transaction), until 30 days have passed from the date of the violation. (2) After a second violation of this section at a location within any five-year period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 90 days have passed from the date of the last violation. (3) After of a third or subsequent violation of this section at a location within any five-year period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until five years have passed from the date of the last violation. (B) Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the Department or any peace officer and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this chapter. The decision by the Department or peace officer may be appealed pursuant to the procedures set forth in § 125.110(C). Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure § 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final. (C) For the purposes of the civil remedies provided in this chapter, each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter or each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.
(Ord. 1321, passed 10-1-08)
§ 125.130 ENFORCEMENT.
(A) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
(B) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of 18 years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
(C) Each violation of this chapter is subject to a civil action brought by the City Attorney, punishable by a civil fine not less than $250 and not exceeding $1,000 per violation.
(D) Each violation of this chapter may, in the discretion of the City Attorney, be prosecuted as an infraction or a misdemeanor when the interests of justice so require.
(E) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
(F) Each violation of this chapter is hereby declared to be a public nuisance. (G) 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, for example, administrative citation, judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. 1321, passed 10-1-08)
Chapter 8.10 - RETAIL SALES OF TOBACCO PRODUCTS
Sections:
Footnotes:
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Editor's note— Ord. No. 2781, § 1, adopted Nov. 15, 2011, amended Ch. 8.10 in its entirety, in effect repealing and reenacting said chapter to read as herein set out. The former Ch. 8.10, §§ 8.10.010 and 8.10.020, pertained to vendor assisted sales of tobacco and derived from Ord. No. 2547, § 1 (part), 2002.
8.10.010 - Definitions.
The following words and phrase, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
"Arm's length transaction" means 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 of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction.
"Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to tor during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form, mixed with, or otherwise added to, any tobacco product or nicotine delivery device, including electronic smoking devices.
"Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three (3) pounds per thousand. "Cigarette" means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by consumers as a cigarette described herein. "Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.
"Department" means the Finance Department of the City of El Monte, and any division or person designated by the department to enforce or administer the provisions of this chapter. 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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"Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the devise, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device 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 where such product is marketed and sold solely for such an approved purpose.
"Flavored tobacco product" means any tobacco product, as defined in this Chapter 8.10, which imparts a characterizing flavor. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has: (i) made a public statement or claim that the tobacco product imparts a characterizing flavor; (ii) used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or (iii) taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
"Little cigar" means any roll of tobacco—other than a cigarette—wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three (3) pounds per thousand. "Little cigar" includes, but is not limited to, any tobacco product known or labeled as a "small cigar," "cigarillo," or "little cigar."
"Package" or "packaging" means a pack, box, carton or container of any kind, or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.
"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "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 (10) 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 share ultimate control over the day-today operations of a business.
"Self-service display" means the open display or storage of tobacco products in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display. 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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"Sale" or "sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for commercial purpose, in any manor or by any means whatsoever. "Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization. The term "smoke" includes, but is not limited to, tobacco smoke, electronic cigarette vapors, marijuana smoke or any other weed, herb, flower or plant. "Smoking" means the generation of smoke, as defined herein, through the use and/or operation of any tobacco product.
"Tobacco paraphernalia" means any item designed or marketed for the consumption, use, or preparation of tobacco products.
"Tobacco product" means:
Any product containing, made, 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, little cigars, chewing tobacco, pipe tobacco, and snuff; Any electronic smoking device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah; or
Any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately or any of these contains tobacco or nicotine. "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 where such product is marketed and sold solely for such an approved purpose.
"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. (Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2935, §§ 2, 3, 9-4-2018; Ord. No. 2980, §§ 2—4, 6-23-2020)
8.10.020 - Requirements and prohibitions.
Tobacco Retailer Permit Required. It shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's permit pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's permit is a nuisance as a matter of law. 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a permit issued, it shall be a violation of this chapter for a permittee or any of the permittee's agents or employees, to violate any local, state, or federal law applicable to tobacco products.
Display of Permit. Each tobacco retailer permit shall be prominently displayed in a publicly visible location at the permitted location.
Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product to another person who appears to be under the age of twenty-seven (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 product.
Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.
Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.
False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer permit, including, for example, a person whose permit has been revoked:
Shall keep all tobacco products out of public view. The public display of tobacco products in violation of this provision shall constitute tobacco retailing without a permit under Section 8.10.120; and
Shall not display any advertisement relating to tobacco products that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location.
Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer's packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements.
Minimum Package Size for Little Cigars and Cigars. No tobacco retailer shall sell to a consumer:
Any little cigar unless it is sold in a package of at least twenty (20) little cigars.
Any cigar unless it is sold in a package of at least six (6) cigars, provided, however, that this Subsection I.2. of 8.10.020 shall not apply to a cigar that has a price of at least five dollars ($5.00) per cigar, including all applicable taxes and fees.
No tobacco retailer shall sell or offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco product or any component, part, or accessory intended to impart or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices. There shall be a rebuttable presumption that a 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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tobacco retailer in possession of four (4) or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
Made a public statement or claim that the tobacco product imparts a characterizing flavor; Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor. (Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2935, § 3, 9-4-2018; Ord. No. 2980, § 5, 6-23-2020) Editor's note— The provisions of subsection J of Section 8.10.020 shall become operative as of January 1, 2021.
8.10.030 - Limits on eligibility for a tobacco retailer permit.
No permit may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited. (Ord. No. 2781, § 1, 11-15-2011)
8.10.040 - Application procedure.
Application for a tobacco retailer's permit shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof.
It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's permit. No proprietor may rely on the issuance of a permit as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A permit issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 8.10.110(D) of this chapter.
Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's permit any status or right to act as a tobacco retailer in contravention of any provision of law.
All applications shall be submitted on a form supplied by the department and shall contain the following information:
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3. The name, address, and telephone number of each proprietor of the business seeking a permit.
The business name, address, and telephone number of the single fixed location for which a permit is sought.
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 in subsection (C)2 above.
Proof that the location for which a tobacco retailer's permit is sought has been issued a valid state tobacco retailer's permit by the California Board of Equalization.
Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five (5) years.
Such other information as the department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
A permitted tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer's permit within ten (10) business days of a change.
Permit applications must be submitted prior to January 1 of the calendar year for which the permit will be in effect.
(Ord. No. 2781, § 1, 11-15-2011)
8.10.050 - Issuance of Permit.
Upon the receipt of a complete application for a tobacco retailer's permit and the permit fee required by this chapter, the department shall issue a permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:
The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.
The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer permits. However, this subparagraph shall not constitute a basis for denial of a permit if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction.
The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a permit to be issued.
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The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter, that is unlawful to this Municipal Code, or that is unlawful pursuant to any other law.
(Ord. No. 2781, § 1, 11-15-2011)
8.10.060 - Permit renewal and expiration.
Renewal of Permit. A tobacco retailer's permit is invalid if the appropriate fee has not been timely paid in full or if the term of the permit has expired. The term of a tobacco retailer permit is one year commencing on January 1 and ending on December 31 of the same calendar year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's permit and submit the permit fee no later than thirty (30) days prior to the expiration of the term.
Expiration of Permit. A tobacco retailer's permit that is not timely renewed shall expire at the end of its term. To renew a permit not timely renewed pursuant to subsection (A), the proprietor must:
Submit the permit fee and application renewal form; and Submit a signed affidavit affirming that the proprietor:
Has not sold and will not sell any tobacco products after the permit expiration date and before the permit is renewed; or
Has waited the appropriate ineligibility period established for tobacco retailing without a permit, as set forth in Section 8.10.120(A) of this chapter, before seeking renewal of the permit.
(Ord. No. 2781, § 1, 11-15-2011)
8.10.070 - Permit Nontransferable.
A tobacco retailer's permit may not be transferred from one person to another or from one location to another. A new tobacco retailer's permit is required whenever a tobacco retailing location has a change in proprietor(s).
Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and permit ineligibility periods shall continue to apply to a location unless:
The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and
The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction. 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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(Ord. No. 2781, § 1, 11-15-2011)
8.10.080 - Permit conveys a limited, conditional privilege.
Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's permit any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Municipal Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer permit does not make the retailer a "retail or whole tobacco shop" for the purposes of California Labor Code Section 6404.5. (Ord. No. 2781, § 1, 11-15-2011)
8.10.090 - Fee for permit.
By resolution, the city council shall establish and may from time to time adjust a schedule of fees for the issuance of a tobacco retailer's permit under this chapter. Fees shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a permit, administering the permit program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecutions of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. Fees are nonrefundable except as may be required by law.
(Ord. No. 2781, § 1, 11-15-2011)
8.10.100 - Compliance monitoring.
Compliance with this chapter shall be monitored by the department. In addition, any sworn peace officer or City of El Monte Code Enforcement Officer may enforce the penal provisions of this chapter. The city may designate any number of additional persons to monitor compliance with this chapter.
The department or other person designated to enforce the provisions of this chapter shall check the compliance of each tobacco retailer at least once per twelve-month period. Nothing in this paragraph shall create a right of action in any permittee or other person against the city or its agents.
Compliance checks shall be conducted so as to allow the department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to Tobacco. When the department deems appropriate, the compliance 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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checks shall determine compliance with other laws applicable to tobacco retailing. (Ord. No. 2781, § 1, 11-15-2011)
8.10.110 - Suspension/revocation of permit.
Suspension of Permit for Violation. In addition to any other penalty authorized by law, a tobacco retailer permit shall be suspended or revoked if any court of competent jurisdiction determines, or the department finds based on a preponderance of the evidence, after the permittee is afforded notice and an opportunity to be heard, that the permittee, or any of the permittee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this part or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Section 8.10.020 of this chapter. A tobacco retailer or proprietor whose permit has been suspended is deemed not to have a valid tobacco retailer permit during the suspension period for purposes of this chapter.
Tobacco Retailer Permit Suspension/Revocation.
After suspension for a first violation of this part at a location within any three-year period, no person may engage in the retail sales of tobacco products at the location until fifteen (15) days have passed from the date of suspension.
After suspension for a second violation of this part at a location within any three-year period, no person may engage in tobacco retailing at the location until thirty (30) days have passed from the date of suspension.
After suspension for a third violation of this part at a location within any three-year period, no person may engage in tobacco retailing at the location until ninety (90) days have passed from the date of suspension.
After revocation for four or more violations of this part at a location within any three-year period, no new permit may issue for the location until one year has passed from the date of revocation.
Appeal of Suspension/Revocation. A decision of the department to suspend or revoke a permit is appealable to the City Manager and/or designee and must be filed with the City Clerk or within ten (10) days of mailing of the department's decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager or designee is not available for a suspension or revocation made pursuant to subsection (D) of this section.
Revocation of Permit Wrongly Issued. A tobacco retailer permit shall be revoked if the department finds, after the permittee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a permit under Section 8.10.050 existed at the time 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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application was made or at any time before the permit issued. The decision by the department shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new permit application.
(Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2789, 3-20-2012)
8.10.120 - Tobacco retailing without a permit.
In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the department finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's permit, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailing permit as follows:
After a first violation of this section at a location within any five-year period, no new permit may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until thirty (30) days have passed from the date of the violation.
After a second violation of this section at a location within any five-year period, no new permit may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until ninety (90) days have passed from the date of the violation.
Tobacco products offered for sale or exchange in violation of this section are subject to seizure by the department or any peace officer and shall be forfeited after the permittee and any other owner of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale or exchange in violation of this chapter. The decision by the department may be appealed pursuant to the procedures set forth in Section 8.10.110(C).
For the purposes of the civil remedies provided in this chapter:
Each day on which a tobacco product is offered for sale in violation of this chapter; or Each individual retail tobacco product that is distributed, sold, or offered for sale in violation of this chapter;
shall constitute a separate violation of this chapter.
(Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2789, 3-20-2012)
8.10.130 - Enforcement.
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The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen (18) years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
Violations of this chapter are subject to a civil action brought by the city prosecutor or the city attorney and are subject to an administrative fine as established by resolution of the City Council.
Violations of this chapter may, in the discretion of the City Prosecutor or City Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.
Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
Violations of this chapter are hereby declared to be public nuisances.
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, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. No. 2781, § 1, 11-15-2011; Ord. No. 2935, § 4, 9-4-2018) 9/18/24, 11:21 AM El Monte, CA Code of Ordinances
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CHAPTER 5.75
TOBACCO RETAIL LICENSE
§ 5.75.010. 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:
"Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction. "Child-resistant packaging" means packaging that meets the definition set forth in Code of Federal Regulations, Title 16, Section 1700.15(b), as in effect on January 1, 2015, and was tested in accordance with the method described in Code of Federal Regulations, Title 16, Section 1700.20, as in effect on January 1, 2015. "Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than four and one-half pounds per thousand.
"Cigarette" means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.
"Consumer" means a person who purchases a tobacco product for consumption and not for sale to another.
"Coupon" means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.
"Department" means the city's community and economic development department and any agency or person designated by the department to enforce or administer the provisions of this chapter.
"Director" means the city's community and economic development director or designee. "Drug paraphernalia" has the meaning set forth in California Health and Safety Code Sections 11014.5, 11364.5, and 11364.7 as those sections may be amended from time to time.
"Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an ecigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the City of Pico Rivera, CA
§ 5.75.010 § 5.75.010
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substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. "Flavored tobacco product" means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, alcoholic beverage, herb, or spice. "Full retail price" means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.
"Labeling" means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.
"Little cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than four and onehalf pounds per thousand. "Little cigar" includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo. "Manufacturer" means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States. "Package" or "packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.
"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "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 has or shares ultimate control over the day-to-day operations of a business. "Sale" or "sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever. "Self-service display" means the open display or storage of tobacco products in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
"Tobacco product" means:
Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether smoked,
1. City of Pico Rivera, CA
§ 5.75.010 § 5.75.010
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"Tobacco product" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco products. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange. "Youth decoy" means a person under the age of twenty-one but not younger than eighteen, who is supervised by the sheriff's department or code enforcement division to conduct onsite sting investigations of a tobacco retailer to determine compliance with tobacco retailing laws.
( Ord. 1154 § 4, 2022)
§ 5.75.020. General requirements and prohibitions.
heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff;
Any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or
2. Any component, part, or accessory of subsection (1) or (2) above, whether or not any of these contains tobacco or nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
3. A. Tobacco Retailer's License Required. Notwithstanding Section 9.42.030 of this code, it shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law.
B. Compliance With All Laws Required. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license is issued, it shall be a violation of this chapter for any person, proprietor, or any of the tobacco retailer's agents or employees, to violate any local, state, or federal law applicable to tobacco products or tobacco retailing.
C. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
D. Minimum Legal Sales Age. No person engaged in tobacco retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco products to any person under twenty-one years of age.
E. Minimum Clerk Age. No person who is younger than the minimum age established by state law for the purchase or possession of any tobacco product shall engage in tobacco retailing.
City of Pico Rivera, CA
§ 5.75.010 § 5.75.020
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( Ord. 1154 § 4, 2022; Ord. 1170 § 4, 2023)
F. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product to another person without first verifying by means of government-issued photographic identification that the recipient is at least twentyone years of age.
G. Drug Paraphernalia. It shall be a violation of this chapter for any person engaged in tobacco retailing or any of the tobacco retailer's agents or employees to violate any local, state, or federal law regulating controlled substances or drug paraphernalia, except that conduct authorized pursuant to state law shall not be a violation of this chapter.
H. Self-Service Displays Prohibited. No tobacco retailer shall display tobacco products by means of a self-service display or engage in tobacco retailing by means of a selfservice display. A tobacco retailer who chooses to display tobacco products in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times.
I. Windows.
1. In the course of tobacco retailing or in the operation of a business or maintenance of a location for which a license is issued, it shall be a violation of this chapter for a proprietor, or any of the tobacco retailer's agents or employees, to cover more than ten percent of the window area with window signs unless otherwise prohibited in the applicable zone, whichever is more restrictive shall apply.
2. All windows and doors shall be maintained to ensure law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from exterior public rights-of-way or from the entrance. However, this subsection shall not apply to premises where there are no windows, or where the design or location of windows or landscaping precludes a view of the interior of the premises from exterior public rights-of-way or from the entrance.
J. False and Misleading Advertising Prohibited. A tobacco retailer without a valid tobacco retailer license or a proprietor without a valid tobacco retailer license, including, for example, a person whose license has been suspended or revoked:
1. Shall keep all tobacco products out of public view. The public display of tobacco products in violation of this provision shall constitute tobacco retailing without a license; and
2. Shall not display any advertisement relating to tobacco products that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location.
City of Pico Rivera, CA
§ 5.75.020 § 5.75.030
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§ 5.75.030. Sale of flavored tobacco products prohibited. ( Ord. 1154 § 4, 2022)
§ 5.75.040. Tobacco product pricing and packaging.
A. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer's agents or employees to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.
B. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.
C. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:
1. Made a public statement or claim that the tobacco product has a taste or smell other than tobacco;
2. Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product has a taste or smell other than tobacco; or
3. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product has a taste or smell other than tobacco.
A. Packaging and Labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer's packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.
B. Display of Price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed on the tobacco product or on any related shelving, posting, advertising, or display at the location where the item is sold or offered for sale.
C. Prohibition of Tobacco Coupons and Discounts. No tobacco retailer shall:
1. Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price;
2. Sell any tobacco product to a consumer through a multiple-package discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or any other item; or
City of Pico Rivera, CA
§ 5.75.030 § 5.75.040
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( Ord. 1154 § 4, 2022)
§ 5.75.050. Application procedure.
3. Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
A. Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's license. No proprietor may rely on the issuance of a license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.75.130 of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's license any status or right to act as a tobacco retailer in contravention of any provision of law. All applications shall be submitted on a form supplied by the department and shall contain the following information:
1. The name, address, and telephone number of each proprietor of the business seeking a license.
2. The business name, address, and telephone number of the single fixed location for which a license is sought.
3. 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 in subsection (A)(2) above.
4. Proof that the location for which a tobacco retailer's license is sought has been issued a valid state license for the sale of tobacco products, if the tobacco retailer sells products that require such license.
5. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter or any other local, state, or federal law governing the sale of tobacco products and, if so, the dates and locations of all such violations within the previous five years.
6. Such other information as the department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.
7. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the business seeking the license.
City of Pico Rivera, CA
§ 5.75.040 § 5.75.050
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( Ord. 1154 § 4, 2022)
§ 5.75.060. Issuance and renewal of license.
B. A licensed tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer's license within ten business days of a change.
C. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law.
A. Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this chapter, the department may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary.
The department may deny an application for a tobacco retailer's license based on any of the following:
1. The application is incomplete, inaccurate, false, or misleading;
2. The department has information that the applicant, or the applicant's agent(s) or employee(s), violated any local, state, or federal tobacco control law within the preceding one hundred eighty days; or
3. The application seeks authorization for tobacco retailing at an address where a previous tobacco retail license has been suspended, revoked, or is subject to suspension or revocation proceedings for any violation of any of the provisions of this chapter. However, this shall not constitute a basis for denial of a tobacco retail license if either or both of the following apply:
a. The applicant provides documentation which clearly demonstrates that the applicant has acquired or is in the process of acquiring the premises or business in an arm's length transaction, or
b. It has been more than five years since the most recent tobacco retail license for that location was revoked;
4. Any other suitable reason the granting of a license to the applicant is not consistent with the public health and welfare, including the applicant's history of noncompliance with this chapter and other laws relating to the sale of tobacco products.
B. Renewal of Tobacco Retail License. A tobacco retail license shall be valid for one year and must be renewed between thirty and sixty days prior to the expiration of the tobacco retail license. A tobacco retail license may be renewed for additional one year periods by submission of a renewal application and the applicable fee. Any tobacco retail license that is suspended, has been revoked within the previous five years, or is subject to suspension or revocation proceedings shall not be renewed until suspension or revocation proceedings are complete and the suspension or revocation period, if any, is over.
City of Pico Rivera, CA
§ 5.75.050 § 5.75.060
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( Ord. 1154 § 4, 2022)
§ 5.75.070. Business license required.
In addition to the tobacco retail license, any tobacco retailer must have a valid business license as required by Title 5 of this code.
( Ord. 1154 § 4, 2022)
§ 5.75.080. Licenses nontransferable.
A tobacco retailer's license may not be transferred from one person to another or from one location to another. A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietor(s).
( Ord. 1154 § 4, 2022)
§ 5.75.090. License conveys a limited, conditional privilege.
Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit.
Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including, but not limited to:
( Ord. 1154 § 4, 2022)
§ 5.75.100. Fee for license.
The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. The level of compliance monitoring will affect the fees charged to tobacco retailers.
( Ord. 1154 § 4, 2022)
§ 5.75.110. Compliance monitoring.
A. Any provision of this code, including, but not limited to, zoning, building and business license provisions; and/or
B. Any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. Obtaining a tobacco retailer's license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.
A. Compliance with this chapter shall be monitored by the department and the city's code enforcement division. In addition, any peace officer may enforce the penal City of Pico Rivera, CA
§ 5.75.060 § 5.75.110
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( Ord. 1154 § 4, 2022; Ord. 1170 § 3, 2012)
§ 5.75.120. Violations.
provisions of this chapter. The city may designate additional persons to monitor compliance with this chapter.
B. Monitoring may include, but is not limited to, unannounced inspections and/or youth decoy operations during a tobacco retailer's hours of operation.
C. The department shall conduct unannounced inspections for each tobacco retailer at least one time per twelve-month period to ensure compliance with this chapter.
D. The city will conduct at least one unannounced compliance check per twelve-month period that involves the participation of youth decoys, or an agent designated by the city to enter licensed premises to attempt to purchase tobacco products.
E. The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a person who otherwise might be in violation of such law because of the person's age (youth decoy) if the potential violation occurs when:
1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement officer of the city;
2. The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this chapter; or
3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by any city or local agency or the California Department of Health Services.
F. Nothing in this section shall create a right of action in any licensee or other person against the city or its agents.
G. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of twenty-one years old, including, but not limited to, a youth decoy operation, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented by the city.
H. Nothing in this chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.
A. It shall be a violation of this chapter for any person, tobacco retailer/licensee, or its agent(s) or employee(s), to violate any federal, state, or local tobacco law or regulation, including any provision of this chapter. Each day that a violation continues is deemed to be a new and separate offense. No proof of knowledge, intent, or other mental state is required to establish a violation.
B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of City of Pico Rivera, CA
§ 5.75.110 § 5.75.120
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( Ord. 1154 § 4, 2022)
§ 5.75.130. Suspension or revocation of license.
this chapter shall constitute a violation.
C. The failure of the tobacco retailer/licensee, or the applicant's agent(s) or employee(s) to allow any peace officer, the director, or any authorized city official to conduct unscheduled inspections of the premises of the business for the purpose of ensuring compliance with any federal, state, or local tobacco law or regulation, including any provision of this chapter, at any time the business is open for business shall constitute a violation.
D. No tobacco retailer/licensee or its agent(s) or employee(s) may sell or offer for sale any little cigar or cigarillo unless it is sold in a package of at least twenty little cigars or cigarillos. Little cigars or cigarillos may not be sold individually or in packages of less than twenty units.
E. A tobacco retail license may be issued to authorize tobacco retailing at a fixed location only. Tobacco retailing on foot or from vehicles, carts, or any other nonfixed location, is prohibited and shall be considered a violation of this chapter.
A. In addition to any other remedy authorized by law, a tobacco retail license may be suspended or revoked as provided in this section if it is discovered that any of the following occurred:
1. The licensee, or the licensee's agent(s) or employee(s), violated any provision of this chapter. Violation by a licensee at one location shall not be construed as a violation at another location of the same licensee, nor shall violations by a prior licensee at the same location be accumulated against a subsequent licensee at the same location;
2. The original or renewal application contained incomplete, inaccurate, false, or misleading information;
3. One or more of the bases for denial listed in Section 5.75.060 existed before the tobacco retail license was issued; or
4. A licensee is convicted of a misdemeanor or felony violation of any federal, state, or local tobacco law or regulation, including any provision of this code.
B. During any period of suspension or revocation, the licensee shall remove all tobacco products and from view, including from displays and behind counter storage areas, whether or not visible to the public. All tobacco products must be placed in a room that is separate from the area where point of sale transactions occur, or removed from the tobacco retail location entirely. Failure to do so may be considered a subsequent violation.
C. During any period of suspension or revocation, the tobacco retailer/licensee shall conspicuously post, at each point of sale register and near the entrance door of the tobacco retail location, a notice of a tobacco retail license suspension provided by City of Pico Rivera, CA
§ 5.75.120 § 5.75.130
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( Ord. 1154 § 4, 2022)
§ 5.75.140. Suspension or revocation procedure.
the department. The notice shall include the suspension or revocation period, reason for suspension or revocation, tobacco retailer/licensee and location information, and department contact information to report violations.
D. When the director finds a violation as set forth in this chapter, the tobacco retail license may be suspended or revoked as follows:
1. Upon finding by the director of a first tobacco retail license violation, the tobacco retail license may be suspended for up to thirty days;
2. Upon a finding by the director of a second tobacco retail license violation within any five-year period, the tobacco retail license may be suspended for up to ninety days;
3. Upon a finding by the director of a third tobacco retail license violation in any five-year period, the tobacco retail license may be suspended for up to one hundred twenty days; and
4. Upon a finding by the director of a fourth tobacco retail license violation within a five-year period, the tobacco retail license shall be revoked.
A. Before a tobacco retail license is suspended or revoked, the director shall provide written notice to the licensee. Said notice shall include the following:
1. A statement that the proprietor's tobacco retail license is being suspended or revoked pursuant to this chapter;
2. The code section violated by licensee or licensee's agents or employees;
3. A description of the violation that occurred;
4. The address of the business where the violation occurred; and
5. The procedure for requesting an administrative review.
B. A licensee served with a notice of suspension or revocation may request an administrative review to contest the suspension or revocation. The request must be made in writing and filed with the city manager within ten calendar days of service of the notice of suspension or revocation. Failure to timely request an administrative review shall be deemed a waiver of the right to request such a review and a failure to exhaust administrative remedies.
C. After receiving a timely administrative review request, the city manager shall schedule an administrative review within twenty calendar days of receipt of the written request and designate a reviewing officer. The city manager may appoint as a reviewing officer, any department or other city employee who is not directly involved in inspection or enforcement of tobacco retailing establishments.
City of Pico Rivera, CA
§ 5.75.130 § 5.75.140
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( Ord. 1154 § 4, 2022)
§ 5.75.150. Violation—Other penalties.
D. The proprietor shall be given written notice of the date, time, and location of the administrative review and the name of the reviewing officer who will conduct the administrative review at least ten calendar days in advance of the review.
E. The reviewing officer, in their discretion, may grant a reasonable continuance upon the written request and showing of good cause.
F. At the administrative review, the department has the burden of providing by a preponderance of the evidence that the alleged violation occurred.
G. The failure to appear at the administrative review shall constitute an abandonment of the review request and a failure to exhaust administrative remedies.
H. Within ten calendar days after the close of the administrative review, the reviewing officer shall issue a written decision on the suspension or revocation of the tobacco retail license, including a statement of the basis for the decision. The reviewing officer's written decision shall constitute the final administrative decision of the city.
I. If the director revokes a tobacco retail license, no new tobacco retail license may be issued for five years after that revocation.
A. In addition to any other penalties and remedies provided by law, including the provisions of this chapter, any violation of the provisions of this chapter may be charged as a misdemeanor pursuant to Chapter 1.20 of this code, or, in the discretion of the prosecutor, as an infraction. Any person who violates any provision of this chapter is subject to an administrative citation pursuant to Chapter
1.20 as well as a civil action, including, but not limited to, an injunction, as well as prosecution for any criminal violation.
B. In addition to any other penalty under this chapter, a person found to have engaged in tobacco retailing without a valid tobacco retail license shall be ineligible to apply for or be issued a tobacco retail license as follows:
1. After a person is caught in violation of this section, no new tobacco retail license may be issued for the person as a proprietor until thirty days have passed from the date of the violation; and
2. Each day that a person engages in tobacco retailing without a valid tobacco retail license shall constitute a separate violation.
C. Any person found by the director to be ineligible to be issued a tobacco retail license pursuant to this section may request an administrative review within ten days of notice of the violation. The request must be made to the director in writing.
Any administrative review shall be held pursuant to the provisions of Section
5.75.140 of this chapter.
City of Pico Rivera, CA
§ 5.75.140 § 5.75.150
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( Ord. 1154 § 4, 2022; Ord. 1170 § 5, 2023)
§ 5.75.160. Conflict with other laws; severability; saving clause.
Nothing in this chapter shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of this chapter or the application of such provision to other persons or circumstances shall not be affected thereby.
( Ord. 1154 § 4, 2022)
D. Violations of this chapter are hereby declared to be public nuisances pursuant to this code.
City of Pico Rivera, CA
§ 5.75.150 § 5.75.160
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Title 11 - HEALTH AND SAFETY
Division 1 - HEALTH CODE
Chapter 11.35 TOBACCO RETAILING
Los Angeles County, California, Code of Ordinances Created: 2024-08-20 14:00:20 [EST] (Supp. No. 139)
Chapter 11.35 TOBACCO RETAILING
11.35.010 Purpose and Application.
In promoting the health, safety, and general welfare of its residents, the County of Los Angeles has a substantial interest in encouraging compliance with federal, State, and local laws regulating tobacco sales and use; discouraging the purchase and use of tobacco products by anyone under the age of 21; increasing compliance with laws prohibiting the sale of tobacco products to anyone under the age of 21; and protecting children from being lured into nicotine and tobacco use through the illegal sale of products, including vaping products. It is the intent of the Ordinance codified in this Title, together with the additions to Title 7, to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit the sale or distribution of tobacco products to anyone under the age of 21. This Ordinance does not expand or reduce the degree to which the acts regulated by federal or State law are criminally proscribed or otherwise regulated. (Ord. 2019-0049 § 4, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.020 Definitions.
For the purpose of this Chapter, the words and terms listed below shall have the following meanings:
A. "Accessory" means equipment, products, or materials that are used, intended for use, or designed for use in smoking, vaping, ingesting, inhaling, or otherwise introducing tobacco or tobacco products into the human body and can be an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else.
B. "Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, when neither is 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 Chapter that occurred at the location, is presumed not to be an arm's length transaction.
C. "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 relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form, mixed with or otherwise added to any tobacco product or nicotine delivery device, including electronic smoking devices.
D. "Cigarette" is any roll of tobacco wrapped in paper or in any substance not containing tobacco, or any roll of tobacco wrapped in any substance containing tobacco which is likely to be offered to, or purchased as a cigarette, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling.
E. "Cigarillo" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand units. "Cigarillo" includes, but is not limited to, tobacco products known or labeled as small cigar or little cigar.
F. "Component" means any item intended or reasonably expected to be used with or for the human consumption of a tobacco product.
ATTACHMENT F
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
G. "Department" means the Los Angeles County Department of Public Health.
H. "Director" means the Director of the Los Angeles County Department of Public Health or designee.
I. "Electronic Smoking Device" means an electronic device, including but not limited to an electronic cigarette, electronic cigar or cigarillo, electronic pipe, electronic hookah, vaping device, or any other product name or descriptor, which can be used to deliver an inhaled dose of nicotine or other substances, including any component, part, or accessory of such a device, whether manufactured, distributed, marketed, or sold as such.
J. "Flavored Tobacco Product" means any tobacco product, as defined in this Chapter, which imparts a characterizing flavor.
K. "License" means a Tobacco Retail License issued by the County pursuant to this Section.
L. "Licensee" means any proprietor holding a license issued by the County pursuant to this Chapter.
M. "Little Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand units. "Little Cigar" includes, but is not limited to, tobacco products known or labeled as small cigar or cigarillo.
N. "Package" or "Packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale.
O. "Part" means a piece or segment of something, which combined with other pieces makes up the whole.
P. "Person" means any individual, entity, firm, partnership, joint venture, limited liability company, association, social or professional club, fraternal organization, corporation, estate, trust, business trust, receiver, trustee, syndicate, or other group or combination of the above acting as a single unit.
Q. "Pharmacy" means any retail establishment, including any location with an on-site pharmacy, in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
R. "Proprietor" means a person with an ownership 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.
S. "Self-service Display" means the open display or storage 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 retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
T. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, characterizing flavors in any form, mixed with or otherwise added to any tobacco product or nicotine delivery device, including electronic smoking devices, and any other item designed or used for the smoking or ingestion of tobacco products.
U. "Tobacco Product" means the following:
1. Any product containing, made, or derived from tobacco or nicotine whether natural or synthetic, 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, little cigars, chewing tobacco, pipe tobacco, and snuff; or
2. Any electronic smoking device that delivers nicotine or other substances, whether natural or synthetic, to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, electronic hookah, or vaping device.
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
3. Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately.
4. "Tobacco Product" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.
V. "Tobacco Retailer" means any person who sells, offers for sale or distribution, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, distributed, exchanged, or offered for exchange.
W. "Tobacco Retailing" means selling, offering for sale, exchanging, or offering to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange.
(Ord. 2019-0049 § 5, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.030 Mandatory Tobacco Retail License.
A. Any person intending to act as a tobacco retailer, who does not currently hold a Tobacco Retail License, shall, within 180 days of the effective date of the Ordinance codified in this Chapter, obtain a Tobacco Retail License for each location at which tobacco retailing is to occur.
B. Nothing in this Chapter shall be construed to grant any licensee any status or right other than to act as a tobacco retailer at the location identified on the face of the Tobacco Retail License, subject to compliance with all other applicable laws, regulations, or ordinances. Nothing in this Chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law. (Ord. 2019-0049 § 6, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.040 Application Procedure for Tobacco Retail License.
All applications for a Tobacco Retail License shall be submitted in the name of each proprietor proposing to conduct tobacco retailing and signed by each prospective proprietor or an authorized agent. Each Tobacco Retail License application must be accompanied by the required Tobacco Retail License fee pursuant to Section 8.04.720 of this Code. A proprietor proposing to conduct tobacco retailing at more than one location shall submit a separate application for each location. Every application shall contain the following information:
A. The name, address, and telephone number of each proprietor.
B. The business name, address, and telephone number of the fixed location for which the Tobacco Retail License is sought.
C. Whether any proprietor has previously been issued a Tobacco Retail License pursuant to this Chapter that is, or was at any time, suspended or revoked and, if so, the date of the suspension or revocation.
D. Proof that the location for which a Tobacco Retail License is sought has been issued a valid State tobacco retailer's license by the California Department of Tax and Fee Administration, in addition to any other required or applicable licenses, permits, or certifications.
E. A signed affirmation by each proprietor of being informed of, and agreeing to abide by, the laws affecting tobacco retail licenses.
F. Such other information as the County deems necessary for the administration of this Chapter.
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
Any application that is denied is subject to an administrative review, at the request of the applicant, which shall be held pursuant to the provisions of Section 11.35.110 of this Chapter. (Ord. 2019-0049 § 7, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.050 Issuance and Renewal of Tobacco Retail License.
A. Upon receipt of an application for a new Tobacco Retail License and applicable fee, as set forth in Section
8.04.720, the applicant(s) shall be issued a Tobacco Retail License unless:
1. The application is incomplete, inaccurate, false, or misleading;
2. The Department has information that the applicant, or the applicant's agent(s) or employee(s), violated any local, State, or federal tobacco control law within the preceding 180 days; or
3. The application seeks authorization for tobacco retailing at an address where a previous Tobacco Retail License has been suspended, revoked, or is subject to suspension or revocation proceedings for any violation of any of the provisions of this Chapter. However, this shall not constitute a basis for denial of a Tobacco Retail License if either or both of the following apply:
a. The applicant provides documentation which clearly demonstrates that the applicant has acquired or is in the process of acquiring the premises or business in an arm's length transaction; or
b. It has been more than five years since the most recent Tobacco Retail License for that location was revoked.
B. Renewal of Tobacco Retail License. A Tobacco Retail License shall be valid for one year and must be renewed between 30 and 60 days prior to the expiration of the Tobacco Retail License. A Tobacco Retail License may be renewed for additional one year periods by submission of a renewal application and the applicable fee.
Any Tobacco Retail License that is suspended, has been revoked within the previous five years, or is subject to suspension or revocation proceedings shall not be renewed until suspension or revocation proceedings are complete and the suspension or revocation period, if any, is over. (Ord. 2019-0049 § 8, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.055 Business License Required.
A. In addition to the Tobacco Retail License, any Tobacco Shop in an unincorporated area of the County, devoted exclusively or predominantly to the sale of tobacco, tobacco products, and tobacco paraphernalia, must have a valid business license as required by Title 7 of this Code.
B. Tobacco Shops currently holding a valid Tobacco Retail License as of the effective date of the Ordinance codified in this Chapter must apply for a business license as required by Title 7 of this Code and may legally operate while such application is in active process.
C. Any retailer establishing a new Tobacco Shop after the effective date of this Ordinance must apply for and obtain a business license as required by Title 7 of this Code and a Tobacco Retail License, as required by this Chapter, before it may legally operate.
D. If the business license is revoked or suspended for any period of time, the Tobacco Retail License shall be automatically revoked or suspended for the same period. (Ord. 2019-0049 § 9, 2019.)
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
11.35.060 Tobacco Retail License Nontransferable.
A Tobacco Retail License is nontransferable. If a licensee changes business location, that licensee must obtain a new Tobacco Retail License prior to acting as a tobacco retailer at the new location. If a business licensed as a tobacco retailer is sold or transferred, the new proprietor must obtain a Tobacco Retail License for that location before acting as a tobacco retailer.
(Ord. 2019-0049 § 10, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.070 Violations.
A. It shall be a violation of this Chapter for a tobacco retailer/licensee, or its agent(s) or employee(s), to violate any federal, State, or local tobacco law or regulation, including any provision of this Chapter.
B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall constitute a violation.
C. Failure to prominently display the Tobacco Retail License in a publicly visible location at the licensed premises shall constitute a violation.
D. The failure of the tobacco retailer/licensee, or the applicant's agent(s) or employee(s) to allow any peace officer, the Director, or any authorized County official to conduct unscheduled inspections of the premises of the business for the purpose of ensuring compliance with any federal, State, or local tobacco law or regulation, including any provision of this Chapter, at any time the business is open for business shall constitute a violation.
E. After 180 days of the effective date of the Ordinance codified in this Chapter, it shall be a violation of this Chapter for a tobacco retailer/licensee or its agent(s) or employee(s) to sell or offer for sale, or to possess with the intent to sell or offer for sale, any flavored tobacco product or any component, part, or accessory intended to impart, or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices.
F. No tobacco retailer/licensee or its agent(s) or employee(s) may sell or offer for sale any little cigar or cigarillo unless it is sold in a package of at least 20 little cigars or cigarillos. Little cigars or cigarillos may not be sold individually or in packages of less than 20 units.
G. Tobacco retailing by means of a self-service display is prohibited, pursuant to State law.
H. A Tobacco Retail License may be issued to authorize tobacco retailing at a fixed location only. Tobacco retailing on foot or from vehicles, carts, or any other non-fixed location, is prohibited and shall be considered a violation of this Chapter.
I. No Tobacco Retail License may issue and no existing Tobacco Retail License may be renewed, to authorize tobacco retailing in a pharmacy, including any location with an on-site pharmacy.
J. Each tobacco retailer/licensee and its agent(s) or employee(s) must be over the age of 21 in order to sell tobacco and/or tobacco products.
(Ord. 2019-0049 § 11, 2019: Ord. 2007-0118 § 3 (part), 2007.)
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
11.35.080 Compliance Checks.
A. Compliance with this Chapter shall be monitored by the Department of Public Health ("Department") or any law enforcement officer. Any law enforcement officer may conduct compliance checks, including but not limited to youth decoy operations, and enforce the penal provisions of this Chapter.
B. The Department shall check the compliance of each tobacco retailer a minimum of one time per 12 month period. Compliance checks may be unannounced.
(Ord. 2019-0049 § 12, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.090 Administrative Fines.
Subject to the requirements of Chapter 1.25 of this County Code, the Director may impose administrative fines on persons violating any provision of this Chapter or any federal, State, or local law or regulation incorporated into this Chapter. The Director may impose a fine upon such violators in an amount determined by the Director. The imposition of any such fine shall in no way limit the Director's ability or authority to impose other requirements of this Chapter or seek other remedies against violators.
(Ord. 2019-0049 § 13, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.100 Suspension or Revocation of Tobacco Retail License.
A. In addition to any other remedy authorized by law, a Tobacco Retail License may be suspended or revoked as provided in this Section if it is discovered that any of the following occurred:
1. The licensee, or the licensee's agent(s) or employee(s), violated any provision of this Chapter. Violation by a licensee at one location shall not be construed as a violation at another location of the same licensee, nor shall violations by a prior licensee at the same location be accumulated against a subsequent licensee at the same location;
2. The original or renewal application contained incomplete, inaccurate, false, or misleading information;
3. One or more of the bases for denial listed in Section 11.35.050 existed before the Tobacco Retail License was issued; or
4. A licensee is convicted of a misdemeanor or felony violation of any federal, State, or local tobacco law or regulation, including any provision of this Code.
B. During any period of suspension or revocation, the licensee shall remove all tobacco products and tobacco paraphernalia from view, including from displays and behind counter storage areas, whether or not visible to the public. All tobacco products and tobacco paraphernalia must be placed in a room that is separate from the area where point of sale transactions occur, or removed from the tobacco retail location entirely. Failure to do so may be considered a subsequent violation.
C. During any period of suspension or revocation, the tobacco retailer/licensee shall conspicuously post, at each point of sale register and near the entrance door of the tobacco retail location, a notice of a Tobacco Retail License suspension provided by the Department of Public Health. The notice shall include the suspension or revocation period, reason for suspension or revocation, tobacco retailer/licensee and location information, and Department of Public Health contact information to report violations.
D. When the Director finds a violation as set forth in this Chapter, the Tobacco Retail License may be suspended or revoked as follows:
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
1. Upon finding by the Director of a first Tobacco Retail License violation within any five year period, the Tobacco Retail License may be suspended for up to 30 days;
2. Upon a finding by the Director of a second Tobacco Retail License violation within any five year period, the Tobacco Retail License may be suspended for up to 90 days;
3. Upon a finding by the Director of a third Tobacco Retail License violation in any five year period, the Tobacco Retail License may be suspended for up to 120 days; and
4. Upon a finding by the Director of a fourth Tobacco Retail License violation within a five year period, the Tobacco Retail License shall be revoked.
(Ord. 2019-0049 § 14, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.110 Suspension or Revocation Procedure.
A. Before a Tobacco Retail License is suspended or revoked, the Director shall provide written notice to the licensee. Said notice shall include the following:
1. A statement that the proprietor's Tobacco Retail License is being suspended or revoked pursuant to this Chapter;
2. The Code Section violated by licensee or licensee's agents or employees;
3. A description of the violation that occurred;
4. The address of the business where the violation occurred; and
5. The procedure for requesting an administrative review.
B. A licensee served with a notice of suspension or revocation may request an administrative review to contest the suspension or revocation. The request must be made in writing and filed with the Director within 10 calendar days of service of the notice of suspension or revocation. Failure to timely request an administrative review shall be deemed a waiver of the right to request such a review and a failure to exhaust administrative remedies.
C. After receiving a timely administrative review request, the Director shall schedule an administrative review within 20 calendar days of receipt of the written request and designate a reviewing officer. The Director may appoint as a reviewing officer, any Department or other County employee with expertise in public health who is not directly involved in inspection or enforcement of tobacco retailing establishments.
D. The proprietor shall be given written notice of the date, time, and location of the administrative review and the name of the reviewing officer who will conduct the administrative review at least 10 calendar days in advance of the review.
E. The reviewing officer, in their discretion, may grant a reasonable continuance upon the written request and showing of good cause.
F. At the administrative review, the Department has the burden of providing by a preponderance of the evidence that the alleged violation occurred.
G. The failure to appear at the administrative review shall constitute an abandonment of the review request and a failure to exhaust administrative remedies.
H. Within 10 calendar days after the close of the administrative review, the reviewing officer shall issue a written decision on the suspension or revocation of the Tobacco Retail License, including a statement of the basis for the decision. The reviewing officer's written decision shall constitute the final administrative decision of the County.
Created: 2024-08-20 14:00:20 [EST]
(Supp. No. 139)
I. If the Director revokes a Tobacco Retail License, no new Tobacco Retail License may be issued for five years after that revocation.
(Ord. 2019-0049 § 15, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.120 Violation—Other Penalties.
A. In addition to any other penalties and remedies provided by law, including the provisions of this Chapter, any violation of the provisions of this Chapter may be charged as a misdemeanor pursuant to Chapter 1.24 of this Code, or, in the discretion of the prosecutor, as an infraction. Any person who violates any provision of this Chapter is subject to a civil action, including but not limited to, an injunction, as well as prosecution for any criminal violation.
B. In addition to any other penalty under this Chapter, a person found to have engaged in tobacco retailing without a valid Tobacco Retail License shall be ineligible to apply for or be issued a Tobacco Retail License as follows:
1. After a person is caught in violation of this Section, no new Tobacco Retail License may be issued for the person as a proprietor until 30 days have passed from the date of the violation; and
2. Each day that a person engages in tobacco retailing without a valid Tobacco Retail License shall constitute a separate violation.
C. Any person found by the Director to be ineligible to be issued a Tobacco Retail License pursuant to this Section may request an administrative review within 10 days of notice of the violation. The request must be made to the Director in writing. Any administrative review shall be held pursuant to the provisions of Section
11.35.110 of this Chapter.
D. Violations of this Chapter are hereby declared to be public nuisances pursuant to this Code. (Ord. 2019-0049 § 16, 2019: Ord. 2007-0118 § 3 (part), 2007.)
11.35.130 Conflict with Other Law, Severability, Saving Clause.
Nothing in this Chapter shall be interpreted or applied so as to create any power or duty in conflict with any federal or State law. If any provision of this Chapter or the application thereof to any person or circumstance is held invalid, the remainder of this Chapter or the application of such provision to other persons or circumstances shall not be affected thereby.
(Ord. 2019-0049 § 17, 2019: Ord. 2007-0118 § 3 (part), 2007.)
City Council Agenda Report
Agenda Item No. 9.a.
DATE: October 8, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Anthony Taylor, City Attorney
SUBJECT: AN UNCODIFIED INTERIM URGENCY ORDINANCE OF THE
CITY COUNCIL OF THE CITY OF SOUTH EL MONTE,
CALIFORNIA, ENACTED PURSUANT TO CALIFORNIA
GOVERNMENT CODE SECTION 65858 ESTABLISHING A 45-
DAY TEMPORARY MORATORIUM ON NON-CAMTC
OPERATING MASSAGE ESTABLISHMENTS AND MASSAGE
PRACTITIONERS WITHIN CITY LIMITS DURING THE
PENDENCY OF THE CITY’S STUDY AND DEVELOPMENT OF
REASONABLE REGULATIONS; AND DECLARING THE
URGENCY THEREOF
SUMMARY: The proposed moratorium would prohibit the operation of non-California Massage Therapy Council (CAMTC) massage establishments and practitioners within the City for 45 days (unless extended) while City staff reviews and develops appropriate regulations for such businesses.
RECOMMENDED ACTION: Staff recommends City Council:
1. Find that exemptions under the California Environmental Quality Act (CEQA) based on Public Resources Code section 21065 and State CEQA Guidelines Sections 15001, 15061(b)(3), and 15378 apply;
2. Waive further reading, and adopt Urgency Ordinance No. 1279-U, establishing a 45-days temporary moratorium on non-CAMTC operating massage establishments and massage practitioners within City limits during the pendency of the City’s review and development of reasonable regulations for such uses; and
3. Authorize the City Manager to direct the Planning Division and Planning Commission to review the development standards for non-CAMTC massage establishments and massage practitioners and survey development standards for these types of businesses in other cities.
FISCAL/FINANCIAL IMPACT: None.
DISCUSSION:
CEQA
Pursuant to Section 15001 of the California Environmental Quality Act ("CEQA") Guidelines, this Interim Urgency Ordinance is exempt from CEQA based on the following:
(a) This Ordinance is not a project within the meaning of CEQA Section 15378 because it has no potential for resulting in physical change to the environment, either directly or indirectly and (b) this Ordinance is also exempt pursuant to CEQA Section 15061(b)(3) since the proposed ordinance involves an Interim Urgency Ordinance establishing a 45- day temporary moratorium on the operation of non-CAMTC massage establishments and practitioners and does not have the potential to significantly impact the environment.
Moratorium
Government Code section 65858(a) provides that “[w]ithout following the procedures otherwise required prior to the adoption of a zoning ordinance, the legislative body of a county, city, including a charter city, or city and county, to protect the public safety, health, and welfare, may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time.” Here, a review of regulations for non-CAMTC massage establishments and practitioners is necessary because the City has had multiple incidents where businesses that claim they are operating as a permitted massage business are instead a location where alleged illegal activities are occurring in violation of federal and state law, including allegations of prostitution and human trafficking. In order to review and potentially update the City’s regulations concerning public health, safety and welfare, it is necessary for the City to first study (1) any implications or challenges associated with non-CAMTC massage establishments and practitioners and the potential impacts such businesses on the public safety, health, and welfare of the City, (2) and the regulations applicable to non-CAMTC massage establishments and practitioners and the need to further adopt additional and appropriate regulations allowed by law to prohibit illegal activities from occurring at a location that operates as a massage business. City staff believe that a Temporary Moratorium is necessary to ensure that new and existing non-CAMTC massage establishments and practitioners will be subject to potentially updated regulations. More importantly, without the Temporary Moratorium, illegal activities at non-CAMTC massage establishments could occur that endanger public health, safety and welfare.
If adopted, the Temporary Moratorium would read as follows: “During the effective period of this Ordinance, the operation of a non-CAMTC massage establishment or practitioner within City limits is prohibited.”
During the period of this Ordinance, the City will be directed to thoroughly review, study and analyze laws, rules, and procedures related to the prohibition of non-CAMTC massage establishments and practitioners, and to enable the City to adequately and appropriately preserve the public safety, health, and welfare of the communities in the City of South El Monte and mitigation for any related impacts.
If adopted, the Ordinance shall be effective for forty-five (45) days following the date of its adoption unless extended in accordance with the provisions set forth in Government Code Section 65858. Note, not later than ten (10) days prior to the expiration of this
interim urgency Ordinance, the City Council shall issue a written report as required by applicable state law.
Staff is further recommending that this Ordinance be adopted as an urgency measure in accordance with Government Code sections 36934 and 36937. An urgency measure is authorized for the immediate preservation of the public peace, health or safety and shall take effect immediately upon a four-fifths vote of the City Council (at least four affirmative votes in favor of the moratorium).
Here, enacting the Ordinance through the regular procedure (i.e. two readings and waiting thirty days for said ordinance to become effective) will be detrimental to the public peace, health or safety because, during that period, more non-CAMTC massage establishments and practitioners may open in the City without the benefit of the implementation of proper use regulations and, as a result, such a development will continue or intensify impacts to the community. It is therefore necessary that this Ordinance go into effect immediately upon adoption for the immediate preservation of the public peace, health or safety.
ATTACHMENT(S):
A. Urgency Ordinance No. 1279-U
01257.0011/1007478.2
ORDINANCE NO. 1279-U
AN UNCODIFIED INTERIM URGENCY ORDINANCE OF THE
CITY COUNCIL OF THE CITY OF SOUTH EL MONTE,
CALIFORNIA, ENACTED PURSUANT TO CALIFORNIA
GOVERNMENT CODE SECTION 65858 ESTABLISHING A 45-
DAY TEMPORARY MORATORIUM ON NON-CAMTC
OPERATING MASSAGE ESTABLISHMENTS AND MASSAGE
PRACTITIONERS WITHIN CITY LIMITS DURING THE
PENDENCY OF THE CITY’S STUDY AND DEVELOPMENT
OF REASONABLE REGULATIONS; AND DECLARING THE
URGENCY THEREOF
WHEREAS, the City of South El Monte (“City”) has the authority, under its police power, to enact regulations for the public peace, morals, and welfare of the City pursuant to California Constitution Article XI, section 7; and
WHEREAS, in 2009, Senate Bill 731 created the California Massage Therapy Council (“CAMTC”) which limited cities’ ability to regulate massage establishments; and WHEREAS, in 2015, AB 1147 restored the ability of cities to regulate massage establishments through land use and local licensing and health and safety requirements, subject to certain regulations; and
WHEREAS, the City amended the South El Monte Municipal Code (“SEMMC”) to include Chapter 5.22 (Massage Establishments) to establish licensing requirements for massage establishments in the City; and
WHEREAS, the City can adopt and enforce local zoning, business licensing, and reasonable health and safety requirements for massage establishments or businesses with CAMTCcertified practitioners; and WHEREAS, the City cannot prohibit a CAMTC-certified practitioner from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice; and
WHEREAS, there are no restrictions on the City’s authority over an individual or a business with personnel without CAMTC certification; and WHEREAS, illegally operating massage establishments increase the risk of injury to massage clients due to improperly trained and/or uneducated massage practitioners; and WHEREAS, the Los Angeles County Sheriff’s Department and the City’s Code Enforcement Department discovered that some massage establishments were engaging in illicit massage services; and
WHEREAS, the City has a compelling interest in protecting the public health, safety, and welfare of its citizens, residents, visitors and businesses within the City by regulating non-CAMTC
01257.0011/1007478.2
operating massage establishments and practitioners as defined in this Ordinance, within City limits; and
WHEREAS, the City Council desires to implement comprehensive regulations for the regulation of non-CAMTC operating massage establishments and practitioners within the City so that the public health, safety, and welfare is protected; and WHEREAS, in order to understand and address potential impacts associated with nonCAMTC operating massage establishments and practitioners, it is necessary for the City to study the potential impact such facilities may have on the public health, safety, and welfare, and to consider adoption of regulations based on said studies; and WHEREAS, the City Council desires to insure that, during the pendency of the study activity for the formulation and implementation of said comprehensive regulations, non-CAMTC operating massage establishments and practitioners cease operations so that the regulations produced by the City's study activity will be fully effective; and WHEREAS, Government Code Sections 36934, 36937 and 65858 expressly authorize the City Council to adopt an urgency ordinance for the immediate preservation of the public peace, health or safety and to prohibit a use that is in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time; and WHEREAS, pursuant to the above-described express statutory authority and its police power, the City Council desires, on an urgency basis, to temporarily prohibit the operation of nonCAMTC massage establishments and practitioners.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SOUTH EL MONTE, CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are adopted herein by reference.
SECTION 2. PURPOSE AND AUTHORITY.
In the interest of protecting the health, safety, and welfare of the residents in the City of South El Monte, it is the purpose and intent of this ordinance to place a temporary moratorium on non-CAMTC operating massage establishments and practitioners in the City of South El Monte.
The City Council has authority to adopt this ordinance pursuant to California Constitution Article XI, Section 7 and Government Code section 65858 as an urgency measure prohibiting any use that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City is considering or studying.
The State Planning and Zoning Law (Cal. Gov’t Code Sections 65000, et seq.) broadly empowers the City to plan for and regulate the use of land in order to provide for orderly development, the public health safety and welfare, and a balancing of property rights and the desires of the community and how its citizens envisions their city.
01257.0011/1007478.2
SECTION 3. FINDINGS.
A. The City has a significant interest in preserving the health, safety, and welfare of its residents in considering enactment of additional regulations on the operation of non-CAMTC massage establishments and practitioners.
B. There is a current and immediate threat to the public health, safety, or welfare with respect to non-CAMTC operating massage establishments and practitioners within the City and a review of regulations for non-CAMTC massage establishments and practitioners is necessary because the City has had multiple incidents where businesses that claim they are operating as a permitted massage business are instead a location where alleged illegal activities are occurring in violation of federal and state law, including allegations of prostitution and human trafficking.
C. This urgency ordinance is necessary to promote the immediate preservation of the peace, health, and safety of the public against the potential detrimental health impacts of nonCAMTC operating massage establishments and practitioners, in order to allow the City an opportunity to study this issue and develop and adopt additional appropriate regulations for the operation of non-CAMTC operating massage establishments and practitioners.
SECTION 4. DEFINITIONS
As used herein the following definitions shall apply:
A. “California Massage Therapy Council (CAMTC)” means the nonprofit organization created to regulate the massage industry in California pursuant to the Business and Professions Code, Chapter 10.5 of Division 2 (commencing with Section 4600).
B. “Massage” means the scientific manipulation of the soft tissues.
C. “Massage establishment” or “establishment” means any fixed location where massage is performed for compensation, including, but not limited to, those businesses that provide massage services accessory to their principal permitted use, such as an aromatherapist, acupuncturist, chiropractor, beauty salon, health club, beach club, skin care salon, and day spa. The term "massage establishment" or "establishment" includes a sole proprietor, an independent contractor, and any certified massage practitioner or therapist performing massage in the city without being employed by another massage establishment.
D. “Massage practitioner” means a person who is certified by the CAMTC pursuant to Section 4604.2 of the California Business and Professions Code and who administers massage for compensation.
SECTION 5. MORATORIUM
During the effective period of this Ordinance, the operation of a non-CAMTC massage establishment or practitioner within City limits is prohibited.
01257.0011/1007478.2
SECTION 6. STUDY AND DEVELOPMENT
During the period of this Ordinance, the City shall study and develop as necessary City laws, rules, procedures and fees related to the operation of non-CAMTC massage establishments and practitioners to enable the City to adequately and appropriately preserve the health, safety and welfare of the communities in the City of South El Monte.
SECTION 7. SEVERABILITY
The City Council hereby declares, 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.
SECTION 8. CEQA COMPLIANCE
Pursuant to Section 15001 of the California Environmental Quality Act ("CEQA") Guidelines, this Interim Urgency Ordinance is exempt from CEQA based on the following: (a) This Ordinance is not a project within the meaning of CEQA Section 15378 because it has no potential for resulting in physical change to the environment, either directly or indirectly and (b) this Ordinance is also exempt pursuant to CEQA Section 15061(b)(3) since the proposed ordinance involves an Interim Urgency Ordinance establishing a 45-day temporary moratorium on the operation of non-CAMTC massage establishments and practitioners and does not have the potential to significantly impact the environment.
SECTION 9. WRITTEN REPORT REQUIREMENT
Not later than ten (10) days prior to the expiration of this Interim Urgency Ordinance, the City Council shall issue a written report as required by applicable state law.
SECTION 10. PUBLICATION
The Interim City Clerk shall certify as to the passage and adoption of this Interim Urgency Ordinance and shall cause the same to be published in a manner prescribed by law.
SECTION 11. EFFECTIVENESS OF ORDINANCE
This Ordinance shall take effect immediately, pursuant to the authority conferred upon the City Council by Government Code Sections 36934, 36937, and 65858. This Ordinance shall be of no further force and effect forty-five (45) days following the date of its adoption unless extended in accordance with the provisions set forth in Government Code Section 65858(b).
01257.0011/1007478.2
PASSED, APPROVED and ADOPTED as an URGENCY ORDINANCE this 8th day of October 2024.
________________________________
Gloria Olmos, Mayor
ATTEST:
___________________________________
Sabrina Muhne, Interim City Clerk
APPROVED AS TO FORM:
___________________________________
Anthony R. Taylor, City Attorney
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF SOUTH EL MONTE )
I, Sabrina Muhne, Interim City Clerk of the City of South El Monte, do hereby certify that the foregoing ordinance, being Ordinance No. 1279-U was passed and approved by the City Council of the City of South El Monte at a regular meeting of said Council held on the 8th day of October 2024 by the following vote:
AYES: Councilmember(s):
NOES: Councilmember(s):
ABSENT: Councilmember(s):
ABSTAIN: Councilmember(s):
____________________________
Sabrina Muhne, Interim City Clerk
City Council Agenda Report
Agenda Item No. 9.b.
DATE: October 8, 2024
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Rene Salas, City Manager
SUBMITTED BY: Masami Higa, Director of Finance
SUBJECT: FINANCE WORKSHOP TO SEEK DIRECTION FROM CITY
COUNCIL REGARDING TITLE 3 OF THE SOUTH EL MONTE
MUNICIPAL CODE
SUMMARY: Finance Workshop to seek direction from City Council regarding Title 3 of the South El Monte Municipal Code.
RECOMMENDED ACTION: Staff seeks direction from City Council to help modernize certain outdated sections of the City's code.
FISCAL/FINANCIAL IMPACT: There is no fiscal impact from this item as it is a discussion item.
DISCUSSION: The City’s Code of Ordinances is a collection of laws passed by the City Council since inception (1958). As time passes, not all sections of the code get updated in a timely manner, as resources are scarce, and the code's intent can still be understood and functional (don’t fix what’s not broken). However, when the timing is right, and opportunities arise, staff would like to help modernize certain outdated sections of the code by seeking direction from City Council.
ATTACHMENT(S):
A. SEM Code Title 3 Revenue and Finance Workshop_09242024
Title 3
Revenue and Finance
Workshop
CITY OF SOUTH EL MONTE
October 8, 2024
City of Achievement
The City’s Code of Ordinances is a collection of laws
passed by the SEM City Council since inception
(1958).
As time passes, not all section of the code gets
updated on a timely manner, as resources are
scarce, and its intent can still be understood and
functional (don’t fix what’s not broken)
However, when the timing is right, and opportunities
arise, staff would like to help modernize the
outdated sections of the code.
2 OVERVIEW
CH 3.04 Sales Tax (1974): 1%
CH 3.06 Transaction Tax (2010): 0.5 % Measure R
CH 3.07 Transaction Tax (2020): 0.25% Measure ES
CH 3.08 Transient Occupancy Tax (1990): 8%
CH 3.12 Real Property Transfer Tax (1987): $0.55/$1,000 CH 3.16 Purchase of Supplies, Equipment, and Services (2015): Parts outdated with a moving target threshold
CH 3.18 Bidding Procedures – Public Project Contracts (2002 and 2014): Parts outdated where the intent appears to follow the State Public Contract Code.
CH 3.20 Special Gas Tax Street Improvement Fund (1958): N/A CH 3.24 Recreation Revolving Fund – Special Excursions (1983): N/A CH 3.28 Refund Account (1983): N/A
CH 3.32 Farmers Market Food Stamp Impressed Fund (1985): N/A CH 3.36 Air Quality Improvement Trust Fund (1991): N/A CH 3.40 Cannabis Business Tax: Current and relevant.
3 TITLE 3 REVENUE AND FINANCE
CH 3.16.025 Currently Adjusted Maximum
§ $25,000 maximum to be adjusted annually on July 1st by the Consumer Price Index for Urban Consumers (CPI-U) for Los Angeles-Riverside-Orange County issued by the
Bureau of Labor Statistics.
§ The referenced index stopped being published in 2017 so staff has been using the CPI-U for Los Angeles-Long BeachAnaheim. § As of June 30, 2024, the estimated maximum is $33,865. § Staff would like to recommend updating the ordinance to not have a moving target as the approval threshold, but a fixed one, ideally between $25,000 and $50,000, for
simplicity, consistency, and efficiency.
§ A comparison with surrounding City is on the next slide. 4 TITLE 3, CHAPTER 3.16, PURCHASE OF
SUPPLIES, EQUIPMENT, AND SERVICES
5 TITLE 3, CHAPTER 3.16, PURCHASE OF
SUPPLIES, EQUIPMENT, AND SERVICES
Public works projects (CH 3.18.010):
§ Under $175,000 requires City Manager’s approval.
§ Over $175,000 require City Council’s approval.
§ The intent appears to have been adopting the California Public Contract Code in 2002 and 2014.
The current California Public Contract Code has a slightly higher thresholds as follows:
§ Under $200,000 requires City Manager’s approval.
§ Over $200,000 require City Council’s approval.
Staff would like to recommend updating the ordinance to adopt the California Public Contract Code, so it mimics the State’s requirement into the future.
6 TITLE 3, CHAPTER 3.18, BIDDING
PROCEDURES – PUBLIC PROJECT CONTRACTS
CH 3.20 Special Gas Tax Street Improvement Fund (1958): N/A CH 3.24 Recreation Revolving Fund – Special Excursions (1983): N/A CH 3.28 Refund Account (1983): N/A
CH 3.32 Farmers Market Food Stamp Impressed Fund (1985): N/A CH 3.36 Air Quality Improvement Trust Fund (1991): N/A The City currently has about 35 funds properly disclosed in its budget books and financial statements. All 5 chapters above are no longer needed, as the City follows Generally Accepted Accounting Principles, or rules set by the Governmental Accounting Standards Board, and its funds’ balances and activities are audited by an external independent auditor each year, as well as audited by various other oversight and granting agencies. Governments are supposed to open and close funds as needed, and not by Ordinances.
7 TITLE 3, OUTDATED CHAPTERS
8 QUESTIONS