NOTICE AND AGENDA
CITY OF UNION CITY
LEGISLATION AND POLICY COMMITTEE MEETING
Monday, May 20, 2024
3:00 PM
City Hall - City Council Conference Room
34009 Alvarado-Niles Road
Union City, CA 94587
1. Call to Order
2. Roll Call
3. ORAL COMMUNICATIONS - Comments limited to items on the Special Meeting Agenda
4. Business Matters
4.a. Review, Consider, and Provide Direction on City Council Desk Item Referrals Regarding the Tobacco Retailer License
Ordinance
4.b. Review, Consider, and Provide Direction on Flag Policy
5. ADJOURNMENT
Posted: May 17, 2024
/s/ Thai Nam Pham
Thai Nam Pham, MMC,
CPMC
City Clerk
Any writings or documents provided to a majority of the Committee regarding an item on this agenda will be made available for public inspection at the City Clerk's Counter at City Hall located at 34009 Alvarado-Niles Road, Union City, California, during normal business hours. Assistance will be provided to those requiring accommodations for disabilities in compliance with the Americans with Disabilities Act of 1990. Interested parties must request accommodations at least 72 hours in advance of the meeting by calling (510) 675-5448.
Agenda Item
ATTACHMENTS:
Description Type
Staff Report Staff Report
Attachment 1 – Councilmember Sakakihara Desk Item Attachment Attachment 2 – Tobacco Retailers License Ordinance Attachment Late Correspondence - Rachel Gratz-Lazarus Attachment
1 DATE: May 15, 2024
TO: Legislation & Policy Committee – Mayor Carol Dutra-Vernaci and Councilmember Gary Singh VIA: Joan Malloy, City Manager
FROM: Serenity Mlay, Management Analyst I
SUBJECT: Proposed Changes to the Tobacco Retail License Ordinance – Desk Items
SUMMARY
The City Council had considered and provided direction on draft text amendments to the Tobacco Retailers Ordinance on January 9, January 23, February 13, and February 27. On March 26, the City Council voted 5-0 to introduce an ordinance amending said ordinance. The proposed ordinance was then adopted at the subsequent meeting on April 9. The amendments include the following provisions:
1. Prohibit the sale of single use vape products.
2. Prohibit the sale of flavored tobacco products, consistent with state law.
3. Prohibit the sale of tobacco products in pharmacies.
4. Amend the minimum single cigar price from $5 to $8 with possible annual increases by the Consumer Price Index (CPI).
5. Amend the minimum pack size for cigars (unless sold at the single cigar price identified above) to a minimum pack of 10 with a $15 minimum.
6. Prohibit the issuance of tobacco retail licenses within 500 feet of each other.
7. Allow the transfer of a tobacco retailers license with the transfer of a business and revise the definition of “arm’s length transaction” to allow for family transfers and other transfers that are outside of the open market.
8. Increase the amount for fines related to violations.
9. Prohibit the redemption and use of coupons and discounts by tobacco retailers.
10. Provide an enforcement date of June 1, 2024.
DISCUSSION
On January 23, Councilmember Jaime Patino submitted a desk item proposal to amend the definition of Disposable Vapor Product, E-liquid and Vapor Product, which was incorporated into the ordinance.
Councilmember Scott Sakakihara also submitted a desk item (Attachment 1) to propose further consideration of amendments to the ordinance, which was referred to the Legislation and Policy Committee for review. The proposed amendments are as follows:
Define Compliance:
a. Adopt model language on ID checks: Require an ID check for all purchases regardless of age and specify that the minimum legal sales age is 21 or in accordance with state law, whichever is higher b. Add text addressing retailing without a valid license: Specify that retailers found to be selling tobacco products without a valid license will be subject to a similar penalty structure as license holders found to be in violation of the ordinance
2 Specify Timing:
a. Define existing licensing: for license holders in violation of the 500-foot setback requirement between license holding retailer locations, allow the continuation of licensing for existing retailers that have held their license for at least one year (to avoid an increase in applications for non-complying retailers before the effective date of the ordinance)
Clarify Intent:
The changes below may not change the legal interpretation of the ordinance, but will help clarify our intent for the reader (the retailer, future city enforcement staff, etc.) and ensure the provisions are applied equitably:
a. Clean up some additional remaining text that focuses on youth possession or purchase and instead focus on retailer minimum sales requirements.
b. Adopt text that clearly excludes clerks and employees from penalties, including any mandatory criminal penalties.
c. Adopt text that clarifies that nothing in the ordinance prevents the provision of tobacco products to any person as part of an indigenous practice or a lawfully recognized religious or spiritual ceremony or practice. d. Adopt text that clarifies that nothing in the ordinance shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing. e. Confirm with the city attorney that a construction and severability clause applies to this ordinance—i.e., that in the unlikely circumstance that there could be litigation resulting from the ordinance, if one part were to be struck down in litigation, the rest of the ordinance would remain in effect. f. Clean up some remaining text that lists specific types of tobacco products to instead refer to the ordinance’s global definition of “tobacco product”.
It was also proposed that language be added to define “cigar:” “Cigar” means any roll of tobacco that is wrapped in tobacco leaf or in any other substance containing tobacco, with or without a tip or mouthpiece. “Cigar” includes but is not limited to, tobacco products known or labeled as cigar, cigarillo, little cigar, bunt, blunt wrap, or cigar wrap.
NEXT STEPS
City staff is seeking direction from the Legislation & Policy Committee on next steps and whether to further research or pursue the proposed amendments to the Tobacco Retailers Ordinance.
Attachments:
Attachment 1 – Councilmember Sakakihara Desk Item
Attachment 2 – Tobacco Retailers License Ordinance
1 Johanna Ota
From: Scott Sakakihara
Sent: Tuesday, January 23, 2024 4:35 PM
To: Joan Malloy; Kristopher Kokotaylo; City Clerk
Subject: RE: Proposed Changes to the Tobacco Retail License Ordinance Mayor and Councilmembers,
At our last meeƟng, we discussed several of the proposals from my previous desk item, incorporaƟng some into our direcƟon to staff and sending the rest (plus the proposal to reduce the penalty structure to avoid classifying violaƟons as misdemeanors) to the LegislaƟon and Policy CommiƩee for further consideraƟon.
Given that the Council is being asked to provide addiƟonal direcƟon on the Tobacco Retail License Ordinance today before a future potenƟal first reading, I would like to propose that we make the following amendments to the ordinance. My raƟonale is that these amendments were not flagged by any councilmember, retailer, or member of the public as needing further discussion.
1. Define compliance:
a. Adopt model language on ID checks: require an ID check for all purchases regardless of age and specify that the minimum legal sales age is 21 or in accordance with state law, whichever is higher b. Add text addressing retailing without a valid license: specify that retailers found to be selling tobacco products without a valid license will be subject to a similar penalty structure as license holders found to be in violaƟon of the ordinance
2. Specify Ɵming:
a. Define exisƟng licensing: for license holders in violaƟon of the 500 foot setback requirement between license holding retailer locaƟons, allow the conƟnuaƟon of licensing for exisƟng retailers that have held their license for at least one year (to avoid an increase in applicaƟons for non-complying retailers before the effecƟve date of the ordinance)
3. Clarify intent: the changes below may not change the legal interpretaƟon of the ordinance, but will help clarify our intent for the reader (the retailer, future city enforcement staff, etc.) and ensure the provisions are applied equitably:
a. Clean up some addiƟonal remaining text that focuses on youth possession or purchase and instead focus on retailer minimum sales requirements
b. Adopt text that clearly excludes clerks and employees from penalƟes, including any mandatory criminal penalƟes
c. Adopt text that clarifies that nothing in the ordinance prevents the provision of tobacco products to any person as part of an indigenous pracƟce or a lawfully recognized religious or spiritual ceremony or pracƟce
d. Adopt text that clarifies that nothing in the ordinance shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing e. Confirm with the city aƩorney that a construcƟon and severability clause applies to this ordinance—i.e., that in the unlikely circumstance that there could be liƟgaƟon resulƟng from the ordinance, if one part were to be struck down in liƟgaƟon, the rest of the ordinance would remain in effect f. Clean up some remaining text that lists specific types of tobacco products to instead refer to the ordinance’s global definiƟon of “tobacco product”
I would also propose that we add language defining “cigar”: “Cigar” means any roll of tobacco that is wrapped in tobacco leaf or in any other substance containing tobacco, with or without a Ɵp or mouthpiece. “Cigar” includes but is not limited to, tobacco products known or labeled as cigar, cigarillo, liƩle cigar, bunt, blunt wrap, or cigar wrap. 2 Thank you for your consideraƟon,
ScoƩ Sakakihara
Council Member, City of Union City
34009 Alvarado-Niles Rd
Union City • CA • 94587
www.unioncity.org
From: Scott Sakakihara
Sent: Tuesday, January 9, 2024 17:19
To: Joan Malloy <[email protected]>; Kristopher Kokotaylo <[email protected]>; City Clerk <[email protected]>
Subject: Proposed Changes to the Tobacco Retail License Ordinance Mayor and Councilmembers,
I support the changes to our current Tobacco Retail License Ordinance outlined in the staff report and accompanying draŌ ordinance text. Based on feedback from organizaƟons including the Alameda County Tobacco Control Program, Public Health Law Center, and Americans for Nonsmokers’ Rights, I would like to propose the following addiƟons to the ordinance.
We did not consider or vote on these changes during our last study session on this topic. While important, I view these changes as less significant than the changes that we previously directed staff to incorporate into the ordinance, and I hope we can agree to direct staff to incorporate these changes into the updated ordinance before its first reading at a future council meeƟng.
1. Extend restricƟons:
a. Prohibit online and delivery sales: adopt a provision to require all sales from license holders to be in person and prohibit licenses from being issued to authorize tobacco retailing at other than a fixed locaƟon or to any moveable place of business
b. Extend the minimum price to packs: extend the minimum price of $8.00 (adjusted for inflaƟon) to cigar and cigareƩe packs, in addiƟon to single cigars (as some cigarillos and the cheapest cigareƩes are someƟmes priced under $8.00)
c. Prohibit redempƟon of tobacco discounts or coupons: prevent retailers from redeeming tobacco discounts or coupons (not just distribuƟng them)
d. Prohibit tobacco sales within 1,000 feet of youth sensiƟve areas: instead of banning tobacco retailers within 1,000 feet of youth sensiƟve areas in the zoning ordinance with exempƟons service staƟons, prohibit license holding retailer locaƟons within 1,000 feet of youth sensiƟve areas in this ordinance, and without exempƟons
2. Define compliance:
a. Adopt model language on ID checks: require an ID check for all purchases regardless of age and specify that the minimum legal sales age is 21 or in accordance with state law, whichever is higher b. Add text addressing retailing without a valid license: specify that retailers found to be selling tobacco products without a valid license will be subject to a similar penalty structure as license holders found to be in violaƟon of the ordinance
c. Define and set minimum standards for compliance checks: establish a minimum number of checks per year, explain the age of young adult decoys, require rechecks for failures, and create a violaƟon if the retailer does not allow inspecƟon
3. Specify Ɵming:
3 a. Define exisƟng licensing: for license holders in violaƟon of the 500 foot setback requirement between license holding retailer locaƟons or the 1,000 foot setback requirement from youth sensiƟve areas, allow the conƟnuaƟon of licensing for exisƟng retailers that have held their license for at least one year (to avoid an increase in applicaƟons for non-complying retailers before the effecƟve date of the ordinance)
b. Specify the effecƟve date: set the effecƟve date as 60 days aŌer adopƟon of the ordinance, to allow Ɵme for retailers to comply with the new requirements
4. Clarify intent: the changes below may not change the legal interpretaƟon of the ordinance, but will help clarify our intent for the reader (the retailer, future city enforcement staff, etc.) and ensure the provisions are applied equitably:
a. Clean up some addiƟonal remaining text that focuses on youth possession or purchase and instead focus on retailer minimum sales requirements
b. Adopt text that clearly excludes clerks and employees from penalƟes, including any mandatory criminal penalƟes
c. Adopt text that clarifies that nothing in the ordinance prevents the provision of tobacco products to any person as part of an indigenous pracƟce or a lawfully recognized religious or spiritual ceremony or pracƟce
d. Adopt text that clarifies that nothing in the ordinance shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing e. Confirm with the city aƩorney that a construcƟon and severability clause applies to this ordinance—i.e., that in the unlikely circumstance that there could be liƟgaƟon resulƟng from the ordinance, if one part were to be struck down in liƟgaƟon, the rest of the ordinance would remain in effect f. Clean up some remaining text that lists specific types of tobacco products to instead refer to the ordinance’s global definiƟon of “tobacco product”
Thank you for your consideraƟon,
ScoƩ Sakakihara
Council Member, City of Union City
34009 Alvarado-Niles Rd
Union City • CA • 94587
www.unioncity.org
EXHIBIT A
5.42.010 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:
“Administrator” means the Finance Director or designee. “Arm’s length transaction” means a sale or transfer in good faith and for valuable consideration between two informed and willing parties, as determined by the parties, neither of which is under any compulsion to participate in the transaction. A sale or transfer for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction.
“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 Finance Department.
“Drug paraphernalia” shall have the definition set forth in California Health and Safety Code Section 11014.5, as that section 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 e-cigarette, 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 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 imparts:
1. a taste or odor distinguishable by an ordinary consumer, other than the taste or odor of tobacco, either prior to or during the consumption of such tobacco product, including but not limited to tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or
2. a heating, cooling, or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.
“License” means a tobacco retailer’s license as defined below. “Licensee” means a tobacco retailer with a tobacco retailer’s license. “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. “Nominal cost” means the cost of any item that is transferred from one person to another for less than the total of: (1) twenty-five percent of the full retail value of the item exclusive of taxes and fees; plus (2) all taxes and fees previously paid and all taxes and fees still due on the item at the time of transfer.
“Nonsale distribution” means to give, within the jurisdictional limits of the City, a tobacco product or coupon at no cost or at nominal cost to a person who is not a tobacco seller. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. “Pharmacy” means any retail establishment 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.
“Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.
“Public place” means any place within the City, public or private, that is open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses. “Retailer” means tobacco retailer as defined herein.
“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. “Single-use electronic smoking product” means an electronic smoking device that is not refillable or rechargeable and is typically discarded once its contents have been used. It includes without limitation:
1. Any electronic device or delivery system that can be used to deliver an inhaled dose of nicotine, flavorings, chemicals, or other substances in aerosolized or vaporized form for human consumption, including but not limited an electronic cigarette, cigar, pipe, vape pen, or hookah.
2. Any component, part, accessory of such device or delivery system that is used during its operation.
3. Any flavored or unflavored liquid or substances, whether sold separately or sold in combination with any such device or delivery system, that could be used to deliver tobacco products, nicotine, or other substances in aerosolized or vaporized form.
4. Any product in use in such an electronic device or delivery system whether it contains nicotine or tobacco or is derived from nicotine or tobacco. “Tobacco product” means
1. any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;
2. any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or
3. any component, part, or accessory of (1) or (2), 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.
“Tobacco product" does not mean 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.
“Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange, electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia.
“Tobacco retailing” means engaging in the activities of a tobacco retailer. “Tobacco retailer’s license” means the license issued pursuant to this chapter that authorizes tobacco retailing at a certain location and by a certain tobacco retailer.
5.42.020 Requirements and prohibitions.
A. Tobacco Retailer License Required. It is 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 that activity is to occur. Tobacco retailing without a valid tobacco retailer’s license is a nuisance as a matter of law.
B. Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, State, or Federal law applicable to the sale of tobacco products.
C. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
D. 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 years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under State law.
E. Minimum Age for Persons Selling Tobacco. Persons employed by a tobacco retailer under this chapter that sell tobacco products must be at least the minimum legal sales age established by state law.
F. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.
G. False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been 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.
H. Signage Violations. It is a violation of this chapter for any licensee to violate any local, State, or Federal law regulating exterior, storefront, window, or door signage.
I. Drug Paraphernalia. It is a violation of this chapter for any licensee or any of the licensee’s agents or employees, to violate any local, State, or Federal law regulating controlled substances or drug paraphernalia.
J. Nonsale Distribution of Tobacco Products Prohibited.
1. No tobacco retailer nor any agent or employee of a tobacco retailer shall engage in the nonsale distribution of any tobacco product or coupon in any public place.
2. No person, motivated by an economic or a business purpose, shall knowingly permit the nonsale distribution of any tobacco product or coupon: (a) anywhere in any public place under the legal or de facto control of the person; or (b) through any agent or employee of the person. This provision shall not apply to coupons incidentally distributed in connection with a printed or electronic publication, such as, for example, magazines, newspapers, and websites, so long as that person’s distribution of a publication containing coupons is not primarily motivated by an economic or a business purpose to distribute coupons.
3. No tobacco retailer may 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.
4. No tobacco retailer may 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 other item.
5. No tobacco retailer may provide any free or discounted item to a consumer in exchange for the purchase of any tobacco product.
K. Minimum Pack Size for Cigars.
1. Notwithstanding any other provision of this chapter, no tobacco retailer shall sell, offer for sale, or exchange for any form of consideration:
a. Any single cigar, whether or not packaged for individual sale; b. Any number of cigars fewer than the number contained in the manufacturer’s original consumer packaging designed for retail sale to a consumer; or c. Any package of cigars containing fewer than ten cigars. d. Cigars at a price of less than fifteen dollars per package of ten cigars including all applicable taxes and fees.
2. This subsection does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds either eight dollars, including all applicable taxes and fees. This amount may be increased annually by the Consumer Price Index, as determined by the City Council and adopted by resolution.
3. This subsection shall apply to cigars, cigarillos and any other cigar product regardless of the terminology used for the product.
L. Sale of Single-Use Electronic Smoking Products. No person may sell or possess with the intent to sell any single-use electronic smoking product within the city.
M. Flavored Tobacco Products. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.
1. Presumptive flavored tobacco product. 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 taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product is a flavored tobacco product. Any communication by or on behalf of the manufacturer or retailer of a tobacco product that such tobacco product imparts a taste or odor other than the taste or odor of tobacco, or that imparts a heating, cooling, or numbing sensation, constitutes presumptive evidence that the tobacco product is a flavored tobacco product. This includes but is not limited to public statements that a product is flavored, such as describing the product as “chill,” “ice,” “fresh,” “arctic,” “sweet,” “spicy,” or “frost.”
5.42.030 Limits on eligibility for a tobacco retailer license.
A. No license shall be issued to authorize tobacco retailing at other than a fixed location.
B. No license shall be issued to authorize tobacco retailing at a location where tobacco products are prohibited from being distributed pursuant to Title 18.
C. No license shall be issued to a location or a tobacco retailer where prohibited pursuant to Section 5.42.110.
D. Proximity to other tobacco retailers. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within 500 feet of a tobacco retailer location already licensed pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing licensee’s business is located. This restriction does not apply to an applicant who has been licensed to sell tobacco products as of March 1, 2024.
E. Pharmacies. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.
5.42.040 Application procedure.
A. Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct tobacco retailing 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 5.42.110(D) 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);
4. Proof that the location for which a tobacco retailer’s license is sought has been issued a valid state tobacco retailer’s license by the California Department of Tax and Fee Administration;
5. 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 years;
6. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought;
7. 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.
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, subject to the laws’ exemptions.
5.42.050 Issuance of license.
Upon the receipt of a complete application for a tobacco retailer’s license and the license fee required by this chapter, the Administrator shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
A. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter; B. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subsection shall not constitute a basis for denial of a license 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; C. The application seeks authorization for tobacco retailing for a proprietor or location for which this chapter prohibits a license to be issued, including the provisions of Section 5.42.110;
D. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending), that is unlawful pursuant to this Code or that is unlawful pursuant to any other law;
E. The location for which a tobacco retailer’s license is sought lacks a valid state tobacco retailer’s license by the California Department of Tax and Fee Administration.
5.42.060 License renewal and expiration.
A. Term and Renewal of License. A tobacco retailer’s license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license and submit the license fee no later than thirty days prior to expiration of the term.
B. Expiration of License. A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subsection A, the proprietor must:
1. Submit the license fee and application renewal form; and
2. Submit a signed affidavit affirming that the proprietor:
a. Has not sold and will not sell any tobacco product after the license expiration date and before the license is renewed; or
b. Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5.42.110(A) of this chapter, before seeking renewal of the license.
5.42.070 Licenses nontransferable.
A. 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).
B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:
1. The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and
2. 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.
5.42.080 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. 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 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 license does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5.
5.42.090 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 and shall be included within the City’s Master Fee Schedule. 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 this chapter, 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.
5.42.100 Compliance monitoring.
A. Compliance with this chapter shall be monitored by the Police Department. The City may designate any number of additional persons to monitor compliance with this chapter.
B. Compliance checks shall be conducted so as to allow the Police 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 products. When the Police Department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.
5.42.110 Suspension and revocation of license.
A. Suspension or revocation of tobacco retailer license for violation. In addition to any other penalty authorized by law, a Tobacco Retailer License shall be suspended or revoked if the Department finds or a court of competent jurisdiction determines, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any provision of this Chapter.
1. Upon a finding of a first violation of this Chapter at a location within any 5 year period, the License shall be suspended for 30 days.
2. Upon a finding of a second violation of this Chapter at a location within any 5 year period, the License shall be suspended for 90 days.
3. Upon a finding of a third violation of this Chapter at a location within any 5 year period, the License shall be suspended for 1 year.
4. Upon a finding of four or more violations of this Chapter at a location within any 5 year period, the License shall be revoked with no new license issued for a five year period.
B. Procedures. If the licensee contacts the Administrator to challenge the finding of a violation, the Administrator shall provide written notice of a hearing, not less than five business days after the notice, at which the tobacco retailer may show cause, at a time and place specified in the notice, why a violation does not exist. Should the tobacco retailer fail to present evidence at such hearing establishing, in the reasonable determination of the Administrator, that a violation does not exist, the Administrator shall provide written notice to the tobacco retailer that the notice of violation is upheld. If a license is subject to revocation, the Administrator shall provide written notice of revocation along with the reasons for revocation, facts suggesting violation, the penalties for violation, and ability to appeal pursuant to subsection C. Within five days of the mailing of notice of revocation, the tobacco retailer shall cease the operation of the business for which the license was issued.
C. Appeal of Revocation. A decision of the Administrator to revoke a license is appealable to the City Manager and must be filed with the City Clerk within ten days of mailing of the Administrator’s notice of revocation. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager is not available for a revocation made pursuant to subsection D. The date, time, and place of appeal hearings shall be provided in writing to the tobacco retailer with at least ten days’ notice and copies of hearing rules. If the tobacco retailer fails to present evidence establishing that tobacco retailer is entitled to retain the license, the City Manager shall uphold the revocation and give written notice to the tobacco retailer. Within five days of the mailing of the notice of upheld revocation, the tobacco retailer shall cease operation of the business for which the license was issued.
D. Revocation of License Wrongly Issued. A tobacco retailer’s license shall be revoked if the Administrator finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.42.050 existed at the time application was made or at any time before the license issued. The decision by the Administrator shall be the final decision of the City. Such a revocation shall be without prejudice to the filing of a new license application.
5.42.120 Enforcement.
A. Each incident of violation of this chapter is a misdemeanor. The Department may impose administrative penalties as follows:
1. For a first violation of this Chapter within any 5 year period, two hundred fifty dollars ($250);
2. For a second violation of this Chapter within any 5 year period, five hundred dollars ($500); and
3. For a third or subsequent violation of this Chapter within any 5 year period, one thousand dollars ($1,000).
B. Civil Enforcement by the City.
1. Fines. Violations of this chapter are subject to a civil action brought by the City of Union City, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.
2. Injunctions, Nuisance Abatement, and Code Enforcement. 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. Where the City pursues a civil action to remedy a violation of this chapter, the prevailing party shall be entitled to recovery of attorneys fees if the City elects, at the beginning of that action, to seek recovery of its own attorneys’ fees pursuant to Government Code Section 38773.5 as currently drafted or as amended.
C. General Provisions.
1. Cumulative Remedies. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
2. Violations. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. A violation exists for each day on which a tobacco product is offered for sale in violation of this chapter. A violation also exists for each individual retail tobacco product that is distributed, sold, or offered for sale in violation of this chapter.
3. Nuisances. Violations of this chapter are hereby declared to be public nuisances.
4. No Testimony for Persons Under Eighteen. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen 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.
February 6, 2024
Re: Local Authority for the Utilization of a Civil Administrative Process to Regulate City Ordinances and Fine Limits for Violation of an Ordinance that uses the Civil Administrative Process
Thank you for contacting the Public Health Law Center regarding the authority of local governmental agencies to engage in the civil administrative process to regulate city ordinances as opposed to the criminal system and fine limits associated with the violation of an ordinance that uses the civil administrative process.
As you may know, the Public Health Law Center does not lobby, nor do we provide legal representation or advice. However, based on our experience with preemption and point-of-sale issues throughout the country, we are able to provide you with our observations and other educational information for your own evaluation. This information is solely for educational purposes; we do not request that a policymaker take any specific action in regard to our comments, nor should our comments be considered replacement for legal advice. If you require a legal opinion, we encourage you to consult local legal counsel. That said, we hope the analysis offered here will be helpful to you.
Pursuant to Article XI, section 7 of the California Constitute, and Government Code section 25845 and 53069.4 the City may adopt and enforce ordinances and regulations not in conflict with general laws to protect and promote the public health, safety, and welfare of its residents.
California has very clearly stated that “nothing in this division preempts or supersedes any local tobacco control law other than those related to the collection of state taxes.” Cal. Business and Professions Code § 22971.3. Meaning that local communities are empowered to enact tobacco retail licensing laws to regulate the sale of tobacco products in their community.
The question at hand is are cities allowed to utilize the civil administrative process in the regulation of ordinances (a non-criminalization approach), or are cities required to designate the violation city ordinances punishable by infraction or misdemeanor? The second issue is if cities are allowed to utilize a civil administrative process to regulate ordinances, are they allowed to set a civil administrative fine of up to $1,000 for violation of an ordinance? Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
This question originates due to the language found in Government Code 36900, which provides that:
(a) Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.
Cal. Gov't Code § 36900 (West). If a violation is an infraction, set fines are provided at $100 for a first violation, $200 for a second violation, and $500 for a third and each additional violation of that same ordinance within one year. Cal. Gov't Code § 36900(b)(1) – (3) (West). What is important to note in this section is the use of the word or in the second sentence in paren (a), which allows for criminal prosecution or civil action.
California Government Code 53069.4(a)(1) provides that:
The legislative body of a local agency, as the term “local agency” is defined in Section 54951, may be ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty. The local agency shall set forth by ordinance the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties. Where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in Section 25132 and subdivision (b) of Section 36900.
When reading the code, it is clear that local agencies are permitted to enact administrative fines for violations of ordinance without requiring an ordinance violation to be tracked through the criminal system. This conclusion is something that was supported by then Attorney General Kamala Harris in an Attorney General Opinion she authored in 2011. In the opinion she noted that:
The Legislature's purpose in enacting Government Code section 53069.4 was to provide a faster and more cost-effective enforcement mechanism than a criminal prosecution for the violation of a local ordinance. The section was expressly modeled on state legislation that removed the enforcement of most parking violations from the criminal justice system and mandated enforcement of parking violations through civil administrative procedures and civil penalties. 94 Cal. Op. Att'y Gen. 39 (2011). When reading the following statutory provisions in conjunction with one another, along with the attorney general opinion, it is clear that cities are not required to make city ordinances punishable only by infraction or misdemeanor, but can instead utilize the civil administrative process to regulate their ordinances.
Regarding the fine amount, it is clear that under Government Code 36901, a city’s legislative body “may impose fines, penalties, and forfeitures for violation of ordinances. It may fix the Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
penalty by fine or imprisonment, or both. A fine shall not exceed one thousand dollars ($1,000).” Cal. Gov't Code § 36901 (West).
CONCLUSION
The foregoing review of the relevant California authorities (statutory & case law, and Attorney General opinion) strongly suggests that local jurisdictions are empowered to not us the criminal system to enforce violations of city ordinances. Instead, cities can choose to utilize either the criminal system or the civil administrative process to enforce local ordinances. Lastly, cities that engage in a civil administrative process to regulate local ordinances are capped at a fine amount of $1,000, per California Government Code § 36901.
The Public Health Law Center is available to assist communities in drafting and adopting any of these policies. Please let us know if you have any additional questions.
Sincerely,
Rachel Chambers
Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
Union City TRL Desk Item
Public Health Law Center Sample Language*
On Tuesday, January 9, 2024, Union City’s City Council discussed potential amendments to the city’s existing Tobacco Retail Licensing (TRL) ordinance. The Council also voted in favor of a motion to send a list of additional desk item TRL policy options proposed by Councilmember Sakakihara to the city’s Legislation and Policy Committee for review and consideration. The motion also included Committee consideration of a policy option to remove mandatory criminal penalties for TRL violations and focus solely on administrative penalties including tobacco retail license revocation/suspension and fines. Please find below the potential desk item and criminal penalty removal policy options, along with sample best practice TRL policy language from Public Health Law Center, should the Council be interested in further TRL ordinance amendments. * The Public Health Law Center does not lobby, nor does it provide legal representation or advice. However, based on our experiences with commercial tobacco regulatory policies throughout the country, we are able to provide you with our observations and other educational information for your own evaluation of the policy. This information is for educational purposes only; we do not request that a policymaker take any specific action in regard to our comments, nor should our comments be considered a replacement for legal advice. If you require a legal opinion, we encourage you to consult with local legal counsel. That said, we hope that our comments and suggestions are helpful to you.
Union City Additional TRL Policy Options
(Desk Item + Criminal Penalties)
Sample Best Practice Policy Language from Public Health Law Center (Noted below is what language could be added, deleted or updated in the current proposed TRL draft if the associated policy option was adopted) Remove mandatory criminal penalties for TRL violations:
Remove language requiring mandatory criminal penalties for TRL violations and focus solely on administrative penalties including license revocation/suspension and fines
Provision (Enforcement section):
A. Each incident of violation of this chapter is a misdemeanor. The Department may impose administrative penalties as follows:
The Department may impose administrative penalties as follows:
1. For a first violation of this Chapter within any 5 year period, two hundred fifty dollars ($250.00);
2. For a second violation of this Chapter within any 5 year period, five hundred dollars ($500.00); and
Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
3. For a third or subsequent violation of this Chapter within any 5 year period, one thousand dollars ($1,000.00).
Prohibit online and delivery sales: adopt a provision to require all sales from license holders to be in person and prohibit licenses from being issued to authorize tobacco retailing at other than a fixed location or to any moveable place of business
Definition (Definitions section):
“Delivery sale” means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a tobacco retail establishment. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up.
Provision (Requirements and prohibitions section):
On-site sales. All sales of tobacco products shall be conducted in-person in the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to engage in the delivery sale of tobacco products or to knowingly or recklessly sell or provide tobacco products to any person that intends to engage in the delivery sale of the tobacco product in the city.
Extend the minimum price to packs: extend the minimum
price of $8.00 (adjusted for inflation) to cigar and cigarette packs, in addition to single cigars (as some cigarillos and the cheapest cigarettes are sometimes priced under $8.00) • Note: Council supported requiring that cigars be sold in packs of at least 10 for a minimum of $15, while single cigars must be sold for at least $8.00
Provision (Tobacco product pricing and packaging section):
Minimum prices for cigarettes and cigars. No tobacco retailer shall sell:
1. Cigarettes at a price that is less than [$8.00 or $15.00] per package of 20 cigarettes, including all applicable taxes and fees.
The minimum prices established in this section shall be adjusted annually by the Department in proportion with the Consumer Price Index, using a system established by the Department.
Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
Prohibit tobacco sales within 1,000 feet of youth sensitive areas: instead of banning tobacco retailers within 1,000 feet of youth sensitive areas in the zoning ordinance with
exemptions service stations, prohibit license holding retailer locations within 1,000 feet of youth sensitive areas in the TRL ordinance, and without exemptions
Definition (Definitions Section):
“Youth-Oriented Facility” means a parcel in the city that is occupied by:
1. a private or public kindergarten, elementary, middle, junior high, or high school;
2. a library open to the public;
3. a playground open to the public;
4. a youth center, defined as a facility where children, ages 6 to 17, inclusive, come together for programs and activities;
5. a recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes;
6. a park open to the public or to all the residents of a private community;
7. a licensed child-care facility or preschool other than a small-family day care home or a large-family day care home as defined in California Health & Safety Code § 1596.78;
Provision (Limits on eligibility for a tobacco retailer license):
Proximity to youth-oriented facilities. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within 1000 feet of a youth- oriented facility as measured by a straight line from the nearest point of the property line of the parcel on which the youth-oriented facility is located to the nearest point of the property line of the parcel on which the applicant’s business is located. This restriction does not apply to an applicant who has been licensed to sell tobacco products in the same location for at least one year before the date this section was enacted into law.
Adopt model language on ID checks: require an ID check for all purchases regardless of age and specify that the minimum legal sales age is 21 or in accordance with state law,
whichever is higher
Provision (Requirements and Prohibitions section):
Positive Identification Required. No person engaged in tobacco retailing shall sell a tobacco product to another person without first verifying by means of government- issued photographic identification that the recipient is at least 21 years of age.
Add text addressing retailing without a valid license: specify that retailers found to be selling tobacco products without a Provision:
Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
valid license will be subject to a similar penalty structure as license holders found to be in violation of the ordinance Ineligible for license. In addition to any other penalty authorized by law, if the Department finds, or if a court of competent jurisdiction determines, 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 license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer’s license as follows:
1. After a first violation of this section at a location within any 5 year period, no new license 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 30 days have passed from the date of the violation.
2. After a second violation of this section at a location within any 5 year period, no new license 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 90 days have passed from the date of the violation.
3. After of a third or subsequent violation of this section at a location within any 5 year period, no new license 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 1 year has passed from the date of the violation.
Upon a finding of four or more violations of this section at a location within any 5 year period, no new License 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.
Define and set minimum standards for compliance checks:
establish a minimum number of checks per year and require
5.42.100 Compliance monitoring.
Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
rechecks for failures (includes sales inspections as well as youth decoy operations)
A. Compliance with this chapter shall be monitored by the Police Department. The
City may designate any number of additional persons to monitor compliance with this chapter.
B. Compliance checks shall be conducted so as to allow the Police 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 products. When the Police Department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.
A. Compliance with this chapter shall be monitored by the Department. In addition, the city may designate the Police Department or any number of additional persons to monitor compliance with this chapter.
B. Inspections shall be conducted at least one time per 12 month period at each tobacco retailer location.
C. The city will conduct at least one compliance check per 12-month period that involves the participation of persons between the ages of 18 and 20 to enter licensed premises to attempt to purchase tobacco products.
D.Any violation of this chapter will result in a re-check or re-inspection of the violating tobacco retailer location within 90 days of the date of violation.
E. It shall be a violation of this chapter for a licensee, or any of the licensee’s agents, to deny or interfere with retailer inspections of any area on the retail premises conducted during the tobacco retailer’s normal operating hours. A proprietor who refuses to permit such entry or inspection is guilty of violating this chapter and subject to the penalties set forth in Sections 5.42.150 and 5.42.170.
Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
F. Nothing in this section shall create a right of action in any licensee or other person against the city or its agents.
Explain the age of young adult decoys It’s best practices to use decoys that are closest to the minimum legal sales age.
All levels of government, all across the country have begun using decoys aged 18 – 20 for compliance check monitoring to ensure compliance with a minimum legal sales age of 21. One advantage to this approach is that there is less need for parental permission and procedure.
Create a violation if the retailer does not allow inspection See “Define and set minimum standards for compliance checks” above (provision (E)):
E. It shall be a violation of this chapter for a licensee, or any of the licensee’s agents, to deny or interfere with retailer inspections of any area on the retail premises conducted during the tobacco retailer’s normal operating hours. A proprietor who refuses to permit such entry or inspection is guilty of violating this chapter and subject to the penalties set forth in Sections 5.42.150 and
5.42.170.
Define existing licensing: for license holders in violation of the 500 foot setback requirement between license holding retailer locations or the 1,000 foot setback requirement from youth sensitive areas, allow the continuation of licensing for existing retailers that have held their license for at least one year (to avoid an increase in applications for non-complying retailers before the effective date of the ordinance)
Provision:
This restriction does not apply to an applicant who has been licensed to sell tobacco products in the same location for at least one year before the date this section was enacted into law.
Clean up some additional remaining text that focuses on youth possession or purchase and instead focus on retailer minimum sales requirements
D. 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 years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age minimum legal sales age under State law.
Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
Adopt text that clearly excludes clerks and employees from penalties, including any mandatory criminal penalties
Provision (General provisions section):
All licensees are responsible for the actions of their employees relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee shall be considered an act of the licensee.
Adopt text that clarifies that nothing in the ordinance shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing
Provision (Exception section):
B. 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.
Confirm with the city attorney that a construction and
severability clause applies to this ordinance—i.e., that in the unlikely circumstance that there could be litigation resulting from the ordinance, if one part were to be struck down in litigation, the rest of the ordinance would remain in effect
Provision:
Construction and severability. It is the intent of the city council of Union City to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this chapter, or its application to any other person or circumstance. The city council of Union City hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.
Desk Items already addressed via TRL amendments proposed at 1/9/24 City Council Meeting:
- Prohibit redemption of tobacco discounts or coupons: prevent retailers from redeeming tobacco discounts or coupons (not just distributing them)
- Specify the effective date: set the effective date as 60 days after adoption of the ordinance, to allow time for retailers to comply with the new requirements
Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus
- Likely already addressed in TRL update: Clean up some remaining text that lists specific types of tobacco products instead of referring to the ordinance’s global definition of “tobacco product” Late Correspondence - Agenda Item 4.a
Rachel Gratz-Lazarus