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ORDINANCE NO. __________
AN ORDINANCE AMENDING THE SARATOGA MUNICIPAL CODE TO PROVIDE
REGULATIONS FOR RETAIL ESTABLISHMENTS SELLING TOBACCO PRODUCTS
AND TOBACCO PARAPHERNALIA
THE CITY COUNCIL OF THE CITY OF SARATOGA DOES ORDAIN AS FOLLOWS:
SECTION 1. Findings
A. The City of Saratoga recognizes the negative health consequences of smoking and
wishes to regulate the sale of tobacco products and tobacco paraphernalia out of
concern for the health of Saratoga’s citizens.
B. Zoning controls and a requirement that tobacco retailers obtain a use permit will
not unduly burden legitimate business activities of tobacco retailers who sell
cigarettes or distribute tobacco products or tobacco paraphernalia to adults. It will,
however, allow the City of Saratoga to regulate the operation of lawful businesses
to avoid circumstances which facilitate violations of state, federal, and local laws.
C. The City of Saratoga has a substantial interest in ensuring that any person selling
or exchanging tobacco products should be at least of a legal age to purchase such
products.
D. The City of Saratoga has a substantial interest in promoting compliance with state
laws prohibiting the sales of tobacco products to minors; in promoting compliance
with federal, state and local laws intended to discourage the purchase of tobacco
products by minors; and finally, and most importantly, in protecting children from
being lured into illegal activity through the misconduct of adults.
E. The California courts in such cases as Cohen v. Board of Supervisors (1985) 40
Cal. 3d 277, and Bravo Vending v. City of Rancho Mirage (1993) 16 Cal. App.
4th 383, have affirmed the power of local governments to regulate business
activity in order to discourage violations of state law.
F. The California Constitution, Article XI, section 7, provides cities and counties
with the authority to enact ordinances to protect the health, safety, welfare, and
morals of their citizens.
G. Zoning regulations are necessary to control the location and operation of the sale
or exchange of tobacco products and/or tobacco paraphernalia for the protection
of public health, safety and welfare.
H. It is the intent of the City Council to discourage violations of laws forbidding
distribution of tobacco products to minors, but not to expand or reduce the degree
to which the acts regulated by state or federal law are criminally proscribed.
SECTION 2. Adoption.
A. Section 15-19.020 of the Saratoga City Code is hereby amended by adding the
text shown in bold double-underlined (example) and deleting the text shown in
strikeout (example) in Attachment A.
B. Section 15-80.130 is added to the Saratoga City Code as shown in Attachment A.
SECTION 3. California Environmental Quality Act.
Pursuant to the California Environmental Quality Act (“CEQA”), this action is exempt under 14
California Code of Regulations (“CEQA Guidelines”) section 15061(b)(3) (the amendments are
exempt because it can be seen with certainty that there is no possibility that the activity in
question may have a significant effect on the environment).
SECTION 4. Severance Clause.
The City Council declares that each section, sub-section, paragraph, sub-paragraph, sentence,
clause and phrase of this ordinance is severable and independent of every other section, sub-
section, sentence, clause and phrase of this ordinance. If any section, sub-section, paragraph,
sub-paragraph, sentence, clause and phrase are held invalid, the City Council declares that it
would have adopted the remaining provisions of this ordinance irrespective of the portion held
invalid, and further declares its express intent that the remaining portions of this ordinance
should remain in effect after the invalid portion has been eliminated.
SECTION 5. Publication.
This ordinance or a comprehensive summary thereof shall be published in a newspaper of
general circulation of the City of Saratoga within fifteen days after its adoption.
The foregoing ordinance was introduced and read at the regular meeting of the City Council of
the City of Saratoga held on the ___ day of _____, 2009, and was adopted by the following vote
following a second reading on the _____ day of ___________________________, 2009:
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
__________________________________
CHUCK PAGE
MAYOR OF THE CITY OF SARATOGA
Saratoga, California
ATTEST:
__________________________________
ANN SULLIVAN
CLERK OF THE CITY OF SARATOGA
Saratoga, California
APPROVED AS TO FORM:
____________________________________________
RICHARD TAYLOR, CITY ATTORNEY
Attachment A to Ordinance No. __
Amendment to Section 15-19.020
15-19.020 General regulations.
The following general regulations shall apply to all commercial districts in the City:
[subsection (a) unchanged]
(b) Conditional uses. The following conditional uses may be allowed in any commercial
district, upon the granting of a use permit in accordance with this code: pursuant to Article 15-
55 of this Chapter:
[subsections (1)-(14) unchanged]
(15) Tobacco Retailers, as defined in Section 15-80.130 of this Article. All Tobacco Retailers
shall be subject to the permitting requirements and provisions set forth in Section 15-
80.130 of this Article.
Amendment adding Section 15-80.130
15-80.130 Tobacco Retailers
(a) Definitions. For the purposes of this Section, the following words and phrases shall
have the meanings specifically ascribed to them in this subsection, unless the context or
provision clearly requires otherwise:
(1) Person means any natural person, partnership, cooperative association, private
corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
(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 or
ingestion of tobacco products.
(3) Tobacco Products means any substance containing any tobacco leaf, including but not
limited to cigarettes, cigars, bidis, pipe tobacco, snuff, chewing tobacco, and smokeless tobacco.
(4) Tobacco Retailer means any person who sells, offers for sale, exchanges or offers to
exchange for any form of consideration, tobacco, tobacco products and/or tobacco paraphernalia;
“tobacco retailing” shall mean the doing of any of these things.
(b) Conditional Use Permits. In zoning districts where Tobacco Retailers are listed a
conditional use (Commercial Districts), Tobacco Retailers may be allowed upon the granting of a
use permit. Tobacco Retailers are not allowed in any zoning district unless listed as a conditional
use. In addition to the requirements of Article 15-55, conditional use permits for Tobacco
Retailers must include the following conditions:
(1) Tobacco products and/or tobacco paraphernalia shall be secured so that only store
employees have immediate access to the tobacco products and/or tobacco paraphernalia. Self-
service displays are prohibited.
(2) The Tobacco Retailer shall comply with local, state, and/or federal laws regarding
sales, advertising or display of tobacco products and/or tobacco paraphernalia including posting
prominently near the cash register or other point of sale the legal age to buy tobacco products
and/or tobacco paraphernalia, and checking the identification of all purchasers to ensure they are
of legal age.
(3) No person under 18 years of age may sell or exchange tobacco products or tobacco
paraphernalia.
(4) Sampling of tobacco products by individuals under 18 years of age shall not be
permitted. Therefore, tobacco products shall not be given or sold to individuals under 18 years of
age.
(5) Smoking shall be prohibited in a premises deemed a Tobacco Retailer.
(c) Limited Density of Tobacco Retailers. No Tobacco Retailer, not legally in existence
as of the date of enactment of this ordinance, shall be granted a conditional use permit to operate
on a site which is within five hundred (500) feet of a site occupied by another Tobacco Retailer,
as measured in a straight line from the point on the parcel boundary of the existing Tobacco
Retailer nearest to the proposed Tobacco Retailer to the nearest point on the parcel boundary of
the proposed Tobacco Retailer.
(d) Exiting Tobacco Retailers: Procedure for Administrative Approval of Use Permit. If a
Tobacco Retailer is legally in existence on [date of enactment], the operator is not required to
comply with the requirements in subdivision (b), as long as the operator obtains an
Administrative Tobacco Retailer Permit by [date of enactment plus 180 days]. The Director shall
issue an Administrative Tobacco Retailer Permit to any Tobacco Retailer legally in existence as
of the date of enactment of this ordinance when it obtains a declaration from the Tobacco
Retailer operator declaring that it will comply with the conditions in subdivision (b).
(e) Suspension or Revocation of a Conditional Use Permit.
(1) The suspension and revocation provisions set forth in this subsection apply to
conditional use permits granted under both subsection (b) and (d).
(2) Grounds for Suspension or Revocation: In addition to any basis for suspension or
revocation under Article 15-55, a Tobacco Retailer’s Conditional Use Permit status shall be
suspended or revoked if the Director finds, after notice and opportunity to be heard, any of the
following:
(A) That the applicant has violated any of the use permit conditions of approval,
including without limitation the conditions set forth in subsection (b) of this Section, or
(B) That the applicant has violated any local, state or federal law governing the sale,
advertisement or display of tobacco products or tobacco paraphernalia.
(3) Suspension shall suspend the privilege of tobacco retailing for a stated period
pursuant to paragraph (4) of this subsection. Revocation shall be without prejudice to the filing
of a new application for a conditional use permit following correction of the conditions that
required the revocation.
(4) Suspension or Revocation of CUP: If the Department finds that there are grounds for
the suspension of a CUP, the following sanctions shall be imposed:
(A) A first violation of this ordinance shall result in a thirty-day (30) suspension of the
right to sell tobacco products and tobacco paraphernalia.
(B) A second violation of this ordinance within a sixty-month (60) period shall result in a
ninety-day (90) suspension of the right to sell tobacco products and tobacco paraphernalia.
(C) A third or subsequent violation of this ordinance within a sixty-month (60) period
may result in a revocation of the right to sell tobacco products and tobacco paraphernalia.
(5) Appeal of Suspension and/or Revocation: The decision of the Director is appealable
to the Planning Commission and must be filed within 10 days of receipt of the determination of
violation. An appeal shall stay all proceedings in furtherance of the appealed action.
(f) Enforcement.
(1) Violations of this Section and any use permit issued hereunder are hereby declared to
be public nuisances.
(2) In addition to other remedies provided by this Section or by other law, any violation
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, unfair business practice proceedings under Business & Professions Code Section
17200 et seq., and suits for injunctive relief. The remedies provided by this Section are
cumulative and in addition to any other remedies available at law or in equity.
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