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HomeMy WebLinkAbout102-Attachment for Tobacco Ord.pdf 1 ORDINANCE NO. __________ AN ORDINANCE AMENDING THE SARATOGA MUNICIPAL CODE TO PROVIDE REGULATIONS FOR 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 important, 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. 2 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. -- Continued Next Page -- 3 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. All Tobacco Retailers (as defined in Section 15-80.130 of this Article) 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 whether exclusively or in conjunction with any other use. (b) Conditional Use Permits. Tobacco retailers are not allowed in any zoning district unless listed as a conditional use. In zoning districts where tobacco retailers are a listed conditional use, tobacco retailers may be allowed upon the granting of a use permit by the Planning Commission or Zoning Administrator pursuant to Article 15-55. 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. Except as set forth in subsection (d), below, no tobacco retailer, not legally in existence as of the effective date of this ordinance, shall be granted a conditional use permit to operate on a site which is: (1) within five hundred (500) feet of a site occupied by another tobacco retailer; (2) within one thousand (1000) fee of a site occupied by a public or private elementary, middle, or high school; or (3) within 1000 feet of a site occupied by a City park. All distances shall be measured in a straight line from the point on the parcel boundary of the proposed tobacco retailer nearest to the subject use (i.e, existing tobacco retailer, school, or park) to the nearest point on the parcel boundary of the subject use. (d) Planning Commission Findings. A proposed tobacco retailer use that does not meet the criteria set forth in subsection (c), above, may be issued a conditional use permit by the Planning Commission if the Planning Commission (1) makes the findings specified in section 15-55.070 of this Code and (2) finds that the tobacco retailer use is compatible with the surrounding neighborhood and located and designed in a manner that is sensitive to the proximity of schools, parks, medical facilities, and other tobacco retailers. If a proposed tobacco retailer use would ordinarily be subject to review by the Zoning Administrator, the use permit shall be considered by the Planning Commission in the first instance if, in the course of staff review of the permit application, it is determined that the proposed use does not meet the criteria set forth in subsection (c), above. (e) Existing Tobacco Retailers: Procedure for Administrative Approval. If a tobacco retailer is legally in existence on October 16, 2009, the operator is not required to obtain a conditional use permit or satisfy the density requirements in subsection (d), above, as long as the operator applies for an Administrative Existing Tobacco Retailer Use Permit by April 16, 2010. The Director shall issue an Administrative Existing Tobacco Retailer Use Permit to any tobacco retailer legally in existence as of the date of enactment of this ordinance when the Director obtains a declaration from the tobacco retailer operator declaring that it will comply with the conditions in subdivision (b). No fee shall be charged for this permit. (f) Suspension or Revocation of a Use Permit. (1) The suspension and revocation provisions set forth in this subsection apply to 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 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 permit holder 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 permit holder 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 Hearing Officer pursuant to section 3-15.070 of this Code provided that any appeal must be filed within 10 days of receipt of the Director’s decision. An appeal shall stay all proceedings in furtherance of the appealed action. (g) 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. P:\SARATOGA\RESOLUTI\Tobacco Ordinances\Draft Tobacco Retailer Ordinance (Introduced 09-16-09).doc