ORDINANCE 2005 12

AN ORDINANCE OF THE CITY OF

VISTA CALIFORNIA ADDING

CHAPTER 3 56 OF THE VISTA MUNICIPAL CODE REQUIRING THE LICENSING OF TOBACCO RETAILERS

Pursuant to its the

City

Council of the

Section 1

authority under Article 11 Section 7 City of Vista does ordain as follows

CHAPTER 3 56 of the Vista

LICENSE is

hereby

added to read

as

of the California

Constitution

Municipal Code entitled TOBACCO

RETAIL

follows

CHAPTER 3 56

TOBACCO RETAIL LICENSE Sections

56 3 020

Legislative findings Purpose

56 3 030

Definitions

56 3 040

56 3 050

Requirement for tobacco Applications procedure

56 3 060

Issuance and renewal of license

56 3 070

Display of license

56 3 080

License fees

56 3 090

Licenses nontransferable

56 3 100

License violation

56 3 110

56 3 130

Suspension Denial suspension and revocation Hearings Generally

56 3 140

Conduct of

56 3 150

Form and contents of decision of

56 3 010

56 3 120

or

Manager

Finality

Enforcement

56 3 170

Severability

The

City

Compliance monitoring

revocation of license

Appeals

hearing

56 3 160

56 3 Section 010

retail license

hearing

officer

Appeal

to

City

of decision

Legislative findings

Council finds and determines that

308 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 A

California Penal Code

ORDINANCE NO 2005 12

CITY OF VISTA PAGE 2 B

California Business

Professions Code

retailers check the identification of tobacco under 18 years of age

C

California Business

22956 requires that tobacco purchasers who reasonably appear to be

Professions Code

22952 and California

Penal

Code

308 requires that tobacco retailers post a conspicuous notice at each point of stating that selling tobacco products to anyone under 18 years of age is illegal D California Business Profession Code 22962 prohibits the sale or of a service self and prohibits public access to display cigarettes though display cigarettes without the assistance of a clerk sale

E

California Penal Code

cigarettes imported primarily at those businesses that prohibit except F sale

of

California Penal Code

distribution ounces

in

cigarettes or

sale of

the sale of bidis

1 prohibits 308

filterless

from

India and

rolled hand

Southeastern Asia

countries

the presence of minors 3 prohibits the manufacture 308

distribution or prohibits the manufacture

packages of less than 20 and own tobacco in packages containing your roll

less than 0 60

of tobacco

California Education Code

G

48901 a 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 16 of the Vista Municipal Code regulates access to and use of H Chapter 8 tobacco

products by

I

minors

California

authorities to

adopt

Business

Professions

tobacco retailer

revocation of the local tobacco

licensing

Code

laws to

22971 authorizes local 3 provide for the suspension and

retailer license for any violation of

a

state tobacco

control law J

Despite

the

above referenced

and other tobacco

cigarettes million packs K

of In

cigarettes a

2001

are

products

at

restrictions rates

minors

continue

Each year

to

obtain

estimated 924

alarming by minors 12 to 17 years of age 1 of retailers surveyed buying survey 17 youth an

consumed

California

unlawfully sold tobacco products to minors L In a 2004 San Diego County youth 4 of retailers buying survey 33 sold tobacco to minors surveyed unlawfully products M The City of Vista has a substantial interest in promoting compliance with federal state and local laws intended to regulate tobacco sales and use N Studies have shown that local tobacco retail licensing programs coupled with a strong enforcement program substantially reduces youth access to tobacco Section 20 56 3

Purpose

The purpose of this Chapter is to encourage responsible tobacco retailing and related laws that prohibit the sale or distribution of discourage violations of tobacco tobacco

related laws that prohibit the display of products to minors and tobacco the products within reach of public 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 tobacco

ORDINANCE NO 2005 12 CITY OF VISTA PAGE 3 Section 030 56 Definitions 3 When used in this

given by

this

section

HearinQ officer serve

in this

Chapter

whether

or not

means

the

capacity

Itinerant tobacco retailinq

the

means

definitions shall have the

meanings phrases are capitalized city employee designated by the City Manager to

means

fixed location Person

following

these words

or

engaging in tobacco retailing

at other than

any individual firm company association social club fraternal business trust receiver trustee a

partnership joint venture limited liability organization corporation estate trust syndicate or any other group or combination acting

unit

a

as

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 or interest in the percent 10 greater stock assets or income of a business other than the sole interest of

exist when

a person

operations

of

a

security for debt A managerial interest shall be deemed to has or can have sole or shared control over the day to

business

Tobacco product means 1 any substance containing tobacco leaf including but not limited to cigarettes cigars pipe tobacco snuff chewing tobacco dipping tobacco bid is or any other preparation of tobacco and 2 any product or formulation of matter containing biologically active amounts of nicotine that is manufactured sold offered for

sale

be introduced

approved by tobacco

or

other distributed with the

into the human

the

expectation

that the

product

or

matter will

but does

not include any product body specifically Federal Food and Drug Administration for use in treating nicotine or

product dependence

Tobacco paraphernalia

includes

cigarette papers or wrappers pipes holders smoking 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 exchanges or offers to exchange for any form of consideration tobacco tobacco products or tobacco paraphernalia without regard to the quantity sold offered for sale exchanged or offered for exchange Tobacco retailinQ shall mean selling offering for sale exchanging or offering to exchange for any form of consideration tobacco tobacco products or tobacco paraphernalia without regard to the quantity sold offered for sale exchanged or of

materials

offered for

of all

exchange

Section 040 56 3

Requirement for tobacco

retail license

A

It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retail license pursuant to this Chapter for each location at which tobacco retailing is to occur No tobacco retail license will be issued to authorized tobacco retailing at other than a fixed location No license will be issued for itinerant tobacco

retailing

or

tobacco

retailing

from vehicles

ORDINANCE NO 2005 12 CITY OF VISTA PAGE 4 B

Nothing

in this

Chapter

shall be construed to

tobacco retailer license any status retailer at the location in the City

compliance

Chapter other on

with all other

identified

indoor

of

any person obtaining a to act as a tobacco

the face of the

on

applicable laws regulations

shall be construed to render

provision

grant

right other than the right

or

license subject

and ordinances

inapplicable supercede

Nothing

to

in this

in lieu of any any condition or limitation or

apply

applicable law including limitation smoking made applicable to business establishments by Labor Code section without

5 6404 Section 050 56 3 A

Application procedure

Application in the

for

a

tobacco retailer license shall be submitted to the Finance proprietor proposing to conduct tobacco retailing and

Department shall be signed by each proprietor or an authorized agent thereof A proprietor to conduct tobacco at more than proposing one location shall submit a retailing separate application for each location B All applications shall be submitted on a form supplied by the City and shall contain the following information 1 2

for which

a

of each

name

The name address and telephone number of each proprietor The business name address and telephone number of the fixed location tobacco retailer’s license is sought 3

The

name

and

mailing

address

authorized by each applicant

to

receive all license

communications and notices the authorized address related Failure to supply an authorized address shall be understood to consent tothe provision of notice at the business address specified Whether

or

inparagraph 2 above

to this

Chapter

of the suspension

period or the date

Such

that

enforcement

3 56 Issuance 060 Upon

ofthis Chapter

issued

been or

revoked

a

and

if

license

pursuant so the dates

of revocation 5

other information as

or

4

any applicant has previously is or was at any time suspended

not

the

City

Manager deems

necessary for the administration

Section

and renewal oflicense A

the receipt of an

for a tobacco retailer license and the payment of the City shall issue a license unless 1 The application isincomplete orinaccurate 2 The application seeks authorization for tobacco retailing at an address that appears on a license that is suspended has been revoked or is subject to suspension revocati o n proceedings violation of or any of the provisions of this Chapter for provided however this subparagraph shall not constitute a basis for denial of a license if either or both of the following apply a The applicant provides the City with documentation demonstrating that the applicant acquired is ac q ui r i n g has or the premises or business in an arm’s length transaction For the purposes of this subparagraph an arm’s length transaction is defined as sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties neither under any application

a tobacco retailer license fee

ORDINANCE NO 2005 12 CITY OF VISTA PAGE 5

compulsion

to

companies

or

partners

Chapter transaction b It

has been more revoked

The

the

transaction

A

sale

between

sale for the primary purpose of that occurred at the location is

or a

violations of this

location was

in

participate

avoiding

presumed

three 3

than

years

relatives related the effect of the

not to be

an

length arm’s

since the most recent license for that

3

application

seeks authorization for tobacco retailing by a proprietor for which is in effect or by a proprietor which or who has had a license revoked pursuant to this Chapter 4

or

a

whom

The

suspension

application

seeks an authorization for tobacco retailing that is or that is unlawful pursuant to any other local state or

pursuant to this Code

law or The

have

5

City has information that the applicant or his or her agents or employees violated any local state or federal tobacco control law at the location for

which the license or

renewal

of the license is sought

within the

preceding

thirty 30 day

period 6 The

ordinance

issuance of a

retail license would be in conflict with any other city

tobacco

B A

license shall be valid for one

30 days prior but no Unless

unlawful federal

than sixty

earlier

revoked on an

date

year

and must be renewed no later than thirty

60 days prior to the expiration of the license

all

tobacco retailer licenses shall expire one year license may be renewed annually by submit ing an Tobacco Retailer License application to the Finance Department along with the payment of a Tobacco Retailer Licensing fee provided however Tobacco license earlier

after the date of issuance A

that is suspended

a

has been revoked or

not be renewed The applicant of the information required

shall all

the application If

is

subject

shall

to

suspension

Retailer

orrevocation proceedings

follow all of the procedures

above The 050 by section 3 56 according to the provisions of this section C

and City

shall

provide

process

the information required

items 1 2 or C 050 56

3

in the license application pursuant to section 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 retailer at the new location If the business is sold the new owner must apply for a license for that location before acting

as

a tobacco

A

be

retailer D

tobacco retailer’s that license automatically suspended by

be automatically revoked paid status

of

two a license

that

is not timely renewed

pursuant

to

operation of law If not renewed 2 years after the renewal date To reinstate the has been suspended due to the failure to timely pay

the renewal fee the tobacco retailer must 1Submit the renewal fee plus a reinstatement fee often percent 10 fee and 2 Submit a

tobacco

signed paraphernalia

during

pay the renewal fee

affirming that he or she has not sold the period the license was suspended affidavit

this Chapter shall a license shall

of the

renewal

any tobacco product or for

failure to

ORDINANCE NO 2005 12 CITY OF VISTA PAGE 6 Section 070 56 3

Display

of license

Each license shall be

licensed

prominently displayed

in

a

publicly

visible location at the

premises

Section 080 56 3

License fees

The fee for issuance

tobacco retailer license shall be established by City Council and shall be in addition to the City’s business license fee and any other license or permit fee imposed Code upon the applicant The tobacco by this retailer license fee shall be paid to the City the time the license application submit ed or

renewal of

a

resolution of the

at

Section

License 090 3 56

is

nontransferable A

tobacco retailer license isnontransferable and is valid only for the person and location of license issued unless it is suspended or revoked for cause for the period indicated If a tobacco retailer licensee changes the location of his or her business that tobacco retailer licensee must obtain a new tobacco retailer license prior to acting as a tobacco retailer at the new sold or

transferred

the

before acting

as

3 56 License 100 It

or

location

his

her

a tobacco

If a

business

agents

a

violation

licensed to conduct tobacco retailing is tobacco retailer license for that location

must obtain a retailer Section owner

violation Compliance

shall be

or

new

of a

or

employees

monitoring A

retailer license for a tobacco retailer licensee to violate any local state or federal tobacco related tobacco

law B Compliance

with this Chapter shall be monitored by the San Diego Sheriffs Any peace officer or code compliance official also may enforce this Chapter The San Diego Sheriffs Department shall check compliance of each tobacco retailer at least one time per twelve 12 month period and shall conduct additional compliance checks as warranted The compliance checks shall be conducted todetermine at a minimum if the tobacco retailer iscomplying with tobacco laws regulating underage sales The San Diego Sheriffs Department shall use youth decoys and comply with protocols for the compliance checks developed in consultation with the San Diego County Department of Health and Human Services and the San Diego District Attorney When appropriate the compliance checks shall determine compliance laws C with other tobacco related The City shall not enforce any tobacco related minimum age law against a person otherwise in vi o l a t i o n might be of such law because of a person’s age who hereinafter youth decoy if the potential violation occurs when 1The youth decoy is participating in a compliance check supervised by a peace officer or a code compliance official or Department

ORDINANCE NO CITY OF VISTA PAGE 7

12 2005

2 The youth decoy is participating in a compliance check funded in part by the San Diego County Department of Health and Human Services or funded in part either directly or indirectly the California Department of through sub contracting by

Health Services

Section 110 56 3

A

Suspension

In addition

or

revocation of license

to any other

penalty

authorized

by law

a

tobacco

retailer

license may be

suspended or revoked if the City finds after notice to the tobacco retailer licensee and opportunity to be heard that the tobacco retailer licensee or his or her agents or employees has or have violated of the of this Chapter any provisions provided however violations by a licensee at one location may not be accumulated

against

other locations

accumulated accumulated 1

the

of that

City shall

same

tobacco

retailer

licensee nor may violations retailer licensee at a licensed location be

against prior against a new tobacco retailer licensee at the same licensed location Upon a finding by the City of a first violation within any three year period tobacco

a

Issue

i ii

a

Advise

written

warning to the licensee the licensee of the penalties for further violations of the

ordinance

iii Require the licensee to provide documentation to the City that all employees engaged in the retail sales of tobacco have received training in a City approved program within sixty 60 days after the warning or such other time as shall be set by the City 2 Upon a finding by the City of a second license violation within any three year period the license may be suspended up to thirty 30 days 3 Upon a finding by the City of a third license violation within any three year period the licensee may be suspended up to ninety 90 days 4 Upon the finding by the City of a fourth license violation within any three the year period license may be suspended for up to one 1 year 5 Upon a finding by the City of a fifth license violation within any three year period

the license may be revoked B A tobacco retailer license shall be revoked if the City finds after notice and opportunity to be heard that anyone of the conditions listed below exist The revocation shall be without prejudice to the filing of a new application for a tobacco retailer license 1 One or more of the bases for denial of a tobacco retailer license under Section 3 060 5 6 existed at the time the tobacco retailer license application was made or at anytime before the tobacco retailer license was issued 2 The application is incomplete for failure to provide the information 56 3 required by 050 3 The information contained in the

information 4

pursuant law

application including supplemental

if any is found to be false in any material

The to this

respect

application seeks authorization for tobacco retailing that is unlawful

Code

or

that is unlawful pursuant to any other local state

or

federal

ORDINANCE NO

12 2005

CITY OF VISTA

PAGE 8 C

In the event the

written notice of the licensee within five

City suspends

revokes

a tobacco retailer license suspension or revocation shall be served upon the tobacco retailer 5 days of the suspension or revocation in a manner prescribed in or

Section 050 56 The notice shall contain 3 1

A

brief

statement

of the

for

specific grounds

such

suspension

or

revocation 2 or

revocation

A statement that the tobacco retailer licensee may appeal the suspension by submitting an appeal in writing in accordance with the provisions of

Section 120 56 to the 3 the

notice

City within

ten

10

calendar

days

of the date of the service of

and

3

A

statement that the failure to revocation will constitute a waiver of all right to the suspension or revocation will be final Section 120 56 3

Denial suspension

appeal an

the

notice

administrative

and revocation

of

suspension

appeal hearing

or

and

Appeals

A

Any tobacco retailer license applicant or licensee aggrieved by the decision of the City in denying suspending or revoking a tobacco retailer license may appeal the decision by submitting a written appeal to the City Clerk within ten 10 calendar days from the date of service of the notice of denial suspension or revocation The written appeal shall contain 1 A brief statement in ordinary and concise language of the specific action protested together with any material facts claimed to support the contentions of the appellant 2 A brief statement in ordinary and concise language of the relief sought and the set

reasons

why

it is claimed the

protested

action should be reversed

or

otherwise

aside 3

The

addresses

The verification as

B

of all

parties named

as

appellants

and their official

mailing

and

4

appellant

signatures

by

declaration under

to the truth of the matters stated in the

penalty

of

perjury

of at least

one

appeal

The

appeal hearing shall be conducted by a hearing officer Upon receipt of any appeal filed pursuant to this Section the City Clerk shall transmit said appeal to the hearing officer who shall calendar it for a hearing The hearing officer shall give the parties at least fifteen 15 calendar days written notice of the time and place of the hearing either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof postage prepaid addressed to the appellant at the address shown on the appeal Upon good cause the hearing officer may grant one extension for the date of the hearing not to exceed fifteen 15 days from date original set for the hearing D Only those matters or issues specifically raised by the appellant in the notice of appeal shall be considered in the hearing of the appeal C

E

provisions

Failure of any person to file of this section shall constitute

a an

timely appeal

in

accordance with the

irrevocable waiver of the

right

to

an

ORDINANCE NO

12 2005

CITY OF VISTA PAGE 9

hearing

and

F

Following

the

G

During a period of license suspension the tobacco retailer public view all tobacco products and tobacco paraphernalia

administrative

a

final

adjudication

of the notice and

order

or

any

portion

thereof

hearing on the appeal by the hearing officer the decision of the hearing officer may be appealed to the City Manager or his or her designee A decision of the City Manager or his or her designee shall be the final decision of the City remove

from

that appears

on

the

Section 130 56 3

suspended

or

Hearings

licensee must at the address

revoked tobacco retailer license

Generally

At the time set for

A

hearing the hearing officer shall proceed to hear the witnesses testimony appellant and other competent persons including members of the public respecting those matters or issues specifically listed by the appellant in the notice of appeal B The proceedings at the hearing shall be electronically recorded Either certified a shorthand to maintain a record of the may party provide reporter proceedings at the party’s own expense C The hearing officer may upon the request of the appellant or upon the request the City of grant continuances from time to time for good cause shown or upon of material

his or

her

own

motion

3 56 Conduct 140 Hearings

the

Section

of Hearing

need

A

not be conducted in ac ordance tothe technical rules relating

evidence and witnesses Government

to and c as b Chapter B

presently

written or

hereinafter

Code Section 11513 subsections a amended shall apply to hearings under this

Oral

evidence shall be taken only

Ir elevant

and unduly

upon oath or affirmation C repetitious evidence shall be excluded D have these rights among others 1 shall

Each

party

To

call and examine witnesses on any matter relevant to the issues of the hearing

2 To

introduce documentary

To

cross

ofthe hearing To testify

and physical evidence 3 witnesses on any matter relevant

opposing examine

to the issues

4 impeach any witness regardless of which party first called the witness to

5 To

against the party and 6 To represent himself herself or itself or to be represented by anyone of his its choi c e who is lawful y permitted to do so E her or In reaching a decision official notice may be taken either before or after submission ofthe case for decision of any fact that may be judicial y noticed by the courts of this state or that may appear in any of the official records ofthe City of any of its departments

rebut evidence presented

ORDINANCE NO

12 2005

CITY OF VISTA PAGE 10

Section 150 56 3 the

Form and contents decision of the

City Manager A

Finality

If it is

shown by a preponderance of the evidence deny suspend or revoke the tobacco retailer license

bases exist to

shall affirm the

decision to deny suspend or revoke the City’s

decision of the hearing a

determination

hearing officer

officer

Appeal

to

of decision

shall be in writing

ofthe issues presented

and

that the

one

or

hearing

more

officer

tobacco retailer license The

shall contain findings

of

fact and

B

The

decision of the hearing officer shall inform the appellant that the decision may be appealed to the City Manager by filing a writ en appeal with the hearing

officer within ten appeal

10

days of receipt of the decision of the hearing officer The

shall be forwarded to the City Manager upon receipt C Within fifteen 15 days of receipt of the written appeal the City

written

Manager shall

review the record of the hearing

A

and issue a writ en decision to grant or deny the appeal decision of the City Manager shall be final The City Manager shall provide appellant

with a copy of by California Code

his or

be delivered to the parties

on

the

as

provided

appeal

Enforcement 160 3 56

shall

decision and that the time for judicial

personally or sent

by

certified

decision shall be final when signed

The in this Section

In

her

of Civil Procedure Section 1094 6 Copies

review is governed of the decision shall

mail to the address shown

by City Manager and served

Section

A

addition to any other remedy any person violating any provision of this Chapter of a misdemeanor foreach day a violation continues B

be guilty

Any

a civil action brought by the Attorney The may recover fees and costs of suit in any action brought civil by the City Attorney to remedy any violation ofthis Chapter C Violations of this Chapter are hereby declared to be public nuisances subject to abatement by the City D violation

of this Chapter

City

City

In

addition

reasonable

to criminal

administrative against any

penalties

may be remedied

by

attorney

sanctions and other remedies set forth in this Chapter

ofthis Code 060 pursuant to Section 1 13 person violating any provision of this Chapter Imposition enforcement of and admi n i s t r at i v e review admi n i s t r a t i v e penalties collection imposed shall be conducted pursuant

356 Severability 170

Chapter ineffective

may be

imposed

of this Code to Chapter 113

Section

If

any section subsection subdivision paragraph sentence clause or phrase or any part thereof is for any reason held to be unconsti utional or

by

or

any court

of competent

ofthe remaining

jurisdiction that

invalid

or

decision shall not affect the validity

this Chapter

or any part thereof The City Council hereby declares that it would have passed each section subsection subdivision paragraph sentence clause or phrase thereof irrespective of the fact that effectiveness

portions of

in this

tytVJ’’

ORDINANCE NO CITY OF VISTA

12 2005

PAGE 11 anyone or more subsections subdivisions paragraphs be declared unconstitutional or invalid or ineffective

Section 2 date of its

This ordinance shall become effective after

adoption

publication

PASSED AND ADOPTED on

the

held

28th

on

Council

day

the 14th as

of

day

the

has been made in the

following

June

of

on

sentences clauses

June

a

GRONKE LOPEZ RITTER

NOES

NONE

ABSTAIN

NONE

first day following thirty required by law

second

MAYOR VANCE

Yl~

VANCE Mayor APPROVED AS

City

TO

Attorney ATTEST

B

Jonat

an Stone Interi

City

the

reading at a regular meeting held 2005 following first reading at a meeting 2005 by three or more votes of the City

~ ~ MORRIS

FORM

phrases

manner

follows

AYES

or

B

Marci Kilian

Acting

l Clerk ~L By