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HomeMy Public PortalAbout14-1547ORDINANCE NO. 14-1547 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA, AMENDING SECTIONS 41000 AND 63150.5 OF THE CARSON MUNICIPAL CODE ADDING E -CIGARETTE WITHIN THE CITY'S TOBACCO PERMITTING AND SMOKING REGULATIONS; AND REGULATING ELECTRONIC CIGARETTE USE IN THE SAME MANNER AS TOBACCO USE UNDER CERTAIN STATE LAWS WHEREAS, tobacco use and exposure to secondhand smoke cause death and disease and impose great social and economic costs; and WHEREAS, the Centers for Disease Control and Prevention have found that more than 480,000 people die in the United States from tobacco -related diseases every year, making it the nation's leading cause of preventable death; and WHEREAS, the World Health Organization estimates that by 2030, tobacco will account for eight million deaths per year, making it the greatest cause of death worldwide; and WHEREAS, the U.S. Environmental Protection Agency has found secondhand smoke to be a risk to public health and has classified secondhand smoke as a group A carcinogen, the most dangerous class of carcinogen; and WHEREAS, secondhand smoke is responsible for an estimated 42,000 deaths among non- smokers each year in the United States, which includes 7,333 lung cancer deaths and 33,951 deaths due to heart disease; and WHEREAS, electronic cigarettes, commonly known as e -cigarette, e -cigars, e -cigarillos, e -pipes, and e -hookahs, are battery operated devices designed to look like and be used in the same manner as conventional tobacco products. Electronic cigarette employ the use of a cartridge, generally containing up to 20 mg of nicotine t' deliver vaporized nicotine to users. Some cartridges used by electronic cigarette can be re -filled with liquid nicotine solution, creating the potential for exposure to dangerous concentrations of nicotine; and WHEREAS, the U.S. Food and Drug Administration ("FDA") conducted laboratory analysis of electronic cigarette and found the following: 1) Diethylene glycol, an ingredient used in antifreeze and toxic to humans, was found in one cartridge; 2) Certain tobacco- specific nitrosamines, which are human carcinogens, were detected in half of the samples tested; 3) Tobacco -specific impurities suspected of being harmful to humans—anabasine, myosmine, and B-nicotyrine—were detected in a majority of the samples tested; 4) All but one tested cartridge labeled as containing no nicotine did in fact contain low levels of nicotine; 5) Three identically labeled cartridges emitted markedly different amounts of nicotine with each puff. Nicotine [MORE] ORDINANCE NO. 14-1547 PAGE 2 OF I I levels per 100 mL puff ranged dramatically from 26.8 to 43.2 mcg nicotine; and 6) One high - nicotine cartridge delivered twice as much nicotine to users as was delivered by a nicotine inhalation product approved by the FDA for use as a smoking cessation aid which was used as a control; and WHEREAS, the FDA has raised concerns that electronic cigarette, which are often marketed in appealing flavors, can increase nicotine addiction among young people and may lead youth to try conventional tobacco products; and WHEREAS, the FDA has also raised concerns that electronic cigarettes are marketed and sold to young people and are readily accessible online and via mall kiosks; and WHEREAS, a study published in the American Journal of Public Health found similar results to the FDA testing and concluded that the electronic cigarette tested so far have demonstrated "poor quality control; toxic contaminants, albeit at low levels; misrepresentation of the nicotine delivered; and insufficient evidence of the overall public health benefit"; and WHEREAS, clinical studies about the safety and efficacy of electronic cigarettes for their intended use have not been submitted to the FDA, and for this reason, consumers currently have no way of knowing: 1) whether electronic cigarettes are safe for their intended use; 2) what types or concentrations of potentially harmful chemicals the products contain; and 3) what dose of nicotine the products deliver; and WHEREAS, the World Medical Association has determined that electronic cigarette "are not comparable to scientifically -proven methods of smoking cessation" and that "neither their value as therapeutic aids for smoking cessation nor their safety as cigarette replacements is established"; and WHEREAS, the federal law restricting the sale of tobacco products to minors currently applies only to cigarette, cigarette tobacco, roll -your -own tobacco, and smokeless tobacco, not electronic cigarette. 21 U.S.C. § 387a(b). However, California law prohibits the sale of electronic cigarettes to minors. Health & Safety Code § 119405; and WHEREAS, between 2010 and 2011, rates of both awareness and use of unregulated electronic cigarettes by adults increased significantly; and WHEREAS, electronic cigarette often mimic conventional tobacco products in shape, size, and color, with the user exhaling a smoke -like vapor similar in appearance to the exhaled smoke from cigarette and other conventional tobacco products; and WHEREAS, a study published in the Journal of Environmental and Public Health suggests that electronic cigarette "may have the capacity to 're -normalize' tobacco use in a demographic that has had significant denormalization of tobacco use previously"; and [MORE] ORDfNANCE NO. 14-1547 PAGE 3 OF I I WHEREAS, recent newspaper reports from across the nation indicate that electronic cigarette have a propensity for exploding while charging or in use. These explosions have caused severe bums and physical injuries to users. Additionally, these explosions have caused property damage; and WHEREAS, the use of electronic cigarette in smoke free locations threatens to undermine compliance with smoking regulations and reverse the progress that has been made in establishing a social norm that smoking is not permitted in certain locations; and WHEREAS, the City of Carson already prohibits smoking in certain public places and requires tobacco and electronic cigarettes to obtain a permit; and WHEREAS, the City of Carson would now like to amend its Municipal Code to include e - cigarette in the definitions of 'smoke' and tobacco 'product.' NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARSON DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Article 4, Chp. 11, Section 411 00(a)of the Carson Municipal Code is hereby amended to read, in their entirety, as follows: (a) 'Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory or congestion relief, such as for example, smoke from incense or vapor from a congestion relieving vaporizer. The term "Smoke" includes but is not limited to, tobacco smoke, electronic cigarette vapors, crack cocaine smoke and marijuana smoke." Section 2. Article 4, Clip. 3, Part 5, Section 63150.5 of the Carson Municipal Code is hereby amended to read, in their entirety, as follows: Section 63150.5 Tobacco and Electronic Cigarette Permit — Purpose. The purpose of this Section is to encourage responsible tobacco and electronic cigarette retailing and to discourage violations of tobacco -related laws that (1) prohibit the sale or distribution of tobacco and electronic cigarette products to minors and (2) prohibit the display of tobacco and electronic cigarette 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 criminal prosecution for violations of such laws, or to alter the penalty provided therefor. [MORE] ORDfNANCE NO. 14-1547 PAGE 4 OF I I Section 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. "Electronic Cigarette: an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. The term includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an e - cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. The term does not include any inhaler prescribed by a licensed doctor. "Newly established business" means a business which was not engaged in tobacco and electronic cigarette 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. "Tobacco and electronic cigarette 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 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 and electronic cigarette 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 and electronic cigarette retailing" shall mean engaging in any of these things. 63150.5.2 Requirements for Tobacco and Electronic Cigarette Permit. It shall be unlawful for any person to act as a tobacco and electronic cigarette without first obtaining and maintaining a valid tobacco and electronic [MORE] ORDfNANCE NO. 14-1547 PAGE 5 OF I I cigarette permit pursuant to CMC 63150.5, et seq., for each location at which such activity is to occur. No permit will be issued to authorize tobacco and electronic cigarette retailing at any place other than a fixed location; peripatetic tobacco and electronic cigarette retailing and tobacco and electronic cigarette 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. 63150.5.3 Application Procedure. A completed application for a tobacco and electronic cigarette 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 and electronic cigarette permit may be issued. Each person applying for a tobacco and electronic cigarette permit shall be responsible for reviewing the conditions of conducting retail 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. The business name, address and telephone number of the fixed location for which a tobacco and electronic cigarette permit is sought. 3. A statement whether or not the applicant has ever applied for and was denied or has been issued a tobacco and electronic cigarette 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 five (5) years. 5. Such additional information as the Director may reasonably require. 63150.5.4 Issuance and Renewal of Permit. Upon the receipt of a complete application for a tobacco and electronic cigarette 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 and electronic cigarette 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 CMC 63150.5, et seq.; provided, however, this subsection [MORE] ORDINANCE NO. 14-1547 PAGE 6 OF I I 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 subsection, 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 (2) 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 an "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 and electronic cigarette retailing by a person who has a currently suspended tobacco and electronic cigarette permit or who has had a permit revoked, pursuant to CMC 63150.5, et seq., within the last three (3) years. 4. The application seeks authorization for tobacco and electronic cigarette retailing in a manner which would violate this Code or any other local, State or Federal law. 5. The applicant, or 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 five (5) years. 6. The issuance of a tobacco and electronic cigarette permit would be in conflict with any other City ordinance. (Ord. 06-1365, § 5) 63150.5.5 Permits Not Transferable. A tobacco and electronic cigarette permit shall be nontransferable. Should a new person acquire a business that is engaged in tobacco and electronic cigarette retailing, that person must apply for a new permit prior to the commencement of any retail activity. 63150.5.6 Display of Permit. Each tobacco and electronic cigarette permit shall be prominently displayed in a publicly visible location where tobacco and electronic cigarette retailing occurs. (Ord. 06-1365, § 7) 63150.5.7 Permit Fee. The fee for filing an application for a tobacco and electronic cigarette 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 [MORE] ORDINANCE NO. 14-1547 PAGE 7 OF I I 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 and electronic cigarette permit program, retailer inspection and compliance checks, documentation of violations, adjudications and prosecutions of violators. 63150.5.8 Permit Violation — Compliance Monitoring. It shall be a violation of a tobacco and electronic cigarette permit for any tobacco and electronic cigarette permittee, or his or her agents or employees, to violate any local, State or Federal tobacco -related law. Compliance with this Section shall be monitored by the Los Angeles County Sheriffs Department— Carson Station. Notwithstanding the foregoing, any City peace officer or code enforcement officer is authorized to enforce CMC 63150.5, et seq. The City shall request that the Los Angeles County Sheriffs Department verify compliance of each tobacco and electronic cigarette with CMC 63150.5, et seq., a minimum of one (1) time per twelve (12) month period. Compliance checks shall include an investigation into whether a tobacco and electronic cigarette 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 the 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. 63150.5.9 Permit Compliance Incentives. Upon a finding by the City that a tobacco and electronic cigarette permittee has not violated CMC 63150.5, et seq., within the preceding three (3) year period, the Director shall grant a ten (10) percent discount from the permit fee set forth in CMC 63150.5.7. Upon a finding by the City that a tobacco and electronic cigarette permittee has not violated CMC 63150.5, et seq., within the preceding six (6) year period, the Director shall grant an additional ten (10) percent discount, for a total of a twenty (20) percent discount, from the permit fee set forth in CMC 63150.5.7. (Ord. 06-1365, § 10) 63 15 0.5. 10 Suspension or Revocation of Permit. [MORE] ORDfNANCE NO. 14-1547 PAGE 8 OF I I A. In addition to any other penalty authorized by law, a tobacco and electronic cigarette permit may be suspended or revoked if the City finds, after notice to the tobacco and electronic cigarette 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 CMC 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 and electronic cigarette permit at a particular location will not bar the City from granting a new tobacco and electronic cigarette 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 CMC 63150.5, et seq., within any three (3) year period, the Director may: a) Issue a written warning to the permittee. b) Advise the permittee of the penalties for further violations of CMC 63150.5, et seq. 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 CMC 63150.5, et seq., within any three (3) year period, the tobacco and electronic cigarette 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 CMC 63150.5, et seq., within any three (3) year period, the tobacco and electronic cigarette 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 CNIC 63150.5, et seq., within any three (3) year period, the tobacco and electronic cigarette 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 CMC 63150.5, et seq., within any three (3) year period, the tobacco and electronic cigarette permit may be revoked. B. A tobacco and electronic cigarette 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 and electronic cigarette permit shall prohibit the permittee from tobacco and electronic cigarette retailing within the City for a period of three (3) years. The revocation shall be without prejudice to the filing of a new application for a tobacco and electronic cigarette permit by a new applicant at an address where a permit has been revoked. 1. One (1) or more of the bases for denial of the tobacco and electronic cigarette permit listed in CMC 63150.5.4 existed at the time the tobacco and electronic cigarette permit application was made or at any time before the permit was issued. [MORE] ORDINANCE NO. 14-1547 PAGE 9 OF I I 2. The application is incomplete for failure to provide the information required by CMC 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 a type of tobacco and electronic cigarette retailing that is unlawful pursuant to this Code or any other local, State or Federal law. C. In the event the City denies, suspends or revokes a tobacco and electronic cigarette permit, written notice of the denial, suspension or revocation shall be served upon the 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. D. During a period of suspension of a tobacco and electronic cigarette 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 and electronic cigarette permit. 63150.5.11 Notification and Appeals. 1. Any notice of denial, suspension or revocation of a tobacco and electronic cigarette permit shall state the reasons for such action and the appropriate remedy or cure, if applicable. 2. Any notification to be given pursuant to CMC 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 CMC 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 [MORE] ORDINANCE NO. 14-1547 PAGEIOOFII additional decisions or determinations as it finds warranted under the provisions of CMC 63150.5, et seq., and may waive any requirement of CNIC 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 3. The City Council hereby finds that it can be seen with certainty that there is no possibility the adoption and implementation of this Ordinance may have a significant effect on the environment. The Ordinance is therefore exempt from the environmental review requirements of the California Environmental Quality Act pursuant to Section 15061(b) (3) of Title 14 of the California Code of Regulations. Section 4. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this section, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity. or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this section, or its application to any other person or circumstance. The City Council declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. Section 5. The City Clerk shall cause this ordinance to be published at least once in a newspaper of general circulation published and circulated in the City within fifteen (15) days after its passage, in accordance with Section 36933 of the Government Code, and shall certify to the adoption of this ordinance. Section 6. This Ordinance shall be in full force and effect thirty (30) days after its second reading and adoption. 2 oth PASSED, APPROVED and ADOPTED at a regular meeting of the City Council on this day of January, 2015. / � Mayor Jim Dear ATT City Clerk-Aa-6—hesi use, CMC , rW�i APPROVED AS FORM: Ci [MORE] ORDINANCE NO. 14-1547 PAGE 11 OF 11 STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss. CITY OF CARSON 1, Donesia L. Gause, 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 four; that the foregoing ordinance, being Ordinance No. 14-1547 passed first reading on December 16, 2014, was duly and regularly adopted by the City Council of said City at a regular meeting of said Council, held on the 20th day of January, 2015, and that the same was passed and adopted by the following roll call vote: AYES: COUNCIL MEMBERS: Mayor Dear, Santarina, Davis—Holmes and Robles NOES: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None �2cu 1..�'9� City Clerk Donesia L. Gause, CMC 01007.0001/235323.1