Loading...
HomeMy WebLinkAboutOrd. No. 2007-1230 - ORDINANCE NO. 1230 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ADDING CHAPTER 5.46 TO THE LAKE ELSINORE MUNICIPAL CODE REGARDING THE LICENSURE OF TOBACCO RETAILERS WHEREAS, Minors obtain cigarettes and other tobacco products at alarming rates. Each year, an estimated 924 million packs of cigarettes are consumed by minors 12 to 17 years of age, yielding the tobacco industry $480 million in profits from underage smokers nationwide. In Riverside County, 10,000 teens light up for the first time and purchase 5 million packs of cigarettes a year; and WHEREAS, In a 2004 California youth-buying survey, 12% of retailers surveyed unlawfully sold tobacco product to minors; and WHEREAS, The rate of tobacco sales to minors in Riverside County is one of the highest in the State at 44%; and WHEREAS, 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 14%; and WHEREAS, 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 to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws; and WHEREAS, 65% of California's key opinion leaders surveyed support implementation of tobacco-licensing requirements; and WHEREAS, the City of Lake Elsinore 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 finally, and most importantly, in protecting children from being lured into illegal activity through the misconduct of adults; and WHEREAS, It is the intent of this Ordinance to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that 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 penalty provided therefor. 1 NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ORDAINS AS FOLLOWS: SECTION 1. That Chapter 5.46 of the Lake Elsinore Municipal Code be added as follows: Chapter 5.46 TOBACCO RETAILERS 5.46.010 . Definitions. For the purposes of this Ordinance, the following words and terms shall have the following meanings: "Arm's Length Transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this Ordinance is presumed not to be an Arm's Length Transaction. "Department" means any City department designated to administer and/or enforce the provisions of this Chapter or, if so designated by the City Manager, the Riverside County Department of Health and Human Services or other County department. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Proprietor" means a Person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a Person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a Person can or does have, or can or does share, ultimate control over the day-to-day operations of a business. "Self-Service Display" means the open display of Tobacco Products or Tobacco Paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A Vending Machine is a form of Self-Service Display. "Smoking" means possessing a lighted Tobacco Product, Tobacco Paraphernalia, or any other weed or plant (including a lighted pipe, lighted cigar, or lighted cigarette of any kind), the lighting of a Tobacco Product, Tobacco Paraphernalia, or any other weed or plant (including a pipe, cigar, or cigarette of any kind). 2 "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of Tobacco Products. "Tobacco Product" means (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bid is, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body but does not include any product specifically approved by the Federal Food and Drug Administration for use in treating nicotine or tobacco product dependence. "Tobacco Retailer" means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, Tobacco Products, or Tobacco Paraphernalia; "Tobacco Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, Tobacco Products, or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange. 5.46.020 Tobacco License Prerequisite; Application Process. 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 Ordinance for each location at which that activity is to occur. Tobacco Retailing without a valid Tobacco Retailer's license shall constitute a public nuisance. B. A Tobacco Retailer or Proprietor without a valid Tobacco Retailer license: 1. Shall keep all Tobacco Products and Tobacco Paraphernalia from public view. 2. Shall not display any advertisement relating to Tobacco Products or Tobacco Paraphernalia that promotes the sale or distribution of such products from the Tobacco Retailer's location or that would lead a reasonable consumer to believe that such products can be obtained at the Tobacco Retailer's location. C. Nothing in this Ordinance 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 identified on the face of the license. For example, nothing in this Ordinance 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 California Labor Code section 6404.5. D. Application for a Tobacco Retailer's license shall be submitted in the name of each Proprietor proposing to conduct retail tobacco sales and shall be signed by each Proprietor or an authorized agent thereof. It is the responsibility of each Proprietor 3 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 Proprietor shall be revoked pursuant to Section 5.46.080.0. of this Ordinance. E. In addition to any other penalty under this Ordinance, a Person found to have engaged in Tobacco Retailing without a valid Tobacco Retailer's license shall be ineligible to apply for or be issued a Tobacco Retailing license according to the following: 1. After a first violation for a Person within any sixty-month (60) period, no new license may issue for the Person as a Proprietor until thirty (30) days have passed from the date of last violation. 2. After a second violation for a Person within any sixty-month (60) period, no new license may issue for the Person as a Proprietor until ninety (90) days have passed from the date of last violation. 3. After three or more violations for a Person within any sixty-month (60) period, no new license may issue for the Person as a Proprietor until five (5) years have passed from the date of last violation. 4. Each day that a Person engages in Tobacco Retailing without a valid Tobacco Retailer's license shall constitute a separate violation. F. Tobacco Products and Tobacco Paraphernalia offered for sale or exchange in violation of this Ordinance are subject to seizure and forfeiture. Forfeited Tobacco Products and Tobacco Paraphernalia shall be destroyed. G. 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 Proprietor. 2. The business name, address, and telephone number of the single fixed location for which a Tobacco Retailer's license is sought. 3. The name and mailing address authorized by each Proprietor to receive all license-related communications and notices (the "Authorized Address"). If an Authorized Address is not supplied, each Proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph 2. above. 4. Proof that the location for which a Tobacco Retailer's license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization. 4 5. Whether or not any Proprietor is a Person who has been determined to have violated this Ordinance or has been a Proprietor at a location that has been determined to have violated this Ordinance and, if so, the dates and locations of all such violations. 6. Such other information as the Department deems necessary for the administration or enforcement of this Ordinance. 5.46.030 License Issuance; Standards. A. No license may issue to authorize Tobacco Retailing at other than a fixed location. Tobacco Retailing by Persons on foot and Tobacco Retailing from vehicles are prohibited. B. Upon the receipt of an application for a Tobacco Retailer's license and the license fee, the Department shall issue a license unless substantial record evidence demonstrates that one of the following bases for denial exists: 1. The application is incomplete or inaccurate. 2. The application seeks authorization for Tobacco Retailing at a location for which a prohibition on issuing licenses is in effect pursuant to Section 5.46.080.B. of this Ordinance. However, this subparagraph shall not constitute a basis for denial of a license if the applicant provides the City with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an Arm's Length Transaction. 3. The application seeks authorization for Tobacco Retailing for a Proprietor for which a prohibition on issuing licenses is in effect pursuant to Section 5.46.080.E. of this Ordinance. 4. The application seeks authorization for Tobacco Retailing that is prohibited pursuant to Section 5.46.030.A. of this Ordinance, that is unlawful pursuant to any other City Ordinance, or that is unlawful pursuant to any other local, state, or federal law. 5.46.040 Licenses Nontransferable. A. Tobacco Retailer's license is nontransferable. If the information required in the license application pursuant to Section 5.46.020.G. 1, 2, or 3 changes, a new Tobacco Retailer's license is required before the business may continue to act as a Tobacco Retailer. For example, if a Proprietor to whom a license has been issued changes business location, that Proprietor must apply for a new license prior to acting as a Tobacco Retailer at the new location. Or if the business is sold, the new owner must apply for a license for that location before acting as a Tobacco Retailer. 5 B. Notwithstanding any other provision of this Ordinance, violations accumulated against a location or business shall continue to be counted against the location or business unless the location or business has been transferred to a new Proprietor and the new Proprietor provides the City with documentation demonstrating by clear and convincing evidence that the new Proprietor has acquired or is acquiring the location or business in an Arm's Length Transaction. 5.46.050 Fees For License. A. Tobacco Retailer's license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a Tobacco Retailer's license is one (1) year. Each Tobacco Retailer shall apply for the renewal of his or her Tobacco Retailer's license no later than thirty (30) days prior to expiration of the term. The Tobacco Retailer license shall be issued, administered and renewed as determined by the Department B. The City Council, may, but shall not be required to, set a license fee for a tobacco retailer license. If the City Council elects to enact a tobacco retailer license fee, the fee shall be set by City Council resolution based upon the costs to the city of administering and enforcing this Chapter. Tobacco Retailer's license shall not be issued until such time as the appropriate license fee has been paid in full. 5.46.060 Other Requirements And Prohibitions. A. DISPLAY OF LICENSE. Each license shall be prominently displayed in a publicly and readily visible location at the licensed location. B. POSITIVE IDENTIFICATION REQUIRED. No Person shall engage in Tobacco Retailing without first examining the identification of the purchaser and, if the purchaser reasonably appears under the age of twenty-seven (27) years old, confirming that the proposed sale is to a purchaser who is at least the minimum age under applicable state law for being sold the Tobacco Product or Tobacco Paraphernalia. C. MINIMUM AGE FOR PERSONS SELLING TOBACCO. No Person shall engage in Tobacco Retailing if the Person is younger than the minimum age under applicable state law for being sold or for possessing any Tobacco Product. D. SELF-SERVICE DISPLAYS PROHIBITED. No Person shall display Tobacco Products or Tobacco Paraphernalia by means of a Self-Service Display or to engage in Tobacco Retailing by means of a Self-Service Display. A Tobacco Retailer who chooses to display Tobacco Products or Tobacco Paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times. 6 - 5.46.070 License Violation. A. VIOLATION OF TOBACCO-RELATED LAWS. It shall be a violation of a Tobacco Retailer's license for a licensee, including his or her agent or employee, to violate any of the following laws: 1. Any local, state, or federal tobacco-related law. 2. Local, state, or federal sign laws. 3. Local, state, or federal laws restricting the age of purchase for any product. B. LICENSE COMPLIANCE MONITORING. 1. Compliance with this Ordinance shall be monitored by the Department. Any peace officer may enforce the penal provisions of this Ordinance. 2. The Department may check the compliance of each Tobacco Retailer at any time during normal business hours and on such a regular basis as may be determined by the Department. The Department shall endeavor to check compliance of each tobacco retailers at least three (3) times per twelve (12) month period. 3. Compliance checks shall determine, at a minimum, if the Tobacco Retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance checks shall determine compliance with other tobacco-related laws. 4. The City shall not enforce any tobacco-related minimum-age law against a Person who otherwise might be in violation of such law because of the Person's age (hereinafter "Youth Decoy") if the potential violation occurs when: a. the Youth Decoy is participating in a compliance check supervised by a peace officer or a code enforcement official; or b. the Youth Decoy is participating in a compliance check funded in part, either directly or indirectly through sub-contracting, by the County Department of Health and Human Services or funded in part, either directly or indirectly through sub-contracting, by the California Department of Health Services. C. NO CONTEST PLEA. A plea of "no contest" or its equivalent by a Tobacco Retailer for a violation of any law designated in subsection A. above shall operate as an admission that this Ordinance has been violated for the purposes of license revocation. 7 5.46.080 A. Revocation Of License. REVOCATION OF LICENSE FOR VIOLATION. 1. In addition to any other penalty authorized by law, a Tobacco Retailer's license shall be revoked if the hearing officer, as designated by the City Manager, finds, after notice to the licensee and opportunity to be heard, that the licensee, including his or her agents or employees, has violated any of the requirements, conditions, or prohibitions of this Ordinance (hereinafter "License Violation"). 2. 3. For a first or second alleged License Violation within any sixty-month (60) period, the Department may engage in settlement negotiations and may enter into a settlement agreement with a Tobacco Retailer alleged to have violated this Ordinance without approval from the City Council. Settlements shall not be confidential. B. NEW LICENSE AFTER REVOCATION FOR VIOLATION. 1. After a first License Violation at a location within any sixty-month (60) period, no new license may issue for the location until ten (10) days have passed from the date of the last revocation or violation, whichever is later. 2. After a second License Violation at a location within any sixty- month (60) period, no new license may issue for the location until thirty (30) days have passed from the date of the last revocation or violation, whichever is later. 3. After of a third License Violation at a location within any sixty-month (60) period, no new license may issue for the location until ninety (90) days have passed from the date of the last revocation or violation, whichever is later. 4. After four or more License Violations at a location within any sixty- month (60) period, no new license may issue for the location until five (5) years have passed from the date of the last revocation or violation, whichever is later. C. EXPIRATION OF LICENSE. A Tobacco Retailer's license that is not timely renewed pursuant to Section 5.46.050 shall expire at the end of its term. To reinstate a license that has expired due to the failure to timely pay the renewal fee, the Proprietor must: 1. Submit the renewal fee plus a reinstatement fee of ten percent (10%) of the renewal fee. 2. Submit a signed affidavit affirming that the Proprietor has not sold any Tobacco Product or Tobacco Paraphernalia during any period that the license was expired. 8 D. REVOCATION OF LICENSE ISSUED IN ERROR. A Tobacco Retailer's license shall be revoked if the Department finds, after notice and opportunity to be heard, that one or more of the bases for denial of a license under Section 5.46.030.B. 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. 5.46.090 Enforcement. The remedies provided by this Ordinance are cumulative and in addition to any other remedies available at law or in equity. A. Whenever evidence of a violation of this Ordinance is obtained in part through the participation of a Person under the age of eighteen (18) years old, such a Person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this Ordinance and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. B. Violations of this Ordinance are subject to a civil action brought by the District Attorney or City Attorney, punishable by: 1. A fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1000) for a first violation in any sixty-month (60) period; or 2. A fine not less than one thousand five hundred dollars ($1,500) and not exceeding two thousand five hundred dollars ($2,500) for a second violation in any sixty-month (60) period; or 3. A fine not less than three thousand dollars ($3,000) and not exceeding ten thousand dollars ($10,000) for a third or subsequent violation in any sixty-month (60) period. C. Violations of this Ordinance may, in the discretion of the District Attorney or City Attorney, be prosecuted as infractions or misdemeanors. D. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Ordinance shall constitute a violation. E. Violations of this Ordinance are hereby declared to be public nuisances. F. In addition to other remedies provided by this Ordinance or by other law, any violation of this Ordinance may be remedied by a civil action brought by the City Attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. SECTION 2. If any provision, clause, sentence or paragraph of this Ordinance or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the other provisions of this Ordinance and are hereby declared to be severable. 9 SECTION 3. This Ordinance shall take effect thirty (30) days after the date of its final passage. The City Clerk shall certify as to adoption of this Ordinance and cause this Ordinance to be published and posted in the manner required by law. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Lake Elsinore, California, on ~Zf August 2007. OBERT E. MAG MAYOR CITY OF LAKE - ATTEST: r t/ UJJJeliI ~ MICHELLE SOTO INTERIM CITY CLERK APPROVED AS TO FORM: ~2'~~ - CITY ATTORNEY CITY OF LAKE ELSINORE 10 STATE OF CALIFORNIA ) COUNTY OF RIVERSUDE )ss. CITY OF LAKE ELSINORE ) I, MICHELLE SOTO, Interim City Clerk of the City of Lake Elsinore, California, hereby certify that the foregoing Ordinance No. 1230 was introduced at a regular meeting of the City Council of the City of Lake Elsinore on the 14th day of Auqust 2007, and was finally passed at a regular meeting of the City Council of the City of Lake Elsinore held on the 28th day of Auqust 2007, by the following roll call vote: AYES: MAYOR ROBERT E. MAGEE MAYOR PRO TEM DARYL HICKMAN COUNCILMEMBER THOMAS BUCKLEY COUNCILMEMBER GENIE KELLEY COUNCILMEMBER ROBERT SCHIFFNER NOES: NONE ABSENT: NONE - ABSTAIN: NONE ~etU~ mJv MICHELLE SOTO INTERIM CITY CLERK 11