HomeMy WebLinkAboutO-1676 amending Municipal Code Chapter 8.14 (Health & Safety) Tobacco Retailer LicenseORDINANCE NO. 1676 (2020 Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, AMENDING THE MUNICIPAL CODE HEALTH
AND SAFETY (CHAPTER 8.14) TOBACCO RETAILER LICENSE
WHEREAS, the City of San Luis Obispo ("'City") is empowered to enact legislation to
protect the health, safety, and welfare of the public; and
WHEREAS, the City established a Tobacco Retail License Program (Ordinance 1440,
2003 Series) to ensure compliance with all federal, state and local laws and to protect minors from
the illegal sale of tobacco products; and
WHEREAS, the federal government has enacted numerous tobacco related laws that
include, but are not limited to the Family Smoking Prevention and Tobacco Control Act ("Tobacco
Control Act"), enacted in 2009, that prohibited candy and fruit-flavored cigarettes, largely because
these flavored products are marketed to youth and young adults, and younger smokers were more
likely than older smokers to have tried these products. Among other things, the Tobacco Control
Act authorized the U.S. Food and Drug Administration ("FDA") to set national standards
governing the manufacture of tobacco products, to limit levels of harmful components in tobacco
products and to require manufacturers to disclose information and research relating to the products'
health effects; and
WHEREAS, a central requirement of the Tobacco Control Act is premarket review of all
new tobacco products. Specifically, every "New Tobacco Product" which is defined by federal law
to be any tobacco product not on the market in the United States as of February 15, 2007, must be
authorized by the FDA for sale in the United States before it may enter the marketplace; and
WHEREAS, a New Tobacco Product may not be marketed until the FDA has found that
the product is: (1) appropriate for the protection of the public health upon review of a premarket
tobacco application; (2) substantially equivalent to a grandfathered product; or (3) exempt from
substantial equivalence requirements; and
WHEREAS, in determining whether the marketing of a tobacco product is appropriate for
the protection of the public health, the FDA must consider the risks and benefits of the product to
the population as a whole, including users and nonusers of the product, and taking into account the
increased or decreased likelihood that existing users of tobacco products will stop using tobacco
products and the increased or decreased likelihood that those who do not use tobacco products will
start using them. Where there is a lack of showing that permitting the sale of a tobacco product
would be appropriate for the protection of the public health, the Tobacco Control Act requires that
the FDA deny an application for premarket review; and
WHEREAS, in July 2013, the FDA published an independent report that concluded that
"menthol use is likely associated with increased smoking initiation by youth and young adults,"
"menthol in cigarettes is likely associated with greater addiction," and "that menthol cigarettes
pose a public health risk above that seen with nonmenthol cigarettes;" and
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WHEREAS, there are currently serious public health concerns about the immediate and
long-term harm caused by electronic cigarettes/vaping use; and
WHEREAS, approximately 1,300 cases of electronic cigarettes/vaping products related
lung illnesses have been reported in hospitals, health clinics, and emergency rooms nationwide,
with at least 26 confirmed electronic cigarettes/vaping use related deaths; and
WHEREAS, the U.S. Surgeon General and the California Department of Public Health
(CDPH) have issued health advisories to educate the public about the imminent health risk posed
by electronic cigarettes/vaping products; and
WHEREAS, teen use of electronic cigarettes/vaping products has grown rapidly in recent
years, with a February 2019 National Institutes of Health report finding that over 17.6% of 8th
graders, 32.3% of 10th graders, and 37.3% of 12th graders reported trying electronic
cigarettes/vaping products last year nationwide; and
WHEREAS, electronic cigarettes/vaping products, particularly the flavored products, are
popular among younger users, and the packaging and advertising of these products by companies
are often attractive to younger users; and
WHEREAS, there are over 15,000 electronic cigarettes/vaping flavors available on the
market, including youth-orientated flavors such as bubble gum, cotton candy, and fruit punch,
among others; and
WHEREAS, the City desires to amend its regulations to make them more comprehensive
and effective at protecting the community from the harmful effects of electronic cigarette/vaping
products, including devices; and
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo
as follows:
SECTION 1. Section 8.14.020, subsection A of the San Luis Obispo Municipal Code is
hereby amended as reflected in Exhibit A to read as follows:
A. "Electronic smoking device" means an electronic device which can be used to deliver
an inhaled dose of nicotine or any other substances ( excluding cannabis), including any
component, part, or accessory of such a device, whether or not sold separately,
including flavored vape juices and liquids used in such devices. "Electronic smoking
device" includes any such 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.
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SECTION 2. Section 8.14.030, of the San Luis Obispo Municipal Code is hereby amended
as reflected in Exhibit A to read as follows:
"The sale or distribution by an establishment of an Electronic Smoking Device is prohibited
in the City of San Luis Obispo, including all non-flavored and flavored Electronic Smoking
Device products, including mint and menthol where the Electronic Smoking Device:
(a) Requires premarket review under 21 U.S.C. § 387j, as may be amended from time to
time; and
(b) Does not have a premarket review order under 21 U.S.C. § 387j(c)(l)(A)(i), as may be
amended from time to time."
SECTION 3. Ordinance Number 1613 (2015 Series) is hereby amended and superseded
to the extent inconsistent herewith.
SECTION 4. Severability. If any subdivision, paragraph, sentence, clause, or phrase of
this Ordinance is, for any reason, held to be invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall not affect the validity or enforcement of the
remaining portions of this Ordinance, or any other provisions of the city' s rules and regulations.
It is the city' s express intent that each remaining portion would have been adopted irrespective of
the fact that any one or more subdivisions, paragraphs, sentences, clauses, or phrases be declared
invalid or unenforceable.
SECTION 5. Environmental Review. The proposed ordinance amendment is exempt
from environmental review requirements of the California Environmental Quality Act (CEQA)
because the adoption of this Ordinance is not a project as defined in CEQA Guidelines Section
15378 because it can be seen with certainty that it will not result in either a direct physical change
in the environment or a reasonably foreseeable indirect physical change in the environment.
SECTION 6. Effective Date. This ordinance shall be in full force and effect ninety (90)
days after it passage.
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Ordinance No. 1676 (2020 Series) Page 4
SECTION 7. A summary of this ordinance, together with the names of Council members
voting for and against, shall be published at least five (5) days prior to its final passage, in The
New Times, a newspaper published and circulated in this City. This ordinance shall go into effect
at the expiration of ninety (90) days after its final passage.
INTRODUCED on the 2181 day of January 2020, AND FINALLY ADOPTED by the
Council of the City of San Luis Obispo on the 4th day of February 2020, on the following vote:
AYES:
NOES:
ABSENT:
ATTEST:
Teresa Purrington
City Clerk
Council Member Christianson, Pease, Stewart, Vice Mayor Gomez and
Mayor Harmon
None
None
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, this J Z'f\ day of --ek:,yu(NI-{ , 2020.
µ
Teresa Purrington
City Clerk
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Ordinance No. 1676 (2020 Series)
Exhibit A -Chapter 8.14 -Tobacco Retailer Licenses
Chapter 8.14 TOBACCO RETAILER LICENSES
8.14.010
8.14.020
8.14.030
8.14.040
8.14.050
8.14.060
8.14.070
8.14.080
8.14.085
8.14.090
8.14.100
8.14.110
8.14.120
8.14.130
8.14.010
Purpose.
Definitions.
Requirement for tobacco retailer license.
Application procedure.
Issuance of license.
Display of license.
Fees for license.
Licenses nontransferable.
Noncompliance with tobacco related laws -License violation.
License compliance monitoring.
Suspension or revocation of license.
Appeal of suspension and/or revocation.
Administrative fine -Penalties -Enforcement.
Severabili ty.
Purpose.
Page 5
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 ( excluding cannabis), including any
component, part, or accessory of such a device, whether or not sold separately, including
flavored vape juices and liquids used in such devices, even if sold separately. "Electronic
smoking device" includes any such 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.
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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
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.
The sale or distribution by an establishment of an Electronic Smoking Device is prohibited in the
City of San Luis Obispo, including all non-flavored and flavored Electronic Smoking Device
products, including mint and menthol where the Electronic Smoking Device is:
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(a) Requires premarket review under 21 U.S.C. § 387j, as may be amended from time to time;
and
(b) Does not have a premarket review order under 21 U.S.C. § 387j(c)(l)(A)(i), as may be
amended from time to time.
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 workplace 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.
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 ofrevocation. (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)
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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)
8.14.080 Licenses nontransferable.
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 § I (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 § I, 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.
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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.
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 l.24.070(A) of this code.
C. Violations of this chapter are hereby declared to be public nuisances.
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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)
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)
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