City of Culver City, California
City Council Agenda Item Report
RECOMMENDATION:
Staff recommends the City Council adopt an Ordinance amending Title 11,
Business Regulations, of the Culver City Municipal Code to add a new Chapter
11.15 relating to the licensing of tobacco retailers.
BACKGROUND/DISCUSSION:
At the City Council meeting of June 22, 2009, the City Council introduced the
Ordinance, with revisions, by a unanimous vote (5-0). From the dais, the City
Council made the following revisions to the Ordinance prior to adoption:
• §11.15.030.B.1 – clarification of language that a Tobacco Retailer License
shall not be issued where any suspension or revocation proceedings are
pending.
• §§11.15.050.A & B – clarification of language regarding the findings and
penalties relating to suspension or revocation of a Tobacco Retailer
License.
In addition, staff has deleted §11.15.045.H, as it is redundant of §11.15.045.A.
Meeting Date: 07/13/09 Item Number: C-6
AGENDA ITEM: Adoption of an Ordinance Amending Title 11, Business
Regulations, of the Culver City Municipal Code Relating to Add a New Chapter
11.15 Relating to the Licensing of Tobacco Retailers.
Contact Person/Dept.: Jeff Muir, Chief
Financial Officer; and Heather Baker,
Assistant City Attorney
Phone Number: 310-253-5865; 310-253-
5660
Fiscal Impact: Yes [X] No [] General Fund: Yes [X] No []
Public Hearing: [] Action Item: [X] Attachments: [X]
Public Notification:
Email Master Notification List (07/08/09); County of Los Angeles Department of Health
Services, Culver City Chamber of Commerce, Downtown Business Association and
individuals who spoke at prior Council Meetings (07/07/09); Coalition for a Tobacco
Free LA County (comprised of over 70 organizations including Culver City Youth
Against Smoking – this notification was emailed courtesy of the County of Los Angeles
Department of Health Services) (07/07/09).
Department Approval:
Jeff Muir (07/ 07/09)
Carol Schwab (by H. Baker) (07/07/09)
City Attorney Approval:
Carol Schwab (by H. Baker) (07/07/09)
Chief Financial Officer Approval:
Jeff Muir (by M. Noller) (07/08 /09)
City Manager Approval:
Mark Scott (07/08/09) City of Culver City, California
City Council Agenda Item Report
The above revisions are not considered to be substantive in nature; therefore, the
Ordinance is not required to be re-introduced. The Ordinance, as revised, is
brought back tonight for adoption.
FISCAL ANALYSIS:
Adoption of the proposed Ordinance would have minor financial impact. The
administrative and enforcement costs of the proposed tobacco retailer licensing
program would be borne entirely by fees collected from the covered businesses in
the form of the license fee. These fees would be adjusted annually to reflect
actual costs. The collection of fines for criminal prosecution would result in a
negligible source of revenue, as the court receives a portion of such fines and
those funds coming directly to the City would serve to offset costs of the potential
increase in enforcement activity by the Police Department. It is not possible at
this time to quantify an annual revenue receipt amount or forecast how much
additional criminal enforcement activity may be expended on this effort. Any fines
received in this regard would be deposited into the Police Department’s
Miscellaneous Revenue account – 10140900.386100.
ATTACHMENTS:
1. Proposed Ordinance
MOTION:
That the City Council:
Adopt an Ordinance amending Title 11, Business Regulations, of the Culver
City Municipal Code to add a new Chapter 11.15 relating to the licensing of
tobacco retailers.
MEETING DATE: 07113/09
AGENDA ITEM: Adoption of an Ordinance Amending Title 11, Business
Regulations, of the Culver City Municipal Code Relating
to Add a New Chapter 11.15 Relating to the Licensing of
Tobacco Retailers
ATTACHMENTS
Pages
1. Proposed Ordinance
1-14ORDINANCE NO. 2009-
AN ORDINANCE OF THE CITY OF CULVER CITY,
CALIFORNIA, AMENDING TITLE 11, BUSINESS
REGULATIONS, OF THE CULVER CITY MUNICIPAL CODE
TO ADD A NEW CHAPTER 11.15 RELATING TO THE
LICENSING OF TOBACCO RETAILERS.
WHEREAS, the U.S. Department of Health and Human Services estimates
that approximately 438,000 people die in the United States from tobacco-related diseases
each year, and the World Health Organization (WHO) estimates that by 2030, tobacco will
account for 8.3 million deaths per year or 10% of all deaths worldwide; and
WHEREAS, the City Council of the City of Culver City finds the failure of
tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the
sale of tobacco products to minors, presents a threat to the community's public health,
safety and welfare; and
WHEREAS, the California Legislature has recognized the dangers of tobacco
use and the access to tobacco products by underage youth and has enacted legislation
including:
1. Legislative declaration that smoking is the single most important
source of preventable disease and premature death in California (California
Health & Safety Code § 118950); and
2. State law prohibitions on 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 (California
Penal Code § 308); and
3. State law requirements that tobacco retailers check the
identification of tobacco purchasers who reasonably appear to be under 18
years of age (California Business & Professions Code § 22956) and sanction
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28the use of underage decoys to conduct onsite compliance checks of tobacco
retailers (California Business & Professions Code § 22952); and
4. State law prohibitions on the sale of tobacco products and
paraphernalia through self-services displays with limited exceptions for
tobacco stores; and "bidis" (hand-rolled filterless cigarettes imported primarily
from India and Southeast Asian countries) except in adult-only
establishments (California Business & Professions Code §§ 22960, 22962;
Penal Code § 308.1); and
5. State law prohibitions on the manufacture, distribution, or sale
of cigarettes in packages of less than 20 and "roll-your-own" tobacco in
packages containing less than 0.60 ounces of tobacco (California Penal
Code § 308.3); and
6. State law requires all tobacco retailers to be licensed by the
Board of Equalization in order to curb the illegal sale and distribution of
cigarettes (California Business and Professions Code §§ 22970.1, 22972);
and
7. State law permits cities and counties to enact local tobacco
retail licensing ordinances and allows for the suspension or revocation of a
local license for a violation of any state tobacco control law (California
Business & Professions Code § 22971.3); and
WHEREAS, according to research conducted by the U.S. Department of
Health and Human Services, despite state tobacco control laws, retailers continue to sell
tobacco to underage consumers, as evidenced by the following:
1. Each day, nearly 4,000 children under 18 years of age smoke
their first cigarette, and almost 1,500 children under 18 years of age begin
smoking daily;
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282. More than 75% of all current smokers in 2001 began smoking
before the age of 18; and
3. Among middle school students who were current cigarette users
in 2004, 70.6% were not asked to show proof of age when they purchased or
attempted to purchase cigarettes from a store, and 66.4% were not refused
purchase because of their age; and
4. In 2002, youth smoked approximately 540 million packs of
cigarettes, generating nearly $1.2 billion in tobacco industry revenue; and
WHEREAS, research conducted by the American Lung Association of
California demonstrates that local tobacco retail ordinances can and have dramatically
reduced youth access to cigarettes by as much as 68%; and
WHEREAS, a requirement for a tobacco retailer license will assist in
discouraging violations of federal, state and local tobacco-related laws and will not unduly
burden legitimate business activities of retailers who sell or distribute cigarettes or other
tobacco products to adults; and
WHEREAS, the City Council desires to encourage responsible tobacco
retailing and to discourage violations of tobacco-related laws, especially those which
prohibit or discourage the sale or distribution of tobacco products to minors; and
WHEREAS, the City Council finds a local licensing system for tobacco
retailers is appropriate to ensure that retailers comply with tobacco control laws and
business standards of the City, to protect the community's public health, safety and
welfare; and
WHEREAS, the City Council hereby declares that the intent and purpose of
requiring tobacco retailers to be licensed by the City is to protect the public health, safety,
and welfare by discouraging the sale of tobacco products to minors.
NOW THEREFORE, the City Council of the City of Culver City, California,
DOES HEREBY ORDAIN as follows:
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28SECTION 1. Title 11 of the Culver City Municipal Code is hereby amended
to add a new Chapter 11.15 relating to the licensing of tobacco retailers as follows:
CHAPTER 11.15: TOBACCO RETAILER LICENSING
§ 11.15.005 Purpose
§ 11.15.010 Definitions
§ 11.15.015 License Requirements and Prohibitions
§ 11.15.020 Application Procedure
§ 11.15.025 License Fee
§ 11.15.030 issuance of License
§ 11.15.035 License Renewal and Expiration
§ 11.15.040 Compliance Monitoring and Enforcement
§ 11.15.045 Violations Unlawful; Penalties
§ 11.15.050 Suspension and Revocation; Administrative Fines
§ 11.15.005 PURPOSE.
It is the intent of the City Council of the City of Culver City, in enacting
this ordinance, to encourage responsible tobacco retailing and to discourage
violations of tobacco-related laws, especially those which prohibit or discourage the
sale or distribution of tobacco and nicotine product to minors.
§ 11.15.010 DEFINITIONS.
For the purposes of this Chapter, the following definitions shall
apply unless the context clearly indicates or requires a different meaning.
Department shall mean the Finance Department of the City of Culver
City.
Proprietor shall mean 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 (10%) 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 share ultimate control over the day-to-day operations of a business.
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28Self-Service Display shall mean the open display of Tobacco
Products or Tobacco Paraphernalia in a manner that is physically accessible
in any way to the general public without the assistance of the Tobacco
Retailer or employee of the Tobacco Retailer and a direct person-to-person
transfer between the purchaser and the Tobacco Retailer or employee of the
Tobacco Retailer. A Vending Machine is a form of Self-Service Display.
Tobacco Paraphernalia shall mean cigarette papers or wrappers,
pipes, holders of Smoking materials of all types, cigarette rolling machines,
and any other instrument or paraphernalia designed for the smoking,
preparation, storing, ingestion or consumption of Tobacco Products.
Tobacco Product shall mean any substance containing tobacco leaf,
including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of
tobacco; and any product or formulation of matter containing biologically
active amounts of nicotine that is manufactured, sold, offered for sale, or
otherwise distributed with the expectation that the product or matter will be
introduced into the human body, but does not include any product specifically
approved by the United States Food and Drug Administration for use in
treating nicotine or tobacco dependence.
Tobacco Retailer shall mean any person who sells, offers for sale, or
exchanges or offers to exchange for any form of consideration, in public view,
tobacco, Tobacco Products or Tobacco Paraphernalia "Tobacco Retailing"
shall mean the selling, offering for sale, or exchanging or offering to
exchange for any form of consideration, in public view, tobacco, Tobacco
Products or Tobacco Paraphernalia. Any person who distributes free or low
cost samples of tobacco, Tobacco Products or Tobacco Paraphernalia shall
be deemed to be a Tobacco Retailer under this Chapter.
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28Tobacco Retail Establishment shall mean a fixed location at which
tobacco, Tobacco Products and/or Tobacco Paraphernalia is sold, offered for
sale, exchanged or offered for exchange for any form of consideration.
Tobacco Retailer License shall mean a license issued by the
Department authorizing a Proprietor to engage in Tobacco Retailing.
Vending Machine shall mean a machine, appliance, or other
mechanical device operated by currency, token, debit card, credit card, or
any other form of payment that is designed or used for vending purposes,
including, but not limited to, machines or devices that use remote control
locking mechanisnns_
§ 11.15.015 LICENSE REQUIREMENTS AND PROHIBITIONS.
A.
No person shall operate as a Tobacco Retailer or engage in
Tobacco Retailing without first obtaining and maintaining a valid Tobacco
Retailer License pursuant to this Chapter for each Tobacco Retail
Establishment.
B. Each Tobacco Retailer license shall be conspicuously displayed
at all times in a publicly visible location within the licensed Tobacco Retail
Establishment.
C. Tobacco Retailing by means of a Self-Service Display is
prohibited.
D. No Tobacco Retailer shall sell or transfer tobacco, a Tobacco
Product or Tobacco Paraphernalia, to another person who appears to be
under the age of 27 years, without first examining the identification of the
recipient to confirm that the recipient is at least the minimum age under state
law to purchase and possess the tobacco, Tobacco Product or Tobacco
Paraphernalia.
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28E. No Tobacco Retailer shall permit any person who is younger
than the minimum age established by state law for the purchase or
possession of tobacco, Tobacco Products or Tobacco Paraphernalia, to
participate in the sale of tobacco, Tobacco Products or Tobacco
Paraphernalia.
F. A Tobacco Retailer without a valid Tobacco Retail License:
1. Shall keep all tobacco, Tobacco Products and Tobacco
Paraphernalia out of public view. The public display of tobacco,
Tobacco Products and Tobacco Paraphernalia in violation of this
Section shall constitute Tobacco Retailing without a Tobacco Retail
License and a violation of Section 11.15.015.A of this Chapter.
2. Shall not display any advertisement relating to tobacco,
Tobacco Products or Tobacco Paraphernalia that promotes the sale or
distribution of such products from the Tobacco Retail Establishment or
that could lead a reasonable consumer to believe such products can
be obtained at the Tobacco Retail Establishment without the Tobacco
Retailer first obtaining and maintaining a valid Tobacco Retailer
License pursuant to this Chapter for each Tobacco Retail
Establishment at which the advertisement is displayed.
G. The sale of tobacco, Tobacco Products or Tobacco
Paraphernalia from other than a fixed location, including but not limited to
Tobacco Retailing by persons on foot or from vehicles is prohibited and no
Tobacco Retailer License shall be issued under this Chapter to any such
activity,
H. Nothing in this Chapter shall be construed to grant any person
obtaining and maintaining a Tobacco Retailer License any status or right •
other than the right to act as a Tobacco Retailer at the licensed Tobacco
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28Retail Establishment in the City of Culver City. Nothing in this Chapter is
intended to be construed to render inapplicable, supersede, or affect any
other provision of applicable state or federal law.
§ 11.15.020 APPLICATION PROCEDURE.
A. All applications shall be completed on a form prepared and
supplied by the Department. The application shall be signed under penalty of
perjury. The following information shall be included, without limitation, on the
application:
1. The name, address and telephone number of the
Proprietor, including, for non-corporate Proprietors, the names of all
principles. Corporate Proprietors shall include the name of the
designated agent for service of process.
2. A single name and mailing address authorized by each
Proprietor to receive all communications and notices (the "Authorized
Address") required by, authorized by, or convenient to the enforcement
of this Chapter. If an Authorized Address is not supplied, each
Proprietor shall be understood to consent to the provision of notice at
the business address specified on the application.
3. The business name, address and telephone number of
the Tobacco Retail Establishment, for which the application is
submitted.
4. Proof that the Tobacco Retail Establishment for which
the application is submitted has been issued a valid state tobacco
retailer license by the California Board of Equalization.
5. Whether any other licenses have been issued to the
Proprietor for tobacco retail sales within the City of Culver City, and if
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28 1 so the name and address of each of the Tobacco Retail
2 Establishments for which these licenses have been issued.
3 6. Whether or not any Proprietor or any agent or employee
4 of the Proprietor has admitted violating, or has been found to have
5 violated this Chapter, and, if so, the dates and locations of all such
6 violations within the previous five years.
7 7. A statement by the Proprietor under penalty of perjury
8 that the contents of the application are true and correct.
9 8. Such other information as the Department deems
10 necessary for the administration or enforcement of this Chapter as
11 specified on the application form required by this Section.
12 B. For Proprietors with multiple Tobacco Retail Establishments
13 within the City of Culver City, a separate application is required for each
14 proposed Tobacco Retail Establishment.
15 C. Any change to the information required to be submitted in order
16 to apply for a Tobacco Retailer License shall be provided to the Department
17 within 10 business days of such change in information.
18 D. The Proprietor shall be required to disclose any violations of the
19 state tobacco licensing laws at any Tobacco Retail Establishment within the
20 five years prior to the application for which the Proprietor's state tobacco
21 retailer's license was either suspended or revoked.
22 § 11.15.025 LICENSE FEE.
23 The annual fee for a Tobacco Retailer License and the procedures for
24 the processing and collection of such fee shall be established by resolution of
25 the City Council.
26 / / /
27 / / /
28
-9-§ 11.15.030 ISSUANCE OF LICENSE.
A. Except as otherwise provided herein, and except where a
Tobacco Retailer Establishment would not otherwise be permitted under
local, state or federal laws, a license shall be issued upon receipt of a
complete application in conformity with all requirements set forth in Section
11.15.020 and the payment of the required license fee.
B. A Tobacco Retailer License shall not be issued where:
1. Suspension or revocation proceedings are pending
before any local, state or federal agency for violations of local, state or
federal tobacco control laws.
2. The Proprietor or any person employed by the Proprietor
has been convicted of any violation of any local, state or federal
tobacco control law within six months prior to the date of application.
3. The Proprietor's Tobacco Retailer License was revoked
for the same Tobacco Retail Establishment within the five years
preceding the date of the application.
4. The Proprietor has not obtained a valid state tobacco
retailer license from the California Board of Equalization.
5. The Proprietor does not have a valid Culver City
business tax certificate or is delinquent on the payment of business
tax, late payment penalties or other associated fees.
6. The information presented on the application is
incomplete, inaccurate, or false.
7. The application seeks a Tobacco Retailer License for a
Proprietor to whom this Chapter prohibits a license to be issued.
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28C. A Tobacco Retailer License is valid only for the Tobacco Retail
Establishment for which it has been issued and may not be transferred from
one person to another or from one Tobacco Retail Establishment to another.
§ 11.15.035 LICENSE RENEWAL AND EXPIRATION.
A. A Tobacco Retailer license will be valid through the last day of
February of every year and if not renewed, will expire.
B. If any material information required for issuance of a Tobacco
Retailer License has changed since the original license was issued, the
Proprietor shall be ineligible for a license renewal, but must apply for a new
Tobacco Retailer License in accordance with the application procedures set
forth in Section 11.15.020 of this Chapter.
C. A Tobacco Retailer License that is not timely renewed shall
expire at the end of its term. To reinstate a license that has expired or to
renew a license not timely received pursuant to this Chapter, the Proprietor
must follow the application procedures set forth in Section 11.15.020 of this
Chapter.
§ 11.15.040 COMPLIANCE MONITORING.
Compliance with the provisions of this Chapter shall be monitored by
the Finance Department, Police Department and/or Enforcement Services
Division, including any authorized designee of such Departments and
Division, and/or by any other person or persons so designated by the City
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2811.15.045 VIOLATIONS UNLAWFUL; PENALTIES.
A. A violation of any provision of this Chapter is unlawful.
B. The remedies provided by this Chapter are cumulative and in
addition to any other remedies available at law or in equity.
C. A violation of any provision of this Chapter is subject to a civil
action brought by the City Attorney, punishable by a civil fine not less than
one hundred dollars ($100) and not exceeding one thousand dollars ($1,000)
per violation.
a A violation of any provision of this Chapter may, in the discretion
of the City Attorney, be prosecuted as an infraction or misdemeanor.
E. The City Council shall, by resolution, establish the penalties for
a violation of this Chapter, but in no event shall such penalties exceed the
maximum penalties permitted under State law.
F. Causing, permitting, aiding, abetting, or concealing a violation of
any provision of this Chapter shall also constitute a violation of this Chapter.
G. In addition to the criminal penalties attached to violations of this
Chapter, any violation of this Chapter is hereby declared a public nuisance.
11.15.050 SUSPENSION AND REVOCATION; ADMINISTRATIVE
FINES.
A. In addition to any criminal or other penalty authorized by this
Code and other applicable law, a Tobacco Retailer License may be
suspended or revoked by the Committee on Permits and Licenses, as set
forth in Section 11.15.050, based on one or more of the following findings:
1. The Tobacco Retailer, or his or her agents or employees,
has violated any provision of this Chapter, or any other local, state or
federal tobacco related law; or
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282. The information contained in the application, including
supplemental information, if any, is found to be false or misleading in
any material respect; or
3. The Tobacco Retailer License was issued in error or on
the basis of false or misleading information supplied by the Proprietor;
or
4. The Tobacco Retailer License fee is unpaid; or
5. The Tobacco Retailer License has been transferred in
violation of this Chapter.
B. Upon a finding of a first license violation, the Tobacco Retailer
License shall be suspended for 30 days; upon a finding of a second license
violation within five years of the first violation, the Tobacco Retailer License
shall be suspended for 90 days; and upon a finding of a third license violation
within five years of the first violation, the Tobacco Retailer License shall be
revoked.
C. In addition to any criminal or other penalty authorized by this
Code and other applicable law, an administrative fine may be imposed on a
Tobacco Retailer for a violation of any provision of this Chapter, in
accordance with the procedures set forth in Sections 11.01.600, et seq. of
this Code.
D. The procedure used for appealing a revocation or suspension
shall be in accordance with the procedures set forth in Sections 11.01.500, et
seq. of this Code.
E. A Tobacco Retailer, whose license has been revoked, may not
apply for a new Tobacco Retailer License for a period of five years after the
effective date of the revocation.
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28ATTEST:
MARTIN R. COLE, City Clerk
A09-00236
F. During any period of license suspension or revocation, the
Tobacco Retailer must remove from public view all tobacco, Tobacco
Products, Tobacco Paraphernalia, and Tobacco-related advertising.
SECTION 2. Pursuant to Section 619 of the City Charter, this Ordinance
shall take effect thirty (30) days after the date of its adoption. Pursuant to Sections 616
and 621 of the City Charter, prior to the expiration of fifteen (15) days after the adoption,
the City Clerk shall cause this Ordinance, or a summary thereof, to be published in the
Culver City News and shall post this Ordinance or a summary thereof in at least three
places within the City.
SECTION 3. The City Council hereby declares that, if any provision, section,
subsection, paragraph, sentence, phrase or word of this ordinance is rendered or declared
invalid or unconstitutional by any final action in a court of competent jurisdiction or by
reason of any preemptive legislation, then the City Council would have independently
adopted the remaining provisions, sections, subsections, paragraphs, sentences, phrases
or words of this ordinance and as such they shall remain in full force and effect.
APPROVED AND ADOPTED this day of , 2009.
ANDREW WEISSMAN, Mayor
City of Culver City, California
APPROVED AS TQ FORM:
C)UrOLI A. SCHWAB, City Attorney
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