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HomeMy Public PortalAbout06-1365 ORDINANCE NO. 06-1365 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA, ESTABLISHING A TOBACCO RETAILER'S PERMIT WHEREAS, the City Council for the City of Carson desires to establish a process to regulate the sale of tobacco within the City. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARSON DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Section 63 150.5, "Tobacco Retailer's Permit" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5 Tobacco Retailer's Permit - Purpose. The purpose of this section is to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws that (1) prohibit the sale or distribution of tobacco products to minors and (2) prohibit the display of tobacco products from being within reach of the public. This permit process is not intended to expand or reduce the degree to which tobacco-related activities are regulated by federal or state law, including criminally prosecution for violations of such laws, or to alter the penalty provided therefore." Section 2. Section 63150.5.1, "Definitions" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.1 Definitions. "City" means the City of Carson,California. "Code Enforcement Officer"'means any employee or agent of the City who is designated to enforce any provision of this Code. "Director" means the City's Finance Officer or his or her designee. "Newly established business" means a business which was not engaged in tobacco retailing within the City during the immediately preceding permit renewal period. "Person" means any natural person, partnership, cooperative association, domestic or foreign corporation, receiver, trustee, assignee, or any other legal entity. 01007/0001/46213.01 "Tobacco product" means any substance containing tobacco leaf, including but not limited to any tobacco cigarette, cigar, pipe tobacco, snuff, smokeless tobacco or any other form of tobacco which may be utilized for smoking, chewing, inhaling or other manner of ingestion. "Tobacco paraphernalia" means cigarette papers or wrappers, pipe holders, smoking materials of all types, cigarette rolling machines, and any other item designed to facilitate smoking or the ingestion of tobacco products. "Tobacco retailer" means any person who sells, offers for sale, or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia; "tobacco retailing" shall mean engaging in any of these things." Section 3. Section 63 150.5.2, "Requirements for Tobacco Retailer's Permit" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.2 Requirements for Tobacco Retailer's 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 Section 63150.5, et seq. for each location at which such activity is to occur. No permit will be issued to authorize tobacco retailing at any place other than a fixed location; peripatetic tobacco retailing and tobacco retailing from vehicles are prohibited. Each day that a person offers tobacco, tobacco products or tobacco paraphernalia for sale or exchange within the City without a valid permit shall constitute a separate violation of this code." Section 4. Section 63150.5.3, "Application Procedure" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.3 Application Procedure. A completed application for a Tobacco Retailer's Permit (including the payment of all necessary fees) shall be submitted to the Director. The application shall be sought in the name of the person proposing to conduct retail tobacco sales and shall be signed by such person or, in the case of a business, by an authorized agent thereof. A valid city business license is also required before a Tobacco Retailer's Permit may be issued. Each person applying for a Tobacco Retailer's Permit shall be responsible for reviewing the conditions of conducting retail 4 tobacco sales within the City and shall agree to abide by these conditions by `= signing the application under penalty of perjury. All applications shall be submitted on the form supplied by the Director and shall contain the following information: 1. The legal name, address, and telephone number of the applicant. 2 01007/0001/46213.01 2. The business name, address and telephone number of the fixed location for which a Tobacco Retailer's Permit is sought. 3. A statement whether or not the applicant has ever applied for and was denied or has been issued a Tobacco Retailer's Permit from the City or any other jurisdiction which was revoked or suspended and the dates and circumstances surrounding the suspension and/or revocation. 4. A statement of whether the applicant, its agents or employees have been convicted of a felony involving or related to the sale of tobacco, tobacco paraphernalia or tobacco products within the past 5 years 5. Such additional information as the Director may reasonably require." Section 5. Section 63150.5.4, "Issuance and Renewal of Permit" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.4 Issuance and Renewal of Permit. Upon the receipt of a complete application for a Tobacco Retailer Permit and the payment of the applicable permit fee, the City shall issue a permit unless any of the following occur: 1. The application is incomplete or inaccurate. 2. The application seeks authorization for tobacco retailing at an address that appears on a permit that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of Section 63150.5, et seq.; provided, however, this subparagraph shall not constitute a basis for denial of a permit if either or both of the following apply: a) The applicant provides the City with documentation demonstrating, to the Director's satisfaction, that the applicant has acquired or is acquiring the premises or business in an arm's length transaction. For the purposes of this subparagraph., an "arm's length transaction" is defined as 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 under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this section that have occurred at the location, will be presumed not to be and"arm's length transaction." b) It has been more than three (3) years since the most recent permit for that location was revoked. 3. The application seeks authorization for tobacco retailing by a person who has a currently suspended Tobacco Retailer's Permit or who has had a permit revoked, pursuant to Section,63150.5, et seq., within the last three (3) years; 4. The application seeks authorization for tobacco retailing in a manner which would violate this Code or any other local, state or federal law. 3 01007/0001/46213.01 5. The applicant, its agents or employees, has been convicted of a felony involving or related to the sale of tobacco, tobacco paraphernalia or. tobacco products within the past 5 years. 6. The issuance of a Tobacco Retailer's Permit would be in conflict with any other city ordinance." Section 6. Section 63150.5.5, "Permits Not Transferable" is hereby added to the Carson Municipal Code to read as follows: "§63150.5.5 Permits Not Transferable. A Tobacco Retailer's Permit shall be non-transferable. Should a new person acquire a business that is engaged in tobacco retailing,that person must apply for a new permit prior to the commencement of any retail activity." Section 7. Section 63150.5.6, "Display of Permit" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.6 Display of Permit. Each Tobacco Retailer's Permit shall be prominently displayed in a publicly visible location where tobacco retailing occurs." Section 8. Section 63150.5.7, "Permit Fees" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.7 Permit Fee. The fee for filing an application for a Tobacco Retailer's Permit shall be established by resolution of the City Council and may be amended from time to time. The application fee is nonrefundable; however, if a permit is denied, the business license fee paid shall be refunded. This permit fee is calculated so as to recover the cost of both the administration and enforcement of the permit, including the cost of issuing the permit, renewing the permit, administering the Tobacco Retailer's Permit program, retailer inspection and compliance checks, documentation of violations, adjudications and prosecutions of violators." Section 9. Section 63150.5,.8, "Permit Violation—Compliance Monitoring" is hereby s added to the Carson Municipal Code to read as follows: "§ 63150.5.8 Permit Violation—Compliance Monitoring. It shall be a violation of a Tobacco Retailer's Permit for any Tobacco Retailer's Permittee, or his or her agents or employees, to violate any local, state or federal tobacco-related law. 4 01007/0001/46213.01 Compliance with this section shall be monitored by the Los Angeles County Sheriffs Department — Carson Station. Notwithstanding the forgoing, any City peace officer or code enforcement officer is authorized to enforce Section 63150.5, et seq. The City shall request that the Los Angeles County Sheriffs Department verify compliance of each tobacco retailer with Section 63150.5, et seq., a minimum of one time per twelve (12) month period. Compliance checks shall include an investigation into whether a tobacco retailer is complying with tobacco laws prohibiting the sale of tobacco products to minors. The Los Angeles County Sheriffs Department may use youth decoys and shall comply with protocols for the compliance checks developed in consultation with Los Angeles County Department of Health Services. The City shall not enforce any tobacco-related minimum-age law against a person who otherwise might be in violation of such law because of such person's age (herein"youth decoy") if the potential violation occurs when the youth decoy is participating in a compliance check supervised by a peace officer, a code enforcement official or an agent of another governmental agency." Section 10. Section 63150.5.9, "Permit Compliance Incentives" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.9 Permit Compliance Incentives. Upon a finding by the City that a Tobacco Retailer's Permittee has not violated Section 63150.5, et seq., within the preceding three-year period, the Director shall grant a ten percent (10%) discount from the permit fee set forth in Section 63150.5.8. Upon a finding by the City that a Tobacco Retailer's Permittee has not violated Section 63150.5, et seq„ within the preceding six-year period, the Director shall grant an additional ten percent (10%) discount, for a total of a twenty percent (20%) discount, from the permit fee Set forth in Section 63150.5.8." Section 11. Section 63150.5.10, "Suspension or Revocation of Permit" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.10 Suspension or Revocation of Permit. In addition to any other penalty authorized by law, a Tobacco Retailer's Permit may be suspended or revoked if the City finds, after notice to the Tobacco Retailer Permittee and an opportunity for the permittee to be heard, that the permittee, or his or her agents or employees, has violated any of the provisions of Section 63150.5, et seq. or any other local, state or federal law relating to tobacco; provided, however, that a violation by a permittee at one location may not be cause for such permittee to lose its permit at any other location within the City where such permittee is engaged in the retail sale of tobacco. Similarly, the violation of a Tobacco Retailer's Permit at a particular location will not bar the 5 01007/0001/46213.01 City from granting a new Tobacco Retailer's Permit to another applicant who is unrelated to the prior permittee for the same location. 1. Upon a finding by the City of a first violation of any provision of Section 63150.5, et seq., within any three-year period, the Director may: a) Issue a written warning to the permittee. b) Advise the permittee of the penalties for further violations of the ordinance. c) Require the permittee 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 Director. 2. Upon a finding by the City of a second permit violation of any provision of Section 63150.5, et seq., within any three-year period, the Tobacco Retailer's Permit may be suspended up to thirty (30) days. 3. Upon a finding by the City of a third permit violation of any provision of Section 63150.5, et seq., within any three-year period, the Tobacco Retailer's Permit may be suspended up to ninety (90) days. 4. Upon a finding by the City of a fourth permit violation of any provision of . Section 63150.5, et seq., within any three-year period, the Tobacco Retailer's Permit may be suspended for up to one (1) year. 5. Upon a finding by the_City of a fifth permit violation of any provision of Section 63150.5, et seq., within any three-year period, the Tobacco Retailer's Permit may be revoked. A Tobacco Retailer's Permit shall be revoked if the City finds, after notice to the permittee and an opportunity for the permittee to be heard, that any one of the conditions listed below existed at the time of the violation. The revocation of a Tobacco Retailer's Permit shall prohibit the permittee from tobacco retailing within the City for a period of 3 years. The revocation shall be without prejudice to the filing of a new application for a Tobacco Retailer's Permit by a new applicant at an address where a permit has been revoked. 1. One or more of the bases for denial of the Tobacco Retailer's Permit listed in Section 63150.5.4. existed at the time the Tobacco Retailer's Permit application was made or at anytime before the permit was issued. 2. The application is incomplete for failure to provide the information required by Section 63150.5.3. 3. The information contained in the application, including any supplemental information, is found to be false in any material respect. 4. The application seeks authorization for tobacco a type of tobacco retailing that is unlawful pursuant to this Code or any other local, state or federal law. In the event the City denies, suspends or revokes a Tobacco Retailer's Permit, written notice of the denial, suspension or revocation shall be' served upon the 6 01007/0001/46213.01 applicant or permittee, as the case may be, within five (5) days of the decision to deny, suspend or revoke the permit to the mailing address specified in the application. During a period of suspension of a Tobacco Retailer's Permit, the permittee must remove from public view all tobacco products and tobacco paraphernalia at the address that appears on the suspended or revoked Tobacco Retailer's Permit." Section 12. Section 631 50.5.11, "Notification and Appeals" is hereby added to the Carson Municipal Code to read as follows: "§ 63150.5.11 Notification and Appeals. 1. Any notice of denial, suspension or revocation of a Tobacco Retailer's Permit shall state the reasons for such action and the appropriate remedy or cure, if applicable. 2. Any notification to given pursuant to Section 63150.5, et seq., shall be deemed given once the notice is sent by facsimile to the facsimile number listed on the application, or if no number is listed,when notice is placed, postage prepaid in the United States mail, addressed to the applicant at the address shown on the permit application. 3. Any applicant or permittee aggrieved by a decision or action of the Director under Section 63150.5, et seq., shall have the right to appeal such decision to the City Council. (a) Any appeal that is filed pursuant to this Section shall be filed, and all appropriate fees shall be paid, with the City Clerk within fourteen (14) calendar days after notice of denial, approval or revocation is given by the City. The City Council shall act upon any such appeal within twenty-eight (28) calendar days of the filing of the appeal. (b) Upon receipt of an appeal that is filed pursuant to this Section, the City Clerk shall set a date for a hearing of the matter and give notice of the date, time and place of the hearing to the applicant/appellant. Prior to such hearing, the Director shall transmit to the City Clerk a report of his/her findings. At the hearing by the City Council, the Director shall present all documents on file with respect to the matter being appealed. (c) The City Council shall consider the record and such additional evidence as may be offered and may affirm, reverse or modify, in whole or in part, the action that was appealed. The City Council may also make or substitute additional decisions or determinations as it finds warranted under the provisions of Section 63150.5, et 7 01007/0001/46213.01 seq., and may waive any requirement of Section 63150.5, et seq., where it is found to be in the public interest. The City Clerk shall transmit a written copy of the City Council's decision to the applicant/appellant within five (5) days of the hearing." Section 13. If any provision(s) of this ordinance or the application thereof to any person or circumstances is held invalid or unconstitutional by any court of competent jurisdiction, such invalidity or unconstitutionality shall not affect any other provision or application, and to this end the provisions of this ordinance are declared to be severable. The City Council hereby declares that they would have adopted this ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, clauses, phrases, parts or portions thereof be declared invalid or unconstitutional. Section 14. The City Clerk shall certify to the adoption of this ordinance, and shall cause the same to be posted in the manner required by law. Section 15. , This ordinance shall be effective thirty(30) days following its adoption. PASSED, APPROVED, AND ADOPTED THIS 21st DAY OF November, 2006. Mayor Jim Dear . ATTEST: 4k City Clerk Helen S. Kawagoe APPROVED AS TO FORM: City Attorney f 8 01007/0001/46213.01 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF CARSON ) I, Helen S. Kawagoe, City Clerk of the City of Carson, California, do hereby certify that the whole number of members of the City Council of said City is five; that the foregoing ordinance, being Ordinance No. 06-1365 passed first reading on November 8, 2006, was duly and regularly adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 21 st day of November, 2006, and that the same was passed and adopted by the following roll call vote: AYES: COUNCIL MEMBERS: Mayor Dear, Ruiz-Raber, Santarina, Williams and Gipson NOES: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None City Clerk, City of Carson,ralifornia 9