ATTACHMENT VI-d
CITY’S RESPONSE TO SMOKEY’S SMOKE SHOP APPEAL AND OBJECTIONS The Council should deny the appeal and uphold the Planning Commission’s June 25, 2026 revocation. Appellant does not dispute that prohibited products were on its shelves at each inspection. It argues instead that violations it later corrected should not count, and that the City’s procedures were unfair. Neither argument has merit.
1. This appeal is not de novo; the City’s case rests on the administrative record This appeal is not a de novo hearing. The City’s case rests on the administrative record: the materials provided to Appellant before the Planning Commission hearing and presented at that hearing. The City introduces no additional evidence, and this brief only responds to the arguments Appellant raises on appeal. Retailers were nonetheless permitted to submit appeal briefs, and the Council may consider new argument and evidence if it chooses.
Appellant’s complaint that there is “nothing to cite” is therefore mistaken. Appellant received the complete record in June 2026, argued it to the Commission through counsel, and cites it page by page in its Appeal Statement.
Under HMC § 10-1.2794, a Tobacco Retailer License “shall” be revoked when a retailer commits three or more violations of HMC § 10-1.2783 within five years. The retailer may avoid revocation only by showing, by clear and convincing evidence, that a lesser penalty is warranted. (Staff Report, pp. 3–4.)
The Appeal Statement alleges that Inspector Green of the Code Enforcement division told Mr. Ahmed there would be “no further consequences” regarding violations. These assertions deserve little weight. No document supports them, and Inspector Green’s own notices contradict them. Her April and October 2022 notices warned that continued violations could lead to revocation of the tobacco retail license. (Att. IV, pp. 16, 45.) The December 2025 notice warned of revocation again. (Att. IV, p. 209.)
2. The record establishes at least three violations in five years The record before the Planning Commission documents five violations of HMC § 10-1.2783 within five years. (Att. IV, p. 1.)
Violation date Prohibited products Record
July 6, 2022 Flavored tobacco and nicotine products, electronic smoking devices, hemp products
Att. IV, pp. 1, 6, 8, 25–
43 August 15,
2022
Flavored tobacco, electronic smoking and vaping devices, CBD and hemp products, identified by brand
Att. IV, pp. 1, 5, 44–46,
59–63
November 17,
2022
Flavored tobacco products, vape products and electronic smoking devices, hemp and CBD products
Att. IV, pp. 1, 11
February 9,
2023
Flavored tobacco products, vape products and electronic smoking devices, hemp and CBD products
Att. IV, pp. 1, 55–58
November 17,
2025
Flavored wraps and cigarillos, cigarillo packs below the minimum size, imitation mushroom gummies
Att. IV, pp. 1, 3–5, 13–
15, 209–218
ATTACHMENT VI-d
Appellant devotes much of its brief to the November 17, 2022 and February 9, 2023 violations, arguing that no new inspection occurred on those dates and that the violations were later corrected. Neither point matters. The ordinance asks one question: whether three or more violations occurred within five years. Whether a violation was later corrected, and whether or when the City reinspected, has no bearing on whether it occurred. On that dispositive question, Appellant does not contend that the violations did not occur. It admits that they did by asserting that they were corrected. A retailer cannot remove prohibited products that were never on its shelves. (Appeal Statement, pp. 3–4.) Even if the Council chooses not to consider those two, three violations remain: July 6, 2022, August 15, 2022, and November 17, 2025. Each rests on a separate inspection, on a separate date, that found prohibited products offered for sale. Three is all the ordinance requires.
Appellant concedes two of those three. It admits the August 15, 2022 notice is “sufficiently specific to count as one violation,” and that Mr. Ahmed later “removed all the prohibited products.” (Appeal Statement, p. 3.) It admits the November 17, 2025 inspection found “offending products” and that a $1,500 penalty was imposed, which Mr. Ahmed did not contest. (Id., p. 4.)
The August 15, 2022 violation has also been adjudicated. Appellant requested an administrative hearing, appeared with the same counsel, and Mr. Ahmed testified. Inspector Green testified as well. The Hearing Officer found the violation true as to each of the four subsections charged. (Att. IV, pp. 59–63.) That decision has been final since February 28, 2023.
The July 6, 2022 violation is established by the record. Appellant’s only objection is that the notice quotes the ordinance without listing product names. The ordinance asks whether a violation was committed, not how the notice was worded. Inspector Green inspected the shop that day, spoke with Mr. Ahmed, and photographed the inventory. (Att. IV, p. 8.) The dated photographs show hemp products, electronic smoking devices, and flavored tobacco and nicotine products on the shelves. (Att. IV, pp. 6, 28–43.) The notice identified each subsection violated and directed removal. (Att. IV, pp. 25–27.) Appellant does not deny that those products were in the shop. Five weeks later, the same categories of products were found again.
3. Correcting a Violation Does Not Erase it
Appellant’s central argument is that a violation followed by a passed reinspection should not count. That is not what the ordinance says. HMC § 10-1.2783(c) makes it a violation to sell, offer for sale, or possess with intent to sell a prohibited product. The violation is complete when the product is on the shelf.
Corrective action is required by the code. It is not a pardon. Each notice directed “removal of all products that do not comply” because a retailer may not continue a violation once it is found. A reinspection marked “Passed” means the products were removed. It does not mean they were never there.
Appellant’s reading would also nullify the revocation provision. If correction erased a violation, no retailer could ever reach three. A retailer could restock prohibited products after every reinspection without consequence.
ATTACHMENT VI-d
Appellant was told this. The notices warned that continued violations could result in “revocation of the tobacco retail license and use at this location.” (Att. IV, pp. 16, 45.) The 2025 notice repeated the warning. (Att. IV, p. 209.)
Nor was this a period of confusion over a new law. The Council adopted the flavored tobacco and vaping prohibitions in July 2020, with a grace period that ended January 14, 2021. (Att. IV, pp. 10–11.) The first 2022 inspection came 15 months later. The 2025 violation came after an administrative hearing and a lawsuit over these same rules.
4. Appellant Has Not Shown That a Lesser Penalty is Warranted Once three violations are established, revocation is mandatory unless the retailer proves by clear and convincing evidence that a lesser penalty is warranted. The ordinance does not require a suspension or escalating fines first.
Appellant offers no such evidence. That it was not cited for sales to minors or untaxed cigarettes shows only the absence of other violations. That Mr. Ahmed is at the shop every day does not help him. It means the owner was personally present while prohibited products were stocked and sold, in 2022 and again in 2025.
The Planning Commission heard these arguments from Appellant’s counsel and declined to impose a lesser penalty. Nothing in the appeal shows that decision was wrong.
5. The Grandfathering and Constitutional Claims Were Resolved Against Appellant Appellant suggests it holds “grandfathered” rights to sell products the ordinance now prohibits, and that the Hearing Officer rejected that claim without reasoning. Both points are wrong.
The Hearing Officer heard the legal nonconforming use defense and rejected it in a written finding. The tobacco retail provisions serve two purposes, land use and business regulation. The product prohibitions are business regulations, and “[b]usiness regulations are not subject to the legal, non-conforming use analysis.” (Att. IV, p. 62.) The ordinance itself applies to “existing businesses.” (HMC § 10-1.2781.) Whatever protection a pre-existing business may have as to its location, it has no vested right to keep selling products the City has since prohibited to protect public health. (Cal. Const., art. XI, § 7.)
Appellant then sued. (SNA Trading Inc. v. City of Hayward, Alameda County Superior Court No. 23CV034658.) After the City explained in meet-and-confer letters why the petition was defective, including why Appellant was not grandfathered, Appellant struck both writ claims. In August 2024 it voluntarily dismissed the entire action. The Hearing Officer’s decision is final.
Appellant’s remaining constitutional theories fare no better. The ordinance’s findings tie each prohibition to public health, particularly youth access to flavored tobacco and vaping products. (HMC § 10-1.2780.) Cities have broad police power to regulate for that purpose. (Cal. Const., art. XI, § 7; City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 737–738.) A regulation violates substantive due process only when it is so outrageous or egregious as to be a true abuse of power. (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 855–856.) A prohibition aimed at keeping flavored tobacco and vaping products from youth is nothing of the kind, and a local ban on flavored tobacco sales has been upheld against legal challenge. (R.J. Reynolds Tobacco Co. v. County of Los Angeles ATTACHMENT VI-d
(9th Cir. 2022) 29 F.4th 542 [federal law does not preempt county’s ban].) Appellant cited no contrary authority in the lawsuit and cites none here. Its claim that the rules are too vague to follow is answered by its own conduct: each time it was told to remove the prohibited products, it did.
6. The Due Process Objections Lack Merit
Briefing schedule. Appellant brought this appeal and, as in any appeal, files first. The City’s response contains argument only. Every document the City relies on has been in Appellant’s hands since June 2026 (and, arguably, since the dates of the violations), and Appellant cites that record throughout its brief.
Cross-examination. The City presents no witnesses to the Council. Its case rests on the documentary record, so there is no new testimony to cross-examine. Nor was cross-examination allowed before the Planning Commission. The Order of Proceedings provided that there would be no cross-examination, a rule that applied to every retailer. Due process does not require crossexamination in a municipal administrative proceeding. (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 285–306.) Appellant’s counsel appeared before the Commission, submitted written argument, and was free to challenge the City’s evidence and offer his own.
Appellant was also given the opportunity to request an administrative hearing on each of the five violations, at which it could have cross-examined the City's witnesses, but it requested a hearing on only one, the August 15, 2022 violation. At that hearing, held February 2, 2023, Appellant's counsel, the same counsel who represents it here, did in fact cross-examine Inspector Amber Green. (Att. IV, pp. 59–61.) Appellant has thus already exercised the right it claims to have been denied as to the one violation it chose to contest, and the Hearing Officer sustained that violation after hearing the cross-examination. (Att. IV, pp. 59–63.) Separate counsel. The City Attorney's Office maintains an ethical wall in this matter. For the revocation hearings, one attorney represented the Code Enforcement Division in prosecuting the cases, and a different attorney advised the Planning Commission. Those two attorneys deliberately separated their duties and did not discuss the merits of the prosecution or the advice to be given to the Planning Commission. The same separation applies on appeal: one attorney is advising the Code Enforcement division, and a different attorney (the City Attorney) is advising the Council. The two have maintained their separate duties and do not discuss the merits of the appeals or the advice being provided to the City Council. This was explained to Appellant's counsel in writing on June 22, 2026, before the revocation hearing. A public law office may perform both functions when the attorneys are screened from one another. (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1586–1587; Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737–741.) Appellant offers no evidence that the wall was breached.
Request for disclosure of bias. Decision-makers are presumed impartial, and a party claiming bias must show it with concrete facts. (Morongo, 45 Cal.4th at pp. 737, 741; BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1236–1237.) Appellant offers none. It cites no authority that would require Council members to disclose their families’ medical histories, or that would disqualify anyone who has known a person who used tobacco. Appellant itself calls these “common experiences.”
ATTACHMENT VI-d
Conclusion
The record shows at least three violations within five years, two of which Appellant concedes and one of which has been finally adjudicated. Appellant has not shown by clear and convincing evidence that a lesser penalty is warranted, and its procedural objections are unsupported. Code Enforcement respectfully requests that the Council deny the appeal and uphold the revocation.