HomeMy WebLinkAboutOrdinance 357 - amending Ch. 4, Tobacco Retailer licenseORDINANCE NO. 357
AN ORDINANCE AMENDING CHAPTER 4
OF THE SARATOGA CITY CODE, TOBACCO RETAILER LICENSE
THE CITY COUNCIL OF THE CITY OF SARATOGA HEREBY ORDAINS AS FOLLOWS:
Findings
1. The City of Saratoga wishes to amend the provisions of the City Code concerning Tobacco
Retailer License regulations to strengthen penalties for violations in an effort to discourage
underage tobacco sales.
2. The City of Saratoga also seeks to further protect minors and underage individuals from
tobacco by prohibiting sale of tobacco at pharmacies and of flavored tobacco products, not
including menthol, as these products are often flavored and packaged to appeal to youth
and serve as a gateway to tobacco addiction.
3. The City Council of the City of Saratoga held a duly noticed public hearing on October 3,
2018, 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 amended as set forth in Attachment 1. Text to be added is indicated in
bold double -underlined font (e.g., bold double -underlined) and text to be deleted is indicated in
strikeout font (e.g., strikeeut). Text in standard font is readopted by this ordinance. Text in italics
(e.g., italics) is descriptive only and is not part of the amendments to the City Code.
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 to CEQA. In
this circumstance the amendments to the existing City Code address regulation of animals only
and 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 noticed 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 October 2018, and was
adopted by the following vote on October 17, 2018.
COUNCIL MEMBERS:
AYES: Mayor Mary -Lynne Bernald, Vice Mayor E. Manny Cappello, Council Members Howard
A. Miller, Emily Lo, Rishi Kumar
NOES:
ABSENT:
ABSTAIN:
SIGNED:
3trcvio.di.d�
Mary-Ly Bald
MAYO , CITY OF SARATOGA, CALIFORNIA
DATE: /j}/ZZ(iv
ebbie Bretschneider,
INTERIM CITY CLERK
APPROVED AS TO FORM:
DATE: I Q l 1
Richard Taylor
CITY ATTORNEY
Attachment 1 — Amendments to Article 4-90 of the Saratoga City Code
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, vaporizer 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) Flavored tobacco product means anv tobacco product that imparts a taste or aromas
other than the taste or aroma of tobacco or menthol, imparted either prior to or during
motion of a tobacco roduct r anv bvnroduct roduced by the tobacco prod act
includin ' , but not limited t 1. tastes or aromas relati
chocolate vanilla. honey, candy. cocoa. dessert. alcoholic b•vera;;e, herb, or spice•
rovided. however, that a tobacco product shall not be determined to be flavored
acco olely becaus . f the u e of additive or flavoring or the nrovisi n of ingredient
information.
(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.
(ell) 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.
(eF 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.
(fg) 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 any cessation
product specifically approved by the United States Food and Drug Administration for use in
treating nicotine or tobacco dependence.
(glt) 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 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. No tobacco retailers established after September 16, 2016, shall be granted a
tobacco retailer license for a location which is: within five hundred feet of a site occupied by
another tobacco retailer; within one thousand feet of a site occupied by a public or private
elementary, middle, or high school; or within one thousand 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 location 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.
Notwithstanding the foregoing, a tobacco retailer license may be issued for use of a location
for which a tobacco retailer license was in effect prior to September 16, 2016 and may be
renewed thereafter unless it expires due to non -renewal or is revoked in accordance with
section 4-90.070 of this Code, and within ninety days of the date of the application for the
newtb +i, ,
(cl Pharmaciec No retailer Hermit may be is ued to authorize retailin activitie at any
location where the I rofession of nharma v is practiced b a pharmacist licensed the
State of California in accordance with the Business and Professions Code and where
prescription drugs are offered for sale re�ard1e of whether other retail good in
addition to pre crintion pharmaceuticals are offered for calm
(e) 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#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.
(fg) Minimum age for purchase. No retailer shall sell, give, or otherwise transfer tobacco
product, paraphernalia, or electronic smoking devices to a person under the minimum age for
purchase as set by State law.
(gib) 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 thirty years of age without first examining the customer's identification to confirm that
the customer is at least the minimum age for purchase as set by State law.
(hD Minimum age for engaging in tobacco sales. No retailer may allow a person under the
minimum age for purchase as set by State law of tobacco products 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.
(ij) Vending machines prohibited. No tobacco product,
electronic
device shall be sold, offered for sale, or distributed tothe public from or vending mach nelng orr
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.
(lei) Self-service displays prohibited. No tobacco product,
device shall be sold, offered for sale, or distributed to the public from a self-service di play.g
nrorohibite� No flavored tnhaorn mod hall 1
be cr
offered for sale or no ed �• ith ntent to CPII or offer for al
(1g) 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.
4-90.045 - Application procedure.
(a) All applications for a tobacco retailer license shall be submitted to the Director of Finance
and Administra ys CPrvicec 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 fourteen 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 Director of Finance and Administrative Services shall issue a license,
unless substantial evidence demonstrates that one or more of the following bases 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 at a location or in some other manner
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 Director of Finance and
Administrative Services 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 Section 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
days after the expiration date of the license.
(b) Renewal of license. The G43! Director of Finance and Administrative Services shall renew
a valid tobacco retailer license upon timely payment of the annual license fee. A license may
not be renewed more than ninety days after its expiration.
(c) Issuance of license after revocation or expiration of license. To apply for a new tobacco
retailer license more than ninety days 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 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.
(f) 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 24 months. For up to thifty skty calendar days from the
date of violation of the administrative citation issuance, no tobacco retailer license shall
be issued and any existing license shall be suspended.
(2) Second or subsequent citations within enc ycar 24 months. For up to one year 24
months from the date of violation of the administrative citation issuance, no tobacco
retailer license shall be issued and any existing license shall be revoked.
(g) 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 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
(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 fifteen 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 fifteen 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.
1042582.1