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HomeMy WebLinkAboutORD 1049ORDINANCE NO. 1049 AN ORDINANCE OF THE CITY OF PALM DESERT, CALIFORNIA REGARDING THE LICENSURE OF TOBACCO RETAILERS AND AMENDING THE PALM DESERT MUNICIPAL CODE The City Council of the City of Palm Desert, California does ordain as follows. - SECTION L FINDINGS. The City Council of the City of the City of Palm Desert, California hereby finds and declares as follows: WHEREAS, state law prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Cal. Pen. Code § 308); and WHEREAS, state law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 18 years of age (Bus. & Prof. Code § 22956) and provides procedures for using persons under 18 years of age to conduct onsite compliance checks of tobacco retailers (Cal. Bus. & Prof. Code § 22952); and WHEREAS, state law requires that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under 18 years of age is illegal (Cal. Bus. & Prof. Code § 22952, Cal. Pen. Code § 308); and WHEREAS, state law prohibits the sale or display of cigarettes through a self-service display and prohibits public access to cigarettes without the assistance of a clerk (Cal. Bus. & Prof. Code § 22962); and WHEREAS, state law prohibits the sale of "bidis" (hand -rolled filterless cigarettes imported primarily from India and Southeast Asian countries) except in adult -only establishments (Cal. Pen. Code § 308.1); and RMBUSOM212283 URL 11VAIN U PI 11U . I U4 y WHEREAS, state law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than 20 and prohibits the manufacture, distribution, or sale of "roll -your -own" tobacco in packages containing less than 0.60 ounces of tobacco (Cal. Pen. Code § 308.3); and WHEREAS, state law prohibits public school students from smoking or using tobacco products while on campus, while attending school -sponsored activities, or while under the supervision or control of school district employees (Cal. Educ. Code § 48901(a)); and WHEREAS, despite these restrictions, minors continue to obtain cigarettes and other tobacco products at alarming rates. Each year, an estimated 924 million packs of cigarettes are consumed by minors 12 to 17 years of age, yielding the tobacco industry $480 million in profits from underage smokers; and WHEREAS, in a 2001 California youth -buying survey, 17.1% of retailers surveyed unlawfully sold tobacco products to minors; and WHEREAS, 98% of adults who have ever smoked tried their first cigarette by the age of 18 and the average age at which smokers try their first cigarette is 14 1/2, and WHEREAS, the City of Palm Desert, California has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in protecting children from being lured into illegal activity through the misconduct of adults; and WHEREAS, the California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 46' 383 (1993), have affirmed the power of the City of Palm Desert, California to regulate business activity in order to RMBUSZJE. 212283 -2- Utu11NAi Ub NU. IU4V discourage violations of law; and WHEREAS, a requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the City of Palm Desert, California to regulate operation of lawful businesses to discourage violations of federal, state, and local tobacco -related laws; and WHEREAS, 65% of California's key opinion leaders surveyed support implementation of tobacco -licensing requirements. NOW THEREFORE, it is the intent of the City Council of the City of Palm Desert, California, in enacting this ordinance, to encourage responsible tobacco retailing and to discourage violations of tobacco -related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalty provided therefore. SECTION H. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of Palm Desert, California hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. SECTION III. Chapter 8.34 of the Palm Desert Municipal Code is hereby amended to read as follows: RMBUSiDIEt212283 -3 - ORDINANCE NO. 1049 Sec. 8.34.010. LICENSING -TOBACCO RETAILER DEFINITIONS. The following words and phrases, whenever used in this article, shall have the meaning defined in this section unless the context clearly requires otherwise: (a) "Department" means Code Compliance Department of the Department of Development Services. (b) "Person" means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity. (c) "Proprietor" means a Person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a Person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a Person can or does have, or can or does share, ultimate control over the day-to-day operations of a business. (d) "Tobacco Product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco. (e) "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. (f) "Tobacco Retailer" means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, Tobacco Products, or Tobacco Paraphernalia; "Tobacco Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, Tobacco Products, or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange. Sec. 8.34.020. REOUIREMENT FOR TOBACCO RETAILER LICENSE. (a) It shall be unlawful for any Person to act as a Tobacco Retailer without first niBUSOJE\212283 '4' ORDINANCE NO. 1049 obtaining and maintaining a valid Tobacco Retailer's license pursuant to this chapter for each location at which that activity is to occur. No license may issue to authorize Tobacco Retailing at other than a fixed location. For example, Tobacco Retailing by Persons on foot and Tobacco Retailing from vehicles are prohibited. (b) The payment of the license fee designated in Section 8,34.060 confers paid status upon a license for a term of one year. Each Tobacco Retailer shall apply for the renewal of his or her Tobacco Retailer's license no later than thirty (30) days prior to expiration of the payment term. (c) Nothing in this chapter shall be construed to grant any Person obtaining and maintaining a Tobacco Retailer's license any status or right other than the right to act as a Tobacco Retailer at the location in the City identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supercede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code section 6404.5. Sec. 8.34.030. APPLICATION PROCEDURE. Application for a Tobacco Retailer's license shall be submitted in the name of each Proprietor proposing to conduct retail tobacco sales and shall be signed by each Proprietor or an authorized agent thereof. It is the responsibility of each Proprietor to be informed of the laws affecting the issuance of a Tobacco Retailer's license. A license that is issued in error or on the basis of false or misleading information supplied by a Proprietor may be revoked pursuant to Section 8.34.090 of this chapter. All applications shall be submitted on a form supplied by the Department and shall contain the following information. - R MUSOJE,212283 The name, address, and telephone number of each Proprietor. 2. The business name, address, and telephone number of the single fixed -5- Vt(1J11VHrilG Au. lV117 location for which a Tobacco Retailer's license is sought. 3. The name and mailing address authorized by each Proprietor to receive all license -related communications and notices (the "Authorized Address"). If an Authorized Address is not supplied, each Proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph 2. above. 4. Whether or not any Proprietor has previously been issued a license pursuant to this chapter that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation. 5. Such other information as the Department deems necessary for the administration or enforcement of this ordinance. Sec. 8.34.040. ISSUANCE OF LICENSE. Upon the receipt of an application for a Tobacco Retailer's license and the license fee, the Department shall issue a license unless substantial record evidence demonstrates one of the following bases for denial: (a) the application is incomplete or inaccurate, or (b) the application seeks authorization for Tobacco Retailing by a Proprietor for which or whom a suspension is in effect pursuant to Section 8.34.080 of this chapter; or by a Proprietor which or who has had a license revoked pursuant to Section 8.34.090 of this chapter, or (c) the application seeks authorization for Tobacco Retailing that is prohibited pursuant to Section 8.34.020 of this chapter (e.g., mobile vending)], that is unlawful pursuant to this Code Palm Desert Code (e.g. the zoning code)], or that is unlawful pursuant to any other local, state, or federal law. R fBUS\DJE\21zzs3 -6- ULVJINANt-t NU. IU4y Sec. 8.34.050. DISPLAY OF LICENSE. Each license shall be prominently displayed in a publicly visible location at the licensed premises. Sec. 8.34.060. FEES FOR LICENSE. The fee to issue or to renew a Tobacco Retailer's license shall be established by resolution of the City Council of Palm Desert, California. The fee shall be calculated so as to recover no more than the total cost of license administration and enforcement, including, for example, but not limited to, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators. Fees are nonrefundable except as may be required by law. Sec. 8.34.070. LICENSES NONTRANSFERABLE. A Tobacco Retailer's license is nontransferable. If the information required in the license application pursuant to Section 8.34.070, items 1, 2, or 3, changes a new Tobacco Retailer's license is required before the business may continue to act as a Tobacco Retailer. For example, if a Proprietor to whom a license has been issued changes business location, that Proprietor must apply for a new license prior to acting as a Tobacco Retailer at the new location. Or if the business is sold, the new owner must apply for a license for that location before acting as a Tobacco Retailer. Sec. 8.34.080. LICENSE VIOLATION. VIOLATION OF TOBACCO -RELATED LAWS. It shall be a violation of a Tobacco Retailer's license for a licensee or his or her agent or employee to violate any local, state, or federal tobacco -related law. (b) LICENSE COMPLIANCE MONITORING. Compliance with this ordinance shall be monitored by Code Compliance Department. The City Council anticipates that compliance checks of a sample of Tobacco Retailers selected or based on complaints will be conducted at least one time during each twelve-month period. RMBUS DJE12122R3 -7- V r.0 LIV H IV I. L. IVV. LV4I See. 8.34.090. SUSPENSION OR REVOCATION OF LICENSE. (a) SUSPENSION OR REVOCATION OF LICENSE FOR VIOLATION. In addition to any other penalty authorized by law, a Tobacco Retailer's license shall be suspended or revoked if the Department finds, after notice to the licensee and opportunity to be heard, that the licensee or his or her agents or employees has or have violated the requirements of this Ordinance or other conditions of the license imposed pursuant to Section 8.34.080 above. (1) Upon a finding by the Department of a first license violation within any sixty -month (60) period, the license shall be suspended for thirty (30) days. (2) Upon a finding by the Department of a second license violation within any sixty -month (60) period, the license shall be suspended for ninety (90) days. (3) Upon a finding by the Department of a third license violation within any sixty -month (60) period, the license shall be suspended for one (1) year. (4) Upon a finding by the Department of a fourth license violation within any sixty -month (60) period, the license shall be revoked and the Proprietor or Proprietors who had been issued the license shall never again be issued a Tobacco Retailer's license pursuant to this charter. (b) SUSPENSION OF LICENSE FOR FAILURE TO PAY RENEWAL FEE. A Tobacco Retailer's license that is not timely renewed pursuant to Sec. 8.34.020(b) shall automatically be suspended by operation of law. If not renewed, a license shall be automatically revoked two (2) years after the renewal date. (c) REVOCATION OF LICENSE ISSUED IN ERROR. A Tobacco Retailer's license shall be revoked if the Department finds, after notice and opportunity to be heard, that one RMBUS\DJEQ 12283 -8 - ORDINANCE NO. 1049 or more of the bases for denial of a license under Section 8.34.040 existed at the time application was made or at anytime before the license issued. The revocation shall be without prejudice to the filing of a new application for a license. (d) APPEAL OF SUSPENSION OR REVOCATION. A decision of the Department to revoke or suspend a license is appealable to the City Council and must be filed with the City Clerk within ten days of mailing of the Department's decision. An appeal shall stay all proceedings in furtherance of the appealed action. A suspension or revocation pursuant to Section 8.34.090(b) is not subject to appeal. Sec. 8.34.100. ADMINISTRATIVE FINE. (a) GROUNDS FOR FINE. If the Department finds, based on substantial evidence, that any unlicensed Person, including a Person named on a revoked or suspended license, has engaged in Tobacco Retailing in violation of Section 8.34.020 of this chapter, the Department shall fine that Person as follows: 1. a fine not exceeding one hundred dollars ($100) for a first violation in any twelve-month (l 2) period; or 2. a fine not exceeding two hundred dollars ($200) for a second violation in any twelve-month (l 2) period; or 3. a fine not exceeding five hundred dollars ($500) for a third or subsequent violation in any twelve-month (12) period. Each day that such a Person engages in Tobacco Retailing shall constitute a separate violation. RIMUS', M212283 -9- ORDINANCE NO. 1049 (b) NOTICE OF VIOLATION. A notice of violation and of intent to impose a fine shall be personally served on, or sent by certified mail to, the Person or Persons subject to the fine. The notice shall state the basis of the Department's determinations and include an advisement of the right to request a hearing to contest the fine. Any request for a hearing must be in writing and must be received by the Department within ten (10) calendar days of personal service of the notice on the Person or Persons subject to a fine or within fifteen (15) calendar days if the Person or Persons subject to a fine are served by mail. (c) IMPOSITION OF FINE. If no request for a hearing is timely received, the Department's determination on the violation and the imposition of a fine shall be final and payment shall be made within thirty (30) calendar days of written demand made in the manner specified above for a notice of violation. If the fine is not paid within that time, the fine may be collected, along with interest at the legal rate, in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the Person or Persons subject to the fine shall also be liable for the costs of the suit and attorney's fees incurred by the City in collecting the fine. (d) NOTICE OF HEARING. If a hearing is requested pursuant to subsection (b) of this section, the Department shall provide written notice, within forty-five (45) calendar days of its receipt of the hearing request, to the Person or Persons subject to a fine of the date, time, and place of the hearing in the manner specified above for a notice of violation. (e) HEARING DECISION. The hearing officer shall render a written decision and findings within twenty (20) working days of the hearing. Copies of the decision and findings shall be provided to the Person or Persons subject to a fine in the manner specified above for a notice of violation. (f) FINALITY OF THE HEARING OFFICER'S DECISION. The decision of the hearing officer shall be the final decision of the City. RNBUS\DJE\212283 -1 0- U ZWILV t11V UD IYU. IU,7 ?Oft., (g) APPEAL TO SUPERIOR COURT OF LIMITED JURISDICTION. Notwithstanding the provisions of section 1094.5 or section 1094.6 of the Code of Civil Procedure, within twenty (20) days after personal service of the hearing officer's decision and findings, or within twenty-five (25) days if served by mail, any Person subject to a fine may seek review of the hearing officer's decision and findings by the superior court of limited jurisdiction. A copy of the notice of appeal to the superior court shall be timely served in person or by first- class mail upon the Department by the contestant. The appeal shall be heard de novo, except that the contents of the Department's file in the case shall be received in evidence. A copy of the records of the Department of the notices of the violation and of the hearing officer's decision and findings shall be admitted into evidence as prima facie evidence of the facts stated therein. (h) FAILURE TO PAY FINE. If no timely notice of appeal to the superior court is filed, or the Department is not timely served with a copy of a notice of appeal, the hearing officer's decision and findings shall be deemed confirmed and the fine shall be collected pursuant to subsection (c) of this Section. Sec. 8.34.110. ENFORCEMENT. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. (a) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this ordinance shall constitute a violation. (b) In addition to the administrative enforcement procedures provided by Section 8,34.090 of this chapter violations of this ordinance may, in the discretion of the Prosecutor, be prosecuted as infractions. (c) Violations of this ordinance are hereby declared to be public nuisances. (d) Violations of this ordinance are hereby declared to be unfair business practices and RMBUS\DJE\212283 - 1 1- V P�U L1V HN 1. L, IVU. IV4y are presumed to at least nominally damage each and every resident of the community in which the business operates. (e) In addition to other remedies provided by this chapter or by other law, any violation of this ordinance may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (f) Any Person acting for the interests of itself, its members, or the general public may bring an action for injunctive relief to prevent future such violations or to recover such actual damages as he or she may prove. SECTION IV. The City Clerk shall certify the passage and adoption of this Ordinance and shall cause the same to be published once in the newspaper of general circulation printed within the City of Palm Desert, California. It shall be in full force and effect thirty (30) days after its adoption. PASSED, APPROVED AND ADOPTED this 12th day of June 2003, by the City Council of the City of Palm Desert, California, by the following vote, to wit: AYES: CRITES, FERGUSON, KELLY, SPIEGEL, BENSON NOES: NONE ABSENT NONE ABSTAIN: NONE Je Benson, Mayor Oj(y of Palm Desert, California RNBUSIDJE1212283 -12- ORDINANCE NO. 1049 ATTEST: - ) 26S By: - Liag .1 Rachelle D. Klassen, City Clerk City of Palm Desert, California APPROVED A TO FORM: r , By: avi resin, City Attorney City of Palm Desert, California R MUSOJEU12283 -13-