TRLENF-2024-00082, Inspection
ICODE-009199-2024; Notice of Violation
NOV-014005-2024 (City’s records reflect
mailing on December 11, 2024).
• January 8, 2025 – Reinspection. Case CETRLENF-2024-00082, Inspection ICODE027764-2024; Administrative Penalty and Fee Notice CIT-000404-2025 (Invoice
EG25-05984, $1,500).
• January 29, 2026 – Initial 2026 inspection
with Hayward Police Department and
CDTFA. Case CE-TRLENF-2026-00008,
Inspection ICODE-006409-2026;
Administrative Penalty and Fee Notice
CIT-005101-2026 (Invoice EG26-02832,
$1,500).
• April 27, 2026 – Reinspection. Case CETRLENF-2026-00008, Inspection ICODE006410-2026; Administrative Penalty and Fee Notice CIT-007551-2026 (Invoice
EG26-03996, $3,000).
The first two dates arise in a single case, CETRLENF-2024-00082, which the City closed as resolved on January 23, 2025. The last two
arise in a single case, CE-TRLENF-2026-
00008.
Under Section 10-1.2793 HMC each failed
inspection constitutes a separate violation.
Any Person who violates any provision of the
Tobacco Retail Sales Establishment
regulations is guilty of a separate offense for
each day or part of a day during which the
violation is committed, continued, or
permitted. Additionally, The ordinance asks
one question: whether three or more
violations occurred within five years. Whether
a violation was later corrected has no bearing
on whether it occurred
Attachment II-d
6 Objection to Service. Appellant objects that
the notices underlying the revocation were not
properly served on the licensee. The City’s
proofs of service (Exhibit E [see Attachment IIc]) show the notices were mailed to the property owner’s management company
rather than the licensee, and the Alawdi
Declaration (Exhibit D [see Attachment II-c])
addresses receipt. Appellant presents the
enclosed evidence on the merits in the
alternative and without waiving this objection.
The City's records show otherwise.
Notice to the property owner. The underlying
notices were addressed to the property owner
of record because the Code makes the owner
responsible for the violation. Operating a
tobacco retailer in violation of the regulations
is a public nuisance (HMC § 10-1.2792),
subject to abatement under Chapter 5, Article
7 (HMC § 10-1.2793). Under that Article, a
violation of any provision of Chapter 10 is a
public nuisance, and “[t]he property owner
shall be responsible for violations thereof,
regardless of any contract or agreement with
any third party regarding the property.” (HMC §
5-7.20 & subd. (l).) Notifying the owner also
serves the Code's purpose. Every owner “shall
manage that property in such a manner to
avoid violation of this code” (HMC § 5-7.20),
and it is the responsibility of property owners
“to maintain, secure, and prevent these
properties from becoming a burden to the
neighborhood and community or a threat to
public health, safety and welfare” (HMC § 5-
7.00(b)). An owner cannot meet that duty, or
abate a tenant's violation, without knowing of
it. Notices of penalties and fees “may be
issued to the responsible party or property
owner” (HMC § 5-7.30(d)(1)); abatement
notices are mailed to the owner's address on
the last equalized assessment roll (HMC § 5-
7.35); and unpaid penalties and enforcement
costs are billed to the owner and may become
a lien or special assessment on the property
(HMC §§ 5-7.140(a), 10-1.2790). The Article
further provides that “[t]he failure of any
person to receive notice properly given shall
not affect the validity of any proceedings
hereunder.” (HMC § 5-7.35.) Nonetheless, the
December 11, 2024 Notice of Violation and
the January 8, 2025 Administrative Penalty
and Fee Notice were also mailed to the
business at 24703 Amador Street, #8. (Staff
Report, Attachment III, pp. 52, 73–74.)
The business had actual notice. Whatever
the mailing address, the business knew of
each violation. Each inspection was
conducted at the business, in the presence of
its staff. The January 29, 2026 inspection was
conducted jointly with the Hayward Police
Department and the California Department of
Tax and Fee Administration, and the inspector
told staff that a violation notice would issue
Attachment II-d
and left a business card for follow-up. By the
April 2026 reinspection, most of the cited
conditions had been corrected. A business
that corrects the conditions an inspector
cited knows it was cited, and Mr. Alawdi's
statement that he “was not aware of the
violations” cannot be squared with those
corrections. Due process requires adequate
notice and a meaningful opportunity to
respond, not any particular formality. (Mohilef
v. Janovici (1996) 51 Cal.App.4th 267, 285–
306.) Actual notice satisfies that standard.
The Code is to the same effect: “the failure of
any or all of the addressees to receive the
notice given pursuant to this Ordinance shall
not invalidate the proceedings, provided that
such defect or failure has not occurred in bad
faith.” (HMC § 10-1.2820(d).) The tobacco
retail regulations are part of that Ordinance
(HMC § 10-1.2780 et seq.), and Appellant
does not claim bad faith.
No prejudice. Finally, the objection does not
affect the outcome. The question before the
Council is whether the violations occurred.
Appellant had a full opportunity to contest
them before the Planning Commission and
again on this appeal, and it has not denied
that any of the four violations occurred; its
submission addresses its current compliance,
not whether the violations happened.
Procedural errors in an administrative
proceeding warrant relief only if they are
prejudicial. (Thornbrough v. Western Placer
Unified School Dist. (2013) 223 Cal.App.4th
169, 200.)