HomeMy WebLinkAbout11-27-2018 Public CommentCOUNTY
0 5AN LUIS
OBISPO
COUNTY OF SAN LUIS OBISPO HEALTH AGENCY
PUBLIC HEALTH DEPARTMENT
Michael Hill Health Agency Director
Penny Borenstein, MD, MPH Health Officer-1public e A-
NOV 7 2018
Dear City of San Luis Obispo Officials,
SLO CITY CLERK
Thank you for taking the time to listen to the discussion regarding youth nicotine access
in the City of San Luis Obispo. I want to reiterate that in order to ban the sale of flavored
tobacco products, San Luis Obispo would only need to amend its already existing Tobacco
Retail Licensing Ordinance (TRL). Besides staff time in discussing and finalizing the change, this
process will not cost any money. Changelab Solutions, a third party legal agency, can also
provide free assistance with amending the ordinance. We will also be discussing a revision of
the TRL ordinance with the cities of Grover Beach and Arroyo Grande, who also have these
ordinances (Morro Bay, Pismo, Paso Robles and Atascadero do not have these ordinances). The
County of San Luis Obispo Tobacco Control Program will support the City of SLO through a paid
advertising campaign, ongoing retailer education, and will assist with organized enforcement
efforts.
In this folder I have included:
0 The current San Luis Obispo City Tobacco Retail Licensing Ordinance and
suggested language for amendments
9 A factsheet on the effects of flavored tobacco products
Thank you again,
6'^ek'A—
Grace Calhoun, Health Educator
Public Health Department
2180 Johnson Avenue I San Luis Obispo, CA 93401 1 (P) 805-781-1157 1 (F) 805-781-5543
www.slopublichealth.org
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Ch. 8.14 Tobacco Retailer Licenses I San Luis Obispo Municipal Code
Chapter 8.14
TOBACCO RETAILER LICENSES
Sections:
8.14.010
Purpose.
8.14.020
Definitions.
8.14.030
Requirement for tobacco retailer license.
8.14.040
Application procedure.
8.14.050
Issuance of license.
8.14.060
Display of license.
8.14.070
Fees for license.
8.14.080
Licenses nontransferable.
Pagel of 8
*See following pages for
amendments
8.14.085 Noncompliance with tobacco related laws—License violation.
8.14.090 License compliance monitoring.
8.14.100 Suspension or revocation of license.
8.14.110 Appeal of suspension and/or revocation.
8.14.120 Administrative fine—Penalties—Enforcement.
8.14.130 Severability.
8.14.010 Purpose.
It is the intent of the city of San Luis Obispo, in enacting this chapter, to discourage violations of
laws which prohibit or regulate the sale or distribution of tobacco products to minors, but not
to expand or reduce the degree to which the acts regulated by state or federal law are
criminally proscribed or to alter the penalty provided therefor. (Ord. 1440 § 1 (part), 2003)
8.14.020 Definitions.
The following words and phrases, whenever used in this chapter, shall have the meanings
defined in this section unless the context clearly requires otherwise:
A. "Electronic smoking device" means an electronic device which can be used to deliver an
inhaled dose of nicotine or any other substances, including any component, part, or accessory
of such a device, whether or not sold separately. "Electronic smoking device" includes any such
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October 16, 2018.
Ch. 8.14 Tobacco Retailer Licenses I San Luis Obispo Municipal Code
Page 2 of 8
electronic smoking device, whether manufactured, distributed, marketed, or sold as an
electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic
hookah, or any other product name or descriptor.
B. "Person" means any natural person, partnership, cooperative association, private
corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
C. "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 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 can or
does share, ultimate control over the day -today operations of a business.
D. "Tobacco product' means any product containing, made from, or derived from tobacco or
nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed,
dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to
cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, electronic smoking
devices or any other preparation of tobacco including Indian cigarettes called "bidis." "Tobacco
product" does not include any product that has been approved by the United States Food and
Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes
and is marketed and sold solely for such an approved purpose.
E. "Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange
for any form of consideration tobacco, or tobacco products; "tobacco retailing" shall mean the
doing of any of these things.
F. "Licensing agent" means a city employee designated by the city administrative officer to
serve in this capacity.
G. "Enforcement agency' means the San Luis Obispo police department.
H. "Hearing officer" means the city employee designated by the city administrative officer to
serve in this capacity. (Ord. 1613 § 2, 2015: Ord. 1440 § 1 (part), 2003)
(AMENDMENT)
I. "Characterizing flavor" means a taste or aroma, other than the taste or aroma of
tobacco, imparted either prior to or during consumption of a Tobacco Product or any
byproduct produced by the Tobacco Product, including, but not limited to, tastes or aromas
related to menthol, mint, wintergreen, fruit, chocolate, vanilla honey, candy, cocoa, dessert,
alcoholic beverage, herb, or spice; provided, however, that a Tobacco Product shall not be
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October 16, 2018.
Ch. 8.14 Tobacco Retailer Licenses I San Luis Obispo Municipal Code Page 3 of 8
determined to have a Characterizing Flavor solely because of the use of additives or
flavorings or the provision of ingredient information.
J. "Flavored Tobacco Product" means any Tobacco Product that imparts a Characterizing
Flavor.
8.14.030 Requirement for tobacco retailer license.
It shall be unlawful for any person to act as a tobacco retailer without first obtaining and
maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which
that activity is to occur.
No license will be issued to authorize tobacco retailing at other than a fixed location; itinerant
tobacco retailing and tobacco retailing from vehicles are prohibited.
No license will be issued to authorize tobacco retailing at any location that is licensed under
state law to serve alcoholic beverages for consumption on the premises (e.g., an "on -sale"
license issued by the California Department of Alcoholic Beverage Control); tobacco retailing in
bars and restaurants serving alcoholic beverages is prohibited.
Licenses are valid for one year and each tobacco retailer shall apply for the renewal of his or
her tobacco retailer's license prior to its expiration. The conference of a tobacco retailer license
does not confer any new rights under any other law and does not exempt any business that
otherwise would be subject to the smoke-free work place provisions within the San Luis Obispo
Municipal Code and Labor Code Section 6404.5. (Ord. 1440 § 1 (part), 2003)
8.14.040 Application procedure.
A. Application for a tobacco retailer's license shall be submitted to the licensing agent in the
name of each proprietor/person proposing to conduct retail tobacco sales and shall be signed
by such person or an authorized agent thereof. All applications shall be submitted on a form
supplied by the licensing agent and shall contain the following information:
1. The name, address, and telephone number of the applicant.
2. The business name, address, and telephone number of each location for which a
tobacco retailer's license is sought.
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October 16, 2018.
Ch. 8.14 Tobacco Retailer Licenses I San Luis Obispo Municipal Code Page 4 of 8
3. Such other information as the licensing agent deems necessary for enforcement of this
chapter.
4. Whether or not any proprietor has previously been issued a license pursuant to this
chapter that is, or was at any time, suspended or revoked and, if so, the dates of the
suspension period or the date of revocation. (Ord. 1440 § 1 (part), 2003)
8.14.050 Issuance of license.
Upon the receipt of an application for a tobacco retailer's license, the licensing agent shall issue
a license unless substantial record evidence demonstrates one of the following bases for
denial:
A. The application is incomplete or inaccurate; or
B. The application seeks authorization for tobacco retailing by a person or at a location for
which a suspension is in effect pursuant to Section 8.14.100 of this chapter; or
C. The application seeks authorization for tobacco retailing in an area that is in violation of city
zoning pursuant to Title 17 of this code or that is unlawful pursuant to any other local, state, or
federal law. (Ord. 1440 § 1 (part), 2003)
8.14.060 Display of license.
Each license shall prominently display the license in a public place at each location where
tobacco retailing occurs. (Ord. 1440 § 1 (part), 2003)
8.14.070 Fees for license.
The fee for a tobacco retailer's license shall be established by resolution of the city council of
the city of San Luis Obispo. The fee shall be calculated so as to recover the total cost, but no
more than the total cost, of license administration and enforcement, including, for example, but
not limited to, issuing the license, administering the license program, retailer education, retailer
inspection and compliance checks, documentation of violation, and prosecution of violators.
The fee for tobacco retailer's license shall be paid to the licensing agent. (Ord. 1440 § 1 (part), 2003)
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October 16, 2018.
Ch. 8.14 Tobacco Retailer Licenses I San Luis Obispo Municipal Code
8.14.080 Licenses nontransferable.
Page 5 of 8
A tobacco retailer's license is nontransferable. For example, if a proprietor to whom a license
has been issued changes business location, that proprietor must apply for a new license prior
to acting as a tobacco retailer at the new location. Or if the business is sold, the new owner
must apply for a license for that location before acting as a tobacco retailer. (Ord. 1440 § 1 (part),
2003)
8.14.085 Noncompliance with tobacco related laws—License
violation.
Compliance with all local, state and federal tobacco -related laws shall be a condition of a city
tobacco retailer license and it shall be a violation of a license for a licensee or his or her agents
or employees to violate any local, state or federal tobacco -related law. (Ord. 1473 § 1, 2005)
8.14.090 License compliance monitoring.
Compliance with this chapter shall be monitored by the San Luis Obispo police department. At
least four compliance checks of each tobacco retailer shall be conducted during each
twelve-month period. The cost of compliance monitoring shall be incorporated into the license
fee. (Ord. 1440 § 1 (part), 2003)
8.14.100 Suspension or revocation of license.
A. In addition to any other penalty authorized by law, a tobacco retailer's license may be
suspended or revoked if the city finds, after notice to the licensee and opportunity to be heard,
that the licensee or his or her agents or employees has violated the conditions of the license
imposed pursuant to this chapter.
1. Upon a finding by the city of a first license violation within any five-year period, the
license shall be suspended for thirty days.
2. Upon a finding by the city of a second license violation within any five-year period, the
license shall be suspended for ninety days.
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October 16, 2018.
Ch. 8.14 Tobacco Retailer Licenses I San Luis Obispo Municipal Code Page 6 of 8
3. Upon a finding by the city of a third license violation within any five-year period, the
license shall be suspended for one year.
4. Upon a finding by the city of a fourth license violation within any five-year period, the
license shall be revoked.
B. A tobacco retailer's license shall be canceled if the city finds, after notice and opportunity to
be heard, that one of the following conditions exists. The revocation shall be without prejudice
to the filing of a new application for a license.
1. The application is incomplete for failure to provide the information required by Section
8.14.040.
2. The information contained in the application, including supplemental information, if
any, is found to be false in any material respect.
3. The application seeks authorization for a license for tobacco retailing that is unlawful.
(Ord. 1440 § 1 (part), 2003)
8.14.110 Appeal of suspension and/or revocation.
A. A decision of the city to revoke or suspend a license is appealable to a hearing officer and
must be filed with the hearing officer at least ten working days prior to the commencement
date of the license suspension or revocation. An appeal shall stay all proceedings in furtherance
of the appealed action. Following appeal, the decision of the hearing officer may be appealed to
the city administrative officer or his or her designee. A decision of the city administrative officer
or his or her designee shall be the final decision of the city.
B. During a period of license suspension, the tobacco retailer must remove from public view all
tobacco products. (Ord. 1440 § 1 (part), 2003)
8.14.120 Administrative fine—Penalties—Enforcement.
A. Any violation of the provisions of this chapter by any person is a misdemeanor and is
punishable as provided in Chapter 1.12, Section 1.12.030 of this code. Any violation of the
provisions of this chapter by any person is also subject to administrative fines as provided in
Chapter 1.24 of this code.
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October 16, 2018.
Ch. 8.14 Tobacco Retailer Licenses I San Luis Obispo Municipal Code Page 7 of 8
B. If the city of San Luis Obispo finds, based on substantial record evidence, that any
unlicensed person has engaged in tobacco retailing activities in violation of Section 8.14.030 of
this chapter, the city shall fine that person as follows. Each day that an unlicensed person offers
tobacco, tobacco products or tobacco for sale or exchange shall constitute a separate violation
and assessed a fine in accordance with Sections 1. 12.080 and 1.24.070(A) of this code.
C. Violations of this chapter are hereby declared to be public nuisances.
D. In addition to other remedies provided by this chapter or by other law, any violation of this
chapter may be remedied by a civil action brought by the city attorney, including but not limited
to administrative or judicial nuisance abatement proceedings, civil or criminal code
enforcement proceedings, and suits for injunctive relief. The remedies provided by this chapter
are cumulative and in addition to any other remedies available at law or in equity. (Ord. 1440 § 1
(part), 2003)
(AMENDMENT)
E. Notwithstanding any other provision of this Chapter, it shall be a violation of the Chapter
for any licensee or any of the licensee's agents or employees to sell, offer for sale, or
exchange for any form of consideration:
(1) Any Flavored Tobacco Product.
8.14.130 Severability.
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter 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 chapter or the rules adopted hereby. The city
council of the city of San Luis Obispo hereby 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, subdivisions, paragraphs, sentences, clauses or phrases
hereof be declared invalid or unenforceable. (Ord. 1440 § 1 (part), 2003)
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October 16, 2018.
Ch. 8.14 Tobacco Retailer Licenses I San Luis Obispo Municipal Code Page 8 of 8
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October
16, 2018.
Disclaimer: The City Clerk's Office has the official version of the San Luis Obispo Municipal
Code. Users should contact the City Clerk's Office for ordinances passed subsequent to the
ordinance cited above.
City Website: www.sloco.org
City Telephone: (805) 781-7100
Code Publishing Company
The San Luis Obispo Municipal Code is current through Ordinance 1655, passed October 16, 2018.
About
Flavored Tobacco
The use of flavored tobacco products such as cigars,
cigarillos, smokeless tobacco, hookah tobacco, and
e -liquids (used in e -cigarettes) has increased in recent
years' These products use enticing flavors, colorful
packaging and lower prices to hook a new generation
of tobacco users.
Enticing Fruit and Candy Flavors
+ Sweet flavors like watermelon,
cherry, chocolate, mint, and gummy
bear appeal to kids and teens.'
Flavorings mask the harsh taste
of tobacco which make it easier for
youth to initiate tobacco use.'
. • • . . . . ■ ■ ■ ■ • . . . . . . . . . . . . . . . . . . . . . .
Marketed to Young People
Flavored tobacco products often use the same
flavoring chemicals as popular brands like Jolly
Rancher, Kool-Aid, and Life Savers .3
Little cigars are often sold in small
packages for less than a dollar and
promoted as a low-cost alternative to
cigarettes .4.5
Colorful packaging and placement
near the register makes them highly
visible and attractive to kid S.4
•
•
Growing Teen Use
• • ■ • ■ • • • . . . . . . . . . . . . . . v -
A majority of youth report flavoring
as a leading reason for using
tobacco products.6 This includes:
hookah82% of e -cigarette users
79% of
74% of
-
80%
of young people
who have ever used
tobacco started with a flavored
tobacco product.6
•
■ r: 7 out of 10
v
teens who use tobacco
have used a flavored
product in the past 3u V-
• days'
•
•
k.onsequences forOur •
Long term addiction .................. • . r,
The U.S. Surgeon General has warned that flavored
tobacco products help new users establish habits that
can lead to long-term addiction .7
Flavors like menthol in
tobacco products make it
H1p
harder for users to quilt. $
;,&
1.
. . . . . . . . . . .. ... . _ . . . . . o o a a . . . . . . • • • e e n o o a • o
i
Smokers who start
at a younger age,
are more likely to
develop a severe
nicotine addiction?
Serious health risks
All nicotine products are addictive and increase the risk
of developing serious health problems.9 The chemical Diacetyl, found
in 75% of flavored e -liquids, is
linked to bronchiolitis obliterans 4
AAA ("popcorn lung") which causes
11 irreversible lung damage.
10,11 y
Cancer Heart Disease Emphysema
►clef
Protecting Our Communities
The FDA has banned the sale of flavored cigarettes (other than menthol) because
they appeal to youth. But flavored e -cigarettes, e -liquid, cigars, hookah, and chewing 4)
tobacco continue to be sold.
4wwl_
Prohibiting the sale of all flavored tobacco products is a critical step to preventing CIDPH
California Dcparuncnr of
another generation of young people from living with a lifetime of addiction. PublicHealth
References
1. Corey, C.G., et al., Flavored tobacco product use among middle and high school students—United States, 2014. MMWR Morbitity and Mortality Weekly Report, 2015.64(38): p, 1066-1070.
2. King, B.A., S.R. Dube, and M.A. Tynan, Flavored cigar smoking among US adults: findings from the 2009-2010 National Adult Tobacco Survey. Nicotine & Tobacco Research, 2013.
15(2):p.608-614.
3. Brown, J.E., at al., Candy flavorings in tobacco. New England Journal of Medicine, 2014. 370(23): p. 2250-2252.
4. Oregon Public Health Division, Flavored Tobacco: Sweet, Cheap, and Within Kids' Reach, in CD Summary. 2014, Oregon Health Authority: Oregon.
5. Delnevo, C.D. and M. Hrywna, "A whole 'nolher smoke" or a cigarette in disguise: How RJ Reynolds reframed the image of littlecigars. American Journal of Public Health, 2007. 97(8):
p. 1368.
6. Ambrose, B.K., at al., Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014. JAMA, 2015: p. 1-3.
7. U.S. Department of Health and Human Services, Preventing tobacco use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and
Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2012. 3.
8. Delnevo, C.D., et al., Smoking -cessation prevalence among US smokers of menthol versus non -menthol cigarettes. American Journal of Preventive Medicine, 2011. 41(4): p. 357-365.
9. U.S. Food and Drug Administration, Flavored Tobacco Product Fact Sheet. 2011, U.S. Food and Drug Administration.
10 -Joseph G. Allen, at al., Flavoring Chemicals in E -Cigarettes: Diacetyl, 2,3-Penlanedione, and Acetoin in a Sample of 51 Products, Including Fruit-, Candy-, and Cocktail -Flavored
E -Cigarettes. Environmental Health Perspectives, 2015.
11.Farsalinos, K.E., at al., Evaluation of electronic cigarette liquids and aerosol forthe presence of selected inhalation toxins. Nicotine & Tobacco Research, 2015, 17(2): p, 168-174.
9)2017 California Department of Public Health. 01/18