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HomeMy WebLinkAboutOrdinance 327 Establishing 4-90 Tabacco Retailer LicenseORDINANCE NO. 327 AN ORDINANCE AMENDING ESTABLISHING ARTICLE 4-90 TOBACCO RETAILER LICENSE OF THE SARATOGA CITY CODE THE CITY COUNCIL OF THE CITY OF SARATOGA HEREBY ORDAINS AS FOLLOWS: Findings 1. The City Council of the City of Saratoga wishes to encourage responsible retailing of tobacco products, paraphernalia, and electronic smoking devices. 2. This ordinance serves as a tool for discouraging violations of laws related to retailing of tobacco products, paraphernalia, and electronic smoking devices, particularly those that prohibit or discourage sale or distribution of these items to minors and protect the public health and welfare. 3. This ordinance does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws. 4. The City Council of the City of Saratoga held a duly noticed public hearing on June 3, 2015, and after considering all testimony and written materials provided in connection with that hearing introduced this ordinance and waived the reading thereof. Therefore, the City Council hereby ordains as follows: Section 1. Adoption. The Saratoga City Code is hereby amended by the addition of Section 4-90 as set forth in the attached. Section 2. 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, paragraph, sub -paragraph, sentence, clause and phrase of this ordinance. If any section, sub -section, paragraph, sub -paragraph, sentence, clause or phrase of this ordinance is 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 3. California Environmental Quality Act The proposed amendments and additions to the City Code are Categorically Exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guideline section 15061(b)(3). CEQA applies only to projects which have the potential of causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject Page 1 of 7 to CEQA. In this circumstance the amendments to the existing City Code and related sections and additions of provisions and reference appendices to the existing Code; the amendments and additions would have a de minimis impact on the environment. Section 4. Publication. A summary of this ordinance shall be published in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. Following a duly notice public hearing the foregoing ordinance was introduced at the regular meeting of the City Council of the City of Saratoga held on the 3rd day of June 2015 and was adopted by the following vote on June 17, 2015. COUNCIL MEMBERS: AYES: Mayor Howard A. Miller, Vice Mayor Manny Cappello, Council Member Emily Lo, Mary -Lynne Bernald, Rishi Kumar NOES: None ABSENT: None ABSTAIN: None ATTEST: Crysta othelio, CITY CLERK APPROVED AS TO FORM: Richard Taylor, CITY ATTORNEY Howard A. Miller MAYOR, CITY OF SARATOGA, CALIFORNIA DATE: (4> V (7171 DATE: Page 2 of 7 ATTACHMENT - TOBACCO RETAILER LICENSE ORDINANCE Article 4-90 TOBACCO RETAILER LICENSE 4-90.010 Purpose. This Article is intended to set forth a local licensing process for tobacco retailers to ensure compliance with City business standards and practices; encourage responsible retailing of tobacco products and electronic smoking devices; discourage violations of laws related to tobacco products and electronic smoking devices, especially those laws that prohibit or discourage sale or distribution of tobacco products or electronic smoking devices to minors; and, protect the public health, safety, and welfare. This Article does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws. 4-90.020 Definitions. (a) Electronic smoking device means an electronic and/or battery-operated device the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine or other substances. Electronic smoking device includes any such device, whether it is manufactured, distributed, marketed, or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, electronic vape, vaporize or any other product name or description. Electronic smoking device does not include any product specifically approved by the United States Food and Drug Administration for the use in the mitigation, treatment, or prevention of disease. (b) Paraphernalia means cigarette papers or wrappers, pipes, holders of smoking materials of all types, rolling machines, and any other item designed for smoking or for ingestion of tobacco products. (c) Person means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity. (d) Retailer means any person who sells, exchanges, or offers to sell or exchange, for any form of consideration, tobacco products, paraphernalia, or electronic smoking devices. "Retailing" shall mean the doing of any of these things whether exclusively or in conjunction with any other use. The definition of a retailer is without regard to the quantity of tobacco products, paraphernalia, or electronic smoking devices sold, exchanged, or offered for sale or exchange. (e) Self -Service Display means the open display or storage of tobacco products, paraphernalia, or electronic smoking devices in a manner that is physically accessible in any way to the direct general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. (f) Smoking means engaging in an act that generates smoke from any substance, including, but not limited to: possessing a lighted pipe, lighted hookah pipe, an operating electronic smoking device, a lighted cigar, or a lighted cigarette or any kind; or lighting or igniting of a pipe, cigar, hookah pipe, or cigarette or any kind. (g) Tobacco product means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco (such as flavored tobacco); and any product or formulation of product 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 Page 3 of 7 any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. (h) Tobacco Retailer License is a license issued pursuant to this Article. 4-90.030 License required. It shall be unlawful for any person to act as a retailer in the City of Saratoga after September 30, 2015 without first obtaining and maintaining a valid Tobacco Retailer License pursuant to this Article for each location at which the activity is to occur. 4-90.040 Regulations and prohibitions. (a) Lawful business operation. It shall be a violation of this Article for any retailer to violate any local, state, or federal law applicable to tobacco products, electronic smoking devices, or the retailing of such products. (b) Location. Retailing activities shall be conducted at a fixed location and within an enclosed area of a commercial premises accessible to the general public during the hours of business operation. (c) Display of license. Each Tobacco Retailer License shall be prominently displayed in a publicly visible place at the licensed location. (d) License nontransferable. A Tobacco Retailer License may not be transferred from one person to another or from one location to another. Whenever a new person obtains possession of a ten -percent or greater interest in the stock, assets, or income of a business (other than a security interest for the repayment of debt) for which a Tobacco Retailer License has been issued, a new license shall be required. (e) False and misleading advertising prohibited. A retailer either without a valid Tobacco Retailer License or with a suspended license shall not display any tobacco products, paraphernalia, or electronic smoking devices nor display any advertisement that promotes the sale or distribution of such products from the retailer's location or that could lead a reasonable consumer to believe that tobacco products, paraphernalia, or electronic smoking devices can be obtained at that location. (f) Minimum age for purchase. No retailer shall sell, give, or otherwise transfer tobacco product, paraphernalia, or electronic smoking devices to a person under eighteen years of age. (g) Positive identification required. No retailer shall sell, give, or otherwise transfer tobacco product, paraphernalia, or electronic smoking devices to another person who appears to be under 30 years of age without first examining the customer's identification to confirm that the customer is at least eighteen years of age. (h) Minimum age for engaging in tobacco sales. No retailer may employ or otherwise allow a person under eighteen years of age to sell, give, or otherwise transfer to customers tobacco product, paraphernalia, or electronic smoking devices. (i) Limitation on storefront advertising. Storefront advertising shall comply with Article 15-30 of this Code and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the establishment. However, this shall not apply to an establishment where there are no windows or where existing windows are located at a height that preclude view of the interior of the premises by a person standing outside the premises. (j) Vending machines prohibited. No tobacco product, paraphernalia, or electronic smoking device shall be sold, offered for sale, or distributed to the public from a vending Page 4 of 7 machine or appliance, or any other coin or token operated mechanical device designed or used for vending purposes, including but not limited to, machines or devices that use remote control locking mechanisms. (k) Self -Service Displays prohibited. No tobacco product, paraphernalia, or electronic smoking device shall be sold, offered for sale, or distributed to the public from a self- service display. (1) Limited, conditional privilege. Nothing in this Article shall be construed to grant any person obtaining and maintaining a Tobacco Retailer License any status or right other than the limited, conditional privilege to act as a retailer at the location in the City identified on the face of the license. 4-90.040 Application procedure. (a) All applications for a Tobacco Retailer License shall be submitted on a form supplied by the City of Saratoga. (b) Any person holding a Tobacco Retailer License shall inform the City in writing of any change in the information submitted on an application for such license within 14 calendar days of a change. (c) All information specified in an application shall be subject to disclosure under the California Public Records Act or any other applicable law. (d) It is the responsibility of each retailer to be informed of all laws applicable to retailing, including those laws affecting the issuance of a Tobacco Retailer License. No retailer may rely on the issuance of a Tobacco Retailer License as a determination by the City that the retailer has complied with all laws applicable to retailing. A Tobacco Retailer License issued contrary to this Article, to any other law, or on the basis of false or misleading information supplied by a retailer shall be revoked. 4-90.050 Issuance of license. (a) Upon receipt of a complete application for a Tobacco Retailer License and the application and license fees, the City shall issue a license, unless substantial evidence demonstrates that one or more of the following basis for denial exist: 1) The information presented in the application is inaccurate or false. 2) The application seeks authorization for retailing by a person to whom this Article prohibits issuance of a Tobacco Retailer License. 3) The application seeks authorization for retailing that is prohibited pursuant to this Article or that is unlawful pursuant to any other law. (b) A Tobacco Retailer License shall be revoked if the City finds that one or more of the bases for denial of a license under this section existed at the time the application was made or at any time before the license was issued. Such a revocation shall be without prejudice to the filing of a new license application. (c) A decision to deny issuance of a Tobacco Retailer License or to revoke such a license that has been wrongly issued may be appealed pursuant to 4-90.100 of this Article. 4-90.060 License term, renewal, expiration, and fees. (a) Term of license. The term of a Tobacco Retailer License is one year. A license is invalid thirty (30) days after the expiration date of the license. (b) Renewal of license. The City shall renew a valid Tobacco Retailer License upon timely payment of the annual license fee. A license may not be renewed more than three months after its expiration. Page 5 of 7 (c) Issuance of license after revocation or expiration of license. To apply for a new Tobacco Retailer License more than three (3) months after expiration of a Tobacco Retailer License or following revocation of a Tobacco Retailer License that was wrongly issued, a retailer must submit a complete application for a license, along with the application fee and annual license fee. (d) Fee for new licenses and renewals. The fees to apply for and issue or renew a Tobacco Retailer License shall be established from time to time by resolution of the City Council. The fees shall be calculated so as to recover any amount up to the cost of administration of this Article, including for example, issuing a license, administering the program, and monitoring compliance. Fees shall not exceed the cost of the program authorized by this Article. Fees are nonrefundable except as may be required by law. A retailer license may not be issued or renewed until full payment of any applicable fees is made. 4-90.070 Enforcement. (a) Any peace officer may enforce the penal provisions of this Article. The City Manager may designate any number of additional persons to monitor compliance with this Article. (b) The City shall not enforce any law establishing a minimum age for tobacco product, paraphernalia, or electronic smoking device purchases or possession against a person who otherwise might be in violation of such law because of the person's age if the violation occurs when: 1) The purchaser (hereinafter referred to as "youth decoy') is participating in a compliance check supervised by a peace officer or designated official of the City; 2) The youth decoy is acting as an agent of a person designated by the City to monitor compliance with this Article; or 3) The youth decoy is participating in a compliance check funded in part, either directly or independently through subcontracting, by the County or the State of California. (c) Any violation of this Article is hereby declared to be a public nuisance. (d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Article shall also constitute a violation of this Article. (e) For purpose of this Article, each day on which a tobacco product, paraphernalia, or electronic smoking device is offered for sale in violation of this Article constitutes a separate violation. (a) Violations of this Article shall be subject to issuance of administrative citations pursuant to Article 3-30 and suspended from holding or receiving a Tobacco Retailer License as follows: 1) First citation within one year. For up to thirty (30) calendar days from the date of violation, no Tobacco Retailer License shall be issued and any existing license shall be suspended. 2) Second or subsequent citations within one year. For up to one (1) year from the date of violation, no Tobacco Retailer License shall be issued and any existing license shall be revoked. (b) Notwithstanding any other provisions of this Article, prior violations of this Article at a location shall continue to be counted against a location and license ineligibility and suspension periods shall continue to apply to a location unless: 1) One hundred (100) percent of the interest in the stock, assets, or income of the business, other than security interest for the repayment of debt, has been transferred to one or more new owners; and Page 6 of 7 2) The City is provided clear and convincing evidence that the transfer was pursuant to an arm's length transaction in good faith between two or more informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is to avoid the effect of the violations of this Article is not an arm's length transaction. 4-90.100 Appeals. (a) Request for hearing. A decision to deny issuance of a Tobacco Retailer License or to revoke a Tobacco Retailer License that has been wrongly issued may be appealed to the City Manager, subject to the following requirements and procedures. 1) All appeals must be submitted in writing to the City Clerk no later than 15 calendar days after receipt of notice of the appealed action. If such an appeal is made, it shall stay enforcement of the appealed action. 2) No later than 15 calendar days after receipt of the appeal, the City Manager shall set an appeal hearing at the earliest practicable time. The City Clerk shall give notice of the hearing to the parties at least ten calendar days before the date of the hearing. (b) Conduct of hearing. Hearings pursuant to this Article shall be conducted pursuant to procedures adopted by the City Manager. Strict rules of evidence shall not apply. Any relevant evidence may be admitted if it is the sort of evidence on which responsible persons are accustomed to rely on in the conduct of serious affairs. (c) City Manager's decision. All parties shall be given written notice of the City Manager's decision within fifteen business days of the hearing. The decision of the City Manager shall be supported by the weight of the evidence. The decision of the City Manager shall be final and shall not be subject to appeal to the City Council. (d) Appellant's failure to appear at hearing. Failure of the appellant to appear at a hearing shall be considered a withdrawal of the request for a hearing and the decision being appealed shall remain in effect. 678357.4 683242.3 Page 7 of 7 CITY OF SARATOGA ORDINANCE CERTIFICATE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ) CERTIFIED COPY OF ORDINANCE CITY OF SARATOGA ) ADOPTION I, Crystal Bothelio, City Clerk for the City of Saratoga in said County of Santa Clara, and State of California, do hereby certify that the attached is a true and correct copy of Ordinance No. 327, adopted by the Saratoga City Council on June 17, 2015 by the following vote: AYES: Mayor Howard A. Miller, Vice Mayor Manny Cappello, Council Member Emily Lo, Mary -Lynne Bernald, Rishi Kumar NOES: ABSTAIN: ABSENT: Ordinance I hereby further certify that a summary of the ordinance was published Summary in accordance with Government Code Section 36933 on the following dates: June 12, 2015 and June 26, 2015. Said ordinance shall be effective July 17, 2015. ❑ Ordinance I hereby further certify that the full text of the ordinance was published Full Text in accordance with Government Code Section 36933 on the . Said ordinance shall be effective CrysBothelio, City Clerk M