HomeMy WebLinkAbout75B - AMENDING CH 18 ARTICLE 111
CITY COUNCIL MEETING DATE:
CLERK OF COUNCIL USE ONLY:
REQUEST FOR
COUNCIL ACTION
OCTOBER 16, 2006
TITLE:
~{i.
APPROVED
o As Recommended
o As Amended
o Ordinance on 1" Reading
o Ordinance on 2"' Reading
o Implementing Resolution
o Set Public Hearing For
PUBLIC HEARING-ADOPT ORDINANCE
AMENDING CHAPTER 18 ARTICLE III
OF THE SANTA ANA MUNICIPAL CODE
CONTINUED TO
--
FILE NUMBER
RECOMMENDED ACTION
1. Adopt an
Municipal
licenses.
ordinance amending Chapter 18 Article III of the Santa Ana
Code to require tobacco retailers to obtain regulatory
2. Adopt a resolution establishing an annual Tobacco Retailer License fee
of $350.
DISCUSSION
The City of Santa Ana is committed to protecting the health of Santa Ana
youth from the risks associated with smoking by reducing youth access to
tobacco products in the city. There are 331 State-authorized tobacco
retailers in the City of Santa Ana, and 35% of these tobacco retailers are
located within 1000 feet of our schools. Moreover since 1996, the average
sales rate of tobacco to minors in the City of Santa Ana has been 35.7%.
Therefore, the City 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.
BACKGROUND
A growing number of municipalities in California are successfully using
local licensing ordinances to strengthen existing prohibitions against the
unlawful sale, use or distribution of tobacco. Businesses seeking to sell
tobacco products in these jurisdictions must comply with regulations
required as part of the licensing process. These tools are particularly
effective in reducing tobacco sales to minors by shifting accountability
for violations from individual clerks to the license holder. License
holders who fail to comply with r~51E3t!1ns face a variety of penalties
Public Hearing - Ordinance Amending
Chapter 18 Article III
October 16, 2006
Page 2
including revocation of their license to sell tobacco-a sanction with
significant financial consequences.
The tobacco licensing ordinance will be effective in reducing youth access
to tobacco in the City of Santa Ana. The implementation of regulatory
licensing will discourage retailers from selling or distributing tobacco,
tobacco products, or tobacco paraphernalia to minors in the city.
Licensing will establish conditions for selling tobacco to encourage
compliance with all federal, state and local tobacco control laws. This
ordinance shall also include imposition of an annual fee of $350 for the
issuance or renewal of the tobacco retail license as established by
resolution of the City Council to recover the total cost of administration,
implementation, monitoring and enforcement of the tobacco retail licensure
program.
Attached to this RFCA is a memorandum from the Chief of Police with more
data and background information on this issue.
FISCAL IMPACT
The funding is anticipated to be self-funded by the new Tobacco Retailer
License fee.
@B:c-:-
Chief of Police
Police Department
758-2
MEMORANDUM
To:
City Manager
Date: October 16, 2006
From: Police Chief
Subject: Tobacco Retail Licensing
Over fifty cities and counties in California have adopted local ordinances
to strengthen existing prohibitions against the unlawful sale, use or
distribution of tobacco and curbing youth access to tobacco. The Chief of
Police recommends adopting the proposed Tobacco Licensing ordinance in the
City of Santa Ana because implementation of regulatory licensing will
discourage retailers from selling or distributing tobacco, tobacco
products, or tobacco paraphernalia to minors in the City. Moreover,
licensing will establish conditions for selling tobacco to encourage
compliance with all federal, state and local tobacco control laws.
CALIFORNIA TOBACCO LEGISLATION
More than 440,000 people die in the United States from tobacco-related
diseases every year, making it the nation's leading cause of preventable
death.' As a result states throughout the nation, including California,
have taken proactive steps to regulate tobacco and to reduce youth access
to tobacco products. California state law has adopted legislation that:
. 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);
. requires that tobacco retailers check the identification of tobacco
purchasers who reasonably appear to be under 18 years of age (Cal.
Bus. & Prof. Code ~ 22956);
. provides procedures for using persons under 18 years of age to
conduct onsite compliance checks of tobacco retailers (Cal. Bus. &
Prof. Code ~ 22952);
. prohibits, with certain exceptions, the sale of tobacco products and
paraphernalia through self-service displays except in adult-only
establishments (Cal. Bus. & Prof. Code~ 22962);
. prohibits, with certain exceptions, the sale of "bidisH (hand-rolled
filter-less cigarettes imported primarily from India and Southeast
Asian countries) (Cal. Pen. Code ~ 308.1);
· prohibits the manufacture, distribution, or sale of cigarettes in
packages of less than 20 and prohibits the manufacture,
distribution, or sale of "roll-your-ownH tobacco in packages
containing less than 0.60 ounces of tobacco (Cal. Pen. Code ~
308.3) ;
1 U.S. Dep't of Health and Human Servs., Centers for Disease Control and
Prevention, Annual Smokinq - Attributable Mortality, Years of Potential Life
758-3
. requires all tobacco retailers to be licensed by the Board of
Equalization in order to curb the illegal sale and distribution of
cigarettes which deprive the state yearly of hundreds of millions of
tax dollars that fund local and state programs such as health
services, anti-smoking campaigns, cancer research, and education
programs (Cal. Bus. & Prof. Code ~~ 22970.1, 22972); and
. explicitly permits cities and counties to enact local tobacco retail
licensing ordinances, and allows for the suspension or revocation of
a local license for a violation of any state tobacco control law
(Cal. Bus. & Prof. Code ~ 22971.3).
Despite the state's efforts to limit youth access to tobacco, minors are
still able to access cigarettes. Nearly half of all youth smokers
nationwide buy the cigarettes they smoke, either directly from retailers
or vending machines, or by giving money to others to purchase the
cigarettes for them.2 In addition, minors consume 924 million packs of
cigarettes each year nationwide, yielding the tobacco industry $480
million in profits from underage smokers.3 Moreover, most adults who have
ever tried smoking have tried their first cigarette under the age of 18,'
and are on average under the age of 16.5 In 2004, 14% of all tobacco
retailers in California sold tobacco to minors 2004.'5 Approximately
31.5% of non-traditional California tobacco retailers, such as deli, meat,
and produce markets, sold to minors in 2004.'6
The implementation of tobacco-licensing requirements is supported by
approximately 73% of California.6 Over 90% of enforcement agencies
surveyed in 2000 rated license suspension or revocation after repeated
violations as an effective strategy to reduce youth access to tobacco.'
Moreover, while Santa Ana may be the first city in Orange County to adopt
a Tobacco Licensing Ordinance, there are approximately fifty-three cities
2 From the American Lung Association, fact sheet, available at:
http://www.lungusa.org/site/apps/s/content.asp?c~dvLUK900E&b~34706&ct~66968 (last
accessed March 25, 2005
3 Joseph R. DiFranza, M.D. & John J. Librett, M.P.H., State and Federal Revenues
from Tobacco Consumed by Minors, 89 Am. J. Pub. Health 1106 (1999
4 U.S. Surgeon General, U.S. Dep't of Health & Human Servs., Preventing Tobacco
Use Among Young People: A Report of the Surgeon General 2 (1995) (noting that
almost all first use of tobacco occurs by the time people graduate from high
school), available at http://profiles.nlm.nih.gov/NN/B/C/L/Q/ /nnbclq.pdf (last
accessed March 11, 2005) (noting that 88% of adults who have ever smoked tried
their first cigarette by the age of 18).
5 Substance Abuse & Mental Health Servs. Agency, U.S. Dep't of Health & Human
Servs., Tobacco Use in America: Findings from the 1999 NHSDA, available at
http://www.oas.samhsa.qov/NHSDA/tobacco/hiqhliqhts.htm (last accessed March 11,
2005) (noting the average age at which smokers try their first cigarette is
15.4) .
15 Tobacco Control Section, Cal. Dep't Health Servs., Tobacco Control Update, 15,
available at
http://www.dhs.ca.gov/tobacco/documents/2004TCSupdate.pdf (last accessed April 8,
2005); see also Tobacco Control Section, Cal. Dep't Health Servs., Youth Purchase
Survey, 2004: Percent of retailers selling tobacco to youth by store type (2004)
(graph on file with TALC) .
16 Tobacco Control Section, Cal. Dep't Health Servs., Youth Purchase Survey,
2004: Percent of retailers selling tobacco to youth by store type (2004) (graph
on file with TALC) .
6 Gilpin EA, Emery SL, Farkas AJ, Distefan JM, White MM, Pierce 3P, The
California Tobacco Control Program: A Decade of Progress, Results from the
California Tobacco Survey, 1990-1999, 9-15, University of California, San Diego
(2001), available at http://ssdc.ucsd.edu/ssdc/pdf/1999 Final Report.pdf (last
accessed April 8, 2005). - -
7 Tobacco Control Section, Cal. Dep't of Health Servs., Independent Evaluation of
the California Tobacco Control Prevention & Education Proqram: Waves I, 2, and 3
758-4
-
and counties throughout California that have already adopted tobacco
licensing legislation, including Los Angeles, Pasadena, and Riverside
County.8
YOUTH ACCESS TO TOBACCO IN SANTA ANA
The City of Santa Ana is committed to protecting the health of Santa Ana's
children from the risks associated with smoking by reducing youth access
to tobacco products in the City of Santa Ana. There are 331 State-
authorized tobacco retailers in the City of Santa Ana, 'and 35% of these
tobacco retailers are located wi thin 1000 feet of our schools. 10 Since
1996, the average sales rate of tobacco to minors in the City of Santa Ana
has been 35.7%,11 which is 13% higher than the statewide average sales
rate of 22.7%.12 Moreover, the City of Santa Ana is a young city with
approximately 34.2% of Santa Ana residents under the age of 18 years
old.13 Nationally, the City of Santa Ana is listed among the top ten
places with a population of 100,000 or more with the lowest median age."
CURRENT STATE TOBACCO SALES REGULATION
While the State has made great strides in regulating tobacco, efforts at
the local level are still required to reduce youth access to tobacco. As
mentioned above, California prohibits the sale of tobacco to minors under
Penal Code section 308(a), which makes it a misdemeanor for a person to
knowingly sell or furnish tobacco products to persons under the age of 18.
Although subject to some debate, generally the person considered liable
for a violation of 308(a) is the person conducting the unlawful sale-often
a clerk-and not the business owner or licensee. This in effect means that
while an occasional clerk might be prosecuted, profits from unlawful
tobacco sales continue to flow into to the business owner. In addition,
Section 308(a) provides a small fine, $200, for first time offenders.
Such a low fine combined with the low odds of arrest, result in a weak
deterrent for those tempted to profit off the sales of tobacco products to
minors.
Similarly, penalties for non-compliance with tobacco signage and display
regulations are slight, and include fines as low as $10.00 for a first
offense. Clearly, given the enormous profit potential from unlawful sales
of tobacco, municipalities must establish requirements that provide real
deterrent value to support the intent of existing regulations and to
effectively reduce youth access to tobacco.
8 American Nonsmokers' Rights Foundation, California Municipalities With
Ordinances Restricting Youth Access To Tobacco, available at
http://talc.phlaw.org/pdf_files/0021.pdf (last updated July 1, 2006).
9 California State Board of Equalization, July 17, 2006
10 Santa Ana Police Department, September 11, 2006
11 California Department of Health Services, Auqust 21, 2006
758-5
LCP 10106/06
ORDINANCE
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA ANA AMENDING CHAPTER 18 OF
THE SANTA ANA MUNICIPAL CODE REQUIRING
LICENSURE FOR TOBACCO RETAILERS
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds,
determines and declares as follows:
A. More than 440,000 people die in the United States from tobacco-
related diseases every year, making it the nation's leading cause of
preventable death.
B. The California Legislature has recognized the danger of tobacco
use and has made reducing youth access to tobacco products a
high priority, as evidenced by the fact that:
1. 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 9 308).
2. State law requires that tobacco retailers check the
identification of tobacco purchasers who reasonably appear
to be under 18 years of age (Cal. Bus. & Prof. Code
9 22956) and provides procedures for using persons under
18 years of age to conduct onsite compliance checks of
tobacco retailers (Cal. Bus. & Prof. Code 9 22952).
3. State law prohibits the sale of tobacco products and
paraphernalia through self-service displays except in adult-
only establishments (Cal. Bus. & Prof. Code9 22962).
4. 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 9 308).
758-6
Ordinance No. NS-XXX
Page 1 of 13
C. State law requires all tobacco retailers to be licensed by the Board
of Equalization (Cal. Bus. & Prof. Code SS 22970.1, 22972).
D. State law explicitly permits cities and counties to enact local
tobacco retail licensing ordinances, and allows for the suspension
or revocation of a local license for a violation of any state tobacco
control law (Cal. Bus. & Prof. Code S 22971.3).
E. The City of Santa Ana currently regulates the sale of tobacco
products, including a ban on cigarette vending machines.
F A study of several states found that youth sales of tobacco moved
from a baseline of 70% of retailers selling to minors before the
adoption of a tobacco retail ordinance to less than 5% in the year
and a half after enactment.
G More than fifty cities and counties in California have passed
tobacco retailer licensing ordinances in an effort to stop minors
from smoking, and 615 communities in the United States require a
license to sell tobacco products and provide penalties such as
suspension or revocation of the license for illegal conduct (e.g.,
selling tobacco to minors).
H The Council is committed to protecting the health of the City's youth
from the risks associated with smoking by reducing youth access to
tobacco products in the City of Santa Ana, because:
1. There are 331 State-authorized tobacco retailers in the City
of Santa Ana, and 35% of these tobacco retailers are located
within 1000 feet of schools.
2. Since 1996, the average sales rate of tobacco to minors in
the City of Santa Ana has been 35.7%, which is 13% higher
than the statewide average sales rate of 22.7%.
3. Nationally, the City of Santa Ana ranks in the top ten places
with a population of 100,000 or more with the lowest median
age.
4. Approximately 34.2% of Santa Ana residents are under the
age of 18 years old.
City 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
Ordinance No. NS-XXX
Page 2 of 13
758-7
tobacco products to minors; and finally, and most importantly, in
protecting children from being lured into illegal activity through the
misconduct of adults.
J. It is the intent of the City Council, 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 and nicotine 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 penalties provided therein.
K. The Request for Council Action for this ordinance dated October
16, 2006, shall by this reference be incorporated herein, and
together with this ordinance, any amendments or supplements and
the oral testimony before the City Council, shall additionally
constitute the necessary findings for this ordinance.
L. The City Council has considered all of the written and oral
testimony offered concerning whether to adopt this ordinance.
M. Based upon this record the City Council finds that the standards set
forth in this ordinance, and each of them, are necessary to protect
the public health, safety and welfare of the residents of the City of
Santa Ana associated with tobacco retailing.
O. In accordance with the California Environmental Quality Act, a
categorical exemption has been adopted for this ordinance.
Section 2. Article III is added to Chapter 18 of the Santa Ana Municipal
Code ("Code") to read in full as follows:
Article III. Tobacco Retail License
Sec. 18-90. Definitions.
The following words and phrases, whenever used in this article, shall have
the meanings defined in this section unless the context clearly requires
otherwise:
(a) "Department" means the Santa Ana Police Department.
(b) "Chief' means the Chief of Police or designee.
758-8
Ordinance No. NS-XXX
Page 3 of 13
(c) "Person" means any natural person, partnership, cooperative
association, corporation, personal representative, receiver, trustee, assignee, or
any other legal entity, and includes the definition of "person" found in Section 1-2
of the Code.
(d) "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 share
ultimate control over the day-to-day operations of a business.
(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, preparation, storing, or consumption of
tobacco products.
(f) Tobacco product" means: (1) any substance containing tobacco
leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of
tobacco; or (2) any product or formulation of matter containing biologically active
amounts of nicotine that is manufactured, sold, offered for sale, or otherwise
distributed with the expectation that the product or matter will be introduced into
the human body, but does not include any product specifically approved by the
United States Food and Drug Administration for use in treating nicotine or
tobacco product dependence.
(g) "Tobacco retailer" means any person or business who sells, offers
for sale, or does or offers to exchange for any form of consideration, tobacco,
tobacco products, or tobacco paraphernalia, or who distributes free or low cost
samples of 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. 18-91. Tobacco retailer license.
(a) It shall be unlawful for any person to act as a tobacco retailer, or to
display or advertise the sale of tobacco products or tobacco paraphernalia,
without obtaining and maintaining a valid tobacco retailer's license pursuant to
this article for each location at which that activity is to occur.
Ordinance No. NS-XXX
Page 4 of 13
758-9
(b) It shall be a unlawful for a licensed tobacco retailer, or an agent or
employee thereof to violate any local, state, or federal tobacco-related law.
(c) Each day on which a prohibited act occurs shall constitute a
separate violation.
(d) It shall be unlawful for a licensed tobacco retailer or any of the
licensee's agents or employees, to violate any local, state, or federal law
applicable to sale, display or advertising of tobacco products, tobacco
paraphernalia, or tobacco retailing.
(e) Each tobacco retailer license shall be prominently displayed in a
publicly visible location at the licensed location.
Sec. 18-92. Limits on tobacco retail license.
(a) No license shall be issued to authorize tobacco retailing at other
than a fixed business place. Tobacco retailing by persons on foot or from
vehicles is prohibited.
(b) No license shall be issued to authorize tobacco retailing at any
location for which a tobacco retailer license suspension is in effect or during a
period of ineligibility following a revocation.
Sec. 18-93. Application procedure.
(a) 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.
(b) It is the responsibility of each proprietor to be informed regarding all
laws applicable to tobacco retailing, including those laws affecting the issuance
of a tobacco retailer's license.
(c) No proprietor may rely on the issuance of a license as a
determination by the City that the proprietor has complied with all laws applicable
to tobacco retailing.
(d) A license issued contrary to this article, contrary to any other law, or
on the basis of false or misleading information supplied by a proprietor shall be
revoked pursuant to Section 18-101 of this article.
758-10
Ordinance No. NS-XXX
Page 5 of 13
(e) Nothing in this article shall be construed to vest in any person
obtaining and maintaining a tobacco retailer's license any status or right to act as
a tobacco retailer in contravention of any provision of law.
(f) All applications shall be submitted on a form supplied by the Chief
and shall contain the following information:
(1) The name, address, and telephone number of each proprietor of the
business that is seeking a license.
(2) The business name, address, and telephone number of the single fixed
location for which a license is sought.
(3) A single name and mailing address authorized by each proprietor to
receive all communications and notices (the "authorized address")
required by, authorized by, or convenient to the enforcement of this
article. 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) 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 a proprietor has previously been issued a license pursuant to
this article that is or was at any time suspended or revoked and, if so,
the dates and locations of all such suspensions or revocations.
(6) Such other information as the Chief deems reasonably necessary for
the administration or enforcement of this article.
(7) All information required to be submitted in order to apply for a tobacco
retailer's license shall be updated with the Chief whenever the
information changes. A tobacco retailer shall provide the Chief with any
updates within ten (10) business days of a change.
Sec. 18-94. Issuance of tobacco retail license.
Upon the receipt of a complete application for a tobacco retailer's license
and the license fee required by this article, the Chief shall issue a tobacco retail
license unless one or more of the following exists:
(a) The information presented in the application is inaccurate or false.
Intentionally supplying inaccurate or false information shall be a violation of this
article; or
Ordinance No. NS-XXX
Page 6 of 13
758-11
(b) The application seeks authorization for tobacco retailing at a
location for which a suspension is in effect pursuant to this article, for which a
license has been revoked pursuant to this article, or for which this article
otherwise prohibits issuance of tobacco retailer licenses; or
(c) The application seeks authorization for tobacco retailing for a
proprietor to whom a suspension is in effect pursuant to this article for the subject
location or another location, whose license has been revoked pursuant to this
article for the subject location or another location, or to whom this article
otherwise prohibits a tobacco retailer license to be issued.
(d) The city has information that the proprietor or his or her agent or
employee has violated any local, state or federal tobacco control law, including
this Article, within the preceding twelve (12) months.
(e) The application seeks authorization for tobacco retailing that is
prohibited pursuant to this article, that is unlawful pursuant to this Code, or that is
unlawful pursuant to any other local, state, or federal law.
(f) Any denial of an application shall be in writing setting forth the
reasons for denial of the permit. Such denial shall be subject to appeal in
accordance with Section 18-102.
Sec. 18-95. License renewal and expiration.
(a) A tobacco retailer license 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 year beginning each fiscal year on April 1 and
ending on March 31 of the following year. Each tobacco retailer shall apply for
the renewal of his or her tobacco retailer's license and submit the license fee no
later than thirty (30) days prior to expiration of the term.
(b) A tobacco retailer's license that is not timely renewed shall expire at
the end of its term. To reinstate a license that has expired, or to renew a license
not timely renewed pursuant to subparagraph (a), the proprietor must:
(1) Submit the license fee plus a reinstatement fee of ten percent
(10%) of the license fee;
(2) Submit a signed affidavit affirming that the proprietor:
(A) Has not sold and will not sell any tobacco product or tobacco
paraphernalia after the license expiration date and before
the license is renewed; or
758-12
Ordinance No. NS-XXX
Page 7 of 13
(B) Has waited the appropriate ineligibility period established for
tobacco retailing without a license, as set forth in Section 18-
101 (a) of this article, before seeking renewal of the license.
Sec. 18-96. License nontransferable.
(a) A tobacco retailer's license may not be transferred from one person
to another or from one location to another. Whenever a tobacco retailing location
has a change in proprietors a new tobacco retailer's license is required.
(b) Notwithstanding any other provision of this article, prior violations at
a location shall continue to be counted against a location and license ineligibility
periods shall continue to apply to a location unless:
(1) the location has been fully transferred to a new proprietor or fully
transferred to entirely new proprietors; and
(2) the new proprietor(s) provides the City with clear and convincing
evidence that the new proprietor(s) has acquired or is acquiring the
location in an arm's length transaction. As used in this section, the
term "arm's length transaction" shall mean a 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 of
which is under any compulsion to participate in the transaction. A
sale between relatives, related companies or partners, or a sale for
which a significant purpose is avoiding the effect of the violations of
this article is not an arm's length transaction.
Sec. 18-97. Fees for license.
The fee to issue or to renew a tobacco retailer's license shall be set by
resolution of the City Council from time to time. The fee shall be calculated so as
not to exceed that amount which would recover the total cost of both license
administration and license enforcement, including, for example, issuing the
license, administering the license program, retailer education, retailer inspection
and compliance checks, documentation of violations, and prosecution of
violators. All fees shall be used exclusively to fund the program. Fees are
nonrefundable except as may be required by law.
Ordinance No. NS-XXX
Page 8 of 13
758-13
Sec. 18-98. Suspension or revocation of license by Chief of Police.
(a) In addition to any other remedy authorized by law, a tobacco
retailer's license may be suspended and eventually revoked if the Chief finds
pursuant to this article that the licensee, or any of the licensee's agents or
employees, has violated any of the requirements, conditions, or prohibitions of
this article or has pleaded guilty, "no contest" or its equivalent, or admitted to a
violation of any law designated in section 18-91 (d)) above. During any period of
license suspension, the retailer must remove all tobacco products from public
view.
(b) Time Period of Suspension of License.
(1) Upon the first time that the Chief makes a finding as set forth
in subsection (a) of this section, the tobacco retailer's license
shall be suspended for sixty (60) days;
(2) Upon the second time that the Chief makes a finding as set
forth in subsection (a) of this section within sixty (60) months
of the first determination, the tobacco retailer's license shall
be suspended for one hundred twenty (120) days;
(3) Upon the third time that the Chief makes a finding as set
forth in subsection (a) of this section within sixty (60) months
of the prior determination, the tobacco retailer's license shall
be suspended for one hundred and eighty (180) days;
(4) Upon the fourth and each subsequent time that the Chief
makes a finding as set forth in subsection (a) of this section
within sixty (60) months of the prior determination, the
tobacco retailer's license shall be revoked, and no new
license may issue for the location until five (5) years have
passed from the date of revocation.
(c) Revocation of license issued in error. A tobacco retailer's license
shall be revoked if the Chief finds, after written notice and opportunity to be
heard, that one or more of the bases for denial of a license under Section 18-94
existed at the time of application was made or at any time before the license was
issued. The decision by the Chief shall be final. The revocation shall be without
prejudice to the filing of a new application for license.
758-14
Ordinance No. NS-XXX
Page 9 of 13
Sec. 18-99.
Notice of intended decision.
(a) Upon determining the existence of any of the grounds for
suspension or revocation of a license, the Chief shall issue to the license holder
a notice of intended decision.
(b) The notice of intended decision shall state all the grounds upon
which the revocation or suspension is based.
(c) The notice of intended decision shall advise the permit holder that
the suspension or revocation shall become final unless the licensee files a written
request for hearing before the Chief within ten (10) calendar days of the date of
service of the notice of intended decision.
(d) The notice of intended decision shall specify the effective date of the
suspension or revocation.
Sec. 18-100.
Procedure for hearing before the Chief.
(a) The written request for a hearing before the Chief must be received
by the Chief within ten (10) calendar days of the date of service of the notice of
intended decision.
(b) Upon timely receipt of a written request for a hearing, the Chief shall
schedule a hearing which shall be held no later than thirty (30) calendar days
after receipt of a timely request for hearing.
(c) The Chief shall serve a notice of hearing on the licensee at least ten
(10) calendar days prior to the scheduled date of the hearing.
(d) At the hearing before the Chief, or before a hearing officer at the
Chief's option, the licensee shall be given the opportunity to present witnesses
and relevant documentary evidence.
(e) The hearing will be conducted informally and the technical rules of
evidence shall not apply. Any and all evidence which the Chief or hearing officer
deems reliable, relevant and not unduly repetitious may be considered.
Sec. 18-101.
Decision of the Chief.
(a) The Chief or hearing officer shall serve on the licensee a written
decision sustaining, reversing or modifying the Chiefs intended decision.
Ordinance No. NS-XXX
Page 10 of 13
758-15
(b) The decision by the Chief or hearing officer after hearing shall
become final unless the licensee files an appeal within the time period specified
in section 18-102.
Sec. 18-102. Chapter 3 Appeal.
(a) If a licensee is dissatisfied with the written decision of the Chief, the
licensee may file a written appeal to the city.
(b) The appeal must be in writing on a form provided by the city and
must be received by the clerk of the council within ten (10) calendar days of
notification of the Chiefs decision.
(c) The appeal, including its hearing, shall be conducted in accordance
with Chapter 3 of this Code.
Sec. 18-103. Tobacco retailing without a license-Seizure.
(a) Tobacco Products and Tobacco Paraphernalia offered for sale or
exchange in violation of this article are subject to seizure by the Chief or any
peace officer and shall be forfeited after the licensee and any other owner of the
tobacco products and tobacco paraphernalia seized is given reasonable notice
and an opportunity to demonstrate that the tobacco products and tobacco
paraphernalia were not offered for sale or exchange in violation of this article.
(b) Forfeited tobacco products and tobacco paraphernalia shall be
maintained and destroyed pursuant to the Chief's policy for seized evidence.
Sec. 18-104. Enforcement.
(a) The remedies provided by this article are cumulative and in addition
to any other remedies available at law or in equity.
(b) Whenever evidence of a violation of this article is obtained in any
part through the participation of a person under the age of eighteen (18) years
old, such a person shall not be required to appear or give testimony in any civil or
administrative process brought to enforce this article and the alleged violation
shall be adjudicated based upon the sufficiency and persuasiveness of the
evidence presented.
(c) Causing, permitting, aiding, abetting, or concealing a violation of
any provision of this article shall also constitute a violation of this article.
(d) Violations of this article are hereby declared to be public nuisances.
758-16
Ordinance No. NS-XXX
Page 11 of13
(e) In addition to other remedies provided by this article or by other
law, any violation of this article may be remedied by a civil action brought by the
City Attorney.
Sec. 18-105. Notice.
Whenever a notice is required to be given under this article, it shall be
made as provided in this Code, and addressed to such person to be notified at
the authorized address provided in the application for a tobacco retail license
pursuant to section 18-93(f)(3) of the Code, or if an authorized address is not
supplied, to the business address provided pursuant section 18-93 (f)(2) of the
Code.
Section 3. If any section, subsection, sentence, clause, phrase or portion
of this ordinance is for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this ordinance. The City Council of the City
of Santa Ana hereby declares that it would have adopted this ordinance and
each section, subsection, sentence, clause, phrase or portion thereof irrespective
of the fact that anyone or more sections, subsections, sentences, clauses,
phrases, or portions be declared invalid or unconstitutional.
ADOPTED this
day of
,2006
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Lorena C. Penaloza
Assistant City Attorney
Ordinance No. NS-XXX
Page 12 of 13
758-17
AYES: Council members
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Council members
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that
the attached Ordinance No. NS-XXX to be the original ordinance adopted by the
City Council of the City of Santa Ana on , and that said
ordinance was published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
758-18
Ordinance No. NS-XXX
Page 13 of 13
Icp:10/16/06
RESOLUTION
A RESOLUTION FROM THE CITY COUNCIL OF THE CITY
OF SANTA ANA ESTABLISHING A TOBACCO RETAIL
LICENSE FEE AND ADDING THIS FEE TO THE UNIFORM
SCHEDULE OF MISCELLANEOUS FEES
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The City Council has this day introduced an ordinance regulating the retail
sale of tobacco products ("The Tobacco Ordinance"), that would permit
Council to establish by resolution an annual fee for a license to authorize
tobacco retailing at fixed locations.
B. The Council finds that, as to this fee:
1. The funds raised by this fee are to be used exclusively to pay for
City programs to administer the program established by The Tobacco
Ordinance to encourage tobacco retailers' compliance with all federal,
state and local tobacco control laws and to discourage retailers from
selling or distributing tobacco, tobacco products, or tobacco paraphernalia
to minors in the City.
2. There is a reasonable relationship between the use of these fees
and the retailers on which the fee is imposed, in that the fees that will be
charged by the City will be used to pay for staff efforts and contract for
enforcement services to ensure that the tobacco retailers who pay this fee
act in accordance with the City's license program and to discourage
retailer from selling or distributing tobacco to minors. It is also to the
benefit of those paying the fee, i.e., tobacco retailers, to have dedicated
efforts by City staff to ensure that their competitors comply with the City's
license program.
3. There is a reasonable relationship between the impacts the City
experiences from tobacco retailing, and the tobacco retailers on whom the
fee is imposed because the fee is based upon a portion of the cost of
administration, implementation, monitoring and enforcement of the
tobacco retail licensure program. The Council finds in adopting this fee
that the more tobacco retail licenses the City issues to tobacco retailers,
the more impacts there are on City resources.
758-19
Resoiution No. 2006-XXX
Page 1 of 2
4. This fee will take be imposed commencing January 1,2007.
5. The fee for this service would not duplicate any existing fee,
charge, levy, or other toll currently collected by the City or any public
agency, and would be distinct and separate from any current or future fee
imposed by the County of Orange on tobacco retailers.
6. The moneys collected by this fee would be directed into a fund that
would be used only to recover the cost of administration, implementation,
monitoring and enforcement of the tobacco retail licensure program.
C. Based upon the City's study the annual cost of administering,
implementing, monitoring and enforcing the license program exceeds
$350.00 per tobacco retail location. A written study confirming this fact is
on file with the Clerk of the Council and is incorporated herein by
reference as though fully set forth.
D. Based upon all the testimony, reports and other evidence submitted on
this matter, this City Council makes the above-specified findings.
Section 2. An annual $350.00 per license fee is hereby established for each
proprietor applying for a tobacco retail license at a given location. This annual fee will
be collected beginning January 1, 2007.
Section 3. Without further action of the City council this fee shall be
incorporated into the City's miscellaneous Fee Schedule.
Section 4. If any charge, fee, service charge, section, subsection, sentence,
clause, phrase or word of this Resolution is for any reason held to be invalid by a court
of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Resolution. The City Council hereby declares that it would have passed
and adopted this Resolution, and each and all provisions hereof, irrespective of the fact
that one or more provisions may be declared invalid.
Section 5. This Resolution shall take effect only if The Tobacco Ordinance is
adopted and at the same time it becomes effective, and the Clerk of the Council shall
attest to and certify the vote adopting this Resolution.
Resolution No. 2006-XXX
Page 2 of 2
758-20
ADOPTED this
day of
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Lorena C. Penaloza
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Council members
,2006.
Miguel A. Pulido
Mayor
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the
attached Resolution No. 2006-XXX to be the original resolution adopted by the City
Council of the City of Santa Ana on
Date:
Clerk of the Council
City of Santa Ana
758-21
Resolution No. 2006-XXX
Page 3 of2
758-22