HomeMy WebLinkAbout11A - ORDINANCE AMEND CH 18
LCP 10/012/06
ORDINANCE NO. NS-XXX
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).
C. State law requires all tobacco retailers to be licensed by the Board of
Equalization (Cal. Bus. & Prof. Code 99 22970.1, 22972).
Ordinance No. NS-XXX
Page 1 of 12
11 A-1
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 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
Ordinance No. NS-XXX
Page 2 of 12
11 A-2
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.
(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.
Ordinance No. NS-XXX
Page 3 of 12
11A-3
(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, bid is, 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.
(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)
violation.
Each day on which a prohibited act occurs shall constitute a separate
(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.
Ordinance No. NS-XXX
Page 4 of 12
11A-4
(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 ofthis article.
(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.
Ordinance No. NS-XXX
Page 5 of 12
11A-5
(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
(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.
Ordinance No. NS-XXX
Page 6 of 12
11A-6
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
(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
Ordinance No. NS-XXX
Page 7 of 12
11A-7
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.
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 up to 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
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.
Ordinance No. NS-XXX
Page 8 of 12
11A-8
(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.
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.
Ordinance No. NS-XXX
Page 9 of 12
11A-9
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.
(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 Chiefs 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.
Ordinance No. NS-XXX
Page 10 of 12
11 A-1 0
(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.
(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 16th day of October, 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 11 of 12
11 A-11
AYES: Councilmembers
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:
Patricia E. Healy
Clerk of Council
City of Santa Ana
Ordinance No. NS-XXX
Page 12 of 12
11 A-12