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HomeMy WebLinkAbout1072 tabaccco retailersORDINANCE NO. 1072 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH ADDING A NEW ARTICLE 7, ENTITLED "TOBACCO RETAILERS" TO DIVISION 1, ARTICLE 2 OF THE UKIAH CITY CODE The City Council of the City of Ukiah ordains as follows: SECTION ONE. FINDINGS AND DECLARATION OF INTENT: The City Council of the City of Ukiah hereby finds and declares as follows: 1. Penal Code Section 308 prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors. 2. Business & Professions Code Sections 22952 and 22956 require that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 18 years of age and provide procedures for using persons under 18 years of age to conduct onsite compliance checks of tobacco retailers. 3. Business & Professions Code Section 22952 and Penal Code Section 308 require that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under 18 years of age is illegal. 4. Business & Professions Code Section 22962 prohibits the sale or display of cigarettes through a self-service display and prohibits public access to cigarettes without the assistance of a clerk. 5. Penal Code Section 308.1 prohibits the sale of "bidis" (hand-rolled filterless cigarettes imported primarily from India and Southeast Asian countries) except in adult- only establishments. 6. Penal Code Section 308.3 prohibits the manufacture, distribution, or sale of cigarettes in packages of less than 20 and prohibits the manufacture, distribution, or sale of "roll-your-own" tobacco in packages containing less than 0.60 ounces of tobacco. 7. Education Code Section 48901 (a) prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees. 8. Despite these restrictions, minors continue to obtain cigarettes and other tobacco products at alarming rates. ORDINANCE NO. 1072 1 9. A survey in 2004 of the ability of minors to buy tobacco products in the City of Ukiah showed that 41% of City retailers unlawfully sold tobacco products to minors. 10. 88% of adults who have ever smoked tried their first cigarette by the age of 18 and the average age at which smokers try their first cigarette is 141/2. 11. The City of Ukiah has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and in protecting children from being lured into illegal activity through the misconduct of adults. 12. The California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993), have affirmed the power of the cities and counties to regulate business activity in order to discourage violations of law. 13. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the City of Ukiah to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws. 14. It is the intent of the City Council of the City of Ukiah, in enacting this ordinance, to monitor progress in preventing minors from purchasing tobacco products, to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties imposed for the violation of such laws. SECTION TWO. A new Article 7, entitled "Tobacco Retailers" is hereby added to Article 2, Division 1 of the Ukiah City Code to read as follows. ARTICLE 2 SPECIAL BUSINESS REGUALTIONS ARTICLE 7. TOBACCO RETAILERS §2350: §2351: §2352: §2353: §2354: §2355: Definitions License Requirements Application Procedure Issuance of License Display of License License Fee ORDINANCE NO. 1072 2 §2356: §2357: §2358: §2359: §2360: §2361: License Not Transferable License Violation Suspension, Termination or Revocation Administrative Fine Grievance Committee hearing Enforcement §2350: DEFINITIONS: The following words and phrases, whenever used in this Article, shall have the meaning provided in this section unless the context clearly requires otherwise: (a) "Appellant" means a Person who appeals a Department decision to the Grievance Committee. (b) "Department" means the City Manager and/or the duly authorized designee of the City Manager. (c) "Grievance Committee" means a Committee of two (2) persons, one City Council member, selected by the City Council, and one City employee selected by the City Manager. No member of the Committee shall have participated in a decision appealed to the Committee. (d) "Person" shall mean any natural person, firm, partnership, trust, estate, association, corporation, or organization of any kind. Where a principal acts through an agent, the word "person" shall include both such principal and agent. (e) "Tobacco Product" means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco. (f) "Tobacco Retailer" means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco or Tobacco Products. "Tobacco Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco or Tobacco Products sold, offered for sale, exchanged, or offered for exchange. §2351: REQUIREMENT FOR TOBACCO RETAILER LICENSE: (a) It shall be unlawful for any Person to act as a Tobacco Retailer without first obtaining and maintaining a valid Tobacco Retailer's license pursuant to this Article for each location at which that activity is to occur. No license may issue to authorize Tobacco Retailing at other than a fixed location. For example, Tobacco Retailing by Persons on foot and Tobacco Retailing from vehicles are prohibited. (b) The term of a license is one year from January 1 st through December 31 st unless earlier suspended, terminated or revoked pursuant to Section 2358. Each ORDINANCE NO. 1072 3 Tobacco Retailer shall apply for the renewal of his or her Tobacco Retailer's license no later than thirty (30) days prior to its expiration. (c) Nothing in this Article shall be construed to grant any Person obtaining and maintaining a Tobacco Retailer's license any status or right other than the right to act as a Tobacco Retailer at the location in the City of Ukiah identified on the face of the license. For example, nothing in this Article shall be construed to render inapplicable, supercede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by Labor Code §6404.5. §2353: APPLICATION PROCEDURE: Application for a Tobacco Retailer's license shall be submitted in the name of each Person proposing to conduct retail tobacco sales and shall be signed by each Person or an authorized agent thereof. It is the responsibility of each Person to be informed of the laws affecting the issuance of a Tobacco Retailer's license. A license that is issued in error or on the basis of false or misleading information supplied by a Person may be revoked pursuant to Section 2358. All applications shall be submitted on a form supplied by the Department and shall contain the following information: 1. The name, address, and telephone number of each Person. 2. The business name, address, and telephone number of each location for which a Tobacco Retailer's License is sought. 3. The name and mailing address authorized by each Person to receive all license-related communications and notices (the "Authorized Address"). If an Authorized Address is not supplied, each Person shall be understood to consent to the provision of notice at the business address specified pursuant to subparagraph 2 above. 4. Whether or not any Person has previously been issued a license pursuant to this Article that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation. 5. Such other information as the Department deems necessary for the administration or enforcement of this Article. §2353: ISSUANCE OF LICENSE: Upon the receipt of an application for a Tobacco Retailer's license and the license fee, the Department shall issue a license, unless: (a) the application is incomplete or inaccurate; or ORDINANCE NO. 1072 4 (b) the application seeks authorization for Tobacco Retailing by a Person for which or whom a suspension is in effect pursuant to Section 2358, or by a Person which or who has had a license revoked pursuant to Section 2358. §2354: DISPLAY OF LICENSE: Each license shall be prominently displayed in a publicly visible location at the licensed premises. §2355: LICENSE FEE: The fee to issue or to renew a Tobacco Retailer's license shall be established by resolution of City Council. §2356: LICENSES NOT TRANSFERABLE: A Tobacco Retailer's license is not transferable. If the information required in the license application pursuant to 2353, items 1,2, or 3 changes, the Tobacco Retailer must notify the Department within 14 days, and update all information on the license application form in order to continue to act as a Tobacco Retailer. For example, if a Tobacco Retailer to whom a license has been issued changes business location, that Tobacco Retailer must supply updated license information within 14 days of acting as a Tobacco Retailer at the new location. If a business is sold, the new owner must apply for a license for that location before acting as a Tobacco Retailer. The current licensee shall notify the Department of the sale of the Tobacco Retailing business. §2357: LICENSE VIOLATION: (a) VIOLATION OF TOBACCO-RELATED LAWS. It shall be a violation of a Tobacco Retailer's license for a Person or his or her agent or employee to violate any local, state, or federal tobacco-related law. (b) LICENSE COMPLIANCE MONITORING. The City of Ukiah anticipates that compliance checks of each Tobacco Retailer will be conducted at least two times during each twelve-month period by the Mendocino County Public Health Department. The City shall not enforce any tobacco-related minimum-age law against a person who otherwise would be in violation of such law because of the person's age (hereinafter "youth decoy") if the violation occurs when: 1. the youth decoy is participating in a compliance check supervised by a law enforcement official, a code enforcement official, or any peace officer; or 2. the youth decoy is participating in a compliance check funded or supervised in part by the County of Mendocino or, funded or supervised in any part by the California Department of Health Services. §2358: SUSPENSION, TERMINATION OR REVOCATION OF LICENSE: (a) SUSPENSION, TERMINATION OR REVOCATION OF LICENSE FOR VIOLATION. In addition to any other penalty authorized by law, a Tobacco Retailer's license may be suspended or revoked, if the Department determines that the ORDINANCE NO. 1072 5 Person or his or her agents or employees have violated the requirements of this Article or other conditions of the license imposed pursuant to Section 2357. A Person who loses his license for one location does not lose it for all locations, if those locations are in compliance with this Article, and may renew licenses for other conforming locations. A Person cannot obtain a new license for a new location so long as there is a suspension in effect for any location. (1) NOTICE REQUIRED. The licensee shall be served with written notice of all determinations or decisions under this Section affecting his or her license. Notice shall be served by personal service, overnight courier, certified mail return receipt requested, or U.S. Mail with First Class postage affixed. The notice shall be sent to the Authorized Address. All notices shall be deemed served, when received, except for notices sent by first class mail which shall be deemed served two days after deposit in the U.S. Mail if addressed to a location within Mendocino County and five days if addressed to a location outside Mendocino County. The notice shall describe the legal and factual basis for the decision. A decision imposing a fine shall specify the amount of the fine. A decision to suspend or revoke a license shall specify the beginning and ending dates of the suspension or the effective date of the revocation. No decision shall become effective in less than 10 days from the date of service. (2) DURATION OF SUSPENSIONS. i. Upon a finding by the Department of a first license violation within any thirty-six (36) month period, the license shall be suspended for fourteen (14) days. However, prior to imposing the suspension, the Department shall by letter (an "Advice Letter") advise the Person that if Person trains all sales employees at the location of the sale in the laws pertaining to the sale of tobacco products to minors and techniques to ensure future compliance with said laws, the suspension will not go into effect. Within 30 days of the issuance of the Advice Letter, the Person must file with the Department an affidavit signed by the Person and the sales employees that said training has been completed. If the Person fails to timely submit the affidavit, the Department shall notify the Person that the permit is suspended for 14 days. ii. Upon a finding by the Department of a second license violation within any thirty-six (36) month period, the license shall be suspended for twenty-one (21) days. iii. Upon a finding by the Department of a third license violation within any thirty-six month (36) period, the license shall be suspended for thirty (30) days. ORDINANCE NO. 1072 6 iv. Upon a finding by the Department of a fourth license violation within any thirty-six (36) month period, the license shall be revoked and the Person or Persons who had been issued the license shall not be issued a Tobacco Retailer's license pursuant to this Article for a period of three (3) years from the date of revocation. (b) FAILURE TO PAY RENEWAL FEES. A Tobacco Retailer's license which is not timely renewed pursuant to Section 2352(b) is an expired license. The Tobacco Retailer shall not engage in Tobacco Retailing at the licensed location until a new license has been issued for that location. (c) REVOCATION OF LICENSE ISSUED IN ERROR. A Tobacco Retailer's license shall be revoked if the Department determines that one or more of the bases for denial of a license under Section 2353 existed at the time application Was made or at anytime before the license issued. The revocation shall be without prejudice to the filing of a new application for a license. (d) LICENSE SUSPENSION REQUIRES THE REMOVAL OF ALL TOBACCO PRODUCTS FROM PUBLIC VIEW. A Tobacco Retailer whose license is suspended must remove from public view all Tobacco Products and tobacco advertising for the duration of the suspension. Failure to remove such items from view will be regarded as a violation of this ordinance equivalent to that of selling to minors. (e) REVOCATION OF LICENSE OBTAINED UNDER FALSE PRETENSES. Tobacco Retailers whose license is obtained under false pretenses shall have that license revoked. A licensee whose license is revoked pursuant to this subsection may not apply for a new license for a period of one year from the date the license is revoked. §2359: ADMINISTRATIVE FINE. (a) GROUNDS FOR FINE. If the Department determines that any unlicensed person, including a person named on a revoked or suspended license, has engaged in Tobacco Retailing in violation of this Article, the Department shall fine that Person as follows: 1. a fine not exceeding one hundred dollars ($100) for a first violation in any thirty-six (36) month period; or 2. a fine not exceeding two hundred dollars ($200) for a second violation in any thirty-six (36) month period; or 3. a fine not exceeding five hundred dollars ($500) for a third or subsequent violation in any thirty-six (36) month period. Each day that such a Person engages in Tobacco Retailing shall constitute a ORDINANCE NO. 1072 7 separate violation. (b) IMPOSITION OF FINE. If no request for a hearing is timely received in accordance with Section 2360, the Department's determination on the violation and the imposition of a fine shall be final and payment shall be made within thirty (30) days after notice of the fine was served in accordance with Subsection 2358(a)(1). If the fine is not paid within that time, the fine may be collected, along with interest at the legal rate, in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the Person or Persons subject to the fine shall also be liable for the costs of the suit and attorney's fees incurred by the City in collecting the fine. §2360: GRIEVANCE COMMITTEE APPEALS: (a) APPEAL OF FINE, SUSPENSION OR REVOCATION. A decision of the Department to impose a fine or to revoke or suspend a license may be appealed to the Grievance Committee. The Appellant must file a written notice of appeal with the Department within ten (10) days after service of the notice of the decision. Failure to file a timely notice of appeal waives any right to further challenge the Department's decision. "File" means delivered to the City Manager's office in the Ukiah Civic Center at 300 Seminary Ave., Ukiah, CA. The filing of a notice of appeal automatically stays the Department's decision, until the Grievance Committee has served its final decision on the appeal. The Committee may reverse, modify or uphold the Department's decision. (b) NOTICE OF HEARING. If a notice of appeal is timely filed, the Department shall provide written notice to the Appellant of the date, time, and place of the hearing in the manner specified in Subsection 2358(a)(1). A hearing may not be conducted less than twenty (20) days after notice is given to the Appellant. (c) HEARING. The Grievance Committee may adopt rules governing the conduct of its hearings. Those rules shall include, at least, the following: 1. The Department shall submit evidence at the hearing substantiating its decision. Such evidence may include testimony, police or other reports of the incident, witness statements and other documents. Not less than 10 days prior to the scheduled hearing, the Department must notify the Appellant of the name, address and phone number of any witness to the violation, and furnish Appellant with a copy of any document it intends to submit at the hearing. Not less than seven (7) days prior to the hearing, the Appellant may request the Department to produce at the hearing any witness the Department intends to rely upon to substantiate the violation. The written request must name the witness or witnesses who are requested to attend the hearing. The Department may not rely on the testimony of any witness (including such testimony contained in reports or written witness statements) whose appearance at the hearing is required by this subsection, if that witness fails to appear. ORDINANCE NO. 1072 8 2. Not less than 10 days prior to the hearing, the Appellant must notify the Department in writing of the name, address and phone number of any witness the Appellant intends to call as a witness at the hearing, provide a brief description of the proposed testimony, and furnish the Department with a copy of any document the Appellant intends to offer as evidence at the hearing. The Appellant may not call any witness to testify at the hearing who was not identified as required by this subsection or offer any document as evidence at the hearing that was not provided to the Department as required by this subsection. 3. At the hearing, the Appellant may be represented by an attorney, at Appellant's expense. Both the Department and the Appellant shall have the right t° examine and cross-examine any witness produced at the hearing. The rules of evidence that normally apply in court shall not apply in a hearing before the Committee, but the Grievance Committee shall only consider evidence which would be relied upon by reasonable people making an important decision, and shall disregard evidence which by its nature is unreliable or not credible. 4. The entire hearing shall be electronically or stenographically recorded. The Grievance Committee shall base its decision exclusively on the evidence presented at the hearing and shall issue a written decision, which includes a statement of the relevant facts which the Committee finds to be true and explains how the facts support its decision. For example, if the Department finds that the Appellant sold cigarettes to a minor, but this was the first violation committed by the Appellant within 36 months, the decision would explain that Section 2358(a)(2)i requires a 14 day suspension of the Appellant's license to sell Tobacco Products at the licensed location, and on that basis the facts support a 14 day suspension of the license for that location. The record of the hearing shall be preserved for not less than six months after the decision is served on the Appellant. (d) HEARING DECISION. The chairperson of the Grievance Committee shall issue the written decision required by subsection 4, above. Copies of the decision shall be served in accordance with Subsection 2358(a)(1). The hearing decision shall include notice of the Appellant's right to seek review of the decision pursuant to California Code of Civil Procedure Section 1094.5 and 1094.6, including the statute of limitations for seeking review pursuant to Section 1094.6. (e) FINALITY OF THE GRIEVANCE COMMITTEE'S DECISION. The decision of the Grievance Committee shall be the final decision for the City of Ukiah. (g) APPEAL TO SUPERIOR COURT. Judicial review of the Grievance Committee's decision shall be governed by the Code of Civil Procedure Sections 1094.5 and 1094.6. (h) ENFORCEMENT OF DECISION. Unless stayed by a court, any final decision of the Grievance Committee is effective immediately and may be implemented and enforced by the Department. ORDINANCE NO. 1072 9 2361: ENFORCEMENT. The remedies provided by this Article are cumulative and in addition to any other remedies available at law or in equity. (a) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this ordinance shall constitute a violation. (b) Violations of this Article are hereby declared to be public nuisances. (c) Violations of this Article are hereby declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates. (d) A violation of this Article constitutes a misdemeanor punishable by a fine of $1,000 or by imprisonment in the County jail for six months, or both. (e) In addition to other remedies provided by this Article or by other law, any violation of this Article may be remedied by a civil action brought by the City Attorney or the District Attorney, including, for example, administrative or judicial nuisance abatement proceedings, other legally authorized enforcement proceedings, and suits for injunctive relief. SECTION THREE. 1. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of Ukiah hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. 2. EFFECTIVE DATE. This Ordinance shall be published as required by law in a newspaper of general circulation in the City of Ukiah, and shall become effective thirty (30) days after its adoption. Introduced by title only on October 19, 2005, by the following roll call vote: ORDINANCE NO. 1072 10 AYES: NOES: ABSENT: ABSTAIN: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku None None None Adopted on November 2, 2005 by the following roll call vote: AYES: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku NOES: None ABSENT: None ABSTAIN: None fMark Ashiku, Mayor ATTEST: Marie Ulvila, City Clerk ORDINANCE NO. 1072 11