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HomeMy WebLinkAboutOrdinance 1741 (Tobacco Retail & Advertizing)ORDINANCE NO. 1741 AN URGENCY ORDINANCE OF THE CITY OF SAN RAFAEL ADDING CHAPTER 8.15 TO THE SAN RAFAEL MUNICIPAL CODE ESTABLISHING A PERMITTING PROCESS FOR TOBACCO RETAIL SALES AND REGULATING TOBACCO ADVERTISING AND PROMOTION. THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: WHEREAS, state law prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Penal Code 1308); and WHEREAS, state law requires tobacco retailers to check the identification of tobacco purchasers who reasonably appear to be under 18 years of age (Business & Professions Code 122956) and provides procedures for onsite sting inspections of tobacco retailers, using persons under 18 years of age (Business & Professions Code 122952); and WHEREAS, state law prohibits public school students from smoking or using tobacco products while on campus or attending school -sponsored activities or while under the supervision or control of school district employees (Education Code 148901(a)); and WHEREAS, San Rafael Municipal Code Chapter 8.14 regulates the use of tobacco in public places and places of employment, prohibits the sale of tobacco products to minors, prohibits tobacco self-service merchandising and prohibits tobacco vending machines; and WHEREAS, despite these restrictions, minors continue to obtain cigarettes and other tobacco products at alarming rates. Over 947 million packs of cigarettes and 26 million containers of smokeless tobacco products are consumed by minors each year in the United States (Joseph R. DiFranza, M.D. & Joe B. Tye, M.B.A., Who Profits From Tobacco Sales to 1 ORIGINAL Children? 263(20) J.A.M.A. 2784 (1988)) and over 29 million packs of cigarettes are sold to California minors annually (K.M. Cummings et al., The Illegal Sale of Cigarettes to U.S. Minors: Estimates by State, 84(2) AM. J.PUB. HEALTH 300 (Feb. 1994)); and WHEREAS, in a 1998 California youth -buying survey conducted by the California Department of Health Services, 13.1 % of retailers surveyed sold tobacco products to minors; and WHEREAS, 88% of adults who have ever smoked tried their first cigarette by the age of 18 and the average age at which smokers try their first cigarette is 14 '/2 (U.S Dep't of Health & Human Services, et al., Preventing Tobacco Use Among Young People: A Report of the Surgeon General, 67 (1994)); and WHEREAS, the use of tobacco products by minors in the nation, the state and this City, continues to rise; and WHEREAS, City has a substantial interest in promoting compliance with state laws prohibiting sales of cigarettes and tobacco products to minors; in promoting compliance with state and local laws intended to discourage the purchase of tobacco products by minors; in protecting children from being lured into illegal activity through the misconduct of adults; and WHEREAS, the California courts in such cases as Cohen v. Board of Supervisors, 40 Cal.3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal.App.4' 383 (1993), have affirmed the power of municipalities to regulate business activity in order to discourage violations of state law; and WHEREAS, the requirement that tobacco retailers obtain a permit to engage in tobacco retail sales will not unduly burden legitimate business activities of retailers of tobacco who sell cigarettes or distribute tobacco products to adults, but will, however, allow the City to regulate 0) .-I the operation of lawful businesses to avoid circumstances which facilitate violations of the state and local laws; and WHEREAS, the City of San Rafael does not currently regulate tobacco sales through a permitting process or regulate tobacco advertising near areas frequented by minors, such as schools, parks and playgrounds, and therefore, the City's current regulations do not sufficiently protect the health, safety and welfare of its residents; and WHEREAS, persons and businesses primarily involved in the sale of tobacco products and paraphernalia have been establishing new outlets throughout the Bay Area at a rapid pace; and WHEREAS, the City needs to immediately address this expected proliferation of tobacco -related businesses; and WHEREAS, the safety and welfare of the public, and of minors in particular, can best be preserved in the face of this proliferation of tobacco product distribution by adopting an Urgency Ordinance establishing a tobacco retailer permitting process and a tobacco advertising restriction aimed at protecting minors; and WHEREAS, pursuant to Government Code 136934 and 136937, the City Council has the authority in situations requiring immediate preservation of the public peace, health or safety, to enact an Urgency Ordinance which would become effective upon its passage by 4/5ths vote of the City Council; and WHEREAS, the requirements of the California Environmental Quality Act (CEQA) have been satisfied, in that this project is exempt from the provisions of CEQA in accordance with section 15061(b)(3) of California Code of Regulations. 3 DIVISION 1. Findings. The City Council of the City of San Rafael hereby finds and determines as follows: 1. The foregoing recitals, and each of them, are true and correct and are hereby made part of this Ordinance. 2. The requirements of the California Environmental Quality Act (CEQA) have been satisfied and, pursuant to Section 15061(b)(3) of the California Code of Regulations, this project is exempt from the provisions of CEQA. 3. The continued proliferation of tobacco retail businesses presents a clear and present threat to the health and welfare of minors residing in this City. 4. Based upon the findings set forth herein, the immediate preservation of the public peace, health or safety requires the enactment of this Ordinance as an urgency measure pursuant to Government Code 136937(b). 5. This Ordinance shall be effective immediately upon its adoption by the City Council pursuant to Government Code 136937 and 136934 and shall apply to all tobacco retailers. NOW THEREFORE, it is the intent of the City in enacting this ordinance, to discourage violations of laws which prohibit or discourage sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which such acts regulated by state or federal law are criminally proscribed. DIVISION 2. Chapter 8.15 is hereby added to the San Rafael Municipal Code to read as follows: 4 CHAPTER 8.15 TOBACCO RETAIL SALES, ADVERTISING AND PROMOTION Section 8.15.005: DEFINITIONS. The following words and phrases, whenever used in this chapter, shall have the meaning defined in this section unless the context clearly requires otherwise: A. "Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco, including Indian cigarettes called "bidis." B. "Tobacco paraphernalia" shall mean cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco products. C. "Tobacco retailer" shall mean any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia; "tobacco retailing" shall mean the doing of any of these things. D. "Advertising display sign" means a sign, billboard, poster, free-standing sign, balloon, pennant or banner that is temporarily or permanently placed on or affixed to the ground, the sidewalk, a pole or post, a fence, or a building, or is displayed in the windows or doors of a commercial establishment, and that is used to advertise or promote products. E. "Mobile billboard" means any sign, placard, billboard, or other advertisement display upon or affixed to a vehicle which display is used to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right-of-way or on private property and visible to the public for a duration of time and in a manner which clearly G indicates that the sign is for advertising products illegal to sell to minors or which carry a specific brand name, logo, or indicia of a product illegal to sell to minors. For the purpose of this chapter, a mobile billboard shall not include any advertisements on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products. F. "Promote" or "promotion" means a display of any logo, brand name, character, graphics, colors, designs, or recognizable color or pattern of colors, or any other indicia or product identification with, or similar to, or identifiable with, those used for any particular brand of tobacco product. G. "Publicly visible location" means any outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or any location inside a commercial establishment immediately adjacent to a window or door where such location is visible from any street, sidewalk, or other public thoroughfare. Section 8.15.010: RESTRICTION ON ADVERTISING TOBACCO PRODUCTS. No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of cigarettes or tobacco products on an advertising display sign in a publicly visible location within 500 feet of the perimeter of an elementary or secondary school, high school, public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts), day care center, public community center and public library. Section 8.15.020: EXCEPTIONS. The restrictions contained in Section 8.15.010 shall not apply to advertising or promotions for tobacco products: r11 A. Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare. B. On vehicles, other than mobile billboards. C. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product. 14.19. D. On tobacco product packaging. Applicant is required to comply with all provisions of City's Sign Ordinance Chapter Section 8.15.030: DISTRIBUTION OF PROMOTIONAL ITEMS TO MINORS. No person may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor, which bears the brand name, alone or in conjunction with, any other word, logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product. Section 8.15.100: SELF-SERVICE DISPLAYS. It shall be unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any tobacco product by any means of self-service merchandising, including but not limited to self-service display, rack, countertop or shelf, or any means other than vendor -assisted sales. All tobacco products shall be offered for sale exclusively by means of vendor assistance, and all tobacco products shall be either in a locked case or in an area not accessible to the public prior to sale. 7 Section 8.15.110: SIGNS. Any person, business, or tobacco retailer shall post plainly visible signs at the point of purchase of tobacco products which state "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID REQUIRED." The letters of said signs shall be at least one inch (1") high. Section 8.15.120: SALE TO MINORS PROHIBITED. No person, business, or tobacco retailer shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser's age as eighteen (18) years or greater. Section 8.15.130: TOBACCO VENDING MACHINES PROHIBITED. No person, business, or tobacco retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any vending machine for the purpose of selling or distributing any tobacco product. Section 8.15.200: REQUIREMENT FOR TOBACCO RETAILER PERMIT. It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's permit pursuant to this chapter for each location at which that activity is to occur. No permit may be issued to authorize tobacco retailers at other than a fixed location; peripatetic tobacco retailing and tobacco retailing from vehicles are prohibited. Permits are valid for one (1) year. Each tobacco retailer must apply for the tobacco retailer's permit or for the renewal of the tobacco retailer's permit at the same time the applicant applies for, or renews their City business license. *11 Section 8.15.210: APPLICATION PROCEDURE. Application for a tobacco retailer's permit shall be submitted in the name of the person or entity proposing to conduct retail tobacco sales and shall be signed by such person or an authorized agent thereof. All applications shall be submitted to the City and shall contain the following information: 1. The name, address, telephone and fax numbers of the applicant. 2. The business name, address, telephone and fax numbers of each location for which a tobacco retailer's permit is sought. 3. Such other information as the City deems reasonably necessary for implementation and enforcement of this Ordinance. A fee for the tobacco retailer's permit shall be established by City Council in its Fee Schedule Resolution as amended from time to time. The applicant shall pay the fee at the time the application is submitted. The application shall be submitted at the same time as the applicant's initial application for or renewal of a City business license. Section 8.15.220: ISSUANCE OF PERMIT. Upon the receipt of an application for a tobacco retailer's permit, the City shall issue a permit unless evidence demonstrates one of the following bases for denial: 1. The application is incomplete or inaccurate. 2. The application seeks authorization for tobacco retailing by a person or at a location for which a suspension is in effect pursuant to Section 8.15.250 of this Chapter. 3. The application seeks authorization for tobacco retailing that is otherwise unlawful under provisions of state or federal law or the provisions of the San Rafael Municipal Code. 0 Section 8.15.230: DISPLAY OF PERMIT. Each permittee shall prominently display the permit at each location where tobacco retailing occurs. Section 8.15.240: PERMITS NONTRANSFERABLE. A tobacco retailer's permit is nontransferable. In the event a person to whom a permit has been issued changes business location or sells the business referenced in that person's permit, that person must apply for a new permit prior to acting as a tobacco retailer at the new location. The transferee of the permittee must apply for a permit in the transferee's name before acting as a tobacco retailer. Any permit reissued pursuant to this section shall expire on the date the previous permit for the business or person would have otherwise expired. Section 8.15.250: SUSPENSION OR REVOCATION OF PERMIT. A. Grounds for Suspension or Revocation: 1. A tobacco retailer's permit shall be revoked if the City finds, after notice and opportunity to be heard, that one or more of the basis for denial of a permit under Section 8.15.220 of this Ordinance exists. The revocation shall be without prejudice to the filing of a new application for a permit following correction of the conditions which required revocation. 2. A tobacco retailer's permit shall be suspended if the City finds, after notice and opportunity to be heard, that the permittee or his or her agent or employee has violated any federal, state or local law governing the sale, promotion, advertisement or display of tobacco, tobacco products, or tobacco paraphernalia. B. Suspension of Permit: 1. If the City finds that there are grounds for suspension of a permit, the following sanctions shall be imposed: 10 (a) Upon a first finding by the City of a violation by a permittee or any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for ninety (90) days unless: (1) the permittee submits a training plan within a reasonable time established by the City, in form and content acceptable to the City, for the training of all sales employees in the laws pertaining to the sale, advertisement, and display of tobacco, tobacco products, or tobacco paraphernalia to minors, and, techniques to ensure future compliance with said laws; and (2) the permittee files with the City, within such time as is reasonably established by the City, satisfactory evidence that the training described in the training plan has been completed. 2. Upon the second finding by the City of a violation by a permittee or by any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for one hundred twenty (120) days. 3. Upon each subsequent finding by the City of a violation by a permittee or by any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for one year. C. Appeal of Suspension and/or Revocation: The decision is appealable pursuant to the provisions of Chapter 14.28 of the San Rafael Municipal Code. Section 8.15.260: PENALTIES FOR VIOLATIONS. A violation of any provision of this Chapter shall be punishable as provided for in Chapters 1.42, 1.44 and 1.46 of this Code. These remedies shall be in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this Chapter. 11 DIVISION 3: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. DIVISION 4: The enactment of this Urgency Ordinance is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to section 15061(b)(3) of the California Code of Regulations. DIVISION 5: This Ordinance is adopted as an Urgency Ordinance and shall be effective immediately upon its adoption by the City Council by a 4/5ths vote pursuant to Government Code 136937 and 136934. Within fifteen (15) days of its enactment, the City Clerk is directed to publish a copy of this Ordinance once in a newspaper of general circulation, published and circulated in the City of San Rafael. ATTEST: A.vf .s--,;. Wk�mm� LEON-MINI, City Clerk 12 STATE OF CALIFORNIA ) COUNTY OF MARIN ) ss. CITY OF SAN RAFAEL ) I, JEANNE M. LEONCINI, City Clerk of the City of San Rafael, certify the foregoing Urgency Ordinance was passed by the City Council of the City of San Rafael, California, by a vote of four-fifths (4/5ths) of the members thereof, at a regular meeting held on the 16" day of August, 1999 by the following vote, to wit: AYES: Councilmembers: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: Councilmembers: None ABSENT: Councilmembers: None A' JE M. LEONC , City Clerk 13