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HomeMy WebLinkAbout06-08 CC Ordinance I I I ORDINANCE NO. 06-08 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA ADDING CHAPTER 5.24 TO THE TEMECULA MUNICIPAL CODE REGARDING THE LICENSURE OF TOBACCO RETAILERS THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Chapter 5.24, Licensure of Tobacco Retailers, is hereby added to the Temecula Municipal Code to read as follows: "CHAPTER 5.24 LICENSURE OF TOBACCO RETAILERS Sec. 5.24.010. declares that: FINDINGS. The City Council hereby finds, determines, and A. 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. In a 2004 California youth-buying survey, 12% of retailers surveyed unlawfully sold tobacco product to minors. The rate of tobacco sales to minors in Riverside County is one of the highest in the State at 44%. 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. 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. 65% of California's key opinion leaders surveyed support implementation of tobacco-licensing requirements. B. C. D. E. F. Ords 2006l0rds 06-08 I I I Sec. 5.24.020. PURPOSE AND INTENT The City of Temecula has a substantial interest in: (1) promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; (2) discouraging the illegal purchase of tobacco products by minors; (3) in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and (4) finally, and most importantly, protecting children from being lured into illegal activity through the misconduct of adults. It is the intent of this Chapter 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 therefore. Sec. 5.24.030 DEFINITIONS. For the purposes of this Chapter, the following words and terms shall have the following meanings: Ords 2006/0rds 06-08 A. "Arm's Length Transaction" shall mean: 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 Chapter is presumed not to be an Arm's Length Transaction. "City Manager" shall mean: The City Manager of the City of Temecula or his or her designee. "Person" shall mean: Any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Proprietor" shall mean: 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" shall mean: 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" shall mean: 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, B. C. D. E. F. 2 I I I G. Tobacco Paraphernalia, or any other weed or plant (including a pipe, cigar, or cigarette of any kind). "Tobacco Paraphernalia" shall mean: 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" shall mean: (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" shall mean: 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. H. I. Sec. 5.24.040. TOBACCO LICENSE PREREQUISITE; APPLICATION PROCESS. Ords 2006/0rds 06-08 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 Chapter for each location at which that activity is to occur. A Tobacco Retailer or Proprietor without a valid Tobacco Retailer license, including, for example, a revoked license: 1. Shall keep all Tobacco Products and Tobacco Paraphernalia from public view. The public display of Tobacco Products or Tobacco Paraphernalia in violation of this provision shall constitute an "offer for sale" for the purposes of Section 5.24.050 C. 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. Nothing in this Chapter 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 Chapter shall be B. C. 3 I I I Ords 2006/0rds 06-08 D. construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, zoning regulations or any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code section 6404.5. 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 to be informed of all applicable federal, state and local statures, laws, regulations and ordinances, including, without limitation, 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 5.24.100 D. of this Chapter. All applications shall be submitted on a form supplied by the City Manager 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 E.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. 5. Whether or not any Proprietor is a Person who has been determined to have violated this Chapter or has been a Proprietor at a location that has been determined to have violated this Chapter and, if so, the dates and locations of all such violations. 6. Such other information as the City Manager deems necessary for the administration or enforcement of this Chapter. 7. The information required by this Section E. shall be a public record available for public review pursuant to the California Public Records Act. E. 4 I I I Sec. 5.24.050. Ords 2006l0rds 06-08 LICENSE ISSUANCE; STANDARDS. A. 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. Upon the receipt of an application for a Tobacco Retailer's license and the license fee, the City Manager 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 5.24.100 B. of this Chapter. 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. The application seeks authorization for Tobacco Retailing for a Proprietor for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.100 B. of this Chapter. The application seeks authorization for Tobacco Retailing that is prohibited pursuant to Section 5.24.050 A. of this Chapter, that is unlawful pursuant to any other City Chapter, or that is unlawful pursuant to any other local, state, or federal law. B. 3. 4. Sec. 5.24.060 . LICENSES NONTRANSFERABLE. A. A Tobacco Retailer's license is nontransferable. If the information required in the license application pursuant to Section 5.24.040 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. Notwithstanding any other provision of this Chapter 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 B. 5 I I I an Arm's Length Transaction. Sec. 5.24.070. TERMS FOR LICENSE; LICENSE FEE. A. The term of a Tobacco Retailer license is one (1) year expiring on January 31 of the next year, except for licenses issued in 2006 which shall expire on January 31, 2007. Licenses issued during a year shall expire on January 31 of the next 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. B. The City Council, may, but shall not be required to, set a license fee for a Tobacco Retailer license. If the 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 license shall not be issued until such time as the appropriate license fee has been paid in full. Sec. 5.24.080 . OTHER REQUIREMENTS AND PROHIBITIONS. DISPLAY OF LICENSE. Each license shall be prominently displayed in a publicly and readily visible location at the licensed location. POSITIVE IDENTIFICATION REQUIRED. No Person shall engage in Tobacco Retailing without first examining the identification of the purchaser, if the purchaser reasonably appears under the age of twenty- seven (27) years old, and confirming that the proposed sale is to a purchaser who is at least the minimum age in 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 in 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. A. B. Ords 2006/0rds 06-08 6 I I I Sec. 5.24.090. 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. C. LICENSE COMPLIANCE MONITORING. 1. Compliance with this Chapter shall be monitored by the City Manager. Any peace officer may enforce the provisions of this Chapter. 2. 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. 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 3. b. the Youth Decoy is participating in a compliance check funded in part, either directly or indirectly through sub- contracting, by the City Manager 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 Chapter has been violated for the purposes of license revocation. Ords 2006/0rds 06-08 7 I I I Sec. 5.24.100. REVOCATION OR SUSPENSION OF LICENSE. A. SETTLEMENT OF INITIAL LICENSE VIOLATIONS. 1. If the City Manager determines that a Tobacco Retailer has that the licensee, including his or her agents or employees, has violated any of the requirements, conditions, or prohibitions of this Chapter ("License Violation"), the City Manager may engage in settlement discussions to try to resolve the violations and prevent their reoccurrence. For a first or second alleged License Violation within any sixty- month (60) period, the City Manager may engage in settlement negotiations and may enter into a settlement agreement with a Tobacco Retailer alleged to have violated this Chapter without approval from the City Council. Settlements shall not be confidential and shall contain the following minimum terms: a. After an alleged first License Violation at a location within any sixty-month (60) period: (1) An agreement to stop acting as a Tobacco Retailer for at least one (1) day; (2) A settlement payment to the City of at least one thousand dollars ($1000); and (3) An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations. 2. b. After an alleged second License Violation at a location within any sixty-month (60) period: (1) an agreement to stop acting as a Tobacco Retailer for at least ten (10) days; (2) a settlement payment to the City of at least five thousand dollars ($5000); and (3) an admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations. B. REVOCATION OR SUSPENSION OF LICENSE 1. If the City Manager has cause to believe that (1) a Tobacco Retailer, including his or her agents or employees, has violated any Ords 2006/0rds 06-08 8 I I I Ords 2006l0rds 06-08 of the requirements, conditions, or prohibitions of this Chapter, or (2) that one or more of the bases for denial of a license under Section 5.24.050 B. existed at the time application was made or at anytime before the license issued, he or she may initiate proceedings for the revocation or suspension of the Tobacco Retailer's License pursuant to this section in addition to any of the other remedies provided for violations of this Chapter. 2. The City Manager shall provide written notice to the Tobacco Retailer and the City Clerk of the alleged violations of this Chapter and the date, time and location of the Revocation Hearing not less than twenty-one (21) calendar days prior to the hearing. 3. The City Clerk shall make arrangements for the selection of a Hearing Officer to conduct the Revocation Hearing. Not less than fifteen (15) calendar days prior to the Revocation Hearing, the City Clerk shall notify the City Manager and the Tobacco Retailer of the names three qualified attorneys or retired Superior Court or Appellate Court judges submitted to the City Clerk by a reputable firm providing mediators and arbitrators to serve as a panel from which the hearing officer will be selected. Within five (5) calendar days of the date of mailing the notice of the panel, the City Manager and the Tobacco Retailer may notify the City Clerk in writing that he or she elects to remove one of the three potential Hearing Officers. The City Clerk shall then request the mediation and arbitration firm to select one of the remaining names on the list as the designated hearing officer for the Revocation Hearing. The hearing officer shall be fair and impartial and shall have no bias for or against the City Manager or the Tobacco Retailer. 4. At the Revocation Hearing, the Hearing Officer shall receive oral and written evidence from the City Manager and the Tobacco Retailer. The Hearing Officer shall have authority to administer oaths to those persons who will provide oral testimony. The evidence presented need not comply with the strict rules of evidence set forth in the California Evidence Code but shall be the type of evidence upon which reasonable and prudent people rely upon in the conduct of serious affairs. The Hearing Officer shall have broad authority to control the proceedings and to provide for cross examination of witness in a fair and impartial manner. The City Manager shall have the burden of proof to establish by clear and convincing evidence that License Violations occurred. The Revocation Hearing shall be recorded by audio recording. Any party may, at its sole cost and expense, utilize the services of a certified court reporter to prepare the verbatim record of the hearing. If a court reporter is used, the transcript prepared shall be 9 I I I made available to both parties. The Hearing Officer may continue the Revocation Hearing from time to time, but only upon written motion of a party showing good cause for the continuance. 5. In addition to any other penalty authorized by law, a Tobacco Retailer's license shall be suspended or revoked if the Hearing Officer finds, following the Revocation Hearing, that: (1) a Tobacco Retailer, including his or her agents or employees, has violated any of the requirements, conditions, or prohibitions of this Chapter, or (2) that one or more of the bases for denial of a license under Section 5.24.050 B. existed at the time application was made or at anytime before the license issued. a. The Hearing Officer shall suspend the Tobacco Retailer's License in accordance with the following schedule if he or she finds that the violations established can be corrected with increased diligence on the part of the Tobacco Retailer: (1) for one License Violation at a location within a sixty (60) month period, a suspension of not less than ten (10) calendar days; (2) for two License Violations at a location within any sixty-month (60) period, as suspension of not less than thirty (30) days; and (3) for three License Violations at a location within any sixty (60) month, a suspension of not less than ninety (90) days. b. The Hearing Officer shall revoke the Tobacco Retailer's License if he or she finds that: (1) one or more of the bases for denial of a license under Section 5.24.050 B. existed at the time application was made or at anytime before the license issued; or (2) the License Violations established are of a serious nature which the Tobacco Retailer is unable or unwilling to correct in a timely fashion or there are four (4) or more License Violations at the location within a sixty (60) month period. 6. Within ten (10) calendar days of the Revocation Hearing, the Hearing Officer shall render his or her decision and make written findings supporting the decision. He or she shall send the decision to the City Clerk. Upon receipt of the Hearing Officer's Decision, the City Clerk shall send a copy of it to the City Manager and the Tobacco Retailer along with a proof of mailing. 7. Within ten (10) calendar days from date of the City Clerk's mailing of the Decision, either party may appeal the Decision to the City Council. The appeal shall be in writing and shall state the grounds Ords 2006l0rds 06-08 10 I I I of the appeal and specify the errors in the Decision. Upon receipt of the Appeal, the City Clerk shall schedule the Appeal for review by the City Council at the next Council meeting not less than fifteen (15) calendar days after receipt of the Appeal. 8. The Council review of the Appeal shall be limited to determining whether the evidence received at the Revocation Hearing supports the findings and decision of the Hearing Officer. The Council shall be limited to the evidence presented at the Revocation Hearing. No new evidence shall be taken by the City Council. The Council's decision on the appeal shall be by resolution. Upon adoption of the resolution, the City Clerk shall mail a copy of the resolution to the City Manager and the Tobacco Retailer along with a proof of service. Any legal action challenging the Council's decision shall be filed within ninety (90) days of the date of the proof of service of mailing the Council's resolution pursuant to Section 1094.5 et. seq. of the California Code of Civil Procedure. If the Council upholds the revocation of a Tobacco Retailer's License, the revocation shall be effective upon adoption of the Council resolution. C. NEW LICENSE FOLLOWING REVOCATION. If a License has been revoked pursuant to Section B., the Tobacco Retailer shall not be entitled to apply for a new license for a period of five years following the order of revocation. D. NEW LICENSE FOLLOWING VIOLATIONS. In addition to any other penalty under this Chapter a Person found to have engaged in Tobacco Retailing without a valid Tobacco Retailers 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. E. EXPIRATION OF LICENSE. A Tobacco Retailer's license that is not timely renewed pursuant to Section 5.24.070 A. shall expire at the end of Ords 2006l0rds 06-08 11 I I I 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. Sec. 5.24.110. ENFORCEMENT.The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. A. Whenever evidence of a violation of this Chapter 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 Chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. Violations of this Chapter shall also be subject to administrative action pursuant to Chapter 1.21 of the Temecula Municipal Code, Administrative Penalties, and Chapter 1.24 of the Temecula Municipal Code, Community Standards Preservation. Violations of this Chapter may, in the discretion of the District Attorney or City Counsel, be prosecuted as infractions or misdemeanors. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall constitute a violation. Violations of this Chapter are hereby declared to be public nuisances. Violations of this Chapter are subject to a civil action brought by the City Attorney to enjoin violations of this Chapter." Each day that a Person engages in Tobacco Retailing without a valid Tobacco Retailers license shall constitute a separate violation. Tobacco Products and Tobacco Paraphernalia offered for sale or exchange in violation of this Chapter are subject to seizure and forfeiture. Forfeited Tobacco Products and Tobacco Paraphernalia shall be destroyed." B. C. D. E. F. G. H. Section 2. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Chapter, 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 Chapter, or its application to any other person or circumstance. The City Council of the Temecula hereby declares that it would have adopted each section, subsection, subdivision, Ords 2006l0rds 06-08 12 I I I paragraph, sentence, clause or phrase hereof, irrespective of the fact that anyone or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 13th day of June, 2006. (3.Q~ Ron Roberts, Mayor ATTEST: [SEAL] Ords 2006l0rds 06-08 13 I I I STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No. 06-08 was duly introduced and placed upon its first reading at a meeting of the City Council of the City of Temecula on the 23rd day of May, 2006, and that thereafter, said Ordinance was duly adopted by the City Council of the City of T emecula at a meeting thereof held on the 13th day of June, 2006, by the following vote: AYES: 4 COUNCIL MEMBERS: Comerchero, Edwards, Naggar, Washington NOES: 0 COUNCIL MEMBERS: COUNCIL MEMBERS: COUNCIL MEMBERS: None ABSENT: 1 Roberts ABSTAIN: 0 None W. Jones, MMC City Clerk Ords 2006l0rds 06-08 14