HomeMy WebLinkAboutOrdinance 375 -Tabacco amendmentORDINANCE NO.375
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
The City of Saratoga wishes to amend the provisions of the City Code concerning
Tobacco Retailer License regulations to prohibit the sale of electronic smoking
products to discourage underage tobacco use.
2. The Journal of American Medical Association reported in a November 5, 2019
article titled "e-Cigarette Use Among Youth in the United States, 2019" that since
2014 electronic smoking devices have been the most commonly used tobacco
product among young people and approximately 4 million high school students in
the United States identified as current electronic smoking product users, meaning
that they had used an electronic smoking device within the past 30 days.
3. The 2018 National Youth Tobacco Survey showed notable increases in youth use
of electronic smoking devices. There was a rise of more than 75% in the number of
high school -age children that reported using e-cigarettes in the last 30 days when
compared to 2017. The use of e-cigarettes among students in middle school
increased by almost 50%.
4. The County of Santa Clara Public Health Department reported in August 2019 that
roughly 1 in 3 Santa Clara County teens stated that they have tried electronic
smoking products and more than 13% of teens are current electronic smoking
product users, meaning that they had used an electronic smoking device within the
past 30 days. Furthermore, more than 2 in 5 teens reported that they were able to
purchase their own electronic smoking devices.
5. Nicotine exposure in adolescence can negatively impact learning, memory, and
attention. It can also increase anxiety, mood swings, and irritability. For the
purposes of this ordinance, nicotine does not include any food products as that term
is defined pursuant to Section 6359 of the California Revenue and Taxation Code.
6. The City Council of the City of Saratoga held a duly noticed public hearing on
September 2, 2020, and after considering all testimony and written materials
provided in connection with that hearing introduced this ordinance and waived the
reading thereof.
Page 1 of 8
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., stfikee ). 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 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 2nd day of September
2020, and was adopted by the following vote on September 16, 2020.
Page 2 of 8
AYES: Mayor Howard A. Miller, Vice Mayor Mary -Lynne Bernald, Council
Members Yan Zhao, Rishi Kumar
NOES:
ABSENT:
ABSTAIN:
ED:
_ jv 6]k-//
Ho and A. Miller
MAYOR, CITY OF SARATOGA, CALIFORNIA
AT T-
DATE: %ld3- �Ti01-v
e e Bretschneider, CMC
CITY CLERK
APPROVED AS TO FORM:
Richard Taylor
CITY ATTORNEY
DATE: l ) �/;?,(> -?,D
Page 3 of 8
ATTACHMENT 1— AMENDMENTS TO ARTICLE 4-20 OF THE 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 eleet,-eni . smoking devi e ; discourage violations of laws related to
tobacco products and e'eetr-e ie smoking
devi es, especially those laws that prohibit or
discourage sale or distribution of tobacco products or- eleetfenie s....,,king de to minors;
prohibit sales of electronic smoking products, 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 deviee o uct means
-- ..--, ..-. --- -- ...»> ..,..,.,---- .,..
--..b,
.....-... --- - --
IIEleetrenie
---- --
----
.... .................,..
11
it is
smoking
f whether-
) marketed,
or- sold as an.
7 eleetfenie 7
hookah, -,r-
7 eleetfonie
pipe,
deser-iption.
eleetrenie
11
eleetroniev 7 or- any
11
other-
prodtte4 name or-
by the
United 8
smoking produet
Food Dizug Administfation for- the
speeifleally
in the
approved
and use
diseaseany of the following products:
1) Any device or delivery system that
can be
mifigatio 5
used to deliver
nicotine
5 of
prevention of
or other
chemicals in aerosolized or vaporized
form,
including but
not
limited
to an e-
i arette, e-cigar, a -pipe, e-hookah,
vape
pen, electronic
vape,
vaporizer,
or any
other product name or description.
AM component, part, or accessory
of such
a device or delivery
system
that is
used during its operation.
3) Any flavored or unflavored liquid or substance
containing
nicotine
or other
chemicals, whether sold separately
or sold
in combination
with any
device or
elivea system that could be used to
delivery nicotine or
other
chemicals
in
aerosolized or vaporized form.
4) Any product for use in an electronic
smoking
device or delivery
system whether
or not it contains nicotine or tobacco
or is derived from
nicotine
or tobacco.
(5) Electronic smoking products shall not
(i) any battery, battery charger, carrying
include:
case, or other
accessory
not used in
the operation of the device if sold separately;
(ii) any product that has been approved
or
by the United States
Food
and Drug
Administration for sale as a tobacco
cessation
product or
for
other
therapeutic
purposes where that product is marketed
and sold solelv
for
such
approved use.
b) Flavored tobacco product means any tobacco product that imparts a taste or aroma,
other than the taste or aroma of tobacco or menthol, imparted either prior to or during
consumption of a tobacco product or any byproduct produced by the tobacco product,
including, but not limited to, tastes or aromas relating to mint, wintergreen, fruit,
Page 4 of 8
chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice;
provided, however, that a tobacco product shall not be determined to be flavored tobacco
solely because of the use of additives or flavorings or the provision of ingredient
information.
(c) 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. Until January 1, 2021 paraphernalia includes electronic smoking
products,
(d) Person means any natural person, partnership, cooperative association, private
corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
(e) Retailer means any person who sells, exchanges, or offers to sell or exchange, for any
form of consideration, tobacco products Zr —paraphernalia, or e'ee*, ,.,: smoking
i„0
dues. "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 gr-paraphernalia, or eleetfenie sY.,, k4ng devi es sold,
exchanged, or offered for sale or exchange.
(f) Self-service display means the open display or storage of tobacco products P=r=;
paraphernalia, or-eleetreniesmoking 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.
(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
any product that has been approved by the United States Food and Drug
Administration for sale as a tobacco cessation product or for other therapeutic
purposes where that product is marketed ,and sold solely for such approved use.
(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 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
Page 5 of 8
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.
(c) Pharmacies. No retailer permit may be issued to authorize retailing activities at any
location where the profession of pharmacy is practiced by a pharmacist licensed by the
State of California in accordance with the Business and Professions Code and where
prescription drugs are offered for sale regardless of whether other retail goods in addition
to prescription pharmaceuticals are offered for sale.
(d) Display of license. Each tobacco retailer license shall be prominently displayed in a
publicly visible place at the licensed location.
(e) 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.
(f) 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 pr
paraphernalia, 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 gam —paraphernalia, or- eleetreni
smoking an be obtained at that location.
(g) Minimum age for purchase. No retailer shall sell, give, or otherwise transfer tobacco
product �—paraphernalia, or ele *,., nie s.,..,a 4ng devices to a person under the minimum
age for purchase as set by State law.
(h) Positive identification required._ No retailer shall sell, give, or otherwise transfer
tobacco product R—paraphernalia, or elee#enie smoking deviees 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.
(i) 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 or —paraphernalia, ^r eleetronie smoking
d viees.
(j) 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.
Page 6 of 8
(k) Vending machines prohibited. No tobacco product pr -paraphernalia,. o~ eleetreftic-
smoking deviee shall be sold, offered for sale, or distributed to the public from a vending
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.
(1) Self-service displays prohibited. No tobacco product Q=r=—paraphernalia, or eleetfenic
smoking device shall be sold, offered for sale, or distributed to the public from a self-
service display.
(m) Flavored tobacco products prohibited. No flavored tobacco product shall be sold,
offered for sale, or possessed with intent to sell or offer for sale.
(n) Electronic smoking products prohibited. Beginning January 1, 2021 no electronic
smoking products shall be sold, offered for sale, or possessed with intent to sell or
offer for sale.
(nq) 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.
4-90.070 - 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 product deviee 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
eieetfep4e smoking auct 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 twenty-four months. For up to sixty calendar days from the
date 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 twenty-four months. For up to twenty-four
months from the date of the administrative citation issuance, no tobacco retailer
license shall be issued and any existing license shall be revoked.
Page 7 of 8
(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.
«W:Uf:&M
Page 8 of 8
\y of SARgT0
9 CITY OF SARATOGA
ORDINANCE CERTIFICATE
1956
q(/FORNP
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
CITY OF SARATOGA
CERTIFIED COPY OF ORDINANCE
ADOPTION
I, Debbie Bretschneider, 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. 375, adopted by the Saratoga City Council on September 16, 2020 by the following vote:
AYES: Miller, Bernald, Zhao, 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
date: August 21, 2020, September 11, 2020, and September 25, 2020.
Said ordinance shall be effective January 1, 2021.
❑ 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
Dated this 23rd day of September, 2020.
ie retschnei er, CMC, City Clerk