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ORDINANCE 1358ORDINANCE NO. 1358 AN ORDINANCE ADDING CHAPTER 6B TO TITLE 5 OF THE EL SEGUNDO MUNICIPAL CODE, ENTITLED "TOBACCO RETAILER LICENSE." The City Council of the city of El Segundo does ordain as follows: SECTION 1: The Council finds and declares as follows: A. The sale, possession, and use of tobacco products is highly regulated by California as evidenced by, without limitation, Business & Professions Code §§ 22952, 22956, 22962; Education Code § 48901(a); and Penal Code §§ 308, 308.1, 308.3; B. The City also regulates the sale of tobacco products pursuant to El Segundo Municipal Code (`SSMC ") §§ 5 -6A -1 to 5 -6A -3 and Business & Professions Code § 22960(c); C. The Council is informed and believes that despite such regulations, minors continue to obtain cigarettes and other tobacco products. Minors 12 to 17 years old reportedly consume 924 million packs of cigarettes every year; D. The Youth Tobacco Purchase Survey for 2002, conducted by the California Department of Health Services, shows that over 19% of the retailers surveyed illegally sold tobacco products to minors. This represents a 50% increase in illegal sales since 2000; E. Using tobacco products is a danger to health and a cause of material annoyance, inconvenience, discomfort, and a health hazard to other persons; F. The United States Surgeon General and the United States Department of Health and Human Services found that a majority of the four hundred thirty -four thousand (434,000) American that die each year from tobacco - related illness became nicotine addicts before their eighteenth birthday; G. It is in the public interest for the City to promote compliance with federal, state, and local laws intended to regulate sales and use in order to protect public health and welfare; H. The City may regulate businesses such as tobacco retailers pursuant to its police powers as demonstrated in numerous court decisions including, without limitation, Cohen v. Bd. of Super. (1985) 40 Cal.3d 277; Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.AppAth 383; SWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179; and Brix v. City of San Rafael (1979) 92 Cal.App.3d 47; Page 1 of 11 Revision Date- 3/10/2003 14:48 I. Requiring tobacco retailers to obtain a City license will not unduly burden legitimate business activities, but will allow the City to help reduce violations of federal, state, and local tobacco regulations; SECTION 2: A new Chapter 6B is added to Title 5 of the El Segundo Municipal Code ( "ESMC "), entitled Tobacco Retailer License and consisting of §§ 5 -6B -10 to 5 -613-280. , to read as follows: "Chapter 6B TOBACCO RETAILER LICENSE 5- 611-20. Purpose. 5- 611-30. Definitions. 5- 6B -40. Prohibitions. 5- 611-50. Administration by Department. 5- 611-60. Notices. 5- 611-70. Form and Content of Application. 5- 611-80. License Issuance. 5- 6B -90. License Denial. 5 -611-100. General conditions. 5 -611-110. Display of License. 5 -611-120 License Renewal. 5 -611-130. No additional privileges granted. 5 -611-140. Licenses nontransferable. 5 -611-150. Enforcement. 5 -6B -160. City attorney enforcement authority. 5 -6B -170 Notice of Violation. 5 -6B -180. Violations deemed Conclusive. 5 -6B -190. Administrative fine. 5 -611-200. Payment of administrative fines. 5 -6B -210. Delinquent administrative fines - penalties and interest. 5 -611-220. Liability for fines. 5 -611-230. License Suspension and Revocation. 5 -611-240. Suspension Time Periods. 5 -611-250. No new license after revocation. 5 -6B -260. Administrative appeals. 5 -611-270. Content of Notices. 5 -611-280. Right to Judicial Review. ARTICLE 1 - GENERAL PROVISIONS 5- 6B -20. Purpose. This article is adopted pursuant to the city's police powers for the purpose of promoting compliance with federal, state, and local laws that regulate the sale and use of tobacco products and paraphernalia. Nothing in this article is intended to, nor does it, duplicate Page 2 of 11 Revision Date: 3/10/2003 14:48 or conflict with applicable local, state, or federal laws. 5- 6B -30. Definitions. Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this chapter: A. "Department" means the El Segundo Police Department; B. "Chief" means the police chief or designee; C. "Person" means any natural person or legal entity; D. "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest is 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 is deemed to exist when a person can or does have, or can or does share, ultimate control over the day -to -day operations of a business; E. "Tobacco Product" means any substance containing tobacco leaf, including, without limitation, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; F. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for smoking or ingestion of tobacco products; G. "Tobacco retailer" means any person that operates a store, stand, concession, or other place at which sales, or other exchanges for value, of tobacco products are made to purchasers for consumption or use. 5- 6B -40. Prohibitions. A. It is unlawful for any person to act as a tobacco retailer without a valid license issued pursuant to this chapter for each location at which activity is proposed to occur. B. It is unlawful for any person to act as a tobacco retailer from other than a fixed location within the city's jurisdiction. C. It is unlawful for any person to cause, permit, aid, abet, or conceal a violation of any provision of this chapter. 5- 6B -50. Administration by Department. The chief and department are authorized to administer and enforce this chapter. Page 3 of 11 Revision Date- 3/10/2003 14:48 5- 613-60. Notices. A. Where the provisions of this chapter require that a applicant/licensee be served with notice, such notice is deemed served when personally delivered to such applicant/licensee or when deposited in the first class U.S. Mail, addressed to such applicant/licensee at the applicant /licensee's last known address. B. Unless otherwise provided, written notification to a applicant/licensee of a license decision will state with particularity the basis for such decision. ARTICLE 2 - LICENSE APPLICATION AND ISSUANCE 5- 613-70. Form and Content of Application. A. Permit applications must be filed by a natural person in the name of each proprietor proposing to conduct retail tobacco sales. B. Every application must be signed by the proprietor, or the proprietor's authorized representative, under penalty of perjury. C. Permit applications will be in a form prescribed by the chief and contain all of the following information: 1. The name, mailing address, and daytime and evening telephone numbers of the person filing the application; 2. The business name, address, and telephone number of the single fixed location for which a license is sought; 3. The name and mailing address authorized by each proprietor to receive all notices. If such an address is not supplied, notices will be sent to the business address; 4. Whether or not the proprietor was previously issued a license under this chapter that was suspended or revoked and, if so, the dates of the suspension period or revocation date; and 5. Such other information as the department deems reasonably necessary for administering or enforcing this chapter. 5- 6B -80. License Issuance. A. The chief must issue a license if 1. The application was complete in accordance with this chapter; Page 4 of 11 Revision Date: 3/10/2003 14:48 2. The applicant pays all applicable license fees; 3. There are no grounds for denying the license; and 4. Applicant accepts the license approval or conditional approval in writing. B. Use of any license issued pursuant to this chapter must conform to this chapter. 5- 613-90. License Denial. A license can be denied for the following reasons: A. The application is incomplete; B. The applicant failed to provide reasonable supplemental application information requested by the chief; C. Information submitted by the applicant is materially false; D. The application is submitted by a proprietor with a suspended license or whose license was revoked; or E. The application seeks authorization for tobacco retailing that is prohibited by this code or unlawful under any other local, state, or federal law. ARTICLE 3 - CONDITIONS 5 -613-100. General conditions. Tobacco retailer licensees must A. Comply with all local, state, and federal laws regulating tobacco products and tobacco paraphernalia including, without limitation, this code; B. Maintain a valid business license issued pursuant to this code; C. Allow authorized enforcement officers to enter onto licensed premises to ensure compliance with this chapter during business hours. 5 -6B -110. Display of License. Each license issued by this chapter must be prominently displayed in a publicly visible location at the licensed tobacco retailer's location. 5 -613-120. License Renewal. Unless suspended or revoked, licenses issued pursuant to this chapter have a term of one (1) year. Licenses must be renewed not later than thirty (30) days before they expire in order to be maintained. Should a license expire, the proprietor must comply with this chapter to obtain a new license. Page 5of11 Revision Date. 3/10/2003 14:48 5 -6B -130. No additional privileges granted. Nothing in this chapter is intended to, nor does it, grant to a properly licensed tobacco retailer privileges other than permission to operate as a tobacco retailer at the location identified in the license. 5 -6B -140. Licenses nontransferable. A license issued to a tobacco retailer pursuant to this chapter is nontransferable. Any change in business name or location requires a new license issued in accord with this chapter. ARTICLE 4 - ENFORCEMENT 5 -6B -150. Enforcement. A. In addition to the remedies set forth in this chapter, violations of a tobacco retailer's license may be enforced as follows: 1. Prosecution as infractions or misdemeanors at the city attorney's discretion. 2. Abated as a public nuisances. 3. Enjoined as unfair business practices that are presumed to nominally damage each and every resident of the community in which the tobacco retailer operates. B. Any person acting for the interests of itself, its members, or the general public may bring an action for injunctive relief to prevent future violations or to recover actual damages. C. The remedies provided by this chapter are cumulative and in addition to any other criminal or civil remedies. 5 -6B -160. City attorney enforcement authority. In addition to any other general functions, powers, and duties given to the city attorney by this code or California law, the city attorney is authorized to: A. Prosecute on behalf of the people all criminal and civil cases for violations of this chapter including, without limitation, administrative or judicial nuisance abatement and suits for injunctive relief, B. Prosecute all actions for the recovery of fines, penalties, forfeitures, and other money accruing to the city under this chapter. 5 -6B -170. Notice of Violation. Upon determining that a person is violating this chapter, the chief must serve a notice of violation on the apparent violator. The notice must state the basis of such violations and provide information regarding appeals rights. Page 6of11 Revision Date: 3/10/2003 14:48 5 -6B -180. Violations deemed Conclusive. The judgment of any court of competent jurisdiction, or the admission of a tobacco retailer licensee in any civil or criminal action against a tobacco retailer licensee, whether the city is a party or not, that the tobacco retailer has violated any tobacco - related local, state, or federal law is conclusive of that fact for purposes of enforcing this chapter. 5 -6B -190. Administrative fine. A. In addition to any other enforcement remedy, the chief may fine a tobacco retailer for violating this chapter as follows: 1. A fine not exceeding one hundred dollars ($100) for a first violation in any twelve (12) month period; 2. A fine not exceeding two hundred dollars ($200) for a second violation in any twelve (12) month period; or 3. A fine not exceeding five hundred dollars ($500) for a third or subsequent violation in any twelve (12) month period. 5 -613-200. Payment of administrative fines. An administrative fine must be paid to the city within thirty (30) days from the date of the notice of violation or, if an appeal is made, within fifteen (15) days after the date of the city manager's notice of the decision to uphold the imposition of administrative fines, whichever is later. 5 -6B -210. Delinquent administrative fines - penalties and interest. A. A penalty of ten percent (10 %) is added on any delinquent fines on the last day of each month after the due date. The penalty will not exceed fifty percent (50 %) of the fine. B. In addition to penalties provided by this Section, delinquent fines accrue interest at the rate of one percent (I%) per month, exclusive of penalties, from the due date. 5 -6B -220. Liability for fines. All fines, fees, penalties, and interest imposed pursuant to this chapter are civil debts owed to the city by the person fined. In the event that judicial action is necessary to compel payment of any debt owed to the city, the person or persons subject to the fine are also liable for the costs of suit and attorney's fees incurred by the city to collect the fine. 5 -6B -230. License Suspension and Revocation. In addition to any other penalty authorized by law, the chief may suspend or revoke a tobacco retailers license for the following reasons: A. Upon learning or discovering facts that require license denial under this chapter that were not previously disclosed or reasonably discoverable; or Page 7 of 11 Revision Date: 3/10/2003 14:48 B. If the licensee violates the tobacco retailer license conditions; 5 -6B -240. Suspension Time Periods. A. After serving a notice of violation, the chief may suspend a tobacco retailer's license as follows: 1. Upon finding a first license violation within any sixty -month (60) period, a thirty (30) day suspension; 2. Upon finding a second license violation within any sixty -month (60) period, a ninety (90) day suspension; 3. Upon finding a third license violation within any sixty month (60) period, a one (1) year suspension; 4. Upon finding a fourth license violation within any sixty -month (60) period, revocation. B. Nothing in this section is intended to limit the chief's ability to impose a different suspension period or to revoke a license as the circumstances of a violation may require. 5 -613-250. No new license after revocation. Should a tobacco retailer's license be revoked, the proprietor is presumptively disqualified to apply for a new license in accordance with this chapter. This presumption may be overcome upon a showing of good cause as to why a license should be issued following a revocation. Any such showing must be made to the chief's satisfaction or, if the chief denies a license, to the city manager as prescribed by this chapter. ARTICLE 5 - APPEALS 5 -613-260. Administrative appeals. An applicant is entitled to appeal the chief's decisions to the city manager provided A. A request for review must be commenced within ten (10) days from the date on which written notice of the chief's decision is served on the applicant /licensee. If request is untimely, the city manager may, nevertheless, extend the time for commencing such review for good cause shown. B. A request for appeal must be on a form provided by the department and contain the following information: 1. The name, address and telephone number of the person making the request; Page 8of11 Revision Date: 3/10/2003 14.48 2. A description of the decision, determination or order which is the subject of the review, and the date such decision, determination or order was made or issued; 3. A brief description of all grounds for making the request; and 4. Such other information as may be required by the department. C. Upon receiving an appeal, the city manager will review the request and, within ten (10) days of receiving the appeal, provide the appellant with a written notification that: 1. The chief's decision is affirmed; 2. The chief's decision is modified; 3. The chief's decision is reversed and a license is issued. D. The city manager may, but is not required to, conduct a hearing at a time, place, and manner determined in the city manager's sole discretion. Should a hearing occur, the city manager may issue a decision orally at the conclusion of the hearing, but also notify the applicant and the chief in writing of the city manager's decision. E. The city manager's decision is a final determination. There is no right of city council appeal. 5 -613-270. Content of Notices. Any notification of action, whether oral or written, must describe with particularity the facts and the reasons for the decision. 5 -6B -280. Right to Judicial Review. A. An applicant /licensee may appeal the city manager's decision by filing an appeal with the Superior Court pursuant to Government Code § 53069.4, or any successor statute, within twenty (20) days from service of the city manager's decision. B. Should a licensee file a timely appeal with the Superior Court, any requirement to pay an administrative fine is suspended and the payment of the fine, if any, will be in accordance with the Superior Court decision." SECTION 3: If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the city council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable. Page 9 of l 1 Revision Date: 3/10/2003 14 48 SECTION 4: The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of El Segundo's book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. SECTION 5: This Ordinance will become effective on the thirty -first (3 1) day after its passage and adoption. PASSED AND ADOPTED this 1stday of April , 2003. Mike Gordon, Mayor Page 10 of 11 Revision Date. 3/10/2003 14:48 ATTEST: STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES 1 SS CITY OF EL SEGUNDO ) I, Cindy Mortesen, City Clerk of the City of El Segundo, California, do hereby certify that the whole number of members of the City Council of said City is five; that the foregoing Ordinance No. 1355 was duly introduced by said City Council at a regular meeting held on the 18th day of March , 2003, and was duly passed and adopted by said City Council, approved and signed by the Mayor, and attested to by the City Clerk, all at a regular meeting of said Council held on the 1st day of April , 2003, and the same was so passed and adopted by the following vote: AYES: Gordon, Jacobs, McDowell, Wernick NOES: None ABSENT: Gaines ABSTAIN: None Cindy Mtfrtesen, City Clerk APPROVED Mark D. Hen LIM KarrH. Ber r ` Assistant eity �orney Page 11 of 11 Revision Date. 3/10/2003 14 48 E CITY OF EL SEGUNDO AFFIDAVIT OF POSTING: STATE OF CALIFORNIA } COUNTY OF LOS ANGELES } ss CITY OF EL SEGUNDO } AFFIDAVIT OF POSTING: ORDINANCE NO. 1358 AN ORDINANCE ADDING CHAPTER 6B TO TITLE 5 OF THE EL SEGUNDO MUNICIPAL CODE, ENTITLED "TOBACCO RETAILER LICENSE." I, Cathy Domann, declare as follows: That I am the Deputy City Clerk, acting as a Secretary to the El Segundo City Council; that a copy of the document listed above for the meeting of April 1, 2003, was posted at the following conspicuous place, City Hall Front Window, on April 9, 2003, at 8:45 a.m. declare under the penalty of perjury that the foregoing is true and correct. Executed on April 9, 2003. (�t" a#vv - (Signature)