HomeMy WebLinkAboutProposed Ordinance Tobacco Retailer Licensing ProgramCITY OF PALM DESERT
COMMUNITY SERVICES DEPARTMENT
STAFF REPORT
REQUEST: CONSIDERATION OF RECOMMENDATIONS OF LEGISLATIVE
REVIEW COMMITTEE AND YOUTH COMMITTEE RELATIVE TO
TOBACCO RETAILER LICENSING PROGRAM
DATE: OCTOBER 26, 2006
CONTENTS: PROPOSED RIVERSIDE COUNTY ORDINANCE
PALM DESERT MUNICIPAL CODE 8.34 (TOBACCO RETAILER
LICENSE)
MEMO FROM HART PONDER DATED SEPTEMBER 19, 2006
OCTOBER 3, 2006, YOUTH COMMITTEE MINUTES
Recommendation:
By Minute Motion, recommend that the City Council concur with the recommendations of
its Legislative Review Committee and Youth Committee and deny a request by Riverside
County to adopt an ordinance relative to a Tobacco Retailer Licensing Program which
would be enforced by County personnel.
Executive Summary:
Approval of the recommendations of the Legislative Review Committee and Youth
Committee would allow City staff, through the Code Compliance Department, to continue
the City's current method of monitoring compliance with State tobacco laws, including the
prohibition of selling to minors, of businesses licensed within the City of Palm Desert.
Adoption of the proposed County -wide ordinance would surrender monitoring and
enforcement via the parameters set forth in the proposed County ordinance to County
Health Department staff.
Background:
At its meeting of August 22, 2006, the Legislative Review Committee reviewed the
proposed County ordinance and attendant printed information forwarded to the City by the
Office of Tobacco Licensing, a Division of the Riverside County Health Department, with
regard to its Tobacco Retailer Licensing Program. Based on the City's policy of opposing
any type of legislation or regulation that removes local control, the Committee
recommended that the City Council decline to participate in the County's program and not
adopt its proposed ordinance.
At its meeting of October 3, 2006, Martin Baxter, representing the Riverside County Office
of Tobacco Licensing, and Hart Ponder, representing the City of Palm Desert Code
Compliance Department, made presentations to the Youth Committee regarding the
various programs in which tobacco retailers are licensed. The basic difference between
the manner in which the City's Code Compliance Department enforces Chapter 8.34 of the
Palm Desert Municipal Code and the manner in which County personnel propose to
enforce its proposed ordinance is in the dollar amount that business owners are required
to pay to license businesses that sell tobacco and the dollar amount of punitive damages
assessed to violators.
The City does not currently have a decoy program in place, whereas the County ordinance
does appear to have such a program which has already implemented. In addition, upon
a question to Mr. Baxter, he advised that only seven cities in Riverside County have, to
date, voted to adopt the County model ordinance and turn enforcement over to personnel
of the County Office of Tobacco Licensing.
Because the only major difference between the two ordinances is the dollar amounts of
licensing and violation fees, the Youth Committee recommends that the City Council deny
Riverside County's request that the City adopt its ordinance with regard to the Tobacco
Retailer Licensing Program. They further recommended that Code Compliance staff be
directed to work with the Palm Desert Police Department to implement a youth decoy
program within the City of Palm Desert as permitted by State law.
PATRICIA SCU LY, CFEE
SENIOR MANAGEMENT ANALY
HART PONDER
CODE COMPLIANCE MANAGER
SHEILA R. GILLIGAN CARLOS L. EGA
ASSISTANT CITY MANAG /PIO CITY MANAGER
iITY COUNCIL ACTION:
APPROVED k/ DENIED
RECEIVED OTHER
MEET �DATE
AYES • �}
NOES: o e
ABSENT : ,k\ `) i N
ABSTAIN : I� nn P-
VERIFIED BY:
Original on File with ity Clerk's Office
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ORDINANCE NO. 838
AN ORDINANCE OF THE COUNTY OF RIVERSIDE
REGARDING THE LICENSURE OF TOBACCO RETAILERS
The Board of Supervisors of the County of Riverside Ordains as Follows:
Section 1. PREAMBLE.
Prior to the adoption of this ordinance, the Board of Supervisors reviewed the following
Statistics:
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Minors 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
nationwide. In Riverside County, 10,000 teens light up for the first time and
purchase 5 million packs of cigarettes a year.
In a 2004 California youth-buying survey, 12% of retailers surveyed unlawfully
sold tobacco product to minors.
The rate of tobacco sales to minors in Riverside County is one of the highest in the
State at 44%.
88% 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`/�.
A requirement for a tobacco retailer license will not unduly burden legitimate
business activities of retailers who sell or distribute cigareries or other tobacco
products to adults. It will, however, allow the Couniy to regulate the operation of
lawful businesses to discourage violations of federal, state, and local tobacco-related
laws.
65% of California's key opinion leaders surveyed support implementation of
tobacco-licensing requirements.
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1 Section 2. PURPOSE AND INTENT. Riverside County has a substantial interest in
2 promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in
3 discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws
4 prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in
5 protecting children from being lured into illegal activity through the misconduct of adults. It is the intent
6 of this ordinance to encourage responsible tobacco retailing and to discourage violations of tobacco-
7 related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to
8 minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are
9 criminally proscribed or to alter the penalty provided therefore.
10 Section 3. DEFINITIONS. For the purposes of this ordinance, the following words and
11 terms shall have the following meanings:
12 a. "Arm's Length Transaction" shall mean: a sale in good faith and for valuable
13 consideration that reflects the fair market value in the open market betu�een two
14 informed and willing parties, neither under any compulsion to participate in the
15 transaction. A sale between relatives, related companies or partners, or a sale for
16 the primary purpose of avoiding the effect of the violations of this Ordinance is
17 presumed not to be an Arm's Length Transaction.
18 b. "Department" shall mean: County Health Officer or his or her designee.
19 c. "Person" shall mean: any natural person, partnership, cooperative association,
20 corporation, personal representative, receiver, trustee, assignee, or any other legal
21 entity.
22 d. "Proprietor" shall mean: a Person with an ownership or managerial interest in a
23 business. An ownership interest shall be deemed to exist when a Person has a ten
24 percent (10%) or greater interest in the stock, assets, or income of a business other
25 than the sole interest of security for debt. A managerial interest shall be deemed to
26 exist when a Person can or does have, or can or does shaze, ultimate control over
27 the day-to-day operations of a business.
28 e. "Self-Service Display" shall mean: the open display of Tobacco Products or
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1 Tobacco Paraphernalia in a manner that is accessible to the general public without
2 the assistance of the retailer or employee of the retailer. A Vending Machine is a
3 form of Self-Service Display.
4 f. "Smoking" shall mean: possessing a lighted Tobacco Product, Tobacco
5 Paraphernalia, or any other weed or plant (including a lighted pipe, lighted cigar, or
6 lighted cigarette of any kind), the lighting of a Tobacco Product, Tobacco
7 Paraphernalia, or any other weed or plant (including a pipe, cigar, or cigarette of
8 any kind}.
9 g. "Tobacco Paraphemalia" shall mean: cigazette papers or wrappers, pipes, holders of
10 smoking materials of all types, cigarette rolling machines, and any other item
11 designed for the smoking, preparation, storing, or consumption of Tobacco
12 Products.
13 h. "Tobacco Product" shall mean: (1) any substance containing tobacco leaf,
14 including but not limited to cigazettes, cigars, pipe tobacco, snuff, chewing tobacco,
I 5 dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or
16 formulation of matter containing biologically active amounts of nicotine that is
17 manufactured, sold, offered for sale, or otherwise distributed with the expectation
l 8 that the product or matter will be introduced into the human body but does not
19 include any product specifically approved by the Federal Food and Drug
20 Administration for use in treating nicotine or tobacco product dependence.
21 i. "Tobacco Retailer" shall mean: any Person who sells, offers for sale, or does or
22 offers to exchange for any form of consideration, tobacco, Tobacco Products, or
23 Tobacco Paraphernalia; "Tobacco Retailing" shall mean the doing of any of these
24 things. This definition is without regard to the quantity of tobacco, Tobacco
25 Products, or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for
26 exchange.
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1 Section 4. TOBACCO LICENSE PREREQUISITE; APPLICATION PROCESS.
2 a. It shall be unlawful for any Person to act as a Tobacco Retailer without first
3 obtaining and maintaining a valid Tobacco Retailer's license pursuant to this
4 Ordinance for each location at which that activity is to occur. Tobacco Retailing
5 without a valid Tobacco Retailer's license shall constitute a public nuisance.
6 b. A Tobacco Retailer or Proprietor without a valid Tobacco Retailer license,
7 including, for example, a revoked license:
8 1. Shall keep all Tobacco Products and Tobacco Paraphernalia from public
9 view. The public display of Tobacco Products or Tobacco Paraphernalia in
10 violation of this provision shall constitute an "offer for sale" for the
11 purposes of Section S.c.
12 2. Shall not display any advertisement relating to Tobacco Products or
13 Tobacco Paraphernalia that promotes the sale or distribution of such
14 products from the Tobacco Retailer's location or that would lead a
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reasonable consumer to believe that such products can be obtained at the
Tobacco Retailer's location.
17 c. Nothing in this ordinance shall be construed to grant any Person obtaining and
18 maintaining a Tobacco Retailer's license any status or right other than the right to
19 act as a Tobacco Retailer at the location in the County identified on the face of the
20 license. For example, nothing in this ordinance shall be construed to render
21 inapplicable, supercede, or apply in lieu of any other provision of applicable law,
22 including, without limitation, any condition or limitation on smoking in enclosed
23 places of employment made applicable to business establishments by California
24 Labor Code section 6404.5.
25 d. Application for a Tobacco Retailer's license shall be submitted in the name of each
26 Proprietor proposing to conduct retail tobacco saies and shall be signed by each
27 Proprietor or an authorized agent thereof. It is the responsibility of each Proprietor
28 to be informed of the laws affecting the issuance of a Tobacco Retailer's license. A
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1 license that is issued in error or on the basis of false or misleading information
2 supplied by a Proprietor shall be revoked pursuant to Section 10.d. of this
3 ordinance.
4 e. In addition to any other penalty under this ordinance a Person found to have
5 engaged in Tobacco Retailing without a valid Tobacco Retailers license shall be
6 ineligible to apply for or be issued a Tobacco Retailing license according to the
7 following:
8 1. After a first violation for a Person within any sixty-month (60) period, no
9 new license may issue for the Person as a Proprietor until thirty (30) days
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have passed from the date of last violation.
11 2. After a second violation for a Person within any sixty-month (60} period, no
12 new license may issue for the Person as a Proprietor until ninety (90) days
13 have passed from the date of last violation.
14 3. After three or more violations for a Person within any sixty-month (60)
15 period, no new license may issue for the Person as a Proprietor until five (5)
16 years have passed from the date of last violation.
17 4. Each day that a Person engages in Tobacco Retailing without a valid
18 Tobacco Retailers license shall constitute a separate violation.
19 f. Tobacco Products and Tobacco Pazaphernalia offered for sale or exchange in
20 violation of this ordinance are subject to seizure and forfeiture. Forfeited Tobacco
21 Products and Tobacco Paraphernalia shall be destroyed.
22 g. All applications shall be submitted on a form supplied by the Department and shall
23 contain the following information:
24 1. The name, address, and telephone number of each Proprietor.
25 2. The business name, address, and telephone number of the single fixed
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location for which a Tobacco Retailer's license is sought.
27 3. The name and mailing address authorized by each Proprietor to receive all
28 license-related communications and notices (the "Authorized Address"). If
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Section 5.
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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. Proof that the location for which a Tobacco Retailer's license is sought has
been issued a valid state tobacco retailer's license by the California Board
of Equalization.
5. Whether or not any Proprietor is a Person who has been determined to have
violated this ordinance or has been a Proprietor at a location that has been
determined to have violated this ordinance and, if so, the dates and locations
of all such violations.
6. Such other information as the Department deems necessary for the
administration or enforcement of this ordinance.
LICENSE ISSUANCE; STANDARDS.
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.
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 that one of the following bases for denial exists:
1. The application is incomplete or inaccurate.
2. The application seeks authorization for Tobacco Retailing at a location for
which a prohibition on issuing licenses is in effect pursuant to Section 10.b.
of this ordinance. However, this subparagraph shall not constitute a basis
for denial of a license if the applicant provides the County with
documentation demonstrating by clear and convincing evidence that the
applicant has acquired or is acquiring the location or business in an Arm's
Length Transaction.
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3. The application seeks authorization for Tobacco Retailing for a Proprietor
for which a prohibition on issuing licenses is in effect pursuant to Section
10.b. of this ordinance.
Section 6.
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4. The application seeks authorization for Tobacco Retailing that is prohibited
pursuant to Section S.a. of this ordinance, that is unlawful pursuant to any
other County ordinance, or that is unlawful pursuant to any other local,
state, or federal law.
LICENSES NONTRANSFERABLE.
A Tobacco Retailer's license is nontransferable. If the information required in the
license application pursuant to Section 4.g. 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.
Notwithstanding any other provision of this ordinance violations accumulated
against a location or business shall continue to be counted against the location or
business unless the location or business has been transferred to a new Proprietor
19 and the new Proprietor provides the County with documentation demonstrating by
20 clear and convincing evidence that the new Proprietor has acquired or is acquiring
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the location or business in an Arm's Length Transaction.
Section 7. FEES FOR LICENSE.
a. A Tobacco Retailer lice�nse is invalid unless the appropriate fee has been paid in
full and the term of the license has not expired. The term of a Tobacco Retailer
license is one (1) 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 o�
the term.
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1 Section 8. OTHER REQUIREMENTS AND PROEIIBITIONS.
2 a. DISPLAY OF LICENSE. Each license shall be prominently displayed in a publicly
3 and readily visible location at the licensed location.
4 b. POSITIVE IDENTIFICATION REQUIRED. No Person shall engage in Tobacco
5 Retailing without first examining the identiiication of the purchaser, if the
6 purchaser reasonably appears under the age of twenty-seven (27) years old, and
7 confirming that the proposed sale is to a purchaser who is at least the minimum age
8 in state law for being sold the Tobacco Product or Tobacco Paraphernalia.
9 c. MINIMUM AGE FOR PERSONS SELLII�IG TOBACCO. No Person shall engage
10 in Tobacco Retailing if the Person is younger than the minimum age in state law
11 for being sold or for possessing any Tobacco Product.
12 d. SELF-SERVICE DISPLAYS PROHIBITED. No Person shall display Tobacco
13 Products or Tobacco Paraphernalia by means of a Self-Service Displa}•• or to engage
14 in Tobacco Retailing by means of a Self-Service Display. A Tobacco Retailer who
15 chooses to display Tobacco Products or Tobacco Paraphernalia in a locked cabinet,
16 case or similar structure must post a clear and conspicuous sign on or within five
17 feet of the display stating that the cabinet, case or structure is locked at all times.
18 Section 9. LICENSE VIOLATION.
19 a. VIOLATION OF TOBACCO-RELATED LAWS. It shall be a violation of a
20 Tobacco Retailer's license for a�icensee, including his or her agent or employee, to
21 violate any of the following laws:
22 1. Any local, state, or federal tobacco-related law.
23 2. Local, state, or federal sign laws.
24 3. Local, state, or federal laws restricting the age of purchase for any product.
25 b. LICENSE COMPLIANCE MONITORING.
26 1. Compliance with this ordinance shall be monitored by the Department.
27 Any peace officer may enforce the penal provisions of this ordinance.
28 2. The Department shall check the compliance of each Tobacco Retailer at
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least three (3) times per twelve (12) month period. The Department may
check the compliance of Tobacco Retailers previously found to be in
compliance a fewer number of times so that the Department may check the
compliance of Tobacco Retailers previously found in violation a greater
number of times.
Compliance checks shall determine, at a minimum, if the Tobacco Retailer
is conducting business in a manner that complies with tobacco laws
regulating youth access to tobacco. When appropriate, the compliance
checks shall determine compliance with other tobacco-related laws.
The County shall not enforce any tobacco-related minimum-age law against
a Person who otherwise might be in violation of such law because of the
Person's age (hereinafter "Youth Decoy") if the potential violation occurs
when:
i. the Youth Decoy is participating in a compliance check supervised
by a peace officer or a code enforcement official; or
ii. the Youth Decoy is participating in a compliance check funded in
part, either directly or indirectly through sub-contracting, by the
county Department of Health and Human Services or funded in part,
either directly or indirectly through sub-contracting, by the
California Department of Health Services.
NO CONTEST PLEA. A plea of "no contest" or its equivalent by a Tobacco
Retailer for a violation of any law designated in subsection (a) above shall operate
as an admission that this ordinance has been violated for the purposes of license
revocation.
Section 10. REVOCATION OF LICENSE.
a. REVOCATION OF LICENSE FOR VIOLATION.
1. In addition to any other penalty authorized by law, a Tobacco Retailer's
license shall be revoked if the County Hearing Officer finds, after notice to
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the licensee and opportunity to be heard, that the licensee, including his or
her agents or employees, has violated any of the requirements, conditions, or
prohibitions of this ordinance (hereinafter "License Violation").
No attorney may take part in the defense of a license revocation proceeding
unless the attorney's participation meets any exception for attorneys
appearing in small claims court under California Code of Civil Procedure
section 116.530. This prohibition shall not apply if the County elects to be
represented by an attorney in the proceeding and notice of the election is
include in the notice given pursuant to subsection (1) above.
For a first or second alleged License Violation within any sixty-month (60)
period, the County Counsel may engage in settlement negotiations and may
enter into a settlement agreement with a Tobacco Retailer alleged to have
violated this ordinance without approval from the Board of Supervisors.
Settlements shall not be coniidential and shall contain the following
minimum terms:
After an alleged first License Violation at a location within any sixty-month
(60) period:
a. An agreement to stop acting as a Tobacco Retailer for at least one
(1) day;
b. A settlement payment to the County of at least one thousand dollars
($1000); and
c. An admission that the violation occurred and a stipulation that the
violation will be counted when considering what penalty will be
assessed for any future violations.
After an alleged second License Violation at a location within any sixty-
month (60) period:
a. an agreement to stop acting as a Tobacco Retailer for at least ten
(10) days;
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b. a settlement payment to the County of at least five thousand dollars
($5000}; and
c. an admission that the violation occurred and a stipulation that the
violation will be counted when considering what penalty will be
assessed for any future violations.
NEW LICENSE AFTER REVOCATION FOR VIOLATION.
1. After a first License Violation at a location within any sixty-month (60)
perivd, no new license may issue for the location until ten (10) days have
passed from the date of the last revocation or violation, whichever is later.
2. After a second License Violation at a location within any sixty-month (60)
period, no new license may issue for the location until thirty (30) days have
passed from the date of the last revocation or violation, whichever is later.
3. After of a third License Violation at a location within any sixty-month (60)
period, no new license may issue for the location until ninety (90) days have
passed from the date of the last revocation or violation, whichever is later.
4. After four or more License Violations at a location within any sixty-month
(60) period, no new license may issue for the location until five (5) years
have passed from the date of the last revocation or violation, whichever is
later.
EXPIRATION OF LICENSE. A Tobacco Retailer's license that is not timely
renewed pursuant to Section 7.a. shall expire at the end of its term. To reinstate a
license that has expired due to the failure to timely pay the renewal fee, the
proprietor must:
1. Submit the renewal fee plus a reinstatement fee of ten percent (10%) of the
renewal fee.
2. Submit a signed affidavit affirming that the Proprietor has not sold any
Tobacco Product or Tobacco Paraphernalia during any period that the
license was expired.
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1 d. REVOCATION OF LICENSE ISSUED IN ERROR. A Tobacco Retailer's
2 license shall be revoked if the Department finds, after notice and opportunity to be
3 heard, that one or more of the bases for denial of a license under Section S.b.
4 existed at the time application was made or at anytime before the license issued.
5 The revocation shall be without prejudice to the filing of a new application for a
6 license.
7 Section 11. ENFORCEMENT. The remedies provided by this ordinance are
8 cumulative and in addition to any other remedies available at law or in equity.
9 a. Whenever evidence of a violation of this ordinance is obtained in part through the
10 participation of a Person under the age of eighteen (18) years old, such a Person
11 shall not be required to appear or give testimony in any civil or administrative
12 process brought to enforce this ordinance and the alleged violation shall be
13 adjudicated based upon the sufficiency and persuasiveness of the evidence
14 presented.
15 b. Violations of this ordinance are subject to a civil action brought by the District
16 Attorney or County Counsel, punishable by:
17 1. A fine not less than two hundred fifty dollars ($250) and not exceeding one
18 thousand dollars ($1000) for a first violation in any sixty-month (60) period;
19 or
20 2. A fine not less than one thousand five hundred dollars ($1500) and not
21 exceeding two thousand five hundred dollars ($2,500) for a second violation
22 in any sixty-month (60) period; or
23 3. A fine not less than three thousand dollars ($3,000} and not exceeding ten
24 thousand dollars ($10,000) for a third or subsequent violation in any sixty-
25 month (60) period.
26 c. Violations of this ordinance may, in the discretion of the District Attorney or
27 County Counsel, be prosecuted as infractions or misdemeanors.
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1 d. Causing, permitting, aiding, abetting, or concealing a violation of any provision of
2 this ordinance shall constitute a violation.
3 e. Violations of this ordinance are hereby declared to be public nuisances.
4 f. In addition to other remedies provided by this ordinance or by other law, any
5 violation of this ordinance may be remedied by a civil action brought by the
6 County_Counsel, including, but not limited to, administrative or judicial nuisance
7 abatement proceedings, civil or criminal code enforcement proceedings, and suits
8 for injunctive relief.
9 Section 12. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence,
10 clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held
11 to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or
12 enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or
13 phrases of this Ordinance, or its application to any other person or circumstance. The Board of
14 Supervisors of the County of Riverside hereby declares that it would have adopted each section,
15 subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one
16 or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be
17 declared invalid or unenforceable.
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Chapter 8.34 TOBACCO RETAILER LICENSE
Paim Desert Municipal Code
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Ttle 8 HEALTH AND SAFEIY
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Chapter 8.34 TOBACCO RETAILER LICENSE
8.34.010 Definitions.
Page 1 of 5
No Frames
The following words and phrases, whenever used in this article, shall have the meaning defined in this section
unless the context clearly requires otherwise:
"Department" means the business licensing departrnent of the department of finance of the city.
"Person" means any natural person partnership, cooperative association, private corporation, personal
representative, receiver, trustee, assignee or any other legal entity.
"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 securiry 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.
"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.
"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.
"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. (Ord. 1055 § 1, 2003; Ord. 1049 § 3
(part), 2003)
8.34.020. Requirement.
A. It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a
valid tobacco retailers 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 retailers 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
retailers 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 ]aw, including, without limitation,
any condition or limitarion on smoking in enclosed places of employment made applicable to business
establishments by Califomia Labor Code section 6404.5. (Ord. 1049 § 3(part), 2003)
8.34.�30_Application procedure.
Application for a tobacco retailers license shall be submitted in the name of each proprietor proposing to
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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 af%cting the issuance of a tobacco retailers 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:
1. The name, address, and telephone number of each proprietor;
2. The business name, address, and telephone number of the single fixed location for which a tobacco
retailers license is sought;
3. The name and mailing address authorized by each proprietor to receive all license-related
communicarions and notices (the "authorized address"). If an authorized address is not supplied, each proprietor
shall be understood to consent to the provision of norice at the business address speciiied in subsection (A}(2) of
this section;
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; and
5. Such other information as the depariment deems necessary for the administration or enforcement of this
chapter. (Ord. 1049 § 3 (part), 2003)
8.34.040 issuance of license.
Upon the receipt of an application for a tobacco retailers license and the license fee, the department shall issue
a license unless substantial record evidence demonstrates one of the following bases for denial:
1. The application is incomplete or inaccurate; or
2. 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
3. The application seeks authorizarion for tobacco retailing that is prohibited pursuant to Secrion 8.34.020
of this chapter (e.g., mobile vending), that is unlawful pursuant to this Palm Desert code (e.g. the zoning code),
or that is unlawful pursuant to any other local, state or federal law. (Ord. 1049 § 3(part), 2003)
8.34.050 Dispiay of license.
Each license shall be prominently displayed in a publicly visible iocation at the licensed premises. (Ord. 1049
§ 3 (part), 2003)
8.34.060 Fees for license.
The fee to issue or to renew a tobacco retailers 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. (Ord. 1049 § 3(part), 2003)
8.34.070 Licenses nontransferable.
A tobacco retailers license is nontransferable. If the information required in the license application pursuant to
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Section 8.34.030, subsections (A)(1)—{A)(3), changes a new tobacco retailers 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. (Ord. 1049 § 3(part), 2003)
8.34.080 License violation.
A. Violation ofTobacco-Related Laws. It shall be a violation of a tobacco retailers 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 chapter shall be monitored by the 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 rime during each twelve (12)-month period. (Ord.
1049 § 3 (part), 2003)
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 retailers 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 chapter or other conditions of the license imposed pursuant to Section 8.34.080.
1. Upon a finding by the department of a first license violation within any sixry (60) month period, the
license shall be suspended for thirty (30) days.
2. Upon a finding by the department of a second Iicense violation within any sixty (60) month 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 (60) month period, the
license shall be suspended for one year.
4. Upon a finding by the department of a fourth license violation within any sixty (60) month 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 chapter.
B. Suspension of License for Failure to Pay Renewal Fee. A tobacco retailers license that is not timely
renewed pursuant to Section 8.34.020(B) shall automatically be suspended by operation of law. If not renewed, a
license shall be automatically revoked two years after the renewal date.
C. Revocation of License Issued in Error. A tobacco retailers license shall be revoked if the department
finds, after notice and opportunity to be heard, that one 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 (10) days of mailing of the
deparhnents 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. (Ord. 1049 § 3(part), 2003)
8.34.100 Administrative fine.
A. Grounds for Fine. If the department finds, based on substantial evidence, that any unlicensed person,
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Chapter 8.34 TOBACCO RETAILER LICENSE
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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:
l. A fine not exceeding one hundred dollars ($100.00) for a first violation in any twelve (12)-month period;
2. A fine not exceeding two hundred dollars ($200.00) for a second violation in any twelve (12)-month
period; or
A fine not exceeding five hundred dollars ($500.00) for a third or subsequent violation in any twelve
(12)-month period.
Each day that such a person engages in tobacco retailing shall constitute a separate violation.
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
departments 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 departments 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
rime, 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 attorneys 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 depariment
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 specifted above for a
notice of violation.
E. Hearing Decision. The hearing offcer 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 Officers Decision. The decision of the hearing officer shall be the final decision
of the city.
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
officers 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 officers 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 departments file
in the case shall be received in evidence. A copy of the records of the department of the notices of the violarion
and of the hearing officers 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 iiled, or the department is not
timely served with a copy of a notice of appeal, the hearing officers decision and findings shall be deemed
confirmed and the fine shall be collected pursuant to subsection (C) of this section. (Ord. 1049 § 3(part), 2003)
8.34.110 Enforcement.
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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 chapter may, in the discretion of the prosecutor, be prosecuted as infractions.
C. Violarions of this chapter are hereby declared to be public nuisances.
D. Violarions of this ordinance are hereby declared to be unfair business practices and 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 chapter 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.
(Ord. 1049 § 3 (part), 2003)
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CITY OF PALM DESERT
BUILDING & SAFETY DEPARTMENT
INTEROFFICE MEMORANDUM
To: City of Palm Desert Youth Commission
From: Hart Ponder, Code Compliance Manager
Date: September 19, 2006
Subject: City of Palm Desert's Tobacco Retailer Licensing Program
Overview:
The City of Palm Desert's Tobacco Retailer Licensing Program (TRLP) is a license
requirement for retailers who want to sell tobacco within the City of Palm Desert. This
program allows the City to monitor compliance with State tobacco laws, including the
prohibition of selling to minors.
Notwithstanding, the program is also a tool to educate retailers on the importance of not
allowing minors to purchase tobacco. If a Retailer chooses not to comply with current
tobacco laws, the City of Palm Desert can revoke this license and prohibit the retailer from
selling tobacco in the retaile�'s place of business within the City.
The TRLP is currently monitored by the Code Compliance Division, in conjunction with the
City of Palm Desert's Finance Department, which oversees the issuance of the license,
along with a City of Palm Desert Business License, a requirement for all business within
the City limits. Monitoring takes place when a license application is submitted and follow-up
random checks are made when Code Compliance Officers are in the field.
Benefits of Local TRLP Administration:
The benefits of local TRLP administration to the community are many:
1. Costs to the Retailer to obtain the TRLP. Currently, the cost to obtain a TRL is
$25.00. The City Council has mandated through law that only the cost of
administering the program is to be collected, nothing more. 1f a cost adjustment is
needed, all increases must first be approved by the City Council, at a public hearing.
This cost is kept low because of the efficiency of combining Business License
services and the TRLP in one process. Code Compliance is already set up for
fieldwork, making a perfect match for the needs of this program.
2. Consumer Convenience. At the very worse, Palm Desert's City Hall is only a few
miles away if a retailer needs licensing information updating, or if there are any
concerns related to the TRLP.
3. Compliance Rate. A random audit was recently conducted, and only four minor
"violations" were discovered. In each case, the license itself was not displayed at the
business. This type of violation is minor because it's only for City officials to rapidly
determine if the Retailer has a license. All the violations were corrected.
4. Interagency Coordination. Recently, Code Compliance has approached the City of
Pa(m Desert's own Police Department (Contracted through the County's Sheriff's
Department) to coordinate a"Youth Decoy" program to assure that retailers are not
se(ling tobacco to minors within the City of Palm Desert.
Recommendation:
After reviewing all information, Code Staff recommends that the City of Palm Desert's
Youth Commission affirm the City of Palm Desert's commitment to the TRLP and
recommend that this vital program be administered iocaily through the City's Code
Compliance Division and the Finance DepartmenYs Business License Program.
Staff is available to answer any questions you may have.
C:�DOCUMENTS AND SETTINGS�PSCULLY.CIN HALL W2KU.00AL SETTINGS�TEMPORARY INTERNET FILES�OLK22\TRLP2.DOC
PRLIMINARY MINUTES
PALM DESERT YOUTH COMMITTEE
OCTOBER 3, 2006
B. PRESENTATION BY RIVERSIDE COUNTY TOBACCO CONTROL
REPRESENTATIVE MARTIN BAXTER
Mr. Baxter reviewed the County's program as well as its purpose.
C. PRESENTATION BY PALM DESERT CODE COMPLIANCE
PERSONNEL RELATIVE TO THE CITY'S TOBACCO ORDINANCE
Mr. Ponder reviewed the City's current Tobacco Compliance program.
Upon a motion by Chairman Smith and seconded by Member Armstrong,
the Youth Committee recommended that the City Council decline to adopt the proposed
County Tobacco Ordinance and continue operating under the current city ordinance with
the additional implementation of a youth decoy program. Motion carried 9-1. Member
Ryan Sheehy opposed the motion.
V. CONTINUED BUSINESS
A. CONSIDERATION OF JR./SR. PROM
Member Armstrong reported the Mr. Walsh would attempt to finalize plans
for the use of the Palm Desert High School gym for the Jr./Sr. Prom and
provide a date by the end of the week.
Vice Chair Samantha Cortese reviewed refreshments, decorations, and
program plans. She advised that the band would play on the floor;
therefore, eliminating the need for the use of the mini gym.
In the absence of Member Christina Sun, Ms. Scully reported that Palm
Desert City staff would prepare tickets. Adult tickets would cost $5 and
youth tickets would cost $1. The tickets would be distributed and sold
through the Senior Center.
Other issues relative to the Jr./Sr. Prom were discussed. It was decided
that plans for this event are on target.
Member Armstrong will check on logo balloons for decorating. Vice Chair
Cortese will meet with Ms. Scully prior to the next meeting to order the
entry archways and other decorations.
VI. OLD BUSINESS
None
VII. INFORMATIONAL ITEMS
A. CITY COUNCIL ISSUES
None
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