City Council Chambers
14343 Civic Drive
Victorville, CA
www.victorvilleca.gov
VICTORVILLE CITY COUNCIL
VICTORVILLE LIBRARY BOARD OF TRUSTEES
SOUTHERN CALIFORNIA LOGISTICS AIRPORT AUTHORITY
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY
THE CITY AS HOUSING ASSETS SUCCESSOR
JOINT POWERS FINANCING AUTHORITY
VICTORVILLE WATER DISTRICT
Regular Meeting Agenda
Tuesday, June 18, 2024
5:00 p.m. Closed Session
6:00 p.m. Regular Session
The
City
Council
holds
its
business
meetings
in
public
in
accordance
with
the
requirements
of
the
Ralph
M.
Brown
Act,
its
established
policies
and
procedures,
and
its
adopted
parliamentary
authority.
The
Council
strives
to
carry
out
its
meetings
in
an
atmosphere
of
professionalism
with
full
participation
by
members
of
the
body
and
the
public.
As
such,
the
Presiding
Officer
is
empowered
to
govern
City
Council
Meetings
to
foster
the
efficient
and
fair
administration
of
City
business
and
reserves
the
right
to
enforce
(or
cause
to
be
enforced)
the
Meeting
Rules
of
Conduct
and
Decorum
as
set
forth
in
Chapter
5 of
the
City
Council Policy and Procedures Manual.
The
City
Council
welcomes
and
encourages
public
participation
and
invites
the
community
to
attend
in
person.
City
Council
Meetings
will
be
held
in-person
at
City
Hall
in
Council
Chambers.
Remote
viewing
of
our
Council
Meetings
is
available
through
YouTube,
but
public
comments
must
be
given
in-person
at
the
meeting or in advance as noted below.
Public
Comments:
Members
of
the
public
may
submit
comments
electronically
by
4 p.m.
the
day
of
the
meeting
to
be
distributed
to
City
Council.
Participants
are
invited
to
address
the
Council
on
agendized
and
non-agendized
topics
at
the
beginning
of
the
meeting.
Public
comments
will
be
no
longer
than
three
(3)
minutes
per
community
member.
Should
a
speaker
conclude
their
comments
prior
to
the
expiration
of
three
(3)
minutes,
the
speaker
waives
the
right
to
speak
for
any
remaining
amount
of
time.
For
further
information
about
how
to
address
the
Council,
please refer to the City's website at
victorvilleca.gov/government/agendas
.
LEVINE
ACT
DISCLOSURE:
Pursuant
to
the
Levine
Act
(Govt.
Code
section
84308),
any
party
to
a
permit,
license,
contract,
or
other
entitlement
before
the
Victorville
City
Council
is
required
to
disclose
on
the
record
any
campaign
contribution,
including
aggregated
contributions,
of
more
than
$250
made
by
the
party
or
the
party's
agents
within
the
preceding
12 months
to
any
City
official.
Participants
and
agents
are
requested
to
make
this
disclosure
as
well.
The
disclosure
must
include
the
name
of
the
party,
participant,
or
agent,
and
any
other
person
making
the
contribution;
the
name
of
the
recipient,
the
amount
of
the
contribution,
and
the
date
the
contribution was made.
In
compliance
with
the
Americans
with
Disabilities
Act,
if
you
need
special
assistance
to
participate
in
this
meeting,
please
contact
the
City
Clerk's
office
at
(760)
955-5188
no
later
than
72 hours
prior
to
the
meeting.
5:00 p.m. Closed Session
Call to Order
Roll Call
Introduction to Public Comments
Public Comments for Closed Session Items
Declaration of Closed Session Item(s) by City Attorney
CITY COUNCIL
A.
PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Pursuant to Government Code § 54957(b)
Position Title: City Manager
Recess to Closed Session
6:00 p.m. Regular Session
Call to Order
Roll Call
Closed Session Announcements by the City Attorney
Invocation: Pastor Jairo Gaviria from Calvary Chapel Victorville
Pledge of Allegiance: Lieutenant Marc Bracco
City Clerk Presents Agenda/Revisions to Agenda
Conflict of Interest Declarations
Any
items
on
this
agenda
that
might
be
a
conflict
of
interest
to
any
Council
Members/Board Members should be identified at this time.
Introduction to Public Comments
Public Comments
PUBLIC HEARING(S)
1. Vacation of Green Tree Boulevard Excess Right-of-Way and CEQA determination
Recommendation:
That the Honorable City Council:
(1)
Open
and
conduct
a
public
hearing
to
consider
the
vacation
(abandonment)
of
portions of roadway easements on Green Tree Boulevard;
(2) Hear evidence offered by persons interested in the vacation; (3)
Find
the
vacation
not
subject
to
environmental
review
under
the
California
Environmental
Quality
Act
(CEQA)
pursuant
to
CEQA
Guidelines
Sections
15060(c)
(2) and 15060(c)(3); and
(4)
Adopt
Resolution
No.
24-047
vacating
the
easement
dedications
as
described
and
depicted
by
the
exhibits
attached
thereto
and
ordering
the
recordation
of
the
same, subject to the prior satisfaction of conditions requiring replacement access.
2. An
Amendment
to
the
Victorville
Municipal
Code
with
an
Environmental
Exemption
making
various
changes
pertaining
to
the
regulation
and
inspection
of
retail
establishments that sell alcohol or tobacco for off-site consumption
Recommendation:
That
the
Honorable
City
Council
conduct
a
public
hearing,
receive
public
testimony,
and take the following actions:
(1)
Find
the
Code
Amendment
exempt
pursuant
to
Section
15061(b)(3)
of
the
California Environmental Quality Act (CEQA);
(2)
Introduce
Ordinance
No.
2450
for
adoption,
and
first
reading
by
title
only,
to
amend Title 16 of the Victorville Municipal Code;
(3) Waive a further reading in full of proposed Ordinance No. 2450; and (4)
Authorize
City
staff
to
seek
grant
funding
to
support
the
implementation
of
Ordinance No. 2450.
CONSENT CALENDAR
3. Payroll Demand Schedule No. 10A
Recommendation:
That
the
City
Council
and
Board
of
Directors
ratify
Payroll
Demand
Schedule
No.
10A
for
Payroll
Period
March
29,
2024,
through
April
12,
2024,
in
the
amount
of
$2,108,169.44
covering
Check
Nos.
33973
through
33998,
including
Vendor
checks.
Please
note
employee
Check
No.
33981
has
a
live
Check
and
an
EFT
Advice.
Also
included
are
Advice
Nos.
312570
through
313108,
per
adopted
budget
for Fiscal Year 2023-2024 (period covering July 1, 2023, through June 30, 2024).
4. Payroll Demand Schedule No. 10B
Recommendation:
That
the
City
Council
and
Board
of
Directors
ratify
Payroll
Demand
Schedule
No.
10B
for
Payroll
Period
April
12,
2024,
through
April
26,
2024,
in
the
amount
of
$2,293,627.69
covering
Check
Nos.
33999
through
34024,
including
Vendor
checks.
Please
note
employee
Check
Nos.
34009,
34011,
and
34012
have
a
live
Check
and
an
EFT
Advice.
Also
included
are
Advice
Nos.
313109
through
313655,
per
adopted
budget
for
Fiscal
Year
2023-2024
(period
covering
July
1,
2023,
through June 30, 2024).
5. Presentation
of
Resolution
No.
24-053
–
Confirming
the
Annual
Special
Tax
Amount
to
be
Levied
in
Community
Facilities
District
(“CFD”)
01-01
for
Fiscal
Year
2024-
2025
(Mello-Roos);
and
presentation
of
Resolution
No.
24-054
–
Confirming
the
Annual
Special
Tax
Amount
to
be
Levied
in
Community
Facilities
District
(“CFD”)
07-01 for Fiscal Year 2024-2025 (Mello-Roos)
Recommendation:
That
the
City
Council
adopt
Resolution
No.
24-053
to
confirm
the
annual
special
tax
to
be
applied
to
property
taxes
of
CFD
01-01
affected
parcels
and
adopt
Resolution
No.
24-054
to
confirm
the
annual
special
tax
to
be
applied
to
property
taxes
of
CFD
07-01 affected parcels.
6. Notice of Completion – Bear Valley Road Overhead Bridge at BNSF Railroad
Recommendation:
That
the
Honorable
City
Council
accept
as
complete
and
approved
the
Notice
of
Completion
for
the
Bear
Valley
Road
Overhead
Bridge
at
BNSF
Railroad
project
and authorized the City Manager to execute the Notice of Completion.
7. Commercial Demand Schedule No. 22
Recommendation:
That
the
City
Council
and
Board
of
Directors
ratify
Commercial
Demand
Schedule
No.
22 in
the
amount
of
$5,681,786.28,
covering
Electronic
Fund
Transfers
No.
339375
through
339616
and
Warrant
No.
795460
through
795599
for
05/22/2024
through
05/29/2024,
per
the
adopted
budget
for
Fiscal
Year
2023-2024
for
the
period covering July 1, 2023 through June 30, 2024.
8. Reduction of Securities for Tract Map No. 16463
Recommendation:
That
the
Honorable
City
Council
approve
the
full
release
of
the
Water
and
Sewer
Public Improvement Faithful Performance Securities for Tract Map No. 16463.
9. Reduction of Securities for Tract Map No. 16720
Recommendation:
That the Honorable City Council:
(1)
Approve
the
full
release
of
the
Sewer
Public
Improvement
Faithful
Performance
Security for Tract Map No. 16720; and
(2)
Approve
the
full
release
of
the
Sewer
Public
Improvement
Labor
&
Materials
Security for Tract Map No. 16720.
10. Reduction of Securities for Tract Map No. 14992
Recommendation:
That
the
Honorable
City
Council
approve
the
full
release
of
the
Street
Public
Improvement Labor and Material Security for Tract Map No. 14992.
11. Reduction of Securities for Tract Map No. 14751
Recommendation:
That
the
Honorable
City
Council
approve
the
full
release
of
the
Street
Public
Improvement Labor and Material Security for Tract Map No. 14751.
12. Economic Development Activity Report
Recommendation:
That
the
Honorable
City
Council
review
and
file
the
attached
Economic
Development Activity Report.
13. Notice of Completion – Sewer Main Lining Project 2023
Recommendation:
That
the
Honorable
City
Council
accept
as
complete
and
approve
the
Notice
of
Completion
for
Sewer
Main
Lining
Project
2023
and
authorize
the
City
Manager
to
execute the Notice of Completion.
14. Notice
of
Completion
for
Runway
17/35
Reconstruction
Phases
IIIB
and
IV,
Project
#CCH23-111
Recommendation:
That the Southern California Logistics Airport Authority Board of Directors:
(1)
Approve
the
Notice
of
Completion
for
the
Runway
17/35
Reconstruction
Phases
IIIB and IV, Project #CCH23-111; and
(2) Authorize the Airport Director to execute the Notice of Completion.
15. Settlement
Agreement
between
the
City
of
Victorville
and
Milly
Tam
and
Sandra
Zhu
Recommendation:
That
the
Honorable
City
Council
approve
the
Citation
Settlement
Agreement
by
and
between
Milly
Tam,
Sandra
Zhu
and
the
City
of
Victorville
in
regard
to
Citation
No.
30733
and
authorize
the
City
Manager
to
execute
the
Citation
Settlement
Agreement.
16. Adoption
of
Resolution
No.
24-070
approving
the
updated
Wildfire
Mitigation
Plan
for the City of Victorville Municipal Utility Services
Recommendation:
That the Honorable City Council Adopt Resolution No. 24-070:
(1)
Approving
and
amending
the
revised
Victorville
Municipal
Utility
Services
(“VMUS”) updated Wildfire Mitigation Plan; and
(2)
Authorize
the
City
Manager,
or
his
designee,
to
make
minor
plan
modifications
and submit to the State to ensure compliance with State legislation as needed
17. Fire Department Newsletter
Recommendation:
No action is necessary – informational only
18. Reduction of Securities for Tract Map No. 14721
Recommendation:
That
the
Honorable
City
Council
approve
the
full
release
of
the
Street
Public
Improvement Labor and Material Security for Tract Map No. 14721. WRITTEN COMMUNICATIONS
19. Annual Financial Reports for the Fiscal Year Ended June 30, 2023
Recommendation:
That
the
City
Council
and
Board
of
Directors
approve
a
motion
to
receive
and
file
the following:
(1)
City
of
Victorville
Annual
Comprehensive
Financial
Report
for
the
Fiscal
Year
ended June 30, 2023,
(2)
Independent
Auditor’s
Report
on
Internal
Control
over
Financial
Reporting
and
on
Compliance
and
Other
Matters
Based
on
an
Audit
of
Financial
Statements
Performed
in
Accordance
with
Governmental
Auditing
Standards
for
the
Fiscal
Year
ended June 30, 2023,
(3)
Victorville
Water
District
Basic
Financial
Statements
for
the
Fiscal
Year
ended
June 30, 2023, and
(4)
Southern
California
Logistics
Airport
Authority
Basic
Financial
Statements
for
the Fiscal Year ended June 30, 2023.
20. Project
Proposal
to
California
Transportation
Commission
for
Local
Streets
and
Roads Funding for Fiscal Year 2024-2025
Recommendation:
That the Honorable City Council:
(1)
Adopt
Resolution
No.
24-030,
approving
three
(3)
road
projects
for
submittal
to
the
California
Transportation
Commission
(CTC)
to
be
eligible
to
receive
Local
Streets and Roads Funds for Fiscal Year 2024-2025; and
(2) Authorize staff to submit this project proposal to the CTC.
21. Fiscal
Year
2024-2025
Contract
Renewals
-
Annual
Supply
and
Service
Agreements
Recommendation:
That
the
City
Council
/
Board
of
Directors
award
contract
renewals
for
the
Annual
Supply
and
Service
Agreements
to
various
vendors
and
suppliers
for
Fiscal
Year
2024-2025 per the Adopted Budget approved on June 04, 2024.
22. Extension
of
Sunset
Date
for
Certain
Temporary
Fee
and
Penalty
Waivers
For
Animal
Care
and
Control
Pursuant
to
Section
7.04.055
of
Chapter
7.04,
Title
7 of
the Victorville Municipal Code
Recommendation:
That
the
Honorable
City
Council
adopt
Resolution
No.
24-055,
extending
the
sunset
date
of
certain
temporary
fee
and
penalty
waivers
associated
with
the
licensing
and
impoundment
of
dogs
and
cats
in
the
city
as
provided
in
Victorville
Municipal Code Section 7.04.055 to December 31, 2024.
23. National Opioid Settlement Agreements
Recommendation:
That the Honorable City Council:
(1)
Adopt
Resolution
No.
24-072,
amending
the
annual
budget
for
Fiscal
Year
2023-2024;
approving
an
increase
in
revenue
and
expenditures
related
to
the
National Opioids Settlement Agreements; and
(2)
Authorize
the
City
Manager
to
use
all
Opioid
Settlement
Fund
Disbursements,
including
future
funds,
in
accordance
with
the
List
of
Opioid
Remediation
Uses
provided in the Opioid Settlements.
24. Agreement
Between
the
County
of
San
Bernardino
and
the
City
of
Victorville
for
the
New Police Station and Civic Plaza
Recommendation:
That the Honorable City Council:
(1)
Adopt
Resolution
No.
24-056
authorizing
a
contract
between
the
City
of
Victorville
and
San
Bernardino
County
to
receive
funding
in
the
amount
not-to-
exceed $3,700,000 for the new Police Station and Civic Plaza; (2)
Adopt
Resolution
No.
24-057,
amending
the
annual
budget
for
Fiscal
Year
2024-2025; approving an increase in revenue and expenditures; and (3) Authorize the City Manager to execute all documents to effectuate the contract.
25. Annual
Confirmation
of
Maintenance
Assessment
Districts
for
Fiscal
Year
2024/2025
Recommendation:
That the Honorable City Council:
(1)
Approve
Resolution
Nos.
24-058,
24-061,
24-064,
and
24-067
authorizing
the
initiation
of
proceedings
for
the
annual
levy
of
assessments
for
the
Maintenance
Assessment
Districts,
Drainage
Facilities
Assessments
Districts,
Landscaping
Maintenance
Assessment
Districts,
and
the
City-Wide
Streetlight
Assessment
District for Fiscal Year 2024/2025;
(2)
Approve
Resolution
Nos.
24-059,
24-062,
24-065,
and
24-068
preliminarily
approving
the
consolidated
Engineer’s
Reports
filed
in
support
of
the
levy
of
assessments for Fiscal Year 2024/2025; and
(3)
Approve
Resolutions
Nos.
24-060,
24-063,
24-066,
and
24-069
declaring
its
intention
to
levy
the
maintenance
assessment
districts
for
Fiscal
Year
2024/2025
and setting a Public Hearing date of July 16, 2024.
26. Fiscal Year 2024-2025 Training Schedule for City Council Members
Recommendation:
That
Your
Honorable
City
Council
direct
staff
which
business
events
Council
will
attend
during
Fiscal
Year
2024-2025
to
allow
sufficient
time
for
registration
and
travel accommodations.
27. Cancellation of the July 2, 2024 regular City Council meeting
Recommendation:
Any action is at the discretion of Your Honorable City Council.
28. Discussion
and
Possible
Action
regarding
Assembly
Bill
3259
(now
Assembly
Bill
2443 Carrillo) as it relates to transactions and use taxes
Recommendation:
Any action is at the discretion of Your Honorable City Council.
29. City Manager Reports
30. Discussion and Possible Action Regarding Upcoming Agenda Items
31. Reports from Council Members
Adjournment
Item Number: 1
City Council / Board of Directors
Public Hearing(s)
Meeting of: June 18, 2024
Submitted By:
Fredy Bonilla, City Engineer
Subject:
Vacation of Green Tree Boulevard Excess Right-of-Way and CEQA determination Recommendation:
That the Honorable City Council:
(1) Open and conduct a public hearing to consider the vacation (abandonment) of portions of roadway easements on Green Tree Boulevard;
(2) Hear evidence offered by persons interested in the vacation; (3) Find the vacation not subject to environmental review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Sections 15060(c)(2) and 15060(c)(3); and
(4) Adopt Resolution No. 24-047 vacating the easement dedications as described and depicted by the exhibits attached thereto and ordering the recordation of the same, subject to the prior satisfaction of conditions requiring replacement access.
Fiscal Impact:
There is no impact as a result of this action.
Strategic Plan Goal:
This item aligns with “Goal C Community and Economic Development” in the Victorville Strategic Plan 2023-2026. The vacation of the excess right-of-way will allow for future development of the vacant parcels.
Background:
Dedication of easements for public street purposes were offered to the City of Victorville by a parcel map recorded in 1980 and instruments recorded in September of 1989. These existing easements are along Green Tree Boulevard just east of Hesperia Road, within the Green Tree Boulevard Extension Project (Project) that was completed in May of 2023.
The alignment of the new extension (re-alignment) was modified to meet traffic safety standards and Public Right-of-Way (ROW) was acquired for the modified alignment. It 3 6
4 4
was known in the design stage of the Project that there would be portions of the existing ROW not needed upon the completion of the Project (excess ROW) which would require vacation (abandonment). The excess ROW proposed to be vacated by the City is depicted on the location map in Attachment B.
Discussion:
Property owners affected by the re-alignment have requested that the excess ROW be vacated (see the request letters in Attachment D). As a result of these requests, City Staff reviewed California Streets and Highways Code (SHC) Division 9, Part 3 to determine if the excess ROW could be vacated. Staff determined the excess ROW may be vacated by utilizing the General Vacation Procedures in SHC Sections 8320 – 8325, provided certain preliminary requirements of the SHC are met.
SHC Section 8313 requires the City Council to consider the City's General Plan prior to vacating a street. Although such consideration would normally require a report by the Planning Commission, no report is required for street alignment projects of a minor nature such as this; particularly given that re-alignment and abandonment was originally contemplated in the Project’s design phase. SHC Sections 8314 and 892 further require a determination that the excess ROW is not useful as a non-motorized transportation facility (i.e., a bikeway) prior to approving an abandonment. This determination can be made because the City’s General Plan circulation element geometrics include such facilities within the remaining right-of-way not being vacated.
Prior to adopting a resolution vacating a street, the General Vacation Procedure requires the City Council to hold a notice of public hearing to hear evidence offered by interested persons and make a finding that the described ROW is unnecessary for present or prospective public use. Such a resolution may also provide that the required recording of the resolution only occur after certain conditions have been satisfied. To ensure the proposed vacation does not leave parcel number 3090-331-05 landlocked, a condition has been included in the resolution requiring the owner of parcel number 3090-331-04 to provide the City with an access and utility easement to and from an improved public street benefitting said parcel before the resolution can be recorded. Please refer to Attachment A, Resolution No. 24-247, for details. A legal description of parcel number 3090-331-04 is Exhibit “C” to said resolution.
SHC Section 8320(b) requires the public hearing notice to include a legal description and map of the street or portions thereof to be vacated and for said notice to be published in a newspaper of general circulation in the City for two successive weeks prior to date of the hearing. The City complied with this requirement by publishing the public hearing notice (which included a legal description and map of the street or portions thereof to be vacated) notice in the Valleywide Newspaper on May 24, 2024 and June 7, 2024. The legal description and map are included as Exhibits "A" and "B" to Resolution No. 24-247 (which is also Attachment A of this Staff Report). Attachment C is a copy of the official documents that originally created the streets.
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SHC Sections 8332 and 8323 further require that notices of the vacation be posted conspicuously along the line of the proposed vacation at least two weeks prior to the date of the public hearing, a requirement with which City Staff have also complied.
The proposed vacation is not subject to environmental review under CEQA pursuant to CEQA Guidelines sections 15060(c)(2) and 15060(c)(3). Because the action would result in the vacation of portions of easements for streets that are not needed for such purposes, the vacation will not have a reasonably foreseeable direct or indirect effect on the environment, and/or is not a project subject to CEQA as defined in Guidelines section 15378.
Staff recommends that the Honorable City Council: open and conduct a public hearing to consider the vacation of the excess ROW (easements); hear evidence offered by persons interested in the vacation; and adopt the attached Resolution No. 24-047 making the findings needed to vacate easements as described and depicted by the attached exhibits and impose certain conditions thereon.
Staff remains available for any questions the Council may have.
Attachments: A. Resolution No. 24-047 including Exhibits “A”, “B”, and “C” B. Location Map
C. Copies of official documents that created the existing easements D. Letters from property owners requesting the vacation
ATTACHMENT A
RESOLUTION NO. 24-047
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VICTORVILLE,
CALIFORNIA, ORDERING THE GENERAL VACATION (ABANDONMENT) OF
PORTIONS OF OFFERS OF DEDICATIONS OF EASEMENTS TO THE CITY OF
VICTORVILLE FOR GREENTREE BOULEVARD EAST OF HESPERIA ROAD,
SUBJECT TO THE CONDITION OF PROVIDING SUBSTITUTE ACCESS WHEREAS, certain easements for public street use were offered to the City of Victorville (“City” or “Victorville”) on Parcel Map No. 5276 filed in Book 58 of Parcel Maps at Pages 29 and 30, Records of the County of San Bernardino, and for street, highways, sewers, drainage, public utilities, and public access purposes by those Irrevocable Offers of Dedication recorded as Document Numbers 89-350650, 89-350654, 89-350655, and 89-350656 in the Official Records of the County Recorder of said County (collectively hereinafter the “Easements”); and WHEREAS, on May 20, 2024, pursuant to the requests property owners Kenneth Mudge and Joeseph Brady, and the concurrence of the Victorville City Engineer, in accordance with Division 9, Part 3, Chapter 3 of the California Streets and Highways Code (“S&H Code”) Sections 8320 through 8325 (the “General Vacation Procedure”), proceedings were initiated for the vacation of certain portions of said Easements for Greentree Boulevard, as are described in the attached Exhibit “A”, and depicted on the attached Exhibit “B” (hereinafter collectively the “Easement Portions”); and WHEREAS, following consideration of the City’s General Plan and a determination that the Easement Portions being vacated are not useful as a non-motorized transportation facility (e.g., a bikeway) because the City’s circulation element geometric includes such facilities within the remaining right-of-way not being vacated, the General Vacation Procedure authorizes the City Council of the City, upon conducting a duly noticed public hearing, to vacate a street (with or without conditions) upon making a finding that such street is unnecessary for present or prospective public use; and
WHEREAS, the City Clerk scheduled a public hearing for June 18, 2024, at 6:00 pm, in the Council Chambers of City Hall, at 14343 Civic Drive, Victorville, California 92392 and prepared a notice of public hearing; and
WHEREAS, said notice of public hearing contained a description of the Easement Portions proposed to be vacated; a reference to a map or plan that showed the area to be vacated; a statement that the vacation proceeding was being conducted under Division 9, Part 3, Chapter 3 of the S&H Code; and the date, hour, and place for hearing all persons interested in the proposed vacation, which hearing date was not less than 15 days after date of the initiation of proceedings set forth above; and
WHEREAS, said notice of public hearing was published for at least two successive weeks prior to the hearing date in a newspaper published and circulated in the City of Victorville; and WHEREAS, at least two weeks before the date set for the public hearing, the City posted conspicuously notices of vacation along the line of the Easement Portions proposed to be vacated in accordance with S&H Code Section 8323; and
WHEREAS, after receiving a Staff Report and hearing all the evidence submitted at the public hearing, the City Council finds that said Easement Portions of Greentree Boulevard described in the notice of public hearing (and in the attached Exhibit “A” and Exhibit “B”) are not useful as non- motorized transportation facilities, are unnecessary for present or prospective public use, and may therefore be vacated, subject to first satisfying the conditions set forth in herein requiring the submission to the City of a replacement access and utility easement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF VICTORVILLE DOES HEREBY RESOLVE, DETERMINE, AND ORDER AS FOLLOWS:
Section 1. Recitals
That the Recitals set forth above are true and correct and are incorporated herein by this reference, including any definitions.
Section 2. Vacation/Abandonment of Easement Portions; Conditions That the Easement Portions of Greentree Boulevard described in the attached Exhibit “A” and depicted on the attached Exhibit “B” be vacated (abandoned) following satisfaction of the following conditions:
1. An access and utility easement to and from an improved public street, benefitting that property described in the attached and incorporated Exhibit “C” (APN 3090-331-05), at a location to be approved by the Victorville City Engineer, shall be obtained by the owner of APN 3090-331-05 from the adjacent property owner(s) and recorded with the San Bernardino County Recorder. The access easement shall be a covenant running with the land.
2. A certified copy of said access easement shall be provided to the City of Victorville and attached to this Resolution prior to its recordation.
Section 3. Recordation of Resolution Vacating Easement Potions That the Victorville City Clerk shall, upon the satisfaction of the conditions set forth in Section 2 hereof, cause a certified copy of this Resolution to be recorded in the Office of the County Recorder of San Bernardino County, State of California. Upon such recordation, this vacation shall be complete.
Section 4. CEQA
That this Easement Portions vacation is not subject to environmental review under CEQA, pursuant to CEQA Guidelines sections 15060(c)(2) and 15060(c)(3), because the action results in the vacation of easements for streets, highways, sewers, drainage, public utilities, or public access that are not needed for such purposes, and will not have a reasonably foreseeable direct or indirect effect on the environment and/or is not a project subject to CEQA as defined in CEQA Guidelines section 15378.
Section 5. Effective Date
That this Resolution shall take effect immediately upon its adoption.
Section 6. Certification
That the City Clerk shall certify to the passage and adoption of this Resolution; shall enter the same in the book of original Resolutions; and shall make a minute of passage and adoption thereof in the records of the proceedings, in the minutes of the meeting at which this Resolution is passed and adopted.
EXHIBIT “C”
(Description of property to have replaced access to public street APN 3090-331-05) That certain real property situated in the City of Victorville, County of San Bernardino, State of California, being the Northeast one-quarter of the Northeast one-quarter, of the Northwest one- quarter of the Northwest one-quarter of Section 27, of Township 5 North, Range 4 West, San Bernardino Base and Meridian, according to the Official Plat thereof.
ATTACHMENT B
NORTH
SCALE: 1"=150'
GREENTREE BLVD.
HESPERIA ROAD
GREENTREE BLVD.
CHERRYHILL DR.
APN 0480-021-12
APN 0480-021-12
APN 3090-331-04 APN 3090-331-05 APN 3090-341-01 APN 3090-341-02 APN 0480-021-30
COAD ROAD (NO STREET RIGHT-OF-WAY)
DENOTES AREA DESCRIBED BY ATTACHMENT "D" TO BE VACATED
ATTACHMENT "B" LOCATION MAP
AERIAL DEPICTING AREA TO BE VACATED
ATTACHMENT C
ATTACHMENT D
May 20, 2024
Via: US Mail
Via Email: [email protected]
Mr. Fredy Bonilla
City Engineer
City of Victorville
14343 Civic Drive
Victorville, CA 92395
Re: Right of way and Right of Way Vacation Green Tree Boulevard/Hesperia Rd./Intersection
Dear Mr. Bonilla,
This letter and attachment are in regard to APN 0480-021-12 which lies on the east side of Hesperia Rd. and on either side of the proposed Green Tree Blvd . expansion. The subject property had granted right of way for Green Tree Blvd . in 1989 as shown in the attached exhibit with a green line.
I am pleased to be the managing member for three (3) families that own this property collectively.
We are each twenty-five (25%) percent owners.
Mr. Joseph W. Brady , CCIM, SIOR, President of Joseph W. Brady Inc., dba The Bradco Companies in conjunction with Mrs. Deborah K. Brady, takes care of the day-to-day management.
Our other members are Dr. & Mrs. Manmohan Nayyar, Dr. & Mrs. Rahul Nayyar and Dr. & Mrs.
Samir Nayyar. All information should be sent to our office for processing.
In 201 4 the City requested additional right of way for a re -aligned projection of Green Tree Boulevard, this area is shown on the attached exhibit highlighted in yellow. The additional areas as shown are 1.27± acres and 0.28± acres in size.
It was our understanding that when the alignment of Green Tree Blvd. changed and the additional right of way was granted that the portion that was previously granted in 1989 that is not needed for the current plans of Green Tree Boulevard was to have been vacated by the City of Victorville, see attached exhibit as highlighted in red.
May 20, 2024
This is a total of 0.6 ± acres and is vital for future development of the portion of APN 0480 -021- 12 that lies south of the proposed Green Tree Blvd.
Please consider this letter our formal written request to have the excess right of way vacated as soon as practicable.
If I can be of any further assistance or if you have any questions regarding this letter, I can be reached at my office (760) 951-5111 x101, via email to [email protected], or on my cell (between 9:00 AM and 6:00 PM daily) at (760) 954-4567.
Feel free to give me a call.
Very truly yours,
Joseph W. Brady, CCIM, SIOR
President
The Bradco Companies
DRE Lic. No: 00773589
P:\Administrative Files\Hesperia & Green Tree 13.0± Acres\Mr. Fredy Bonilla 5-20-24lr.docx
Item Number: 2
City Council / Board of Directors
Public Hearing(s)
Meeting of: June 18, 2024
Submitted By:
Scott Webb, City Planner
Subject:
An Amendment to the Victorville Municipal Code with an Environmental Exemption making various changes pertaining to the regulation and inspection of retail establishments that sell alcohol or tobacco for off-site consumption.
Recommendation:
That the Honorable City Council conduct a public hearing, receive public testimony, and take the following actions:
1) Find the Code Amendment exempt pursuant to Section 15061(b)(3) of the California Environmental Quality Act (CEQA);
2) Introduce Ordinance No. 2450 for adoption, and first reading by title only, to amend Title 16 of the Victorville Municipal Code;
3) Waive a further reading in full of proposed Ordinance No. 2450; and 4) Authorize City staff to seek grant funding to support the implementation of Ordinance No. 2450.
Fiscal Impact:
Changes to a land use regulatory document do not result in a direct fiscal impact. The administration of this ordinance will be conducted by budgeted Code Compliance staff and the cost of the required annual inspections by City staff will be partially off-set by the collection of a $99 compliance inspection fee to begin upon annual renewal inspections.
The collection of the noted compliance inspection fee will be tracked during the implementation of the proposed Ordinance and compared to the actual cost of alcohol/tobacco retailer compliance inspections in order to support any future adjustments to the City’s Master Fee Schedule that may be needed to ensure full cost recovery. 3 6
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Strategic Plan Goal:
Approval of the proposed ordinance will enable the City to further fulfill the following goals outlined in the 2023-2025 Strategic Plan:
•Goal B (Public Safety) – The proposed operational/performance standards, licensing requirements, and annual inspection process will ensure that all alcohol and tobacco retailers are operating their facilities in accordance with State and local laws, which among other things aim to ensure adequate on-site lighting, enhance visibility within premises, and prevent loitering and illegal activities on-site. These standards will therefore implement a public safety strategy that will assist law enforcement agencies and support a thriving and growing community.
•Goal C (Community and Economic Development) – The proposed Victorville Municipal Code amendment includes a proactive Code Enforcement approach that will annually review exterior conditions at applicable retailers in order to confirm compliance with maintenance and site condition standards. This aspect of the proposed Ordinance aims to improve the appearance of non-compliant locations and preserve the community, which will support the establishment of new businesses and retention of existing business in the City.
•Goal D (Reduce Homelessness) – The proposed Ordinance will reduce access to illegal tobacco products and drug paraphernalia, thus making the retailers part of the solution to reduce substance abuse and illegal drug use that are not uncommon within the City’s homeless population. Reducing access to these illegal items should then result in the reduction of homeless outreach efforts in the areas around alcohol and tobacco retailers, which frequently occur near each other.
Executive Summary:
On May 8, 2024, the Planning Commission recommended that the City Council adopt the proposed Ordinance to amend the Victorville Municipal Code (VMC) by a vote of 4-1 (Attachment B). As discussed herein, the subject Ordinance (Attachment A) would implement proactive enforcement of City regulations, ensure compliance monitoring is conducted regularly for all applicable businesses conducting alcohol and tobacco sales for off-site consumption, update standards related to new businesses conducting alcohol and tobacco sales, as well as identify nonconforming off-site alcohol retailers (as “Deemed Approved”) and nonconforming tobacco retailers while causing both retailer types to be subject to performance/operating standards not required when they were originally allowed to engage in retail sales. If approved, the subject amendment and included monitoring/inspection process will be applicable to 18 existing smoke shops and 63 existing businesses that conduct sales of alcohol and tobacco for off-site consumption, with approximately 14% of these businesses subject to the single-service alcoholic beverage prohibition requirements of the VMC via an existing Conditional Use Permit.
Background:
The City of Victorville has historically regulated the sale of alcohol for off-site consumption with discretionary Conditional Use Permit requirements for establishments within over- concentrated census tracts and near sensitive land uses such as residences, schools, religious facilities, and parks. In response to the negative effects these establishments 3 6
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may pose to public health, regulations were broadened over the past eleven years to include a prohibition on single-serve alcoholic beverages in 2013, operating restrictions for businesses selling alcohol for off-site consumption in 2014, as well as tobacco sales and paraphernalia restrictions in 2015 that have largely prevented the further proliferation of new liquor stores and smoke shops within the City of Victorville. A brief synopsis of the City’s actions is provided as “Attachment C” to this Staff Report, which are generally described as follows:
•Ordinance No. 2299 (Single-Serve Restrictions) – June 18, 2013 •Ordinance No. 2324 (Operating Restrictions) – October 7, 2014 •Ordinance No. 2339 (Tobacco/Paraphernalia Restrictions) – August 18, 2015 Although these newer provisions of the Victorville Municipal Code have proven effective at prohibiting the sales of single-serve alcoholic beverages and instituting operating restrictions at new businesses that engage in the retail sales of alcohol and tobacco products for off-site consumption, existing non-conforming businesses that were established prior to these new regulations taking effect have not been held to the same standards as new businesses and still account for the vast majority of establishments within the City. Furthermore, some conforming establishments operating with an active Conditional Use Permit have not been held accountable to maintain required operating restrictions due to the lack of a regular inspection process. Additionally, since the adoption of Ordinance No. 2339, the State of California has passed various regulations as well as provided resources that regulate the sale of tobacco and establish funding opportunities to assist in local enforcement, as discussed below.
•Senate Bill (SB) 793 (Upheld by California voters via Proposition 31) - Effective January 1, 2023, SB 793 (Attachment D) prohibits tobacco retailers from selling, offering to sell, or possessing flavored tobacco products; however, hookah tobacco, loose leaf tobacco, and handmade premium cigars are exempted from this prohibition.
While SB 793 prohibited the sales of flavored tobacco, it did not establish a responsible enforcement agency.
•Assembly Bill (AB) 935 - Effective January 1, 2024, AB 935 (Attachment D) strengthened the California flavored tobacco products prohibition by establishing the California Department of Public Health (CDPH) as the primary state enforcement agency, increased penalties for retailers who do not comply with the law and changed the definition of a retail location to include mobile units such as booths and stands. •California Department of Justice Tobacco Grant Program – The State encourages any local public agency, such as a city, that has authority to enforce tobacco-related state laws or local ordinances to apply and receive funding through the California Department of Justice’s Tobacco Grant Program (Attachment E) to support local partners in the:
oEnforcement of state and local tobacco laws, such as the prohibition of flavored tobacco products;
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oProsecution and penalization of retailers who sell or market tobacco products to youth under the age of 21, including over the internet; oEducation to tobacco retailers on state and local tobacco laws; and oInvestigation and inspections of retailer licensing compliance.
The program is funded by Proposition 56, the California Healthcare, Research and Prevention Tobacco Tax Act of 2016. If authorized by the City Council, City staff will analyze the subject grant opportunity and proceed with applying for available funding, if feasible, which was also recommended by individual members of the Planning Commission.
Discussion:
Basis for Proposal
The City of Victorville and its residents have been subject to adverse impacts resulting from alcohol sales for off-site consumption and tobacco sales that have led to adopting of noted Ordinance Nos. 2299, 2324, & 2339. These adopted Ordinances specifically note that the City Council previously found that:
•Additional regulatory measures were needed to protect residential, commercial, industrial, and civic uses from the harmful effects attributable to the sale of alcoholic beverages. (Ordinance No. 2324)
•Neighborhood character can change over time and the careful regulation of nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute to the deterioration of neighborhoods. (Ordinance No. 2324) •Land use regulations can be structured to provide opportunities for alcoholic beverages sales establishments to operate in a mutually beneficial relationship to each other and to other commercial services while not becoming the source of undue public nuisances in the community. (Ordinance No. 2324) •Prohibiting and regulating certain land uses will assist in creating a safer community by eliminating the ability of certain harmful businesses to locate in Victorville, thus deterring the patrons of these business from loitering in retail areas which may occur due to the nature and operations of certain land uses. (Ordinance No. 2339) •There is a need to prohibit and regulate certain land uses by Ordinance in order to help achieve the City Councils goals of creating a safer, prettier and cleaner community. (Ordinance No. 2339)
•Prohibiting and regulating certain uses in commercial neighborhoods will create a prettier, cleaner community by keeping undesirable businesses out of commercial areas and attracting desirable businesses and owners to commercial neighborhoods. (Ordinance No. 2339)
•The failure of tobacco retailers to comply with tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of Victorville. (Ordinance No. 2339) 3 6
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While the City has previously enacted regulations on the sale of alcohol and tobacco within the City of Victorville, recent data indicates that many of the adverse impacts cited by the City Council are still ongoing as supported by a variety of data, such as:
•Site Assessments – During May/June of 2024, City staff conducted initial assessments of business exteriors and researched license status of all 81 business that would be subject to the proposed Ordinance in order to establish baseline conditions and confirm the violations of the VMC currently taking place. This assessment resulted in the following findings of the 81 businesses assessed:
o55 displayed well over 20% allowable window signage permitted in commercial zones.
o34 sites had maintenance issues (e.g. landscaping not maintained, junk & debris present, trash and empty liquor bottles, illegal structures on-site, etc.). o20 locations had notable instances of loitering during site visits. o6 smoke shops had no current California Department of Tax and Fee Administration license locatable on State databases.
o10 out of 81 business returned no explicit violations.
This data was also preceded by efforts by the Code Compliance Department in October 2021 that assessed 41 convenience / liquor stores and 14 smoke shops.
During the noted assessment by the Code Compliance Department, the clear presence of drug paraphernalia was present within smoke shops while convenience/liquor stores demonstrated higher instances related to loitering and needed exterior maintenance/up-keep of property.
•Homeless Outreach Efforts – The City continues to address the Strategic Plan goal of reducing homelessness, with the City’s recent opening of the Wellness Center and the creation of a Homeless Engagement Team aimed at connecting impacted individuals with available services. While the Homeless Engagement team tracks their efforts with specific locations, when this assistance is compared to the location of alcohol and tobacco retailers as depicted in “Attachment F” of this Staff Report, the proximity of homeless outreach efforts to alcohol/tobacco retailers suggests that the subject retailers are in a position to be a part of the solution to reduce homelessness by decreasing access to drug paraphernalia and items that may support substance abuse, which is a known cause or contributing factor of homelessness. According to recent data from Victorville’s Wellness Center, 34% of the clients report having a substance use disorder.
•Calls for Service – Based upon data provided by the Police Department, a sample of 17 alcohol/tobacco retailers and 8 smoke shops throughout the City of Victorville between the six-month period of June – December of 2023, an average of approximately 29 calls for service were placed at alcohol/tobacco retailer locations and 11 calls for service at smoke shops. For comparison, a sample of 6 supermarkets in the City over the same period resulted an average of 48.5 calls for service at each location; however, supermarkets are approximately 40,000 sq. ft. in size and located within large shopping centers compared to alcohol/tobacco retailers and smoke shops 3 6
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that are usually less than 3,000 sq. ft. in size, located in small commercial strip malls or developed as stand-alone businesses. When adjusted for square footage, small alcohol/tobacco retailers have 10 times more service calls, and smoke shops have 4 times more service calls, compared to supermarkets.
The above noted data, in conjunction with the updated regulations established by the State of California regarding the prohibition of flavored tobacco, warrant updated regulations and requirements for alcohol and tobacco retailers in order to ensure businesses are compliant with existing standards and to take a proactive compliance approach to further implement the goals adopted in the Strategic Plan.
Proposed Code Amendments
Inasmuch as the City’s existing alcohol/tobacco requirements and standards are only monitored during business openings and via public complaints, the proposed amendments discussed herein aim generally to establish an enforcement procedure and penalties for non-compliance with the previously adopted City Ordinances and current State law.
In order to add enforcement measures to ensure compliance with existing VMC standards and existing Conditional Use Permits relating to alcohol and tobacco sales for off-site consumption, as well as revise existing standards on tobacco sales to reflect the Statewide prohibition on flavored tobacco, City staff has prepared a draft Code Amendment to Title 16 of the VMC (known as the “Development Code”) to update the City’s standards and implementation processes. As proposed, the draft Code Amendment is comprised of the reorganization of existing standards as well as the inclusion of new/updated standards and definitions as discussed and summarized below.
Existing/Reorganized Standards
•Alcoholic Beverage Sales – Standards that currently exist in the Development Code for which changes were limited to relocation and minor text adjustments for clarity include the following:
oConditional Use Permit (CUP) – Requirements for alcoholic beverage sales establishments to obtain a CUP prior to operation remain unchanged, with exceptions remaining for large retailers (e.g. grocery and drug stores) and restaurants selling beer & wine.
oFinding of Public Convenience or Necessity (FPCN) – Allowances for the limited approval of a FPCN, required for business seeking alcohol sales within overconcentrated census tracts remains unchanged and continues to allow authorization for large retailers and fueling stations. ▪Over-concentration is defined as having a higher alcohol license/population ratio within the census tract than the county license/population ratio. In these instances, the City is authorized to determine if public convenience or necessity would be served by the issuance of additional ABC licenses via an FPCN. oDistance Requirements – Prohibitions on off-site alcoholic beverage establishments and bars/nightclubs within 600 feet of sensitive land uses (e.g. 3 6
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schools, parks, residentially zoned property, etc.) remain unchanged with limited exceptions for large retailers, convenience markets selling beer & wine only, and micro-breweries.
oOperational Standards – Public nuisance measures, including standards on lighting, refuse containers/collection, loitering, signage, mitigation of alcohol related problems, and compliance with all applicable laws remains unchanged.
Additionally, prohibitions on the sales of drug paraphernalia as well as vegetation that may provide hiding places or window coverings that obstruct the view of the interior of establishments has not been changed.
•Tobacco Sales – Although the proposed amendments expand upon standards for tobacco retailers, the following standards are currently included in the Development Code:
oOperational Standards – Measures that limit display areas for tobacco and tobacco paraphernalia; locate tobacco and tobacco paraphernalia behind service counters; and the prohibition of drug paraphernalia, smoking/vaping on the premises, and the distribution of free tobacco or coupons.
•Applicability – The provisions of the existing Alcoholic Beverage and Tobacco Sales standards are generally applicable to all businesses within the City; however, some limited exceptions exist as discussed below.
oLarge Retailers – General retailers over 8,000 sq. ft. in size (e.g. grocery stores, drug stores, big box retail, etc.) that have less than 10% of their floor area dedicated to alcohol sales are exempt from obtaining a CUP for alcohol sales, as well as single-serve restrictions, and separation requirements. Additionally, since these retailers are exempt from obtaining a CUP, requirements related to tobacco sales are not implemented as conditions of approval; however, tobacco sales at these locations are typically operated as an accessory use and displayed with limited visibility and restricted public access.
oNon-Conforming Alcohol Sales – Existing businesses that were established prior to the required CUP process or have CUP’s that do not prohibit the sales of single- serve alcoholic beverages are currently permitted to sell single-serve alcoholic beverages. This single-serve allowance is protected for these retailers pursuant to California Business and Professions Code Section 23790, and the City Attorney’s Office has confirmed that the subject business may maintain their existing single- serve alcoholic beverage allowances.
oNon-Conforming Tobacco Sales – Although intended to be applicable to all retail sales of tobacco, nonconforming establishments that were established prior to the current operational standards are permitted to remain (e.g. smoke shops permitted to remain as non-conforming uses with display area that exceeds current limitations). However, in practice and due to a lack of enforcement processes, these requirements have only been implemented on new businesses. 3 6
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New/Updated Standards and Definitions
•Definitions – New definitions were added to clarify existing standards and implement new requirements included in the proposal. For example, definitions clearly defining the different types of alcohol sales were added and updated while new definitions relating to “Deemed Approved” requirements and tobacco products were included in the proposed amendment. Additionally, the definition of “single-serve alcoholic beverage” was added; however, this definition previously existed in a different section of the Development Code.
•Land Use Table – Tobacco sales were relocated to reflect their allowance only as an accessory use.
•Alcoholic Beverage Sales – Proposed Development Code standards added or updated via the proposed amendment include the following:
oDeemed Approved – Designates all applicable businesses (e.g. existing non- conforming businesses) “Deemed Approved Establishments” who are subject to all performance standards and any associated Conditional Use Permit. While the prohibition of single-serve alcoholic beverage sales and the implementation of the previously discussed operating standards are not applicable to these establishments pursuant to California Business and Professions Code Section 23790, the noted performance standards are applicable as well as California Business and Professions Code Sections 25612 and 25612.5 (Attachment G).
Applicable performance standards generally address adverse impacts to the area, nuisance activities, signage, and site upkeep in accordance with State law standards; however, they lack the specificity of the operating standards imposed on new business and recently approved business due to the protections afforded to existing nonconforming alcohol sales establishments by the noted Business and Professions Code.
oUpdated Training – Required training is changed from the Responsible Beverage Service Training (RBS) program to the Licensee Education on Alcohol and Drugs (LEAD) program, which is intended to train retail sales employees as opposed to RBS which is intended to train employees in the service sector (e.g. on-site consumption of alcoholic beverages).
•Tobacco Sales – Proposed Development Code standards added or updated via the proposed amendment include the following:
oNonconforming Tobacco Retailers – Designates all applicable businesses (e.g. existing non-conforming tobacco retailers) as nonconforming who are subject to all operational standards, including display area limitations. Once a nonconforming tobacco retailer is in compliance with all operating standards, they are granted a Tobacco Retailer License.
oOperational Standards – New operational standards are included in the proposed amendment to match those standards currently present for off-site alcohol sales establishment. These new standards include public health, safety, and nuisance reduction measures such as standards on lighting, refuse containers/collection, loitering, signage, mitigation of alcohol related problems, and compliance with all 3 6
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applicable laws. Additionally, prohibitions on the sales of drug paraphernalia, flavored tobacco, as well as vegetation that may provide hiding places or window coverings that obstruct the view of the interior of establishments has been added.
Inasmuch as tobacco sales are not regulated by the State of California to the extent that alcohol sales are, the City is legally afforded the ability to implement operating standards to all tobacco retailers, which the noted Senate Bill 793 and Assembly Bill 935 support.
•Inspections/Violations – Since current VMC standards do not include an inspection or violation schedule to ensure ongoing compliance, the proposed amendment corrects this omission by adding the following:
oInitial & Annual Compliance Monitoring – As proposed, all applicable businesses will be required to have an initial compliance inspection as well as annual inspections. Existing Deemed Approved Establishments and nonconforming tobacco retailers would be provided a minimum of 90 days to obtain initial compliance, with new businesses requiring compliance prior to opening. oViolations Schedule – If existing businesses cannot pass an initial compliance inspection within the 90-day grace period, or if businesses fall out of compliance after they have been previously determined to be in compliance with City standards, the business would be subject to inspections at least every fifteen days as well as citations and applicable fees.
•Licensing – Businesses obtaining compliance with operational standards, performance standards, or obtaining a Tobacco Retailer License will be subject to site inspections to ensure compliance with the operating/performance standards discussed. Subsequently, after passed inspections and completed business license applications, retailers will be issued a business license that confirms the business has obtained and maintains Deemed Approved Status and/or a Tobacco Retailer License. •Applicability – The provisions of the proposed update to the City’s Alcoholic Beverage and Tobacco sales standards would retain limited exceptions for large retailers, who would be subject to all applicable operational/performance standards; however, as proposed these establishments would not be subject to the annual compliance monitoring process. Additionally, the allowances for non-conforming alcohol sales and non-conforming tobacco sales would be adjusted as noted in the following discussion.
City staff has identified 81 licensed businesses that would be subject to the provisions of the proposed update to the City’s Alcoholic Beverage and Tobacco sales standards. oNon-Conforming Alcohol Sales – Non-conforming establishments that were established prior to the prohibition on the sales of single-serve alcoholic beverages and previously permitted to continue sales of single-serve alcoholic beverages would maintain that allowance in compliance with the California Business and Professions Code. These businesses would be subject to initial and annual compliance monitoring to verify adherence to applicable performance standards. oNon-Conforming Tobacco Sales – Non-conforming establishments that were established prior to the current operational standards would be required to comply with all operational standards noted herein. However, non-conforming smoke 3 6
5 0
shops would be permitted to exceed display area size requirements given the nature of use.
Given the City’s strategic goals and the health and safety matters detailed in this report, staff is recommending that the City Council adopt Ordinance No. 2450 to further regulate and inspect retail establishments that sell alcohol or tobacco for off-site consumption.
Attachments: A. Ordinance No. 2450 – Draft Municipal Code Amendments B. Executive Summary, Except Minutes & PC Staff Report
C. Ordinance Nos. 2299, 2324, & 2339 – Summaries/Excerpt Text D. Senate Bill 793 & Assembly Bill 935
E. CA Department of Justice Tobacco Grant Program Fact Sheet F. Homeless Outreach & Proximity to Alcohol/Tobacco Retailers G. CA Business and Professions Code Sections 25612 & 25612.5
CITY COUNCIL
ATTACHMENT A
Draft Ordinance No. 2450
ORDINANCE NO. 2450
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VICTORVILLE APPROVING AMENDMENT CASE PLAN22-00002, AN AMENDMENT TO THE VICTORVILLE MUNICIPAL
CODE WITH AN ENVIRONMENTAL EXEMPTION MAKING VARIOUS CHANGES TO TITLE 16 TO REGULATE THE RETAIL SALE OF ALCOHOL AND TOBACCO FOR OFF-SITE
CONSUMPTION CITYWIDE BY UPDATING EXISTING OPERATING STANDARDS AND
INTRODUCING NEW OPERATING STANDARDS APPLICABLE TO NEW, EXISTING, AND
DEEMED APPROVED BUSINESSES WITHIN THE CITY OF VICTORVILLE, WHICH INCLUDE
BUT ARE NOT LIMITED TO STANDARDS RELATING TO PROPERTY MAINTENANCE,
ALCOHOL AND TOBACCO DISPLAY AREA, ALCOHOL AND TOBACCO SIGNAGE,
TOBACCO PARAPHERNALIA, AND THE PROHIBITED SALES OF SINGLE-SERVE
ALCOHOLIC BEVERAGES AND DRUG PARAPHERNALIA, AS WELL AS INITIAL AND
ANNUAL COMPLIANCE INSPECTION AND LICENSING PROCESSES
WHEREAS, Pursuant to Article XI, Section 7 of the California Constitution, the City of Victorville (City”) is authorized to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and WHEREAS, Pursuant to Title 7, Division 1, Chapter 4, Article 2, Section 65850 of the Government Code of the State of California, the City may adopt by ordinance regulations affecting: the use of buildings, structures and land as between industry, business, residences, open space, including agriculture recreation, enjoyment of scenic beauty, use of natural resources, and other purposes; regulations of signs and billboards; the size of lots, yards, courts and other open spaces; and the intensity of land uses; and WHEREAS, Pursuant to Title 7, Division 1, Chapter 4, Article 2, Section 65850 of the Government Code of the State of California, the City has adopted Title 16, Chapter 2, Article 1, Section 16-2.01.010 of the Victorville Municipal Code, providing the authority to amend Title 16 of the Victorville Municipal Code and the various regulations, requirements, exceptions and guidelines located therein; and
WHEREAS, Pursuant to Title 7, Division 1, Chapter 4, Article 2, Section 65860 of the Government Code of the State of California, the City of Victorville Zoning Ordinance shall be amended to be consistent with the General Plan within reasonable time; and WHEREAS, Pursuant to Section 16-2.01.020 of the Victorville Municipal Code, the City of Victorville has initiated amendments to Title 16 of the Victorville Municipal Code in order to modify Title 16 of the Victorville Municipal Code (the “Development Code”) in a manner that will allow for proactive enforcement of State and local alcohol and tobacco regulations and requirements; and WHEREAS, Pursuant to Title 7, Division 1, Chapter 4, Article 2 of the Government Code, State of California and Section 16-2.01.040 of a Victorville Municipal Code, the Victorville
Planning Commission opened a public hearing on March 13th, 2024, and closed the public hearing on May 8, 2024 to hear arguments for and against the proposed amendments to the Development Code; and after hearing all testimony offered; the Victorville Planning Commission adopted Resolution No. P-24-005, which recommended to the City Council the adoption of Municipal Code amendments specified in Planning Case No. PLAN22-00002; and WHEREAS, the City Council previously adopted Ordinance No. 2299 on June 18, 2013, that established the prohibition of single-serve alcohol sales for any new business seeking approval to sell alcoholic beverages for off-site consumption; and WHEREAS, the City Council previously adopted Ordinance No. 2324 on October 7, 2014, that: required most existing and new business selling alcoholic beverages to obtain a discretionary conditional use permit; instituted limited exceptions for the issuance of a Finding of Public Convenience or Necessity in census tracts overconcentrated with licenses to sell alcohol as determined by the California Department of Alcoholic Beverage Control; added distance requirements for the placement of establishments selling alcoholic beverages in relation to the location of sensitive uses such as residentially zoned property, schools, religious facilities, and parks/playgrounds; and introduced design and operating standards for businesses selling alcohol for off-site consumption aimed at public nuisance prevention that include requirements such as sufficient lighting, adequate refuse collection, discouragement of loitering, signage limitations, prohibited sale of drug paraphernalia, site maintenance, and sufficient employee training; and WHEREAS, the City Council previously adopted Ordinance No. 2339 on August 18, 2015, that: established that retail tobacco and tobacco paraphernalia sales would only be possible at locations permitted to sell alcohol for off-site consumption and regulated the display of tobacco products as well as prohibited smoking or vaping on the business premises and the sale of drug paraphernalia; and prohibited any new smoke shops or smoking lounges within the City of Victorville; and
WHEREAS, the City Council made extensive findings when adopting Ordinance Nos. 2299, 2324, and 2339, that the City Council continues to find applicable and valid, and which include findings that:
•Additional regulatory measures are needed to protect residential, commercial, industrial, and civic uses from the harmful effects attributable to the sale of alcoholic beverages; and •Neighborhood character can change over time and the careful regulation of nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute to the deterioration of neighborhoods; and
•Land use regulations can be structured to provide opportunities for alcoholic beverages sales establishments to operate in a mutually beneficial relationship to each other and to other commercial services while not becoming the source of undue public nuisances in the community; and
•Prohibiting and regulating certain land uses will assist on creating a safer community by eliminating the ability of certain harmful businesses to locate in Victorville, thus deterring the patrons of these business from loitering in retail areas which may occur due to the nature and operations of certain land uses; and
•There is a need to prohibit and regulate certain land uses by Ordinance in order to help achieve the City Councils goals of creating a safer, prettier and cleaner community; and •Prohibiting and regulating certain uses in commercial neighborhoods will create a prettier, cleaner community by keeping undesirable businesses out of commercial areas and attracting desirable businesses and owners to commercial neighborhoods; and •The failure of tobacco retailers to comply with tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of Victorville; and WHEREAS, on January 1, 2023, California Senate Bill 793 became effective and prohibits tobacco retailers from selling, offering to sell, or possessing flavored tobacco products; excepting for hookah tobacco, loose leaf tobacco, and handmade premium cigars; and WHEREAS, on January 1, 2024, California Assembly Bill 935 became effective and strengthened the California flavored tobacco products prohibition by establishing the California Department of Public Health (CDPH) as the primary state enforcement agency, increased penalties for retailers who do not comply with the law, and changed the definition of a retail location to include mobile units such as booths and stands; and WHEREAS, the City Council finds that the proposed Victorville Municipal Code Amendment will further consistency with the General Plan in compliance with Title 7, Division 1, Chapter 4, Article 2, Section 65860 of the of California Government Code since the Land Use Element of the General Plan includes Policy LU-N.7 requires that properties are adequately maintained, both for safety and aesthetic reasons, by encouraging voluntary compliance whenever possible, and utilizing Code enforcement as necessary, which the proposed amendment will address due to the inclusion of an annual inspection process for applicable alcohol sales establishments and tobacco retailers; and WHEREAS, the City Council finds that the proposed amendments to Title 16 of the Victorville Municipal Code (also known as the “Development Code”) relating to tobacco sales are
necessary to comply with current State laws and ensure business locations are adequately maintained as required by the General Plan; and
WHEREAS, the City Council finds that local tobacco control laws that provide for the suspension or revocation of local licenses for the violation of California tobacco control laws are authorized pursuant to Section 22971.3 of the California Business and Professions Code; and WHEREAS, the City Council finds that current operating standards required by the Development Code for businesses selling alcohol and tobacco for off-site consumption are currently limited to enforcement during initial business opening without a means to ensure ongoing compliance; and
WHEREAS, the City Council finds that ongoing compliance inspections and an associated violation schedule is necessary to ensure compliance with existing and proposed operating standards and/or performance standards for applicable business engaging in sale of alcohol and tobacco for off-site consumption due to the potential for non-compliance and a changing marketplace with evolving technologies and alcohol and tobacco products; and WHEREAS, the City Council finds that proposed Development Code amendments relating to new and updated definitions are necessary for clarity and to facilitate implementation of the proposed compliance inspections; and
WHEREAS, the City Council finds on their own independent judgment that this project is exempt from the California Environmental Quality Act (CEQA) based upon CEQA Guidelines Section 15061(b)(3), as there is no possibility that the proposed amendment will have a significant effect on the environment inasmuch as the proposed amendment will adopt operating standards, annual inspection and licensing procedures, and other standards that will not: directly impact the environment; modify existing codes in a manner that is inconsistent with the General Plan; or allow development without its own specific environmental review process in accordance with CEQA; and
WHEREAS, Pursuant to Title 7, Division I, Chapter 4, Article 2 of the Government Code of the State of California and Section 16-2.01.060 of the Victorville Municipal Code, a duly noticed Public Hearing was held by the City Council on the 18th day of June, 2024 to hear arguments for and against the code amendments, and after hearing all verbal and written testimony offered, including the Planning Commission’s recommendation and minutes, and after thoroughly reviewing and considering the code amendments, the City Council approved the recommendation of the Planning Commission; and
WHEREAS, the City Council declares that, should any provision, section, paragraph, sentence or word of this ordinance be rendered or declared invalid by any final court action in a
court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of this ordinance as hereby adopted shall remain in full force and effect.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF VICTORVILLE DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Recitals
The recitals set forth above are true and correct, and are hereby incorporated by this reference as if set forth in their entirety.
Section 2. Certification
The City Clerk shall certify to the passage of this Ordinance and shall cause the same to be published according to law.
Section 3. Additions, Deletions, and Revisions of Various Sections of Title 16 to the Victorville Municipal Code
Title 16 of the Victorville Municipal Code is hereby amended as described within Exhibit “A” (with included legend defining editing notes as well as existing, new, and deleted text by means of underscores, strikethroughs, and italicization for reference only).
Exhibit “A”
Legend
Existing Text
Deleted Text
Revised Text
New Text
{Editing Notes}
Chapter 1: Development Department
Article 3: Definitions
Section 16-1.03.010: - Definitions
Arm's length transaction
means a sale of a tobacco retailer location or business in good faith and for valuable consideration that reflects the fair market value in the open market between two or more 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 violations of the Development Code is not an arm's length transaction.
Alcoholic Beverage
means any liquid or solid containing alcohol, spirits, liquor, wine, or beer, that contains one-half of one percent or more of alcohol by volume and that is fit for beverage purposes either alone or when diluted, mixed or combined with other substances, the sale of which requires an ABC license.
Alcoholic beverage, single-serve
means an alcoholic beverage, as defined in this Section, that is packaged for sale in single unit quantities described as: individual containers of beer, malt liquor and alcoholic energy drinks of any size; individual containers of wine of less than 750 ml in size; individual containers of distilled spirits of less than 375 ml in size; or any other individual container of alcoholic beverage for single-serve consumption.
This definition does not include:
(i) beverages in kegs or other types of containers, with a volume of two or more gallons, which are clearly designed to dispense multiple servings; or
(ii) alcoholic beverages sold in manufacturers pre-packaged multi-unit quantities to include:
wine in bottles or containers smaller than 750 ml; individual containers of distilled spirits of less than 375 ml in size; wine coolers, beer, malt liquor and alcoholic energy drinks in containers of any size; and/or any other individual alcoholic beverage for single-serve consumption.
Alcoholic beverage sales establishment
including “alcohol sales establishment” or “alcoholic beverage establishment”, means an establishment that conducts sales of alcoholic beverages for consumption on or off the premises where sold and is licensed by the ABC for the retail sale of alcoholic beverages for on-site or off-site consumption
Alcoholic beverage sales establishment, nonconforming
means any alcoholic beverage sales establishment that does not conform to the regulations of this Title, and for which a valid ABC license had been issued and used in the exercise of the rights and privileges conferred by the license, which lawfully existed at the time the regulations with which it does not conform became effective, regardless of whether such establishment was allowed as part of a conditional use permit granted prior to the time the regulations with which it does not conform became effective. Such an establishment shall be considered a deemed approved establishment and shall no longer be considered a legal nonconforming use.
On-site alcoholic beverage establishment
Alcoholic beverage establishment, on-site
means an establishment that conducts sales of alcoholic beverages for consumption on the premises where sold.
Off-site alcoholic beverage establishment
Alcoholic beverage establishment, off-site
means an establishment that conducts retail sales of alcoholic beverages for consumption off the premises where sold.
California Department of Alcoholic Beverage Control or ABC means the department of the state of California empowered to act pursuant to Article XX, Section 22, of the California Constitution and authorized to administer the provisions of the Alcoholic Beverage Control Act
Deemed approved establishment
Including “deemed approved alcohol sales establishment” means any nonconforming alcoholic beverage sales establishment as defined in this Section. Such establishment shall be considered a deemed approved establishment effective on the date the regulations with which it does not conform became effective.
Deemed approved status
means the permitted use of land for a deemed approved establishment that conducts retail sales of alcoholic beverages for consumption off the premises where sold. Deemed approved status replaces nonconforming status for off-site alcohol establishments and remains in effect as long as the deemed approved establishment complies with the applicable performance standards and other deemed approved regulations provided in the Development Code.
Drug paraphernalia
as defined in California Health and Safety Code sections 11014.5 and 11364.5. "Drug paraphernalia" means all equipment products and materials of any kind that are used,
intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance (as defined in California Health and Safety Code Section 11054 et seq.) in violation of the California Uniform Controlled Substances Act, commencing with California Health and Safety Code section 11000.
Electronic smoking product and/or device
(also known as "electronic cigarette," "e-cigarette," "electronic nicotine delivery system," "e- cigar," "e-cigarillo," "e-pipe," "e-hookah," "hookah pen," "vape pen" etc.) is a battery operated device used to inhale a aerosolized or vaporized substance that frequently, though not always, contains nicotine. 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. The sale of electronic smoking products and devices are hereby regulated by the Victorville Municipal Code in the same manner as tobacco product and paraphernalia sales. 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.
Person
means any natural person, partnership, cooperative association, corporation, joint venture, limited liability company, personal representative, receiver, trustee, assignee, or any other legal entity or combination of the foregoing acting as a single unit.
Proprietor
means a person with an ownership or managerial interest in a business. An “ownership interest” shall be found 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 found to exist when a person can or does have, or can or does share, ultimate control over the day-to-day operations of a business.
Smoke shop
an establishment that either devotes more than 10 percent of its total floor area to tobacco products, including paraphernalia, or devotes more than a 2 foot depth by 4 foot length section of a single shelf space for display for sale of tobacco paraphernalia.
Tobacco paraphernalia
shall mean any paraphernalia, equipment, device, or instrument that is primarily designed or manufactured for the smoking, chewing, absorbing, dissolving, inhaling, snorting, sniffing, or ingesting by any other means into the body of tobacco or tobacco products. Items or devices classified as tobacco paraphernalia include but are not limited to the following: cigarette papers or wrappers, blunt wraps as defined in Section 308 of the California Penal Code, pipes, holders of smoking materials of all types, cigarette rolling machines, or other instruments or things designed for the smoking or ingestion of tobacco products, including electronic smoking products and/or devices. Lighters and matches shall be excluded from the definition of tobacco paraphernalia.
Tobacco product
shall mean any product in leaf, flake, plug, liquid, or any other form, containing nicotine derived from the tobacco plant, or otherwise derived, which is intended to enable human consumption of the tobacco or nicotine in the product, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means. Tobacco product includes any component, part, or accessory used to enable human consumption of tobacco or nicotine, regardless of if that product contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, and tobacco paraphernalia as defined in this Section. For purposes of the Development Code, the term "tobacco product" excludes any product that has been specifically approved by the United States Food and Drug Administration (FDA) for sale as a tobacco/smoking cessation product or for other medical purposes, where such product is marketed and sold solely for such an approved purpose.
Tobacco product 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.
Tobacco product, flavored
means any tobacco product that imparts 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 a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.
Tobacco product, presumptive flavored
Means 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 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 has a minty or cooling effect, such as describing the product as “chill,” “ice,” “fresh,” “arctic,” or “frost.”
Tobacco retailer establishment
Including “tobacco retailer” means any establishment that sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, tobacco paraphernalia, or any electronic smoking product and/or device. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. This definition shall not include wholesales or distributors not authorized to engage in retail sales of tobacco products directly to consumers.
Tobacco retailer establishment, nonconforming
means any tobacco retailer that does not conform to the regulations of the Development Code, and which lawfully existed at the time the regulations with which it does not conform became effective.
Tobacco retailer license (TRL)
means the license required to be obtained and maintained by a tobacco retailer establishment as required in Article 7, Chapter 3 of the Development Code. {Position new/revised definitions in alphabetical order within existing definitions table}
Chapter 3: Zoning and Land Use Requirements
Article 7: Land Use and Special Requirements
Section 16-3.07.010: - Permitted and conditional land uses – All zoning districts ZONET
Y
P
E
USE
AE A SR R1 R2 R3 R4 MDR RMPD C1 C2/
C4 CA CM IPD M1 M2 PC
14) ALCOHOL
Alcoholic
beverage
sales for
consumption
on-site or off-
the premises
site (See Sec.
16-
3.07.02015;
alcohol sales)
- - - - - - - - - P/C P/C P/C P/C P/C P/C P/C P/C
25) TOBACCO
COMMERCIAL
Tobacco sales
(See Sec. 16-
3.07.020;
Tobacco
product and
paraphernalia
sales
requirements)
{Delete “Tobacco” Land Use – Renumber Uses 26) through 32) as 25) through 31) accordingly} ZONET
Y
P
E
USE
AE A SR R1 R2 R3 R4 MDR RMPD C1 C2/
C4 CA CM IPD M1 M2 PC
30) ACCESSORY USES (Subject to Sections 16-3.07.030 & 16-3.07.040 of the V.M.C.)
COMMERCIAL
Tobacco sales
(See Sec. 16-
3.07.015)
- - - - - - - - - P P P P P P P P
{Add Accessory Use – Position in alphabetical order within existing list of accessory uses} Section 16-3.07.020: - Special requirements for certain permitted and conditional uses {Remove subsections (a) “Alcohol sales” and (k) “Tobacco product and paraphernalia sales requirements” in their entirety; reassign remaining subsections as (a) through (j) accordingly.}
Section 16-3.07.015: - Special requirements and regulations for alcoholic beverage sales establishments and tobacco retailers
Because the use of alcohol and tobacco are restricted for use by adults twenty-one years of age or older and in an effort to prevent minors from accessing alcohol or tobacco, as well as to ensure alcoholic beverage establishments and tobacco retailers do not negatively impact neighboring properties and businesses, the City of Victorville (“City”) has developed minimum standard licensing and operating requirements. These requirements implement an annual inspection process applicable to the majority of the off-site alcoholic beverage establishments and tobacco retailers operating within the City, and are provided in order to help ensure these uses are not injurious to the health, safety and welfare of the community. (a) Alcoholic beverage sales
This Section requires conditional use permits for new alcoholic beverage sales establishments, unless otherwise exempt; confers “deemed approved” status on all legal nonconforming off- site alcoholic beverage establishments; provides regulations for the continued operation of off- site alcoholic beverage sales establishments; sets forth grounds for the modification, revocation and termination of conditional use permits and deemed approved status for establishments violating the provisions of this Section; and outlines investigation and hearing procedures for addressing violations to protect the general health, safety, and welfare of the residents and businesses in the City and to prevent nuisance activities where alcoholic beverage sales occur. (1) Purposes and Intent
(i) The specific purposes for enacting this Section are as follows:
a. To protect residential, commercial, industrial, civic and religious _land uses and minimize the adverse impacts of nonconforming and incompatible uses; b. To provide regulations to address problems associated with the public consumption of alcoholic beverages such as litter, loitering, graffiti, unruly behavior, violence, vandalism, and escalated noise levels, and ensure that alcoholic beverage sales establishments do not become the source of undue public nuisances in the community;
c. To provide for properly maintained alcoholic beverage sales establishments so that the secondary effects of negative impacts generated by these activities on the surrounding environment are mitigated;
d. To monitor deemed approved establishments to ensure they do not substantially change in mode or character of operation; and
e. To provide opportunities for alcoholic beverage sales establishments to operate in a mutually beneficial relationship to each other and to other surrounding uses. (ii) This Section does not itself authorize or permit alcoholic beverage sales establishments, but only applies to such establishments where otherwise allowed or permitted within an applicable zoning district. The requirements and regulations set forth herein are intended to complement California’s alcohol-related laws and the City does not intend to replace or usurp any powers vested in the California Department of Alcoholic Beverage Control (ABC).
(2) Administration
(i) Applicability.
a. The provisions of this Section shall apply to the extent permissible under other laws to all establishments located in the City that sell alcoholic beverages for on-site or off-site consumption.
b. Whenever any provision in this Section, in an existing conditional use permit, or in any other law, ordinance, or regulation of any kind, imposes overlapping or contradictory regulations, or contains restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in this Section. (ii) Planning Commission public hearings
a. The Planning Commission may conduct public hearings and make determinations on whether alcoholic beverage sale establishments are in compliance with conditions of approval, operational standards, or the deemed approved performance standards prescribed within this Section, and may modify or revoke an alcohol sales establishment's conditional use permit or deemed approved status in order to obtain compliance with the provisions of this Section. This provision is not intended to restrict the powers and duties otherwise pertaining to other city officers or bodies in the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. The Planning Commission shall have the powers and duties assigned to it by the Development Code, the Victorville Municipal Code, and by this Subsection 16-3.07.015(a).
1. Any action taken by the Planning Commission shall not cause any associated business license to be modified, suspended, or revoked, unless otherwise authorized pursuant to Chapter 7, Article 2 of this Title. (iii) Inspection and right of entry
a. The sale of alcoholic beverages is a closely regulated industry. The officials responsible for enforcement of the Victorville Municipal Code or other ordinances of the City, or their duly authorized representatives, may enter on any site or into any structure for the purpose of inspection, provided they do so in a reasonable manner and in accordance with the procedures in Section 16-6.01.050 of this Title, whenever they have cause to suspect a violation of these regulations, or whenever necessary to the investigation of violations of the conditions of approval, operational standards, or the deemed approved performance standards prescribed in Subsection 16-3.07.015(a)(5)(iii) of this Section. Inspections not otherwise based on cause to suspect a violation shall only be conducted at the intervals and in the manner prescribed within Subsection 16-3.07.015(c)(1) of this Section. b. Any and all such inspections shall further be conducted in compliance with the Fourth Amendment to the United States Constitution.
(3) Requirements and standards.
(i) Conditional use permit required
a. Except as provided in Subsections b., c., and d. below, all alcoholic beverage establishments to which this Chapter is applicable shall obtain a conditional use permit pursuant to Article 2 of this Chapter and satisfy all conditions as set forth in any applicable law or regulation, including any law or regulation of the Victorville Municipal Code, in any entitlement, and in any license issued, prior to engaging in any alcoholic beverage sales activity.
b. Unless otherwise required by this Chapter, a conditional use permit shall not be required of an off-site alcoholic beverage sales establishment consisting of a general retail store, a grocery store, or a retail pharmacy with greater than 8,000 square feet of gross floor area and a maximum of 10 percent of the gross floor area devoted to the sale and display of alcoholic beverages. If found to be in violation of this Chapter, such alcoholic beverage establishments exempt from the requirement of a conditional use permit pursuant to this Subsection can lose their exemption pursuant to the business license revocation procedures provided in Chapter 7 of this Title. If such revocation is granted, such establishment will need to comply with obtaining a conditional use permit prior to continuing the sale of alcoholic beverages.
c. Unless otherwise required by this Chapter, a conditional use permit shall not be required of a restaurant, as defined in Section 16-1.03.010 of this Title, that serves alcoholic beverages for on-site consumption, limited to on-sale beer and wine, non- fortified products only.
d. Unless otherwise required by this Chapter, a deemed approved establishment operating in accordance with the deemed approved performance standards in Subsection 16-3.07.015(a)(5)(iii) and otherwise maintaining deemed approved status shall not be required to obtain a conditional use permit. (ii) Finding of public convenience or necessity
a. Pursuant to California Business and Professions Code Section 23958.4, in areas with an over-concentration of off-site alcoholic beverage establishment licenses issued by the ABC, the City desires to strike a balance between the number of off- site licenses and the convenience of store customers. As a result, consideration to approve a finding of public convenience or necessity may be given by the City Council, Planning Commission, or Zoning Administrator, as applicable, to businesses wishing to obtain off-site alcoholic beverage establishment licenses issued by the ABC in over-concentrated areas that comply with the following criteria:
1. The retailer must occupy greater than 8,000 square feet of gross floor area or be tied to a fueling station on the premises with fuel sales comprising the majority of the business's sales;
2. A retailer tied to a fueling station with less than 8,000 square feet of gross floor area shall be limited to off-site beer and wine, non-fortified products only;
3. No more than 10% of the floor area may be devoted to alcoholic beverage display, unless a larger percentage of display is otherwise approved by the Planning Commission;
4. At least 10% of the floor area must be devoted to food sales and non-alcoholic beverages;
5. If location of the proposed business is within a high crime area, which is defined as Police Department calls for service for alcoholic beverage-related incidents of 20% greater than the average number of such incidents reported for the City as a whole, the hearing body may use that fact in denying the application or the Public Convenience or Necessity finding required by the ABC;
6. The property/building/use has no outstanding Building or Health Code violations or Code Enforcement activity;
7. The site is properly maintained, including building improvements, landscaping, and lighting; and
8. The owner/applicant has no history of violations with the ABC and/or City of Victorville.
b. Prior to the establishment of any business selling alcoholic beverages, when within the Zoning Administrator's purview, the Zoning Administrator, when required pursuant to California Business and Professions Code Section 23958.4 shall make the finding of public convenience or necessity. Prior to making said finding, the Zoning Administrator shall consult with the City Police Department to receive that agency's comments. If the comments received indicate concerns, the Zoning Administrator shall not make the finding, but shall require the applicant to submit an application for a conditional use permit for Planning Commission review, when not otherwise required.
c. If any other discretionary approvals are required, the public convenience or necessity finding shall be incorporated into the process for such discretionary approval review.
(iii) Distance requirements
a. No off-site alcoholic beverage establishment shall be located within 600 feet of residentially zoned property, public or private schools, religious facilities, or parks or playgrounds, except:
1. A general retail store, or grocery store, or retail pharmacy with greater than 8,000 square feet of gross floor area and a maximum of 10 percent of the gross floor area devoted to the sale and display of alcoholic beverages, unless a larger percentage of display is otherwise approved by the Planning Commission; or
2. A convenience market, as defined in Section 16-1.03.010 of this Title, with a maximum of 10 percent of the retail display area devoted to the sale and display of alcoholic beverages, limited to off-site beer and wine, non-fortified products only. Retail display area includes all floor area within the establishment that is accessible and within view of customers, including aisles, and floor area occupied by shelves, counters, and refrigerator coolers. b. No bar/nightclub, as defined in Section 16-1.03.010 of this Title, that sells alcoholic beverages for on-site consumption shall be located within 600 feet of residentially zoned property, public or private schools, religious facilities, or parks or playgrounds. A micro-brewery, licensed and classified by the ABC as a Small Beer Manufacturer (License Type 23), or a billiard parlor as defined in Section 16-
1.03.010 of this Title, shall not be considered a bar/ nightclub. c. For purposes of this Subsection, distances shall be measured between the closest property lines of the affected locations.
(iv) Operational standards; additional conditions of approval a. All new off-site alcoholic beverage establishments (those established on or after [the effective date of this ordinance]) shall be designed, constructed, and operated to conform with all of the following operational standards and alcoholic beverage sales limitations:
1. An establishment shall not result in adverse effects to the health, peace, or safety of persons residing or working in the surrounding area.
2. An establishment shall be prohibited from selling single-serve alcoholic beverages as follows:
i. Individual containers of beer, malt liquor and alcoholic energy drinks of any size; individual containers of wine of less than 750 ml in size; individual containers of distilled spirits of less than 375 ml in size; or any other individual container of alcoholic beverage for single-serve consumption. This restriction shall not be required of an establishment consisting of a general retail store, a grocery store, or a retail pharmacy with greater than 8,000 square feet of gross floor area. This restriction is not intended to prohibit the sale of such beverages in kegs or other types of containers, with a volume of two or more gallons, which are clearly designed to dispense multiple servings.
ii. Wine in bottles or containers smaller than 750 ml; individual containers of distilled spirits of less than 375 ml in size; wine coolers, beer, malt liquor and alcoholic energy drinks in containers of any size; and/or any other individual alcoholic beverage for single-serve consumption shall only be sold in the manufacturer's pre-packaged multi-unit quantities.
A. The above single-serve restrictions do not apply to off-site alcoholic beverage sales establishments that are: exempt from obtaining a Conditional Use Permit pursuant to Subsection 16-3.07.015(a)(3)(i); or existing establishments selling alcoholic beverages for off-site consumption with an active ABC beer, wine or liquor license established prior to July 18, 2013 (the effective date of Ordinance No. 2299), unless the ABC license has lapsed for 90 or more consecutive days; or the establishment was originally prohibited from selling single-serve alcoholic beverages through a Conditional Use Permit, a Finding of Public Convenience or Necessity and/or through an ABC license.
3. An establishment shall not result in nuisance activities within the premises or on adjacent properties or roadways , including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, sales to minors or police detentions and arrests that were not otherwise mitigated during the early stages of disturbance.
4. An establishment shall comply with all provisions of local, state or federal laws, regulations or orders, including without limitation, those of the ABC; California Business and Professions Code sections 24200, 24200.6, 25612, and 25612.5; as well as any condition imposed on any permits issued pursuant to such applicable laws, regulations or orders. This includes payment of annual City business license fees.
5. The premises upkeep and operating characteristics shall be compatible with and shall not adversely affect the livability or appropriate development of abutting
properties and the surrounding neighborhood.
6. An establishment shall comply with the following public nuisance prevention measures:
i. Lighting: Exterior areas of a single-tenant or multi-tenant property, including but not limited to parking lots, driveways, circulation areas, passageways, recesses, and grounds contiguous to buildings, shall be provided with sufficient illumination levels to make clearly visible the presence of any persons on or about the premises from dusk to dawn in order to provide a safe, secure environment for all persons, property, and vehicles on-site. A minimum of 0.5 foot candle of illumination shall be maintained at any land surface point throughout the area to be illuminated. The overall area to be illuminated on-site shall have a minimum average of 2 foot candles at the land surface. Where a light source is directed to emanate horizontally and is visible from outside the property boundary, shielding shall be required to reduce glare to the greatest degree practicable.
ii. Litter: Adequate litter receptacles shall be provided on site and in the building. The premises shall be kept free of the accumulation of litter and shall be removed no less frequently than once each day the business is open.
iii. Loitering: The establishment's operators or employees shall be required to discourage loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested to leave fail to do so.
iv. Signage: There shall be no exterior advertising of alcoholic products, or tobacco and paraphernalia or similarly controlled products in excess of the signage allowances provided by the California Business and Professions Code and Article 22 of this Chapter.
v. Signs: The following signs shall be required to be prominently posted in a readily visible manner on an interior wall or fixture, and not on windows, in English and Spanish:
A. "California State Law prohibits the sale of alcoholic beverages to persons under 21 years of age."
B. "No Loitering or Public Drinking."
C. "It is illegal to possess an open container of alcohol in the vicinity of this establishment."
vi. Mitigating Alcohol Related Problems: The establishment shall be required to operate in a manner which mitigates alcohol related problems that negatively impact those individuals living or working in the neighborhood, including without limitation, loitering, violence, drunkenness, public urination, solicitation, drug-dealing, drug use, and loud noise on or near the premises.
Such mitigation measures shall include the operators and employees of the establishment maintaining adequate surveillance of the premises and nearby areas and contacting local law enforcement officials during the early stages of a disturbance.
vii. Drug Paraphernalia: An off-site alcohol establishment shall be prohibited from selling drug paraphernalia as defined in Health and Safety Code sections 11014.5 and 11364.5. "Drug paraphernalia" means all equipment products and materials of any kind that are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing,
injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance (as defined in California Health and Safety Code Section 11054 et seq.) in violation of the California Uniform Controlled Substances Act commencing with California Health and Safety Code section 11000.
viii. Prohibited Vegetation: Exterior vegetation shall not be planted or maintained that could be used as a hiding place for persons on the premises. Exterior vegetation may be planted and maintained in a manner that minimizes its use as a hiding place.
ix. Window Obstructions: To ensure a clear and unobstructed view of the interior of the premises from the exterior public sidewalk or entrance, including the area in which the cash registers are maintained, window obstructions (including window signs, vending machines, shelves, racks, storage, etc.) shall not cumulatively block windows or entry doors in excess of the allowances provided for window signs by Article 22 of this Chapter. x. Training: Each off-site alcoholic beverage establishment operator and its employees selling alcohol shall complete the Licensee Education on Alcohol and Drugs (LEAD) program training provided by the California Department of Alcoholic Beverage Control. LEAD certificates shall be kept on the premises and provided to City officials within 48 hours of a written request. xi. Posting of Documents: A copy of these operational standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment as well as any City code enforcement officer, or authorized state or county official.
b. The above operational standards and beverage sales limitations shall be incorporated into any new conditional use permit for off-site alcoholic beverage sales issued under the provisions of this Article or any business license issued under the provisions of this Title that authorizes new off-site alcoholic beverages sales if no conditional use permit is otherwise required. Dependent upon the facts and circumstances of any given application, the Planning Commission or the Zoning Administrator for such permits or licenses as are within his or her approval authority, may include other conditions in an establishment’s conditional use permit or business license to mitigate nuisance, including but not limited to: limit the hours of operation or other operational characteristics of the use; restrict outdoor storage and display; require a special security plan or security measures; make alterations to the entries/exits or other floor plan changes; or add requirements for buffering, screening, lighting, planting areas, or other site elements to avoid adverse impacts on adjacent lots or the surrounding areas.
c. Failure to comply with any of the above operational standards or added conditions of approval shall constitute grounds (but not the sole grounds) for revocation of a conditional use permit and/or business license.
(4) Conditional use permit modification or revocation
(i) Grounds for modification or revocation
a. Notwithstanding the provisions of Section 16-3.02.090 of this Title, an alcoholic beverage sales establishment's conditional use permit may be modified or revoked by the Planning Commission after holding a public hearing in the manner prescribed
in Chapter 2, Article 5 of this Title, for failure to comply with operational standards, training requirements, or other conditions of approval imposed through its conditional use permit. Notice of such hearing by the Planning Commission at which it will consider the modification or revocation of an establishment's conditional use permit shall be in writing and shall state the grounds therefor. Notice shall be mailed by first-class mail and certified mail return receipt requested to the establishment’s owner and the property owner (if different) at least ten (10) days before the date of the hearing.
(ii) Procedures for Investigation of potential violations of conditions of approval and/or operational standards and remedies are set forth in Subsection 16-3.07.015(a)(6), below.
(5) Deemed approved alcoholic beverage sales regulations (i) Regulations Established.
a. Except as otherwise provided in this Chapter, any off-site alcoholic beverage establishment in the City that is a nonconforming alcoholic beverage establishment, as defined in Section 16-3.01.010 of this Title, lawfully operating prior to [the effective date of this ordinance], shall thereafter be a deemed approved establishment in accordance with Subsection 16-3.07.015(a)(5)(ii). In addition, any alcoholic beverage establishment exempt from the requirement to obtain a conditional use permit pursuant to Subsection 16-3.07.015(a)(3)(i)b that lawfully commences operations on or after [the effective date of this ordinance] shall be an establishment with deemed approved status for purposes of this Section. Such establishments may continue to lawfully operate provided the business is conducted in compliance with the performance standards contained in Subsection 16-
3.07.015(a)(5)(iii) and all other applicable provisions of the deemed approved regulations specified in this Subsection 16-3.07.015(a)(5). (ii) Automatic deemed approved establishment designation a. As of [the effective date of this ordinance], each off-site alcoholic beverage establishment in the City that is a nonconforming alcoholic beverage establishment, as defined in Section 16-3.01.010 of this Title, lawfully operating prior to [the effective date of this ordinance] shall be considered a deemed approved establishment and shall no longer be considered a legal nonconforming use. In addition, any alcoholic beverage establishment exempt from the requirement to obtain a conditional use permit pursuant to Subsection 16-3.07.015(a)(3)(i)b that lawfully commences operations on or after [the effective date of this ordinance] shall be an establishment with deemed approved status for purposes of this Section. A deemed approved establishment shall obtain and retain its deemed approved status as long as:
1. The establishment complies with the deemed approved performance standards set forth in Subsection 16-3.07.015(a)(5)(iii); and
2. The establishment complies with any conditions contained in such establishment’s previously-granted conditional use permit (if any) or business license which are consistent with the operational standards in Subsection 16-
3.07.015(a)(3)(iv), or any additional conditions imposed on the deemed approved establishment as a result of modifications imposed by the Planning Commission under Subsections 16-3.07.015(a)(5)(vi) and (a)(6) (as applicable); and
3. The establishment pays all required fees and undergoes an initial compliance check within ninety (90) days of [the effective date of this ordinance] and annually thereafter in conjunction with the business license renewal process (as applicable) to ensure such establishments remain in compliance with the performance standards and all other applicable provisions of the deemed approved alcoholic beverage sales regulations; and
4. The establishment does not change its type of ABC license within a license classification or "substantially change its mode or character of operation," as provided in Subsection 16-3.07.015(a)(5)(v).
(iii) Deemed approved performance standards for off-site alcohol sales establishments a. The deemed approved performance standards set forth in this Subsection shall apply to all off-site alcoholic beverage sales establishments that hold deemed approved status as set forth above. In order to retain deemed approved status, such establishments must be operated and maintained in compliance with all of the following:
1. An establishment shall not result in adverse effects to the health, peace, or safety of persons residing or working in the surrounding area.
2. An establishment shall not result in nuisance activities within the premises or on adjacent properties or roadways , including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, sales to minors or police detentions and arrests that were not otherwise mitigated during the early stages of disturbance.
3. An establishment shall comply with all provisions of local, state or federal laws, regulations or orders, including without limitation, those of the ABC; California Business and Professions Code sections 24200, 24200.6, 25612, and 25612.5; as well as any condition imposed on any permits issued pursuant to such applicable laws, regulations or orders, excluding any previously required training.
This includes payment of annual City business license fees.
4. The establishment’s premises upkeep and operating characteristics shall be compatible with, and shall not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.
5. Training: Each off-site alcoholic beverage establishment operator and their employees selling alcohol shall complete the Licensee Education on Alcohol and Drugs (LEAD) program training provided by the ABC within 60 days of hire for employees hired after [effective date of ordinance] or within ninety (90) days of said date for existing employees. LEAD certificates shall be kept on the premises and provided to City officials within 48 hours of a written request.
6. Posting of Documents: A copy of these performance standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment as well as any City code enforcement officer, or authorized state or county official.
b. Failure to comply with the performance standards set forth herein shall constitute a public nuisance.
(iv) Notification to owners of deemed approved establishments a. The City shall notify each owner and/or operator of an off-site alcoholic beverage establishment of its deemed approved status at the address as shown on their City business license, and also, if not the same, shall notify any property owner at the address shown on the county assessor's property tax assessment records. The notice shall be sent by certified mail with return receipt requested and shall include:
1. A copy of the performance standards in Subsection 16-03.07.015(a)(5)(iii), with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the alcohol sales establishment for public review;
2. Notification that the establishment is required to comply with all the performance standards;
3. Notification that initial and annual compliance inspections will be conducted by the City to ensure compliance and that collection of the compliance inspection fee set forth in the City's most recently adopted master fee schedule will be required (as applicable); and
4. Notification the establishment is required to comply with all other aspects of the deemed approved regulations.
b. Should the notice be returned, then the notice shall be sent via first-class mail and hand delivered by City Code Enforcement or Planning Department staff to the alcohol sales establishment. Failure of any person to receive notice given pursuant to this section shall not affect the deemed approved status of the establishment. (v) Change in ABC License Type; Substantial Change in Mode or Character of Operation. a. In order to continue operation upon the occurrence of any of the following, a deemed approved alcoholic beverage establishment shall require approval of a conditional use permit, or modification of an existing conditional use permit, as the case may be, in the manner provided by this Section:
1. The establishment changes its alcoholic beverage sales activity so that ABC requires a different type of license.
2. There is a substantial change in the mode or character of operation. As used herein, the phrase "substantial change in mode or character of operation" shall include, but not be limited to, any of the following:
i. The establishment increases the floor or land area or shelf space devoted to the display or sales of any alcoholic beverage beyond that which actually existed (for any nonconforming establishment) or was permitted by any conditional use permit immediately prior to the date the establishment initially was deemed approved;
ii. The establishment extends its hours of operation by thirty minutes or more; iii. The establishment voluntarily discontinues its active operation for more than ninety (90) consecutive days;
iv. The establishment ceases to be licensed by the ABC; v. Any other circumstances that result in a substantial change in the mode or character of operation, except for those circumstances listed in subdivision (b) of Section 23790 of the California Business and Professions Code. b. Upon notification of or discovery by the City of any of the above occurrences, a public hearing before the Planning Commission shall be held in accordance with Chapter 2, Article 5 of this Title, to determine whether a substantial change in the mode or
character of operation of the establishment has occurred. If the Planning Commission determines that a substantial change has occurred, the alcoholic beverage sales establishment must cease operation and may not resume unless it applies for and obtains a new or modified conditional use permit in conformance with this Chapter. (vi) Deemed approved establishment status modification or revocation a. Grounds for modification or revocation
1. An alcoholic beverage sales establishment's deemed approved status may be modified or revoked by the Planning Commission for failure to comply with the performance standards in Subsection 16-3.07.015(a)(5)(iii) after holding a public hearing in the manner prescribed in Chapter 2, Article 5 of this Title. Notice of such hearing by the Planning Commission shall be in writing and shall state the grounds therefor. Notice shall be mailed by first-class mail and certified mail return receipt requested to the establishment’s owner and the property owner (if different) at least ten (10) days before the date of the hearing.
b. Procedures for investigation of potential violations of performance standards and remedies are set forth in Subsection 16-3.07.015(a)(6), below. (6) Investigative procedures for potential violation of conditions of approval and/or operational standards, or deemed approved performance standards applicable to off-site alcohol beverage sales establishments; remedies
(i) The following investigative procedures shall be utilized for potential violations of conditions of approval and/or operational standards, or deemed approved performance standards applicable to off-site alcohol beverage sales establishments a. Upon the City's receipt of a complaint from the public, police department, City official, or any other interested person that an off-site alcohol beverage sales establishment is operating in violation of: (1) the conditions of approval set forth in its conditional use permit and/or the operational standards in Subsection 16-
3.07.015(a)(3)(iv); or (2) in the case of a deemed approved establishment, the performance standards in Subsection 16-3.07.015(a)(5)(iii) and/or any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator, the following procedures shall apply:
1. A City code enforcement officer (or other designated City representative) shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the establishment’s compliance with the applicable conditions, operational standards, or performance standards.
2. If the enforcement officer (or other designated City representative) determines that the establishment is in violation of the applicable conditions of approval or standards, he/she shall give written notice of the violation to the owner and/or operator of the establishment as set forth herein and seek to remedy the violation by issuing an administrative citation pursuant to Chapter 1.05 of Title 1 of the Victorville Municipal Code if the violation is not timely corrected and no hearing on the notice of violation is requested pursuant to Section 16-6.01.150.
The notice of violation shall be given in accordance with Sections 16-6.01.070
and 16-6.01.080 of this Title. However, after providing written notice of violation, should the enforcement officer (or other designated City representative) in his or her sole discretion, determine that the violation is not capable of correction, presents a serious threat to public health or safety, or otherwise warrants expedited action, he or she may, in lieu of following the administrative citation procedure, refer the matter directly to the Planning Commission for a hearing at which the establishment's conditional use permit or deemed approved status may be modified or revoked.
3. Any notice of violation or administrative citation issued under this Section shall be issued, processed, and enforced in compliance with the provisions of Chapter 6, Article 1 of this Title or Chapter 1.05 of Title 1, respectively, unless otherwise expressly provided by this Section. If the owner or operator receiving a notice of violation requests a hearing pursuant to Section 16-6.01.150 of this Title, the City Manager or his/her designee may, in addition to holding such a hearing, make a recommendation to the Planning Commission as set forth in Subdivisions i and ii below. If the owner or operator receiving an administrative citation requests an appeal pursuant to Section 1.05.090 of Title 1, and an appeal hearing is held pursuant to that Section, the hearing officer may, in addition to exercising the powers in Section 1.05.090, likewise make a recommendation to the Planning Commission as set forth in Subdivisions i and ii below:
i. In the case of a conditionally permitted establishment, to conduct a hearing to consider modifying or revoking the establishment's conditional use permit, if in the judgment of the City Manager or his/her designee / hearing officer, based upon information then before him or her, such action is necessary to ensure compliance with this Section. Such recommendation may include the suggestion of additional or amended reasonable conditions on the use, including but not limited to, the conditions listed in Subsection 16-
3.07.015(a)(3)(iv)b of this Section and the operational standards listed in Subsection 16-3.07.015(a)(3)(iv)a; or
ii. In the case of a deemed approved establishment, to conduct a hearing to consider modifying or revoking the establishment's deemed approved status, if in the judgment of the City Manager or his/her designee / hearing officer, based upon information then before him or her, such action is necessary to ensure compliance with this Section. Such recommendation may include the suggestion of imposing reasonable conditions on the establishment, including but not limited to, the operating standards and conditions listed in Subsection 16-3.07.015(a)(3)(iv)a.
4. If a hearing before the Planning Commission is conducted on a potential violation (in the manner prescribed in Chapter 2, Article 5 of this Title) the Planning Commission shall determine whether the establishment is in compliance with:
i. In the case of a conditionally permitted establishment, the operational standards and/or conditions of approval in the establishment’s use permit.
Based on this determination, the Planning Commission may continue the operations of the establishment under the existing conditional use permit; modify the conditional use permit by imposing additional reasonable conditions, including but not limited to, the operating standards and conditions listed in Subsection 16-3.07.015(a)(3)(iv), as are in its judgment necessary to ensure compliance with the operational standards and/or
conditions of approval; or may revoke the establishment’s conditional use permit. If the Planning Commission determines to impose further, new conditions on the establishment’s conditional use permit, such conditions shall be based upon the information then before it. In reaching a determination as to whether an establishment has violated the operational standards and/or conditions of approval, or as to the appropriateness of imposing additional or amended conditions, or revoking the use permit, the Planning Commission may consider the following:
A. The length of time the establishment has been out of compliance with the operational standards and/or conditions of approval.
B. The impact of the violation of the operational standards and/or conditions of approval on the community.
C. Any information regarding the owner of the establishment’s efforts to remedy the violation of the operational standards and/or conditions of approval. “Efforts to Remedy" shall include, but are not limited to:
I. Timely calls to the police department that are placed by the owner and/or operator of the establishment, his or her employees, or agents. It is not the intent of this Section to discourage owners and employees of alcohol establishments to report nuisance or criminal activity.
II. Requesting that those persons engaging in activities causing violations of the operational standards and or conditions of approval cease those activities, unless the owner or operator of the establishment, or his or her employees or agents feels that their personal safety would be threatened in making that request.
III. Making improvements to the establishment's property or operations, including, but not limited to, the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, the clearing of window obstructions, the cleaning of sidewalks, and the abatement of graffiti within three days. ii. In the case of a deemed approved establishment, the performance standards and/or any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator. Based on this determination, the Planning Commission may continue the deemed approved status for the establishment; modify the use by imposing reasonable conditions, including but not limited to, the operating standards and conditions listed in Subsection 16-3.07.015(a)(3)(iv) of this Title, as are in its judgment necessary to ensure compliance with the performance standards; or may revoke the establishment’s deemed approved status. If the Planning Commission determines to impose further, new conditions on the establishment, such conditions shall be based upon the information then before it. In reaching a determination as to whether a deemed approved use has violated the performance standards, or as to the appropriateness of imposing additional or amended conditions, or revoking deemed approved status, the Planning Commission may consider the following:
A. The length of time the establishment has been out of compliance with the performance standards and/or any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by
the Planning Commission or Zoning Administrator.
B. The impact of the violation of the performance standards and any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator on the community.
C. Any information regarding the owner of the deemed approved establishment’s Efforts to Remedy (as defined above) the violations of the performance standards and any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator.
5. If in the judgment of the Planning Commission, the operations of the owner or operator of the establishment constitute a nuisance, the owner or operator is unable or unwilling to abate the nuisance, and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the Planning Commission may revoke the establishment’s conditional use permit, or deemed approved status, as applicable. If revoked, any continued operation of the business shall require a new conditional use permit approved by the Planning Commission. All determinations, decisions, and conditions made or imposed regarding the alcohol sales establishment’s use shall run with the land.
6. The decision of the Planning Commission shall be final and conclusive, unless timely appealed to the City Council as set forth in Chapter 2, Article 2 of this Title.
(b) Tobacco Retailer Establishment Regulations
This Section requires a tobacco retailer license for new tobacco retailer establishments and existing nonconforming tobacco retailer establishments, unless otherwise exempt; and outlines tobacco retailer licensing and noticing procedures as well as operational standards for tobacco retailer establishments.
(1) Purpose and Intent
(i) The specific purposes for enacting this Section are as follows:
a. To prevent access to tobacco products and tobacco paraphernalia to those under twenty-one (21) years of age;
b. To protect residential, commercial, industrial, civic and religious land uses and minimize the adverse impacts of nonconforming and incompatible uses; c. To provide regulations to address problems associated with the public consumption of tobacco products such as litter, loitering, graffiti, unruly behavior, violence, vandalism, and escalated noise levels, and ensure that tobacco retailer establishments do not become the source of undue public nuisances in the community;
d. To provide for properly maintained tobacco retailer establishments so that the secondary effects of negative impacts generated by these activities on the surrounding environment are mitigated;
e. To monitor tobacco retailer establishments to ensure they do not conduct the sales of illegal goods or products; and
f. To provide opportunities for tobacco retailer establishments to operate in a mutually beneficial relationship to each other and to other surrounding uses.
(ii) This Section does not itself authorize or permit tobacco retailer establishments, but only applies to such establishments where otherwise allowed or permitted within an applicable zoning district. The requirements and regulations set forth herein are intended to complement California’s tobacco-related laws and the City does not intend to replace or usurp any powers vested in the California Department of Public Health or other agencies with enforcement duties.
(2) Administration
(i) Applicability
a. The provisions of this Subsection shall be applicable to all new tobacco retailers and existing nonconforming tobacco retailers, as defined in Section 16-1.03.010 of this Title in the City and shall apply to the extent permissible under other laws. b. The provisions of this Section shall apply to the extent permissible under other laws to all establishments located in the City that conduct retail sales of tobacco products. c. Whenever any provision in this Section, in an existing conditional use permit, or in any other law, ordinance, or regulation of any kind, imposes overlapping or contradictory regulations, or contains restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in this Section. (3) Tobacco Retailer License (TRL) required
(i) Except as provided in Subsection (iii) below, all new or existing tobacco retailers must obtain an annual tobacco retailer license (TRL) for each location at which tobacco retailing is to occur pursuant to Subsection 16-3.07.015(b)(4) of this Section and comply with and satisfy all conditions, as set forth in any applicable law or regulation, including any provision of the Development Code, in any entitlement granted, and in any business license issued, prior to engaging in any retail sales of tobacco. (ii) No tobacco retailer license may be issued to authorize retail tobacco sales at any location that is not licensed under state law to sell alcoholic beverages for consumption off the premises (e.g., an off-site alcoholic beverage sales establishment with a license issued by the ABC), except a nonconforming tobacco retailer establishment, as defined in Section 16-1.03.010 of this Title, applying for a TRL as required by this Subsection. (iii) A Tobacco retailer license shall not be required of a tobacco retailer operating as an accessory use to an alcoholic beverage sales establishment that is exempt from obtaining a conditional use permit pursuant to Subsection 16-3.07.015(a)(3)(i)b of this Section.
(4) Tobacco retailer license procedure
(i) Application for a tobacco retailer license shall be submitted in the name of each proprietor of the business 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 of all applicable federal, state, and local statutes, laws, regulations and ordinances, including, without limitation, the City’s laws affecting the
granting of a tobacco retailer license.
(ii) All applications for a tobacco retailer permit shall be submitted in conjunction with the location’s business license application (with the exception of nonconforming tobacco establishments which must submit their applications within not less than ninety (90) days of [the effective date of the ordinance]). The application shall contain, at a minimum, the following information:
a. The name, address, telephone number, driver's license or similar identification, including date of birth, of each proprietor of the business that is seeking tobacco retailer status.
b. The business name, address, telephone number and business hours of the single fixed location for which tobacco retailer status is sought. c. If the single fixed location is leased, a copy of the lease and the name, address and phone number of the property owner of the single fixed location. d. A single name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this Chapter (the "authorized address"). 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 b above. e. A statement signed by each proprietor that no drug paraphernalia, as defined in Section 16-01.03.010 of this Title, is or will be sold at the business applying for the TRL.
f. Proof that the location for which tobacco retailer status is sought has been issued a valid California Cigarette and Tobacco Products Retailer’s License by the California Department of Tax and Fee Administration.
g. Whether or not any proprietor or prior proprietor of the business, to the best of applicant's knowledge, has admitted violating, or has been found to have violated, this Chapter or whose proprietorship 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 six years.
h. Such other information as the Zoning Administrator deems necessary for the administration or enforcement of this Chapter.
i. All information required to be submitted in order to apply for a tobacco retailer license shall be updated with the City whenever the information changes. A tobacco retailer shall provide the City with any updates within ten (10) business days of a change.
j. A copy of the conditional use permit for the location, if applicable (or an explanation as to why such permit is not required).
k. Proof of a passed initial inspection or proof of a failed initial inspection still within the thirty (30) day re-inspection period, applicable to nonconforming tobacco establishments only.
(iii) Upon the receipt of an application for a tobacco retailer license and the business license fee required by the Development Code (for new establishments; no business license fee is required for existing nonconforming tobacco retailers, provided they have a current valid City business license at the time of application), the City shall grant a TRL in conjunction with the City business license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
a. The information presented in the application is incomplete, inaccurate, or false.
Intentionally supplying inaccurate or false information shall be a violation of the Development Code.
b. The application seeks authorization for tobacco retailing at a location for which this Chapter prohibits issuance of tobacco retailer licenses. However, this paragraph shall not constitute a basis for denial of a TRL if the applicant provides the City with
documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring a legally nonconforming tobacco retail establishment in an arm's length transaction.
c. The application seeks authorization for tobacco retailing for a proprietor to whom the Development Code prohibits tobacco retailer status to be granted. d. The application seeks authorization for tobacco retailing that is prohibited pursuant to this Chapter (e.g., mobile vending), that is unlawful pursuant to any provision of the Victorville Municipal Code, or that is unlawful pursuant to any other law. e. The application seeks authorization for tobacco retailing at a location in non- compliance with the operating standards and/or compliance monitoring requirements set forth in Subsections 16-3.07.015(b)(5) and 16-3.07.015(c) of this Section.
f. A denial of a license application shall be in writing, citing the reasons for such denial and shall be appealable in accordance with the administrative appeal procedures outlined in Chapter 2, Article 2 of this Title.
(iv) A TRL is non-transferable and shall be valid for a period of up to one year. A TRL is further subject to annual renewal, including licensing and inspection fees, in conjunction with the City business license renewal process.
a. A TRL renewal shall only be granted if no violations are found during the annual compliance monitoring inspection required by Subsection 16-3.07.015(c)(1) of this Section.
(v) A TRL may be denied pursuant to Section 16-3.07.015(b)(2)(iii) of this Article. (5) Existing Nonconforming Tobacco Retailer Establishments. (i) Regulations established
a. All nonconforming tobacco retail establishments, as defined in Section 16-01.03.010 of this Title, lawfully operating prior to [effective date of ordinance] are legal nonconforming uses and shall be permitted to continue operating as tobacco retailer establishments. Such establishments may continue to lawfully operate provided the business is conducted in compliance with the operating standards contained in Subsection 16-3.07.015(b)(6)(ii) and all other applicable provisions of the tobacco retailer establishment regulations specified in this Subsection 16-3.07.015(b). (ii) Automatic nonconforming tobacco retailer designation a. As of [the effective date of this ordinance], each tobacco retailer establishment in the City is a nonconforming tobacco retailer establishment, as defined in Section 16-1.01.010 of this Title, provided it was lawfully operating prior to [the effective date of this ordinance]. In order to obtain and maintain legal nonconforming status, each nonconforming tobacco retailer shall:
1. Comply with all requirements and operational standards for tobacco retailer establishments set forth in Subsection 16-3.07.015(b)(6)(ii) of this Section and the nonconforming use provisions in Article 5 of this Chapter;
2. Obtain and maintain an annual tobacco retailer license as set forth in Subsection 16-3.07.015(b)(4), as applicable; and
3. Complete and pass an initial and annual inspection as outlined in Subsection 16-3.07.015(c) of this Section.
(iii) Nonconforming tobacco retailers; Notice
a. Prior to [the effective date of the ordinance] the City shall notify the proprietor of a tobacco retailer of its nonconforming status at the address as shown on their City
business license, and also, if not the same, shall notify any property owner at the address shown on the county assessor's property tax assessment records. The notice shall be sent by certified mail with return receipt requested and shall include:
1. A copy of the tobacco operational standards specified in Subsection 16-
3.07.015(b)(6)(ii) of this Article with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the tobacco retailer establishment for public review;
2. Notification that the establishment is required to comply with all tobacco operational standards;
3. Notification that initial and annual compliance inspections will be conducted by the City to ensure compliance and that collection of the compliance inspection fee set forth in the City's most recently adopted master fee schedule will be required (as applicable);
4. Notification the establishment is required to comply with all other aspects of the tobacco retailer establishment regulations, including, the requirement to obtain a tobacco retailer license (as applicable).
b. Should the notice be returned, then the notice shall be sent via first-class mail and hand delivered by City Code Enforcement or Planning Department staff to the subject tobacco retailer business location. Failure of any person to receive notice given pursuant to this section shall not affect the nonconforming status of the establishment.
c. Nonconforming tobacco retailers shall be provided not less that ninety (90) days [from the effective date of the ordinance] to comply with the operational standards outlined in Subsection 16-3.07.015(b)(6)(ii) of this Section, unless otherwise granted an exception by the Planning Commission in conjunction with approval of a conditional use permit pursuant to Article 2 of this Chapter.
1. Within the ninety (90) day compliance period provided, tobacco retailers in full compliance with the tobacco operational standards, as determined by the City of Victorville Code Enforcement and Planning Departments in accordance the compliance monitoring procedures set out in Subsection 16-3.07.015(c), and having obtained the required tobacco retailer license shall retain their legal nonconforming tobacco retailer status.
2. Those nonconforming tobacco retailers maintaining non-compliance with the tobacco operational standards at the conclusion of the ninety (90) day compliance period, and one fifteen (15) day re-inspection period if granted after failure of an initial inspection within the ninety (90) day compliance period, regardless of licensure status, shall lose their legal nonconforming status and be deemed a public nuisance, with abatement proceedings to proceed in accordance with Title 13, Chapter 13.02 and Title 16, Chapter 6 of the Victorville Municipal Code.
(6) Tobacco Operational standards
(i) Operational standards; applicability
a. Applicable to all new and existing nonconforming tobacco retailers.
1. Tobacco retailer sales activities and establishments shall be designed, constructed, and operated to conform with all of the tobacco operational standards and display limitations outlined in Subsection 16-3.07.015(b)(6)(ii).
b. Failure to comply with any of these requirements shall constitute grounds (but not the sole grounds) for revocation of the TRL and/or the establishment’s business license.
(ii) Tobacco retailer establishments shall be designed, constructed, and operated to conform to all of the following operational standards and tobacco sales limitations:
a. An establishment shall not result in adverse effects to the health, peace, or safety of persons residing or working in the surrounding area. b. An establishment shall not result in nuisance activities within the premises or on adjacent properties or roadways, including without limitation, disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, sales to minors, or police detentions and arrests that were not otherwise mitigated during the early stages of disturbance. c. An establishment shall comply with all provisions of local, state or federal laws, regulations or orders, including without limitation, those in the California Health and Safety Code sections 11014.5 and 11364.5; the California Uniform Controlled Substances Act, commencing with California Health and Safety Code section 11000; California Business and Professions Code Sections 22950-22964; as well as any condition imposed on any permits issued pursuant to applicable laws, regulations, or orders. This includes payment of annual City business license fees. d. The premises upkeep and operating characteristics shall be compatible with, and shall not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.
e. The following shall be prohibited at any tobacco retailer business location:
1. Smoking or vaping on the premises at any time.
2. The sale of tobacco products and paraphernalia to a person under the age of
21. 3. Sales solicited or conducted on the premises by minors.
4. The sale of drug paraphernalia.
5. The sale of flavored tobacco products or presumptive flavored tobacco products.
6. Distribution of free or low-cost tobacco, tobacco products or tobacco paraphernalia, as well as tobacco coupons for said items.
7. The sale of tobacco products and paraphernalia via a vending machine, by a sidewalk vendor or mobile vehicle vendor (mobile vending), or via temporary use permit.
f. The display area of tobacco products, including tobacco paraphernalia, shall be subject to the following limitations:
1. Shall not exceed 10 percent of the total floor area of a business establishment, excluding smoke shops, as defined in Section 16-1.03.010 of this Title, maintaining legal nonconforming status and a TRL.
2. Shall be located behind a service counter in a manner that prohibits self-service by the customer.
3. Display area devoted to tobacco paraphernalia shall not exceed a 2 foot in depth by 4 foot in length section of a single shelf space, excluding smoke shops maintaining legal nonconforming status and a TRL.
g. An establishment shall comply with the following public nuisance prevention measures:
1. Lighting: Exterior areas of a single-tenant or multi-tenant property, including but not limited to parking lots, driveways, circulation areas, passageways, recesses,
and grounds contiguous to buildings, shall be provided with sufficient illumination levels to make clearly visible the presence of any persons on or about the premises from dusk to dawn in order to provide a safe, secure environment for all persons, property, and vehicles on-site. A minimum of 0.5 foot candle of illumination shall be maintained at any land surface point throughout the area to be illuminated. The overall area to be illuminated on-site shall have a minimum average of 2 foot candles at the land surface. Where a light source is directed to emanate horizontally and is visible from outside the property boundary, shielding shall be required to reduce glare to the greatest degree practicable.
2. Litter: Adequate litter receptacles shall be provided on site and in the building.
The premises shall be kept free of the accumulation of litter and shall be removed no less frequently than once each day the business is open.
3. Loitering: The establishment's operators or employees shall be required to discourage loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested to leave fail to do so.
4. Signage: There shall be no exterior advertising of alcoholic products, or tobacco and paraphernalia or similarly controlled products in excess of the signage allowances provided by the California Business and Professions Code and Article 22 of this Title.
5. Signs: The following signs shall be required to be prominently posted in a readily visible manner on an interior wall or fixture, and not on windows, in English and Spanish:
i. "California State Law prohibits the sale of tobacco products to persons under 21 years of age."
ii. "No Loitering or Public Drinking."
iii. "It is illegal to possess an open container of alcohol in the vicinity of this establishment."
6. Mitigating Related Problems: The tobacco retailer shall be required to operate in a manner which mitigates problems related to its business operations that negatively impact those individuals living or working in the neighborhood, including without limitation, loitering, violence, drunkenness, public urination, solicitation, drug-dealing, drug use, and loud noise on or near the premises.
Such mitigation measures shall include the operators and employees of the establishment maintaining adequate surveillance of the premises and nearby areas and contacting local law enforcement officials during the early stages of a disturbance.
7. Prohibited Vegetation: Exterior vegetation shall not be planted or maintained that could be used as a hiding place for persons on the premises. Exterior vegetation may be planted and maintained in a manner that minimizes its use as a hiding place.
8. Window Obstructions: To ensure a clear and unobstructed view of the interior of the premises from the exterior public sidewalk or entrance, including the area in which the cash registers are maintained, window obstructions (including window signs, vending machines, shelves, racks, storage, etc.) shall not cumulatively block windows or entry doors in excess of the allowances provided for window signs by Article 22 of this Chapter.
9. Posting of Documents: A copy of these operational standards, any applicable California Department of Tax and Fee Administration or city operating conditions and licenses shall be posted in at least one prominent place within the interior
of the establishment where it will be readily visible and legible to the employees and patrons of the establishment as well as any City code enforcement officer or authorized state or county official.
(iii) Failure to comply with any of these requirements shall constitute grounds (but not the sole grounds) for revocation of an associated conditional use permit, TRL and/or business license.
(c) Monitoring, inspections, and violations
(1) Compliance monitoring
(i) Applicability. With the exception of an off-site alcoholic beverage sales establishment consisting of a general retail store, a grocery store, or a retail pharmacy with greater than 8,000 square feet of gross floor area and a maximum of 10 percent of the gross floor area devoted to the sale and display of alcoholic beverages, all off-site alcoholic beverage sales establishments required to obtain a conditional use permit or having deemed approved status and all tobacco retailers required to obtain tobacco retailer licenses, shall be subject to an initial inspection upon approval of a conditional use permit, or upon notification provided in accordance with Subsections 16-
3.07.015(a)(5)(iv) or (b)(5)(iii) of this Section (as applicable), as well as an annual monitoring inspection thereafter in conjunction with the business license renewal process. These inspections will be made by either the Code Enforcement or Planning Departments to assess an establishment’s compliance with all applicable laws and operating or performance standards outlined in the Development Code and will include the collection of the compliance inspection fee set forth in the City's most recently adopted master fee schedule.
(ii) Scope of Alcohol Sales Establishment and Tobacco Retailer Inspections. The Code Enforcement Department or Planning Department, shall conduct an interior and exterior site inspection of public areas of each off-site alcoholic beverage establishment and tobacco retailer prior to the initial issuance of a business license or granting of a TRL, prior to the annual issuance of a renewal business license or renewal of a TRL, or upon notification provided in accordance with Subsections 16-3.07.015(a)(5)(iv) or (b)(5)(iii) of this Section The scope of the inspection shall include, but is not limited to:
a. Exterior property maintenance and cleanliness;
b. Landscape maintenance in accordance with the Development Code; c. Maintenance and upkeep of the primary structure such as windows, paint/stucco, weather protection, roof and other architectural features as well as ancillary site features such as off-street parking, trash enclosures, etc.; and d. Compliance with operating standards or performance standards outlined in Subsections 16-3.07.015(a)(3)(iv)a, (b)(6)(ii), or (a)(5)(iii)a of this Section, including without limitation, public nuisance prevention measures, display area limitations, and sales of permitted beverage type and container sizes. (iii) Alcohol Sales Establishment and Tobacco Retailer Initial Inspections. Upon approval of a conditional use permit for an off-site alcoholic beverage sales establishment, upon application by a tobacco retailer for a TRL, or upon notification to establishments provided in accordance with Subsections 16-3.07.015(a)(5)(iv) or (b)(5)(iii) of this Section, the aforementioned establishments shall undergo one initial compliance
inspection to be conducted by either the Code Enforcement Department or Planning Department prior to the issuance of a business license, prior to the granting of a TRL, or within ninety (90) days of [effective date of ordinance] for deemed approved establishments or legal nonconforming tobacco retail establishments, and one compliance re-inspection to be conducted no sooner than fifteen (15) days after a failed initial compliance inspection unless the business owner requests the re-inspection take place at an earlier date.
a. Any new off-site alcohol sales establishment for which a conditional use permit has been approved, or tobacco retailer establishment that has applied for a TRL, shall not be issued a business license, or granted a TRL, until any violation found after the initial compliance inspection, or the compliance re-inspection is resolved.
Operation of a business without a business license shall be subject to the penalties and enforcement provisions of Section 16-6.01.100 of this Title. b. Any violation found at a legal nonconforming tobacco retailer establishment or deemed approved alcohol sales establishment for which the compliance period has been exhausted in pursuant to Subsections 16-3.07.015(a)(5)(ii) or (b)(5)(iii) of this Section, shall be subject to the penalties and enforcement provisions of Section 16-
6.01.100 of this Title.
(iv) Alcohol Sales Establishment and Tobacco Retailer Annual Renewal Inspections. An off- site alcoholic beverage sales establishment for which a conditional use permit has been approved, or tobacco retailer establishment seeking a renewal business license or renewal of a TRL, or an establishment having deemed approved status, shall undergo one compliance inspection to be conducted by the Code Enforcement Department within thirty (30) days prior to the expiration of the business license or TRL, and one compliance re-inspection to be conducted no sooner than fifteen (15) days after a failed annual renewal inspection. Any violation found after the compliance re-inspection shall be subject to the penalties and enforcement provisions of Section 16-6.01.100 of this Title.
(v) Notice of Annual Alcohol Sales Establishment and Tobacco Retailer Renewal Inspection.
a. Prior to business license expiration for an off-site alcohol sales establishment or tobacco retailer, the City Manager, or his or her designee will mail a business license renewal notice to the business owner and the business owner's authorized representative (if any) notifying the business owner of the following:
1. The business owner’s requirement to renew the annual business license as well as the tobacco retailer license (as applicable); and
2. Notice that Code Enforcement staff will inspect interior and exterior public areas of the business establishment to ensure that it is compliance with applicable conditional use permits, deemed approved performance standards, or tobacco operational standards (as applicable) within thirty (30) days of the date of the renewal notice.
b. Said notice will be mailed by first-class mail to the business owner and the business owner's authorized representative (if any) as it appears in the City business license records, and a copy will also be mailed to the alcohol sales establishment or tobacco retailer establishment to be inspected. In the case of multiple business owners of the same alcohol sales establishment or tobacco retailer, notice to any one of the business owners is sufficient notice.
c. In the event a business owner, business owner’s authorized representative (if any),
or tenant at the alcohol sales establishment or tobacco retailer location refuses to allow the City access to conduct the interior and exterior site inspection of public areas, the City Manager, the City Code Enforcement Official, or their designees shall proceed in accordance with Section 16-6.01.050 of this Title and may use such other legal remedies as may be available at law or in equity to ensure that an inspection is conducted as required by this Section.
d. If the City is not able to obtain the consent of the business owner, business owner's authorized representative (if any), or tenant of the alcohol sales or tobacco retailer establishment to conduct an inspection, the City shall withhold issuance of the business license until the inspection is conducted.
(vi) Results of Initial/Annual Alcohol Sales Establishment and Tobacco Retailer Inspections.
After completion of the alcohol sales establishment or tobacco retailer initial inspections, the annual business license renewal inspections, or any re-inspection following an initial/renewal inspection where the alcohol sales establishment or tobacco retailer fails the inspection due to having violation(s) on the property, the City shall issue a Notice of Violation to the property owner and the business owner as noted in the City’s business license records pursuant to Section 16-6.01.080 of this Title. As applicable, the Notice of Violation shall contain all information required by Sections 16-6.01.060 and 16-
6.01.070 of this Title, including but not limited to, the following:
a. An itemization of any violation(s) of the applicable laws identified during the inspection;
b. The period of time given for correcting each of the identified violations; c. Notice that the City will re-inspect the alcohol sales establishment or tobacco retailer no sooner than the end of the period of time for correction; d. A statement that if the violations found by the Code Enforcement Department or Planning Department during the alcohol sales or tobacco retailer establishment re- inspection have not been corrected, the City will not issue or renew the business license, grant a renewal tobacco retailer license, confirm that the deemed approved status may be continued for an alcohol sales establishment, or confirm that legal nonconforming tobacco retailer establishment status may be maintained, as the case may be, and that the City may pursue any legal remedies available to it under Section 16-6.01.100 of this Title, and other applicable laws in order to abate said violations.
(vii)Passed Inspections. If no violations are found as a result of an initial or annual renewal inspection or re-inspection, the City’s record shall so state, and the City shall issue or renew the business license, and continue the deemed approved status of the establishment, or grant or renew the TRL, provided any other outstanding business license requirements are satisfied. All inspection reports shall be available as a public record upon request.
(2) Violations
(i) Whenever the City Manager or his/her designee determines that a violation of this Section exists, a Code Enforcement Officer shall issue a written Notice of Violation containing all information required by Sections 16-6.01.060 and 16-6.01.070 of this Title, as applicable. The notice shall be provided pursuant to Section 16-6.01.080 of this Title. Said notice shall describe with reasonable detail the violation(s) so that the business owner has the opportunity to correct any identified violation(s). Any person
who fails to comply with any provisions of this Article after receiving written notice of the violation(s) and who has exhausted the period of time provided to correct such violation(s) shall be deemed to be in violation of this Section. (ii) A violation of this Section shall be enforced in accordance with Section 16-6.01.100 of this Title. The City Manager or his/her designee may also take action to revoke an establishment’s business or tobacco retailer license and refer deemed approved or conditionally permitted establishments to the Planning Commission for revocation or modification action if the business owner has failed to correct any or all violations. Any revocation, or modification to the licenses, permit, and status noted herein shall be subject to the following standards and procedures:
a. Business and tobacco retailer licenses. Shall be subject to standards and procedures outlined in Chapter 7, Article 2 of this Title. b. Conditional use permit. Shall be subject to the standards and procedures outlined in Subsections 16-3.07.015(a)(4) and (a)(6).
c. Deemed approved establishments. Shall be subject to the standards and procedures outlined in Subsections 16-3.07.015(a)(5)(vi) and (a)(6). (iii) Any alcohol sales establishment or tobacco retailer that has been issued a notice pertaining to a violation of this Title (not including an administrative citation), may appeal such notice in accordance with Section 16-6.01.150 thereof. (iv) Any alcohol sales establishment or tobacco retailer that has been issued an administrative citation pertaining to a violation of this Title may appeal such citation in accordance with Section 1.05.090 of Chapter 1.05 of Title 1 of the Victorville Municipal Code.
(v) Any alcohol sales establishment or tobacco retailer that has been subjected to enforcement actions under Section 16-6.01.100 of this Article and remains non- compliant with any provisions thereof, including any alcohol sales establishment or tobacco retailer maintenance requirements and the adopted International Property Maintenance Code, or any state or local law relating to operating standards, property maintenance, building codes, or land use requirements, shall be considered a public nuisance and subject to abatement procedures set forth in Title 13, Chapter 13.02 and Title 16, Chapter 6 of the Victorville Municipal Code.
(3) Complaint based inspections
Nothing contained in this Article shall prevent or restrict the City's authority to inspect any alcohol sales establishment or tobacco retailer in response to a complaint alleging Victorville Municipal Code violations or violations of any other applicable laws, or to pursue any and all remedies available under the Victorville Municipal Code or other applicable laws.
(4) Failure to pay fees
Should an alcohol sales or tobacco retailer establishment business owner fail to timely pay the annual business license fee, compliance inspection fee, any cost recovery fee, or administrative fine related to the enforcement of and compliance with this Article, such unpaid fees or fines shall be a debt to the City enforceable in accordance with Sections 16-6.01.140 and 16-7.05.080 of the Development Code and Section 1.05.110 of Victorville Municipal Code.
CITY COUNCIL
ATTACHMENT B
Executive Summary, Excerpt Minutes
& PC Staff Report
EXECUTIVE SUMMARY
PLAN22-00002
PROJECT DESCRIPTION: An Amendment to the Victorville Municipal Code with an Environmental Exemption making various changes to Title 16 to regulate the retail sale of alcohol and tobacco for off-site consumption by updating existing operating standards and introducing new operating standards applicable to new and existing businesses within the City of Victorville, which include but are not limited to standards relating to property maintenance, alcohol and tobacco display area, alcohol and tobacco signage, tobacco paraphernalia, and the prohibited sales of single-serve alcoholic beverages and drug paraphernalia, as well as initial and annual compliance inspection and licensing processes.
APPLICANT: CITY OF VICTORVILLE
May 8, 2024PLANNING COMMISSION PUBLIC HEARING DATES:
SUMMARY FOR MAY 8, 2024, PLANNING COMMISSION MEETING
NUMBER OF PEOPLE WHO COMMENTED:
NUMBER OF PEOPLE SPEAKING IN FAVOR:
NUMBER OF PEOPLE SPEAKING OPPOSED:
NUMBER OF WRITTEN COMMENTS IN FAVOR:
NUMBER OF WRITTEN COMMENTS OPPOSED:
10 5
0 5
0 STAFF RECOMMENDATION: Recommend City Council Approval Recommended City Council ApprovalPLANNING COMMISSION ACTION:
PLANNING COMMISSION VOTE: Marsh Aye
Aye
Aye
Aye
No
Mesen
Thomas
Cook-Askins Jr.
Kurth
Excerpt from the May 8, 2024, Regular Planning Commission Meeting PLAN22-00002 – City of Victorville
2. An Amendment to the Victorville Municipal Code with an Environmental Exemption making various changes to Title 16 to regulate the retail sale of alcohol and tobacco for off-site consumption by updating existing operating standards and introducing new operating standards applicable to new and existing businesses within the City of Victorville, which include but are not limited to standards relating to property maintenance, alcohol and tobacco display area, alcohol and tobacco signage, tobacco paraphernalia, and the prohibited sales of single-serve alcoholic beverages and drug paraphernalia, as well as initial and annual compliance inspection and licensing processes
Location: Citywide
Recommendation:
Staff recommends that the Planning Commission conduct a public hearing, receive testimony regarding the proposed project and take the following actions:
1. Environmental Assessment - Recommend that the City Council find the Code Amendment exempt pursuant to Section 15061(b)(3) of the California Environmental Quality Act (CEQA); and
2. Code Amendment - Adopt Resolution No. P-24-005, recommending City Council approval of Municipal Code Amendment Case No. PLAN22-00002, with the allowance of minor clarifying modifications by the City Attorney.
Assistant City Planner Alex Jauregui gave a presentation.
Chairman Kurth opened the public hearing.
Speakers:
Kenneth Artry spoke in support.
Miatanae Collier spoke in support.
Linda Titus spoke in support.
Salena Thymes spoke in support.
Olivia spoke in support.
Chairman Kurth closed the public hearing.
Questions and comments ensued.
Motion was made to approve staff recommendations including the revision to the resolution.
Moved:
Seconded:
Commissioner Thomas
Commissioner Mesen
Motion passed 4-1
Ayes: Commissioner Marsh, Commissioner Mesen, Commissioner Thomas, Vice Chair Cook-Askins, Jr.
Noes: Chairman Kurth
2. An Amendment to the Victorville Municipal Code with an Environmental Exemption making various changes to Title 16 to regulate the retail sale of alcohol and tobacco for off-site consumption by updating existing operating standards and introducing new operating standards applicable to new and existing businesses within the City of Victorville, which include but are not limited to standards relating to property maintenance, alcohol and tobacco display area, alcohol and tobacco signage, tobacco paraphernalia, and the prohibited sales of single-serve alcoholic beverages and drug paraphernalia, as well as initial and annual compliance inspection and licensing processes.
Recommendation:
Staff recommends that the Planning Commission conduct a public hearing, receive testimony regarding the proposed project and take the following actions:
1. Environmental Assessment - Recommend that the City Council find the Code Amendment exempt pursuant to Section 15061(b)(3) of the California Environmental Quality Act (CEQA); and
2. Code Amendment - Adopt Resolution No. P-24-005, recommending City Council approval of Municipal Code Amendment Case No. PLAN22-00002, with the allowance of minor clarifying modifications by the City Attorney.
Item Number: 2
Planning Commission
CONTINUED PUBLIC HEARINGS
Meeting of: May 8, 2024
Submitted By:
Alex Jauregui, Assistant City Planner
Case:
PLAN22-00002
Subject:
An Amendment to the Victorville Municipal Code with an Environmental Exemption making various changes to Title 16 to regulate the retail sale of alcohol and tobacco for off-site consumption by updating existing operating standards and introducing new operating standards applicable to new and existing businesses within the City of Victorville, which include but are not limited to standards relating to property maintenance, alcohol and tobacco display area, alcohol and tobacco signage, tobacco paraphernalia, and the prohibited sales of single-serve alcoholic beverages and drug paraphernalia, as well as initial and annual compliance inspection and licensing processes.
Applicant:
City of Victorville - Planning Department
Location:
Citywide
Recommendation:
Staff recommends that the Planning Commission conduct a public hearing, receive testimony regarding the proposed project and take the following actions:
1. Environmental Assessment - Recommend that the City Council find the Code Amendment exempt pursuant to Section 15061(b)(3) of the California Environmental Quality Act (CEQA); and
2. Code Amendment - Adopt Resolution No. P-24-005, recommending City Council approval of Municipal Code Amendment Case No. PLAN22-00002, with the allowance of minor clarifying modifications by the City Attorney.
Summary:
The City of Victorville has historically regulated the sale of alcohol for off-site consumption with discretionary Conditional Use Permit requirements for establishments within over- concentrated census tracts and near sensitive land uses such as residences, schools, religious facilities, and parks. In response to the negative effects these establishments may pose to public health, regulations were broadened over the past eleven years to include a prohibition on single-serve alcoholic beverages in 2013, operating restrictions for businesses selling alcohol for off-site consumption in 2014, as well as tobacco sales and paraphernalia restrictions in 2015 that have largely prevented the further proliferation of new liquor stores and smoke shops within the City of Victorville.
Although these newer provisions of the Victorville Municipal Code (VMC) have proven effective at prohibiting the sales of single-serve alcoholic beverages and instituting operating restrictions at new businesses that engage in the retail sales of alcohol and tobacco products for off-site consumption, existing non-conforming businesses that were established prior to these new regulations taking effect have not been held to the same standards as new businesses and still account for the vast majority of establishments within the City. Furthermore, some conforming establishments operating with an active Conditional Use Permit have not been held accountable to maintain required operating restrictions due to the lack of a regular inspection process.
As discussed herein, the subject amendment to the VMC (Attachment A) would implement proactive enforcement of City regulations, ensure compliance monitoring is conducted regularly for all applicable businesses conducting alcohol and tobacco sales for off-site consumption, update standards related to new businesses conducting alcohol and tobacco sales, as well as identify nonconforming off-site alcohol retailers (as “Deemed Approved”) and nonconforming tobacco retailers while causing both retailer types to be subject to performance/operating standards not required when they were originally allowed to engage in retail sales. If approved, the subject amendment and included monitoring/inspection process will be applicable to approximately 63 existing businesses that conduct sales of alcohol and tobacco for off-site consumption, with approximately 14% of these businesses subject to the single-service prohibition requirements of the VMC via an existing Conditional Use Permit.
This code amendment was originally proposed with the prohibition of single-serve alcoholic beverages for all existing nonconforming establishments, however the current proposal contained herein removes the prohibition in accordance with California Business and Professions Code protected allowances for these retailers as discussed further in this report.
Discussion/Analysis:
Background
Planning Commission Actions
On July 12, 2023, the Planning Commission recommended that City staff proceed with initiating a VMC Amendment to formally consider a proposal that would update existing
City regulations applicable to alcohol and tobacco sales for off-site consumption. The noted Planning Commission recommendation came after review of a draft amendment to the VMC during a public meeting, which included draft amendments that would update allowances for single-serve alcoholic beverages, institute an annual compliance inspection process, and clarify enforcement procedures as well as the violation schedule.
On March 13, 2024, and on April 10, 2024, the Planning Commission conducted public hearings to review proposed VMC amendments that included the introduction of an annual monitoring inspection applicable to most alcohol and tobacco retailers conducting sales for off-site consumption, the updating to City regulations prohibiting the sales of flavored tobacco in accordance with State law, as well the enforcement of single-serve alcoholic beverage restrictions on both new and existing alcoholic beverage sales establishments. Based on public comments received that noted the proposed alcohol provisions were in noncompliance with the California Business and Processional Code and that the tobacco provisions should be enforced by the appropriate State agency in lieu of the City, the Planning Commission continued this item to allow City staff and the City Attorney time to review and adjust the proposed amendment as needed.
City Council Actions
Preceding the VMC updates recommended for consideration, the City of Victorville has previously taken action to regulate alcohol and tobacco sales for off-site consumption beginning in 2013 as follows:
• Ordinance No. 2299 – Adopted June 18, 2013
• Ordinance No. 2324 – Adopted October 7, 2014
• Ordinance No. 2339 – Adopted August 18, 2015
A complete summary of the noted Ordinances and the regulations they established has been provided for reference (see Attachment B); however, in general these actions by the City first established the prohibition of single-serve alcoholic beverages for new businesses, subsequently introduced separation requirements and operating requirements for establishments selling alcoholic beverages, and lastly added standards for the display of tobacco products and paraphernalia. While the noted City Ordinances and associated requirements are enforced on all new businesses during an initial site inspection, the City currently lacks procedures to ensure ongoing compliance for both new and existing businesses.
State of California Actions
Since the adoption of Ordinance No. 2339, the State of California has passed various regulations (Attachment C), which regulate the sale of tobacco and require incorporation into the City’s current VMC standards, as discussed below. • Senate Bill (SB) 793 - Effective January 1, 2023, SB 793 prohibits tobacco retailers from selling, offering to sell, or possessing flavored tobacco products; however, hookah tobacco, loose leaf tobacco, and handmade premium cigars are exempted
from this prohibition. While SB 793 prohibited the sales of flavored tobacco, it did not establish a responsible enforcement agency.
• Assembly Bill (AB) 935 - Effective January 1, 2024, AB 935 strengthened the California flavored tobacco products prohibition by establishing the California Department of Public Health (CDPH) as the primary state enforcement agency, increased penalties for retailers who do not comply with the law, and changed the definition of a retail location to include mobile units such as booths and stands. • Grant Funding for Enforcement – The State encourages any local public agency, such as a city, that has authority to enforce tobacco-related state laws or local ordinances to apply and receive funding through the California Department of Justice’s Tobacco Grant Program to support local partners in the:
o Enforcement of state and local tobacco laws, such as the prohibition of flavored tobacco products;
o Prosecution and penalization of retailers who sell or market tobacco products to youth under the age of 21, including over the internet; o Education to tobacco retailers on state and local tobacco laws; and o Investigation and inspections of retailer licensing compliance.
The program is funded by Proposition 56, the California Healthcare, Research and Prevention Tobacco Tax Act of 2016.
City Findings & Data
The City of Victorville and its residents have been subject to adverse impacts resulting from alcohol sales for off-site consumption and tobacco sales that have led to adopting of noted Ordinance Nos. 2299, 2324, & 2339. The previously adopted Ordinances specifically note that the City Council previously found that:
• Additional regulatory measures were needed to protect residential, commercial, industrial, and civic uses from the harmful effects attributable to the sale of alcoholic beverages. (Ordinance No. 2324)
• Neighborhood character can change over time and the careful regulation of nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute to the deterioration of neighborhoods. (Ordinance No. 2324) • Land use regulations can be structured to provide opportunities for alcoholic beverages sales establishments to operate in a mutually beneficial relationship to each other and to other commercial services while not becoming the source of undue public nuisances in the community. (Ordinance No. 2324) • Prohibiting and regulating certain land uses will assist in creating a safer community by eliminating the ability of certain harmful businesses to locate in Victorville, thus deterring the patrons of these business from loitering in retail areas which may occur due to the nature and operations of certain land uses. (Ordinance No. 2339)
• There is a need to prohibit and regulate certain land uses by Ordinance in order to help achieve the City Councils goals of creating a safer, prettier and cleaner community. (Ordinance No. 2339)
• Prohibiting and regulating certain uses in commercial neighborhoods will create a prettier, cleaner community by keeping undesirable businesses out of commercial areas and attracting desirable businesses and owners to commercial neighborhoods. (Ordinance No. 2339)
• The failure of tobacco retailers to comply with tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of Victorville. (Ordinance No. 2339) While the City has previously enacted regulations on the sale of alcohol and tobacco within the City of Victorville, recent data indicates that many of the adverse impacts cited by the City Council are still be ongoing as evidenced by call for service data provided by the Police Department. Based upon a sample of 17 alcohol/tobacco retailers and 8 smoke shops throughout the City of Victorville between the six month period of June – December of 2023, an average of approximately 29 calls for service were placed at alcohol/tobacco retailer locations and 11 calls for service at smoke shops. For comparison, a sample of 6 supermarkets in the City over the same period resulted an average of 48.5 call for service at each location; however, supermarkets are approximately 40,000 sq. ft. in size and located within large shopping centers compared to alcohol/tobacco retailers and smoke shops that are usually less than 8,000 sq. ft. in size and located in small commercial buildings or developed as stand-alone businesses.
Public Comments Received
City staff received the public comments from two separate attorneys representing potentially impacted businesses as well as individual members of the community (Attachment D). As described in the attached correspondence, the representatives of potentially impacted businesses have cited concerns over the proposed alcohol and tobacco regulations as noted below.
• The California Business and Professions Code is cited as permitting existing non- conforming establishments the ability to continue to sell single-serve alcoholic beverages and advertise externally these items.
• Concerns with burdening the Code Enforcement Department with determining the extent of the proposed prohibition of flavored tobacco as well as unequal and potentially inconsistent implementation of the requirements that can be enforced by the California Department of Public Health were noted.
Additionally, comments from residents of the City have been received detailing their experiences in the City of Victorville and supporting the proposed amendment, including a request to implement the proposal on an expedited timeline.
While Staff has addressed concerns regarding allowances provided by the California Business and Professions Code by permitting existing businesses with single-serve
alcoholic beverage and alcohol/tobacco signage allowances to maintain those nonconforming operations, the City Attorney and City staff have not adjusted proposed regulations on flavored tobacco. It is the position of the City Attorney and staff that the proposed regulations prohibiting flavored tobacco, which match State law requirements, are within the City’s police powers and can be enforced if adopted.
Proposed Code Amendments
Inasmuch as the City’s existing alcohol/tobacco requirements and standards are only monitored during business openings and via public complaints, the proposed amendments discussed herein aim generally to establish an enforcement procedure and penalties for non-compliance with the previously adopted City Ordinances and current State law.
In order to add enforcement measures to ensure compliance with existing VMC standards and existing Conditional Use Permits relating to alcohol and tobacco sales for off-site consumption, as well as revise existing standards on tobacco sales to reflect the Statewide prohibition on flavored tobacco, City staff has prepared a draft Code Amendment to Title 16 of the VMC (known as the “Development Code”) to update the City’s standards and implementation processes. While the Development Code Amendments appear as all new text within Resolution No. P-24-005 (Attachment A), this is a result of relocating alcohol and tobacco regulations to a new VMC section for clarity, with existing VMC Sections 16-3.07.020(a)&(k) also provided for reference (Attachment E). As proposed, the draft Code Amendment is comprised of the reorganization of existing standards as well as the inclusion of new/updated standards and definitions as discussed below.
Existing/Reorganized Standards
• Alcoholic Beverage Sales – Standards that currently exist in the Development Code and whose changes were limited to relocation and minor text adjustments for clarity include the following:
o Conditional Use Permit (CUP) – Requirements for alcoholic beverage sales establishments to obtain a CUP prior to operation remain unchanged, with exceptions remaining for large retailers (e.g. grocery and drug stores) and restaurants selling beer & wine.
o Finding of Public Convenience or Necessity (FPCN) – Allowances for the limited approval of a FPCN, required for business seeking alcohol sales within overconcentrated census tracts remains unchanged and continues to allow authorization for large retailers and fueling stations. ▪ Over-concentration is defined as having a higher alcohol license/population ratio within the census tract than the county license/population ratio. In these instances, the City is authorized to determine if public convenience or necessity would be served by the issuance of additional ABC licenses via an FPCN. o Distance Requirements – Prohibitions on off-site alcoholic beverage establishments and bars/nightclubs within 600 feet of sensitive land uses (e.g. schools, parks, residentially zoned property, etc.) remain unchanged with limited
exceptions for large retailers, convenience markets selling beer & wine only, and micro-breweries.
o Operational Standards – Public nuisance measures, including standards on lighting, refuse containers/collection, loitering, signage, mitigation of alcohol related problems, and compliance with all applicable laws remains unchanged.
Additionally, prohibitions on the sales of drug paraphernalia as well as vegetation that may provide hiding places or window coverings that obstruct the view of the interior of establishments has not been changed.
• Tobacco Sales – Although the proposed amendments expand upon standards for tobacco retailers, the following standards are currently included in the Development Code:
o Operational Standards – Measures that limit: display areas for tobacco and tobacco paraphernalia; locate tobacco and tobacco paraphernalia behind service counters; and the prohibition of drug paraphernalia, smoking/vaping on the premises, and the distribution of free tobacco or coupons. • Applicability – The provisions of the existing Alcoholic Beverage and Tobacco Sales standards are generally applicable to all businesses within the City; however, some limited exceptions exist as discussed below.
o Large Retailers – General retailers over 8,000 sq. ft. in size (e.g. grocery stores, drug stores, big box retail, etc.) that have less than 10% of their floor area dedicated to alcohol sales are exempt from obtaining a CUP for alcohol sales, as well as single-serve restrictions, and separation requirements. Additionally, since these retailers are exempt from obtaining a CUP, requirements related to tobacco sales are not implemented as conditions of approval; however, tobacco sales at these locations are typically operated as an accessory use and displayed with limited visibility and restricted public access.
o Non-Conforming Alcohol Sales – Existing businesses that were established prior to the required CUP process or have CUP’s that do not prohibit the sales of single- serve alcoholic beverages are currently permitted to sell single-serve alcoholic beverages. This single-serve allowance is protected for these retailers pursuant to California Business and Professions Code Section 23790 (Attachment F), and the City Attorney’s Office has confirmed that the subject business may maintain their existing single-serve alcoholic beverage allowances. o Non-Conforming Tobacco Sales – Although intended to be applicable to all retail sales of tobacco, nonconforming establishments that were established prior to the current operational standards are permitted to remain (e.g. smoke shops permitted to remain as non-conforming uses with display area that exceeds current limitations). However, in practice and due to a lack of enforcement processes, these requirements have only been implemented on new businesses.
New/Updated Standards and Definitions
• Definitions – New definitions were added to clarify existing standards and implement new requirements included in the proposal. For example, definitions clearly defining the different types of alcohol sales were added and updated while new definitions
relating to “Deemed Approved” requirements and tobacco products were included in the proposed amendment. Additionally, the definition of “single-serve alcoholic beverage” was added; however, this definition previously existed in a different section of the Development Code.
• Land Use Table – Tobacco sales were relocated to reflect their allowance only as an accessory use.
• Alcoholic Beverage Sales – Proposed Development Code standards added or updated via the proposed amendment include the following:
o Deemed Approved – Designates all applicable businesses (e.g. existing non- conforming businesses) “Deemed Approved Establishments” who are subject to all performance standards and any associated Conditional Use Permit. While the prohibition of single-serve alcoholic beverage sales and the implementation of the previously discussed operating standards are not applicable to these establishments pursuant to California Business and Professions Code Section 23790, the noted performance standards are applicable as well as California Business and Professions Code Sections 25612 and 25612.5 (Attachment G).
Applicable performance standards generally address adverse impacts to the area, nuisance activities, signage, and site upkeep in accordance with State law standards; however, they lack the specificity of the operating standards imposed on new business and recently approved business due to the protections afforded existing nonconforming alcohol sales establishments by the noted Business and Professions Code.
o Updated Training – Required training is changed from the Responsible Beverage Service Training (RBS) program to the Licensee Education on Alcohol and Drugs (LEAD) program, which is intended to train retail sales employees as opposed to RBS which is intended to train employees in the service sector (e.g. on-site consumption of alcoholic beverages).
• Tobacco Sales – Proposed Development Code standards added or updated via the proposed amendment include the following:
o Nonconforming Tobacco Retailers – Designates all applicable businesses (e.g. existing non-conforming tobacco retailers) as nonconforming who are subject to all operational standards, including display area limitations. Once a nonconforming tobacco retailer is in compliance with all operating standards, they are granted a Tobacco Retailer License.
o Operational Standards – New operational standards are included in the proposed amendment to match those standards currently present for off-site alcohol sales establishment. These new standards include public nuisance measures such as standards on lighting, refuse containers/collection, loitering, signage, mitigation of alcohol related problems, and compliance with all applicable laws remains unchanged. Additionally, prohibitions on the sales of drug paraphernalia, flavored tobacco, as well as vegetation that may provide hiding places or window coverings that obstruct the view of the interior of establishments has been added. Inasmuch as tobacco sales are not regulated by the State of California to the extent that
alcohol sales are, the City is legally afforded the ability to implement operating standards to all tobacco retailers, which the noted Senate and Assembly Bills (Attachment C) support.
• Inspections/Violations – Inasmuch as current VMC standards do not include an inspection or violation schedule to ensure ongoing compliance, the proposed amendment corrects this omission by adding the following:
o Initial & Annual Compliance Monitoring – As proposed, all applicable business will be required to have an initial compliance inspection as well as annual inspections.
Existing Deemed Approved Establishments and nonconforming tobacco retailers would be provided a minimum of 90 days to obtain initial compliance with new businesses requiring compliance prior to opening. A flow chart has been prepared identifying the key steps in the compliance monitoring and inspection process for new businesses, existing businesses, and annual inspections (Attachment H).
Additionally, a draft compliance checklist has been developed to outline the inspection parameters for applicable new businesses (Attachment I) o Violations Schedule – If business cannot obtain pass an initial compliance inspection with the 90 day year grace period, or if businesses fall out of compliance after they have been previously determined to be in compliance with City standards, the business would be subject to inspections at least every fifteen days as well as citations and applicable fees. A flow chart has been prepared identifying the ascending fee schedule and violation inspection timeline (Attachment J). • Licensing – Businesses obtaining compliance with operational standards, performance standards, or obtaining a Tobacco Retailer License will be subject to site inspections to ensure compliance with the operating/performance standards discussed. Subsequently, after passed inspections and completed business license applications, retailers will be issued a business license that confirms the business has obtained and maintains Deemed Approved Status and/or a Tobacco Retailer License. • Applicability – The provisions of the proposed update to the City’s Alcoholic Beverage and Tobacco sales standards would retain limited exceptions for large retailers, who would be subject to all applicable operational/performance standards; however, as proposed these establishments would not be subject to the annual compliance monitoring process. Additionally, the allowances for non-conforming alcohol sales and non-conforming tobacco sales would be adjusted as noted in the following discussion.
City staff has identified 63 licensed alcohol retailers and 65 licensed tobacco retailers (which includes the overlap of locations in many instances) that would be subject to the provisions of the proposed update to the City’s Alcoholic Beverage and Tobacco sales standards.
o Non-Conforming Alcohol Sales – Non-conforming establishments that were established prior to the prohibition on the sales of single-serve alcoholic beverages and previously permitted to continue sales of single-serve alcoholic beverages would main that allowance in compliance with the California Business and Professions Code. These businesses would be subject to initial and annual compliance monitoring to verify adherence to applicable performance standards.
o Non-Conforming Tobacco Sales – Non-conforming establishments that were established prior to the current operational standards would be required to comply with all operational standards noted herein. However, non-conforming smoke shops would be permitted to exceed display area size requirements given the nature of use. Inasmuch as tobacco sales is currently only permitted in conjunction with approved alcohol sales, 16 business have been previously approved and are assumed to be in compliance with current operating standards if in operation.
Number of Radius Letters Mailed:
N/A - In accordance with State law, 1/8th page advertisement prepared in lieu of radius mailers given impacts to more than one-thousand property owners. Additionally, all potentially impacted business owners were provided a direct notice via U.S. Mail to their mailing address on file with the City’s Business License Division.
Attachments: Attachment A - Resolution No. P-24-005
Attachment B - Ordinance Nos. 2299, 2324, & 2339
Attachment C - SB 793 & AB 935
Attachment D - Public Comments Received
Attachment E - VMC Sections 16-3.07.020(a)&(k)
Attachment F - CA Business and Professions Code Section 23790 Attachment G - CA Business and Professions Code Sections 25612 & 25612.5
Attachment H – New, Existing & Annual Inspection Flowcharts Attachment I - Draft Inspection Checklist
Attachment J - Violations Process Flowchart
PLANNING COMMISSION
ATTACHMENT A
Resolution No. P-24-005
Draft Development Code Amendment
RESOLUTION NO. P-24-005
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF VICTORVILLE
RECOMMENDING TO THE CITY COUNCIL THE ADOPTION OF MUNICIPAL CODE AMENDMENT CASE PLAN22-00002, AN AMENDMENT TO THE VICTORVILLE MUNICIPAL CODE WITH AN ENVIRONMENTAL EXEMPTION MAKING VARIOUS CHANGES TO TITLE 16
TO REGULATE THE RETAIL SALE OF ALCOHOL AND TOBACCO FOR OFF-SITE
CONSUMPTION BY UPDATING EXISTING OPERATING STANDARDS AND INTRODUCING
NEW OPERATING STANDARDS APPLICABLE TO NEW, EXISTING, AND DEEMED
APPROVED BUSINESSES WITHIN THE CITY OF VICTORVILLE, WHICH INCLUDE BUT ARE
NOT LIMITED TO STANDARDS RELATING TO PROPERTY MAINTENANCE, ALCOHOL AND
TOBACCO DISPLAY AREA, ALCOHOL AND TOBACCO SIGNAGE, TOBACCO
PARAPHERNALIA, AND THE PROHIBITED SALES OF SINGLE-SERVE ALCOHOLIC
BEVERAGES AND DRUG PARAPHERNALIA, AS WELL AS INITIAL AND ANNUAL COMPLIANCE INSPECTION AND LICENSING PROCESSES.
WHEREAS, pursuant to Section 16-2.01.020 of the Victorville Municipal Code, the City of Victorville has initiated amendments to Title 16 of the Victorville Municipal Code; and WHEREAS, pursuant to Section 16-2.01.030 of the Victorville Municipal Code, the City of Victorville Planning Department prepared a Staff Report detailing the proposed Victorville Municipal Code amendments as well as their conformance with applicable standards and requirements; and
WHEREAS, on the 12th day of July, 2023, the Planning Commission reviewed a draft of the proposed amendments to the Victorville Municipal Code during a public meeting and recommended that City staff proceed with initiating a Victorville Municipal Code Amendment to formally consider the proposal at a duly noticed public hearing; and WHEREAS, a public hearing was opened on the 13th day of March 2024, and closed on the 8th Day of May 2024, pursuant to Title 7, Division I, Chapter 4, Article 2 of the California Government Code to hear arguments for and against the issue; and WHEREAS, pursuant to Title 7, Division 1, Chapter 4, Article 2, Section 65850 of the California Government Code, the City may adopt by ordinance regulations affecting: the use of buildings, structures and land; signs; the size of lots, yards, courts and other open spaces; and the intensity of land use; and
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WHEREAS, pursuant to Title 7, Division 1, Chapter 4, Article 2, Section 65850 of the California Government Code, the City has adopted Title 16, Chapter 2, Article 1, Section 16-
2.01.010 of the Victorville Municipal Code, providing the authority to amend Title 16 of the Victorville Municipal Code and the various regulations, requirements, exceptions, and guidelines located therein; and
WHEREAS, pursuant to Title 7, Division 1, Chapter 4, Article 2, Section 65860 of the California Government Code, the City of Victorville Zoning Ordinance shall be amended to be consistent with the General Plan within reasonable time; and WHEREAS, the City of Victorville previously adopted Ordinance No. 2299 on June 18, 2013, that established the prohibition of single-serve alcohol sales for any new business seeking approval to sell alcoholic beverages for off-site consumption; and WHEREAS, the City of Victorville previously adopted Ordinance No. 2324 on October 7, 2014, that: required most existing and new business selling alcoholic beverages to obtain a discretionary conditional use permit; instituted limited exceptions for the issuance of a Finding of Public Convenience or Necessity in census tracts overconcentrated with licenses to sell alcohol as determined by the California Department of Alcoholic Beverage Control; added distance requirements for the placement of establishments selling alcoholic beverages in relation to the location of sensitive uses such as residentially zoned property, schools, religious facilities, and parks/playgrounds; and introduced design and operating standards for businesses selling alcohol for off-site consumption aimed at public nuisance prevention that include requirements such as sufficient lighting, adequate refuse collection, discouragement of loitering, signage limitations, prohibited sale of drug paraphernalia, site maintenance, and sufficient employee training; and WHEREAS, the City of Victorville previously adopted Ordinance No. 2339 on August 18, 2015, that: established that retail tobacco and tobacco paraphernalia sales would only be possible at locations permitted to sell alcohol for off-site consumption and regulated the display of tobacco products as well as prohibited smoking or vaping on the business premises and the sale of drug
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paraphernalia; and prohibited any new smoke shops or smoking lounges within the City of Victorville; and
WHEREAS, the City Council made extensive findings when adopting Ordinance Nos. 2299, 2324, and 2339, that the Planning Commission supports and continues to find applicable, and which include previous City Council findings that:
• Additional regulatory measures are needed to protect residential, commercial, industrial, and civic uses from the harmful effects attributable to the sale of alcoholic beverages; and Neighborhood character can change over time and the careful regulation of nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute to the deterioration of neighborhoods; and
•
•
•
Land use regulations can be structured to provide opportunities for alcoholic beverages sales establishments to operate in a mutually beneficial relationship to each other and to other commercial services while not becoming the source of undue public nuisances in the community; and
Prohibiting and regulating certain land uses will assist on creating a safer community by eliminating the ability of certain harmful businesses to locate in Victorville, thus deterring the patrons of these business from loitering in retail areas which may occur due to the nature and operations of certain land uses; and
•
•
There is a need to prohibit and regulate certain land uses by Ordinance in order to help achieve the City Councils goals of creating a safer, prettier and cleaner community; and Prohibiting and regulating certain uses in commercial neighborhoods will create a prettier, cleaner community by keeping undesirable businesses out of commercial areas and attracting desirable businesses and owners to commercial neighborhoods; and
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• The failure of tobacco retailers to comply with tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of Victorville; and WHEREAS, on January 1, 2023, California Senate Bill 793 became effective and prohibits tobacco retailers from selling, offering to sell, or possessing flavored tobacco products; excepting for hookah tobacco, loose leaf tobacco, and handmade premium cigars; and WHEREAS, on January 1, 2024, California Assembly Bill 935 became effective and strengthened the California flavored tobacco products prohibition by establishing the California Department of Public Health (CDPH) as the primary state enforcement agency, increased penalties for retailers who do not comply with the law, and changed the definition of a retail location to include mobile units such as booths and stands; and WHEREAS, the Planning Commission finds that the proposed Victorville Municipal Code Amendment will further consistency with the General Plan in compliance with Title 7, Division 1, Chapter 4, Article 2, Section 65860 of the of California Government Code since the Land Use Element of the General Plan includes Policy LU-N.7 which requires that properties are adequately maintained, both for safety and aesthetic reasons, by encouraging voluntary compliance whenever possible, and utilizing Code enforcement as necessary, which the proposed amendment will address due to the inclusion of an annual inspection process for applicable alcohol sales establishments and tobacco retailers; and WHEREAS, the Planning Commission finds that the proposed amendments to Title 16 of the Victorville Municipal Code (also known as the “Development Code”) relating to tobacco sales are necessary to comply with current State laws and ensure business locations are adequately maintained as required by the General Plan; and
WHEREAS, the Planning Commission finds that local tobacco control laws that provide for the suspension or revocation of local licenses for the violation of California tobacco control
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laws are authorized pursuant to Section 22971.3 of the California Business and Professions Code; and
WHEREAS, the Planning Commission finds that current operating standards required by the Development Code for businesses selling alcohol and tobacco for off-site consumption are currently limited to enforcement during initial business opening without a means to ensure ongoing compliance; and
WHEREAS, the Planning Commission finds that ongoing compliance inspections and an associated violation schedule is necessary to ensure compliance with existing and proposed operating standards and/or performance standards for applicable business engaging in sale of alcohol and tobacco for off-site consumption due to the potential for non-compliance and a changing marketplace with evolving technologies and alcohol and tobacco products; and WHEREAS, the Planning Commission finds that proposed Development Code amendments relating to new and updated definitions are necessary for clarity and to facilitate implementation of the proposed compliance inspections; and WHEREAS, the Planning Commission finds on their own independent judgment that this project is exempt from the California Environmental Quality Act (CEQA) based upon CEQA Guidelines Section 15061(b)(3), as there is no possibility that the proposed amendment will have a significant effect on the environment inasmuch as the proposed amendment will adopt operating standards, annual inspection and licensing procedures, and other standards that will not: directly impact the environment; modify existing codes in a manner that is inconsistent with the General Plan; or allow development without its own specific environmental review process in accordance with CEQA.
THEREFORE, BE IT RESOLVED by the Planning Commission, pursuant to Section 16-
2.01.050 of the Victorville Municipal Code, that it recommends to the City Council that Development Code Amendment PLAN22-00002, an amendment to Title 16 of the Victorville
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Municipal Code, be adopted as follows, including any non-substantive changes or other changes deemed necessary by the City Attorney for clarity or to comply with State law:
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Legend
Existing Text
Deleted Text
Revised Text
New Text
{Editing Notes}
Chapter 1: Development Department
Article 3: Definitions
Section 16-1.03.010: - Definitions
Arm's length transaction
means a sale of a tobacco retailer location or business in good faith and for valuable consideration that reflects the fair market value in the open market between two or more 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 violations of the Development Code is not an arm's length transaction.
Alcoholic Beverage
means any liquid or solid containing alcohol, spirits, liquor, wine, or beer, that contains one-half of one percent or more of alcohol by volume and that is fit for beverage purposes either alone or when diluted, mixed or combined with other substances, the sale of which requires an ABC license.
Alcoholic beverage, single-serve
means an alcoholic beverage, as defined, that is packaged for sale in single unit quantities described as: individual containers of beer, malt liquor and alcoholic energy drinks of any size; individual containers of wine of less than 750 ml in size; individual containers of distilled spirits of less than 375 ml in size; or any other individual container of alcoholic beverage for single- serve consumption.
This definition does not include:
(i) beverages in kegs or other types of containers, with a volume of two or more gallons, which are clearly designed to dispense multiple servings; or
(ii) alcoholic beverages sold in manufacturers pre-packaged multi-unit quantities to include:
wine in bottles or containers smaller than 750 ml; individual containers of distilled spirits of less than 375 ml in size; wine coolers, beer, malt liquor and alcoholic energy drinks in containers of any size; and/or any other individual alcoholic beverage for single-serve consumption.
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Alcoholic beverage sales establishment
including “alcohol sales establishment” or “alcoholic beverage establishment”, means an establishment that conducts sales of alcoholic beverages for consumption on or off the premises where sold and is licensed by the ABC for the retail sale of alcoholic beverages for on-site or off-site consumption
Alcoholic beverage sales establishment, nonconforming
means any alcoholic beverage sales establishment that does not conform to the regulations of this Title, and for which a valid ABC license had been issued and used in the exercise of the rights and privileges conferred by the license, which lawfully existed at the time the regulations with which it does not conform became effective, regardless of whether such establishment was allowed as part of a conditional use permit granted prior to the time the regulations with which it does not conform became effective. Such an establishment shall be considered a deemed approved establishment and shall no longer be considered a legal nonconforming use.
On-site alcoholic beverage establishment
Alcoholic beverage establishment, on-site
means an establishment that conducts sales of alcoholic beverages for consumption on the premises where sold.
Off-site alcoholic beverage establishment
Alcoholic beverage establishment, off-site
means an establishment that conducts retail sales of alcoholic beverages for consumption off the premises where sold.
California Department of Alcoholic Beverage Control or ABC means the department of the state of California empowered to act pursuant to Article XX, Section 22, of the California Constitution and authorized to administer the provisions of the Alcoholic Beverage Control Act
Deemed approved establishment
Including “deemed approved alcohol sales establishment” means any nonconforming alcoholic beverage sales establishment as defined in this Section. Such establishment shall be considered a deemed approved establishment effective on the date the regulations with which it does not conform became effective.
Deemed approved status
means the permitted use of land for a deemed approved establishment that conducts retail sales of alcoholic beverages for consumption off the premises where sold. Deemed approved status replaces nonconforming status for off-site alcohol establishments and remains in effect as long as the deemed approved establishment complies with the applicable performance standards and other deemed approved regulations provided in the Development Code.
Drug paraphernalia
as defined in California Health and Safety Code sections 11014.5 and 11364.5. "Drug paraphernalia" means all equipment products and materials of any kind that are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing,
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analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance (as defined in California Health and Safety Code Section 11054 et seq.) in violation of the California Uniform Controlled Substances Act, commencing with California Health and Safety Code section 11000.
Electronic smoking product and/or device
(also known as "electronic cigarette," "e-cigarette," "electronic nicotine delivery system," "e- cigar," "e-cigarillo," "e-pipe," "e-hookah," "hookah pen," "vape pen" etc.) is a battery operated device used to inhale a aerosolized or vaporized substance that frequently, though not always, contains nicotine. 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. The sale of electronic smoking products and devices are hereby regulated by the Victorville Municipal Code in the same manner as tobacco product and paraphernalia sales. 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.
Person
means any natural person, partnership, cooperative association, corporation, joint venture, limited liability company, personal representative, receiver, trustee, assignee, or any other legal entity or combination of the foregoing acting as a single unit.
Proprietor
means a person with an ownership or managerial interest in a business. An “ownership interest” shall be found 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 found to exist when a person can or does have, or can or does share, ultimate control over the day-to-day operations of a business.
Smoke shop
an establishment that either devotes more than 10 percent of its total floor area to tobacco products, including paraphernalia, or devotes more than a 2 foot depth by 4 foot length section of a single shelf space for display for sale of tobacco paraphernalia.
Tobacco paraphernalia
shall mean any paraphernalia, equipment, device, or instrument that is primarily designed or manufactured for the smoking, chewing, absorbing, dissolving, inhaling, snorting, sniffing, or ingesting by any other means into the body of tobacco or tobacco products. Items or devices classified as tobacco paraphernalia include but are not limited to the following: cigarette papers or wrappers, blunt wraps as defined in Section 308 of the California Penal Code, pipes, holders of smoking materials of all types, cigarette rolling machines, or other instruments or things designed for the smoking or ingestion of tobacco products, including electronic smoking products and/or devices. Lighters and matches shall be excluded from the definition of tobacco paraphernalia.
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Tobacco product
May 8, 2024
shall mean any product in leaf, flake, plug, liquid, or any other form, containing nicotine derived from the tobacco plant, or otherwise derived, which is intended to enable human consumption of the tobacco or nicotine in the product, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means. Tobacco product includes any component, part, or accessory used to enable human consumption of tobacco or nicotine, regardless of if that product contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, and tobacco paraphernalia as defined. For purposes of the Development Code, the term "tobacco product" excludes any product that has been specifically approved by the United States Food and Drug Administration (FDA) for sale as a tobacco/smoking cessation product or for other medical purposes, where such product is marketed and sold solely for such an approved purpose.
Tobacco product 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.
Tobacco product, flavored
means any tobacco product that imparts 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 a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.
Tobacco product, presumptive flavored
Means 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 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 has a minty or cooling effect, such as describing the product as “chill,” “ice,” “fresh,” “arctic,” or “frost.”
Tobacco retailer establishment
Including “tobacco retailer” means any establishment that sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, tobacco paraphernalia, or any electronic smoking product and/or device. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. This definition shall not include wholesales or distributors not authorized to engage in retail sales of tobacco products directly to consumers.
Tobacco retailer establishment, nonconforming
means any tobacco retailer that does not conform to the regulations of the Development Code, and which lawfully existed at the time the regulations with which it does not conform became effective.
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Tobacco retailer license (TRL)
means the license required to be obtained and maintained by a tobacco retailer establishment as required in Article 7, Chapter 3 of the Development Code. {Position new/revised definitions in alphabetical order within existing definitions table}
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Chapter 3: Zoning and Land Use Requirements
Article 7: Land Use and Special Requirements
Section 16-3.07.010: - Permitted and conditional land uses – All zoning districts T ZONE
RMPD
Y
P
E
USE
C2/
C4AE A SR R1 R2 R3 R4 MDR C1 CA CM IPD M1 M2 PC
14) ALCOHOL
Alcoholic
beverage
sales for
consumption
on-site or off-
the premises
site (See Sec.
16-
- - - - - - - - - P/C P/C P/C P/C P/C P/C P/C P/C
3.07.02015;
alcohol sales)
25) TOBACCO
Tobacco sales
(See Sec. 16-
3.07.020;
Tobacco
product and
paraphernalia
sales
requirements)
{Delete “Tobacco” Land Use – Renumber Uses 26) through 32) as 25) through 31) accordingly} T ZONE
RMPD
Y
P
E
USE
C2/
C4AE A SR R1 R2 R3 R4 MDR C1 CA CM IPD M1 M2 PC
30) ACCESSORY USES (Subject to Sections 16-3.07.030 & 16-3.07.040 of the V.M.C.) Tobacco sales
(See Sec. 16- - - - - - - - - - P P P P P P P P
3.07.015)
{Add Accessory Use – Position in alphabetical order within existing list of accessory uses} Section 16-3.07.020: - Special requirements for certain permitted and conditional uses {Remove subsections (a) “Alcohol sales” and (k) “Tobacco product and paraphernalia sales requirements” in their entirety; reassign remaining subsections as (a) through (j) accordingly.}
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Section 16-3.07.015: - Special requirements and regulations for alcoholic beverage sales establishments and tobacco retailers
Because the use of alcohol and tobacco are restricted for use by adults twenty-one years of age or older and in an effort to prevent minors from accessing alcohol or tobacco, as well as to ensure alcoholic beverage establishments and tobacco retailers do not negatively impact neighboring properties and businesses, the City of Victorville (“City”) has developed minimum standard licensing and operating requirements. These requirements implement an annual inspection process applicable to the majority of the off-site alcoholic beverage establishments and tobacco retailers operating within the City, and are provided in order to help ensure these uses are not injurious to the health, safety and welfare of the community. (a) Alcoholic beverage sales
This Section requires conditional use permits for new alcoholic beverage sales establishments, unless otherwise exempt; confers “deemed approved” status on all legal nonconforming off- site alcoholic beverage establishments; provides regulations for the continued operation of off- site alcoholic beverage sales establishments; sets forth grounds for the modification, revocation and termination of conditional use permits and deemed approved status for establishments violating the provisions of this Section; and outlines investigation and hearing procedures for addressing violations to protect the general health, safety, and welfare of the residents and businesses in the City and to prevent nuisance activities where alcoholic beverage sales occur. (1) Purposes and Intent
(i) The specific purposes for enacting this Section are as follows:
a. To protect residential, commercial, industrial, civic and religious _land uses and minimize the adverse impacts of nonconforming and incompatible uses; b. To provide regulations to address problems associated with the public consumption of alcoholic beverages such as litter, loitering, graffiti, unruly behavior, violence, vandalism, and escalated noise levels, and ensure that alcoholic beverage sales establishments do not become the source of undue public nuisances in the community;
c. To provide for properly maintained alcoholic beverage sales establishments so that the secondary effects of negative impacts generated by these activities on the surrounding environment are mitigated;
d. To monitor deemed approved establishments to ensure they do not substantially change in mode or character of operation; and
e. To provide opportunities for alcoholic beverage sales establishments to operate in a mutually beneficial relationship to each other and to other surrounding uses. (ii) This Section does not itself authorize or permit alcoholic beverage sales establishments, but only applies to such establishments where otherwise allowed or permitted within an applicable zoning district. The requirements and regulations set forth herein are intended to complement California’s alcohol-related laws and the City does not intend to replace or usurp any powers vested in the California Department of Alcoholic Beverage Control (ABC).
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(2) Administration
(i) Applicability.
a. The provisions of this Section shall apply to the extent permissible under other laws to all establishments located in the City that sell alcoholic beverages for on-site or off-site consumption.
b. Whenever any provision in this Section, in an existing conditional use permit, or in any other law, ordinance, or regulation of any kind, imposes overlapping or contradictory regulations, or contains restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in this Section. (ii) Planning Commission public hearings
a. The Planning Commission may conduct public hearings and make determinations on whether alcoholic beverage sale establishments are in compliance with conditions of approval, operational standards, or the deemed approved performance standards prescribed within this Section, and may modify or revoke an alcohol sales establishment's conditional use permit or deemed approved status in order to obtain compliance with the provisions of this Section. This provision is not intended to restrict the powers and duties otherwise pertaining to other city officers or bodies in the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. The Planning Commission shall have the powers and duties assigned to it by the Development Code, the Victorville Municipal Code, and by this Subsection 16-3.07.015(a).
1. Any action taken by the Planning Commission shall not cause any associated business license to be modified, suspended, or revoked, unless otherwise authorized pursuant to Chapter 7, Article 2 of this Title. (iii) Inspection and right of entry
a. The sale of alcoholic beverages is a closely regulated industry. The officials responsible for enforcement of the Victorville Municipal Code or other ordinances of the City, or their duly authorized representatives, may enter on any site or into any structure for the purpose of inspection, provided they do so in a reasonable manner and in accordance with the procedures in Section 16-6.01.050 of this Title, whenever they have cause to suspect a violation of these regulations, or whenever necessary to the investigation of violations of the conditions of approval, operational standards, or the deemed approved performance standards prescribed in Subsection 16-3.07.015(a)(5)(iii) of this Subsection. Inspections not otherwise based on cause to suspect a violation shall only be conducted at the intervals and in the manner prescribed within Subsection 16-3.07.015(c)(1) of this Section. b. Any and all such inspections shall further be conducted in compliance with the Fourth Amendment to the United States Constitution.
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(3) Requirements and standards.
(i) Conditional use permit required
a. Except as provided in Subsections (b), (c) and (d) below, all alcoholic beverage establishments to which this Chapter is applicable shall obtain a conditional use permit pursuant to Article 2 of this Chapter and satisfy all conditions as set forth in any applicable law or regulation, including any law or regulation of the Victorville Municipal Code, in any entitlement, and in any license issued, prior to engaging in any alcoholic beverage sales activity.
b. Unless otherwise required by this Chapter, a conditional use permit shall not be required of an off-site alcoholic beverage sales establishment consisting of a general retail store, a grocery store, or a retail pharmacy with greater than 8,000 square feet of gross floor area and a maximum of 10 percent of the gross floor area devoted to the sale and display of alcoholic beverages. If found to be in violation of this Chapter, such alcoholic beverage establishments exempt from the requirement of a conditional use permit pursuant to this Subsection can lose their exemption pursuant to the business license revocation procedures provided in Chapter 7 of this Title. If such revocation is granted, such establishment will need to comply with obtaining a conditional use permit prior to continuing the sale of alcoholic beverages.
c. Unless otherwise required by this Chapter, a conditional use permit shall not be required of a restaurant, as defined in Section 16-1.03.010 of this Title, that serves alcoholic beverages for on-site consumption, limited to on-sale beer and wine, non- fortified products only.
d. Unless otherwise required by this Chapter, a deemed approved establishment operating in accordance with the deemed approved performance standards in Subsection 16-3.07.015(a)(5)(iii) and otherwise maintaining deemed approved status shall not be required to obtain a conditional use permit. (ii) Finding of public convenience or necessity
a. Pursuant to California Business and Professions Code Section 23958.4, in areas with an over-concentration of off-site alcoholic beverage establishment licenses issued by the ABC, the City desires to strike a balance between the number of off- site licenses and the convenience of store customers. As a result, consideration to approve a finding of public convenience or necessity may be given by the City Council, Planning Commission, or Zoning Administrator, as applicable, to businesses wishing to obtain off-site alcoholic beverage establishment licenses issued by the ABC in over-concentrated areas that comply with the following criteria:
1. The retailer must occupy greater than 8,000 square feet of gross floor area or be tied to a fueling station on the premises with fuel sales comprising the majority of the business's sales;
2. A retailer tied to a fueling station with less than 8,000 square feet of gross floor area shall be limited to off-site beer and wine, non-fortified products only;
3. No more than 10% of the floor area may be devoted to alcoholic beverage display, unless a larger percentage of display is otherwise approved by the Planning Commission;
4. At least 10% of the floor area must be devoted to food sales and non-alcoholic beverages;
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5. If location of the proposed business is within a high crime area, which is defined as Police Department calls for service for alcoholic beverage-related incidents of 20% greater than the average number of such incidents reported for the City as a whole, the hearing body may use that fact in denying the application or the Public Convenience or Necessity finding required by the ABC;
6. The property/building/use has no outstanding Building or Health Code violations or Code Enforcement activity;
7. The site is properly maintained, including building improvements, landscaping, and lighting; and
8. The owner/applicant has no history of violations with the ABC and/or City of Victorville.
b. Prior to the establishment of any business selling alcoholic beverages, when within the Zoning Administrator's purview, the Zoning Administrator, when required pursuant to California Business and Professions Code Section 23958.4 shall make the finding of public convenience or necessity. Prior to making said finding, the Zoning Administrator shall consult with the City Police Department to receive that agency's comments. If the comments received indicate concerns, the Zoning Administrator shall not make the finding, but shall require the applicant to submit an application for a conditional use permit for Planning Commission review, when not otherwise required.
c. If any other discretionary approvals are required, the public convenience or necessity finding shall be incorporated into the process for such discretionary approval review.
(iii) Distance requirements
a. No off-site alcoholic beverage establishment shall be located within 600 feet of residentially zoned property, public or private schools, religious facilities, or parks or playgrounds, except:
1. A general retail store, or grocery store, or retail pharmacy with greater than 8,000 square feet of gross floor area and a maximum of 10 percent of the gross floor area devoted to the sale and display of alcoholic beverages, unless a larger percentage of display is otherwise approved by the Planning Commission; or
2. A convenience market, as defined in Section 16-1.03.010 of this Title, with a maximum of 10 percent of the retail display area devoted to the sale and display of alcoholic beverages, limited to off-site beer and wine, non-fortified products only. Retail display area includes all floor area within the establishment that is accessible and within view of customers, including aisles, and floor area occupied by shelves, counters, and refrigerator coolers. b. No bar/nightclub, as defined in Section 16-1.03.010 of this Title, that sells alcoholic beverages for on-site consumption shall be located within 600 feet of residentially zoned property, public or private schools, religious facilities, or parks or playgrounds. A micro-brewery, licensed and classified by the ABC as a Small Beer Manufacturer (License Type 23), or a billiard parlor as defined in the Development Code, shall not be considered a bar/ nightclub.
c. For purposes of this Subsection, distances shall be measured between the closest property lines of the affected locations.
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(iv) Operational standards; additional conditions of approval a. All new off-site alcoholic beverage establishments (those established on or after [the effective date of this ordinance]) shall be designed, constructed, and operated to conform with all of the following operational standards and alcoholic beverage sales limitations:
1. An establishment shall not result in adverse effects to the health, peace, or safety of persons residing or working in the surrounding area.
2. An establishment shall be prohibited from selling single-serve alcoholic beverages as follows:
i. Individual containers of beer, malt liquor and alcoholic energy drinks of any size; individual containers of wine of less than 750 ml in size; individual containers of distilled spirits of less than 375 ml in size; or any other individual container of alcoholic beverage for single-serve consumption. This restriction shall not be required of an establishment consisting of a general retail store, a grocery store, or a retail pharmacy with greater than 8,000 square feet of gross floor area. This restriction is not intended to prohibit the sale of such beverages in kegs or other types of containers, with a volume of two or more gallons, which are clearly designed to dispense multiple servings.
ii. Wine in bottles or containers smaller than 750 ml; individual containers of distilled spirits of less than 375 ml in size; wine coolers, beer, malt liquor and alcoholic energy drinks in containers of any size; and/or any other individual alcoholic beverage for single-serve consumption shall only be sold in the manufacturer's pre-packaged multi-unit quantities.
A. The above single-serve restrictions do not apply to off-site alcoholic beverage sales establishments that are: exempt from obtaining a Conditional Use Permit pursuant to Subsection 16-3.07.015(a)(3)(i); or existing establishments selling alcoholic beverages for off-site consumption with an active ABC beer, wine or liquor license established prior to July 18, 2013 (the effective date of Ordinance No. 2299), unless the ABC license has lapsed for 90 or more consecutive days; or the establishment was originally prohibited from selling single-serve alcoholic beverages through a Conditional Use Permit, a Finding of Public Convenience or Necessity and/or through an ABC license.
3. An establishment shall not result in nuisance activities within the premises or on adjacent properties or roadways , including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, sales to minors or police detentions and arrests that were not otherwise mitigated during the early stages of disturbance.
4. An establishment shall comply with all provisions of local, state or federal laws, regulations or orders, including without limitation, those of the ABC; California Business and Professions Code sections 24200, 24200.6, 25612, and 25612.5; as well as any condition imposed on any permits issued pursuant to such applicable laws, regulations or orders. This includes payment of annual City business license fees.
5. The premises upkeep and operating characteristics shall be compatible with and shall not adversely affect the livability or appropriate development of abutting
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properties and the surrounding neighborhood.
6. An establishment shall comply with the following public nuisance prevention measures:
i. Lighting: Exterior areas of a single-tenant or multi-tenant property, including but not limited to parking lots, driveways, circulation areas, passageways, recesses, and grounds contiguous to buildings, shall be provided with sufficient illumination levels to make clearly visible the presence of any persons on or about the premises from dusk to dawn in order to provide a safe, secure environment for all persons, property, and vehicles on-site. A minimum of 0.5 foot candle of illumination shall be maintained at any land surface point throughout the area to be illuminated. The overall area to be illuminated on-site shall have a minimum average of 2 foot candles at the land surface. Where a light source is directed to emanate horizontally and is visible from outside the property boundary, shielding shall be required to reduce glare to the greatest degree practicable.
ii. Litter: Adequate litter receptacles shall be provided on site and in the building. The premises shall be kept free of the accumulation of litter and shall be removed no less frequently than once each day the business is open.
iii. Loitering: The establishment's operators or employees shall be required to discourage loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested to leave fail to do so.
iv. Signage: There shall be no exterior advertising of alcoholic products, or tobacco and paraphernalia or similarly controlled products in excess of the signage allowances provided by the California Business and Professions Code and Article 22 of this Chapter.
v. Signs: The following signs shall be required to be prominently posted in a readily visible manner on an interior wall or fixture, and not on windows, in English and Spanish:
A. "California State Law prohibits the sale of alcoholic beverages to persons under 21 years of age."
B. "No Loitering or Public Drinking."
C. "It is illegal to possess an open container of alcohol in the vicinity of this establishment."
vi. Mitigating Alcohol Related Problems: The establishment shall be required to operate in a manner which mitigates alcohol related problems that negatively impact those individuals living or working in the neighborhood, including without limitation, loitering, violence, drunkenness, public urination, solicitation, drug-dealing, drug use, and loud noise on or near the premises.
Such mitigation measures shall include the operators and employees of the establishment maintaining adequate surveillance of the premises and nearby areas and contacting local law enforcement officials during the early stages of a disturbance.
vii. Drug Paraphernalia: An off-site alcohol establishment shall be prohibited from selling drug paraphernalia as defined in Health and Safety Code sections 11014.5 and 11364.5. "Drug paraphernalia" means all equipment products and materials of any kind that are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing,
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injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance (as defined in California Health and Safety Code Section 11054 et seq.) in violation of the California Uniform Controlled Substances Act commencing with California Health and Safety Code section 11000.
viii. Prohibited Vegetation: Exterior vegetation shall not be planted or maintained that could be used as a hiding place for persons on the premises. Exterior vegetation may be planted and maintained in a manner that minimizes its use as a hiding place.
ix. Window Obstructions: To ensure a clear and unobstructed view of the interior of the premises from the exterior public sidewalk or entrance, including the area in which the cash registers are maintained, window obstructions (including window signs, vending machines, shelves, racks, storage, etc.) shall not cumulatively block windows or entry doors in excess of the allowances provided for window signs by Article 22 of this Chapter. x. Training: Each off-site alcoholic beverage establishment operator and its employees selling alcohol shall complete the Licensee Education on Alcohol and Drugs (LEAD) program training provided by the California Department of Alcoholic Beverage Control. LEAD certificates shall be kept on the premises and provided to City officials within 48 hours of a written request. xi. Posting of Documents: A copy of these operational standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment as well as any City code enforcement officer, or authorized state or county official.
b. The above operational standards and beverage sales limitations shall be incorporated into any new conditional use permit for off-site alcoholic beverage sales issued under the provisions of this Article or any business license issued under the provisions of this Title that authorizes new off-site alcoholic beverages sales if no conditional use permit is otherwise required. Dependent upon the facts and circumstances of any given application, the Planning Commission or the Zoning Administrator for such permits or licenses as are within his or her approval authority, may include other conditions in an establishment’s conditional use permit or business license to mitigate nuisance, including but not limited to: limit the hours of operation or other operational characteristics of the use; restrict outdoor storage and display; require a special security plan or security measures; make alterations to the entries/exits or other floor plan changes; or add requirements for buffering, screening, lighting, planting areas, or other site elements to avoid adverse impacts on adjacent lots or the surrounding areas.
c. Failure to comply with any of the above operational standards or added conditions of approval shall constitute grounds (but not the sole grounds) for revocation of a conditional use permit and/or business license.
(4) Conditional use permit modification or revocation
(i) Grounds for modification or revocation
a. Notwithstanding the provisions of Section 16-3.02.090 of this Title, an alcoholic beverage sales establishment's conditional use permit may be modified or revoked by the Planning Commission after holding a public hearing in the manner prescribed
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in Chapter 2, Article 5 of this Title, for failure to comply with operational standards, training requirements, or other conditions of approval imposed through its conditional use permit. Notice of such hearing by the Planning Commission at which it will consider the modification or revocation of an establishment's conditional use permit shall be in writing and shall state the grounds therefor. Notice shall be mailed by first-class mail and certified mail return receipt requested to the establishment’s owner and the property owner (if different) at least ten (10) days before the date of the hearing.
(ii) Procedures for Investigation of potential violations of conditions of approval and/or operational standards and remedies are set forth in Subsection 16-3.07.015(a)(6), below.
(5) Deemed approved alcoholic beverage sales regulations (i) Regulations Established.
a. Except as otherwise provided in this Chapter, any off-site alcoholic beverage establishment in the City that is a nonconforming alcoholic beverage establishment, as defined in Section 16-3.01.010 of this Title, lawfully operating prior to [the effective date of this ordinance], shall thereafter be a deemed approved establishment in accordance with Subsection 16-3.07.015(a)(5)(ii). In addition, any alcoholic beverage establishment exempt from the requirement to obtain a conditional use permit pursuant to Subsection 16-3.07.015(a)(3)(i)b that lawfully commences operations on or after [the effective date of this ordinance] shall be an establishment with deemed approved status for purposes of this Section. Such establishments may continue to lawfully operate provided the business is conducted in compliance with the performance standards contained in Subsection 16-
3.07.015(a)(5)(iii) and all other applicable provisions of the deemed approved regulations specified in this Subsection 16-3.07.015(a)(5). (ii) Automatic deemed approved establishment designation a. As of [the effective date of this ordinance], each off-site alcoholic beverage establishment in the City that is a nonconforming alcoholic beverage establishment, as defined in Section 16-3.01.010 of this Title, lawfully operating prior to [the effective date of this ordinance] shall be considered a deemed approved establishment and shall no longer be considered a legal nonconforming use. In addition, any alcoholic beverage establishment exempt from the requirement to obtain a conditional use permit pursuant to Subsection 16-3.07.015(a)(3)(i)b that lawfully commences operations on or after [the effective date of this ordinance] shall be an establishment with deemed approved status for purposes of this Section. A deemed approved establishment shall obtain and retain its deemed approved status as long as:
1. The establishment complies with the deemed approved performance standards set forth in Subsection 16-3.07.015(a)(5)(iii); and
2. The establishment complies with any conditions contained in such establishment’s previously-granted conditional use permit (if any) or business license which are consistent with the operational standards in Subsection 16-
3.07.015(a)(3)(iv), or any additional conditions imposed on the deemed approved establishment as a result of modifications imposed by the Planning Commission under Subsections 16-3.07.015(a)(5)(vi) and (a)(6) (as applicable); and
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3. The establishment pays all required fees and undergoes an initial compliance check within ninety (90) days of [the effective date of this ordinance] and annually thereafter in conjunction with the business license renewal process (as applicable) to ensure such establishments remain in compliance with the performance standards and all other applicable provisions of the deemed approved alcoholic beverage sales regulations; and
4. The establishment does not change its type of ABC license within a license classification or "substantially change its mode or character of operation," as provided in Subsection 16-3.07.015(a)(5)(v).
(iii) Deemed approved performance standards for off-site alcohol sales establishments a. The deemed approved performance standards set forth in this Subsection shall apply to all off-site alcoholic beverage sales establishments that hold deemed approved status as set forth above. In order to retain deemed approved status, such establishments must be operated and maintained in compliance with all of the following:
1. An establishment shall not result in adverse effects to the health, peace, or safety of persons residing or working in the surrounding area.
2. An establishment shall not result in nuisance activities within the premises or on adjacent properties or roadways , including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, sales to minors or police detentions and arrests that were not otherwise mitigated during the early stages of disturbance.
3. An establishment shall comply with all provisions of local, state or federal laws, regulations or orders, including without limitation, those of the ABC; California Business and Professions Code sections 24200, 24200.6, 25612, and 25612.5; as well as any condition imposed on any permits issued pursuant to such applicable laws, regulations or orders, excluding any previously required training.
This includes payment of annual City business license fees.
4. The establishment’s premises upkeep and operating characteristics shall be compatible with, and shall not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.
5. Training: Each off-site alcoholic beverage establishment operator and their employees selling alcohol shall complete the Licensee Education on Alcohol and Drugs (LEAD) program training provided by the ABC within 60 days of hire for employees hired after [effective date of ordinance] or within ninety (90) days of said date for existing employees. LEAD certificates shall be kept on the premises and provided to City officials within 48 hours of a written request.
6. Posting of Documents: A copy of these performance standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment as well as any City code enforcement officer, or authorized state or county official.
b. Failure to comply with the performance standards set forth herein shall constitute a public nuisance.
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(iv) Notification to owners of deemed approved establishments a. The City shall notify each owner and/or operator of an off-site alcoholic beverage establishment of its deemed approved status at the address as shown on their City business license, and also, if not the same, shall notify any property owner at the address shown on the county assessor's property tax assessment records. The notice shall be sent by certified mail with return receipt requested and shall include:
1. A copy of the performance standards in Subsection 16-03.07.015(a)(5)(iii), with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the alcohol sales establishment for public review;
2. Notification that the establishment is required to comply with all the performance standards;
3. Notification that initial and annual compliance inspections will be conducted by the City to ensure compliance and that collection of the compliance inspection fee set forth in the City's most recently adopted master fee schedule will be required (as applicable); and
4. Notification the establishment is required to comply with all other aspects of the deemed approved regulations.
b. Should the notice be returned, then the notice shall be sent via first-class mail and hand delivered by City Code Enforcement or Planning Department staff to the alcohol sales establishment. Failure of any person to receive notice given pursuant to this section shall not affect the deemed approved status of the establishment. (v) Change in ABC License Type; Substantial Change in Mode or Character of Operation. a. In order to continue operation upon the occurrence of any of the following, a deemed approved alcoholic beverage establishment shall require approval of a conditional use permit, or modification of an existing conditional use permit, as the case may be, in the manner provided by this Section:
1. The establishment changes its alcoholic beverage sales activity so that ABC requires a different type of license.
2. There is a substantial change in the mode or character of operation. As used herein, the phrase "substantial change in mode or character of operation" shall include, but not be limited to, any of the following:
i. The establishment increases the floor or land area or shelf space devoted to the display or sales of any alcoholic beverage in excess of any allowances provided by this Section, if any;
ii. The establishment extends its hours of operation by thirty minutes or more; iii. The establishment voluntarily discontinues its active operation for more than ninety (90) consecutive days;
iv. The establishment ceases to be licensed by the ABC; v. Any other circumstances that result in a substantial change in the mode or character of operation, except for those circumstances listed in subdivision (b) of Section 23790 of the California Business and Professions Code. b. Upon notification of or discovery by the City of any of the above occurrences, a public hearing before the Planning Commission shall be held in accordance with Chapter 2, Article 5 of this Title, to determine whether a substantial change in the mode or character of operation of the establishment has occurred. If the Planning Commission determines that a substantial change has occurred, the alcoholic beverage sales
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establishment must cease operation and may not resume unless it applies for and obtains a new or modified conditional use permit in conformance with this Chapter. (vi) Deemed approved establishment status modification or revocation a. Grounds for modification or revocation
1. An alcoholic beverage sales establishment's deemed approved status may be modified or revoked by the Planning Commission for failure to comply with the performance standards in Subsection 16-3.07.015(a)(5)(iii) after holding a public hearing in the manner prescribed in Chapter 2, Article 5 of this Title. Notice of such hearing by the Planning Commission shall be in writing and shall state the grounds therefor. Notice shall be mailed by first-class mail and certified mail return receipt requested to the establishment’s owner and the property owner (if different) at least ten (10) days before the date of the hearing.
b. Procedures for investigation of potential violations of performance standards and remedies are set forth in Subsection 16-3.07.015(a)(6), below. (6) Investigative procedures for potential violation of conditions of approval and/or operational standards, or deemed approved performance standards applicable to off-site alcohol beverage sales establishments; remedies
(i) The following investigative procedures shall be utilized for potential violations of conditions of approval and/or operational standards, or deemed approved performance standards applicable to off-site alcohol beverage sales establishments a. Upon the City's receipt of a complaint from the public, police department, City official, or any other interested person that an off-site alcohol beverage sales establishment is operating in violation of: (1) the conditions of approval set forth in its conditional use permit and/or the operational standards in Subsection 16-
3.07.015(a)(3)(iv); or (2) in the case of a deemed approved establishment, the performance standards in Subsection 16-3.07.015(a)(5)(iii) and/or any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator, the following procedures shall apply:
1. A City code enforcement officer (or other designated City representative) shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the establishment’s compliance with the applicable conditions, operational standards, or performance standards.
2. If the enforcement officer (or other designated City representative) determines that the establishment is in violation of the applicable conditions of approval or standards, he/she shall give written notice of the violation to the owner and/or operator of the establishment and seek to remedy the violation under the City's administrative citation procedures pursuant to Subsection 16-6.01.100 of this Title. The first notice of violation shall be given in accordance with Subsection 16-6.01.080 of this Title. However, should the enforcement officer (or other designated City representative) in his or her sole discretion, determine that the violation is not capable of correction, presents a serious threat to public health or safety, or otherwise warrants expedited action, he or she may, in lieu of
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following the administrative citation procedure, refer the matter directly to the Planning Commission for a hearing at which the establishment's conditional use permit or deemed approved status may be modified or revoked.
3. Any administrative notice or citation issued under this Section shall be issued, processed, and enforced in compliance with all of the provisions of Subsection 16-6.01.100 of this Title, unless otherwise expressly provided by this Section. If the owner or operator receiving an administrative notice or citation contests the notice or citation and a hearing is held pursuant to Subsection 16-6.01.150 of this Title, the City Manager or his/her designee may, in addition to exercising all powers designated in Subsection 16-6.01.100 of this Title, make a recommendation to the Planning Commission to:
i. In the case of a conditionally permitted establishment, modify or revoke the establishment's conditional use permit, if in the judgment of the City Manager of his/her designee, based upon information then before him or her, such action is necessary to ensure compliance with this Section. Such recommendation may include the suggestion of additional or amended reasonable conditions on the use, including but not limited to, the conditions listed in Subsection 16-3.07.015(a)(3)(iv)b of this Section and the operational standards listed in Subsection 16-3.07.015(a)(3)(iv)a; or ii. In the case of a deemed approved establishment, to modify or revoke the establishment's deemed approved status, if in the judgment of the City Manager of his/her designee, based upon information then before him or her, such action is necessary to ensure compliance with this Section. Such recommendation may include the suggestion of imposing reasonable conditions on the establishment, including but not limited to, the operating standards and conditions listed in Subsection 16-3.07.015(a)(3)(iv)a.
4. If a hearing before the Planning Commission is conducted on a potential violation (in the manner prescribed in Chapter 2, Article 5 of this Title) the Planning Commission shall determine whether the establishment is in compliance with:
i. In the case of a conditionally permitted establishment, the operational standards and/or conditions of approval in the establishment’s use permit.
Based on this determination, the Planning Commission may continue the operations of the establishment under the existing conditional use permit; modify the conditional use permit by imposing additional reasonable conditions, including but not limited to, the operating standards and conditions listed in Subsection 16-3.07.015(a)(3)(iv);, as are in its judgment necessary to ensure compliance with the operational standards and/or conditions of approval; or may revoke the establishment’s conditional use permit. If the Planning Commission determines to impose further, new conditions on the establishment’s conditional use permit, such conditions shall be based upon the information then before the Commission. In reaching a determination as to whether an establishment has violated the operational standards and/or conditions of approval, or as to the appropriateness of imposing additional or amended conditions, or revoking the use permit, the Planning Commission may consider the following:
A. The length of time the establishment has been out of compliance with the operational standards and/or conditions of approval.
B. The impact of the violation of the operational standards and/or conditions
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of approval on the community.
C. Any information regarding the owner of the establishment’s efforts to remedy the violation of the operational standards and/or conditions of approval. “Efforts to Remedy" shall include, but are not limited to:
I. Timely calls to the police department that are placed by the owner and/or operator of the establishment, his or her employees, or agents. It is not the intent of this Section to discourage owners and employees of alcohol establishments to report nuisance or criminal activity.
II. Requesting that those persons engaging in activities causing violations of the operational standards and or conditions of approval cease those activities, unless the owner or operator of the establishment, or his or her employees or agents feels that their personal safety would be threatened in making that request.
III. Making improvements to the establishment's property or operations, including, but not limited to, the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, the clearing of window obstructions, the cleaning of sidewalks, and the abatement of graffiti within three days. ii. In the case of a deemed approved establishment, the performance standards and/or any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator. Based on this determination, the Planning Commission may continue the deemed approved status for the establishment; modify the use by imposing reasonable conditions, including but not limited to, the operating standards and conditions listed in Subsection 16-3.07.015(a)(3)(iv) of this Title, as are in its judgment necessary to ensure compliance with the performance standards; or may revoke the establishment’s deemed approved status. If the Planning Commission determines to impose further, new conditions on the establishment, such conditions shall be based upon the information then before the Commission.
In reaching a determination as to whether a deemed approved use has violated the performance standards, or as to the appropriateness of imposing additional or amended conditions, or revoking deemed approved status, the Planning Commission may consider the following:
A. The length of time the establishment has been out of compliance with the performance standards and/or any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator.
B. The impact of the violation of the performance standards and any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator on the community.
C. Any information regarding the owner of the deemed approved establishment’s Efforts to Remedy (as defined above) the violations of the performance standards and any conditions of approval set forth in its non-conforming conditional use permit or otherwise established by the Planning Commission or Zoning Administrator.
5. If in the judgment of the Planning Commission, the operations of the owner or
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operator of the establishment constitute a nuisance, the owner or operator is unable or unwilling to abate the nuisance, and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the Planning Commission may revoke the establishment’s conditional use permit, or deemed approved status, as applicable. If revoked, any continued operation of the business shall require a new conditional use permit approved by the Planning Commission. All determinations, decisions, and conditions made or imposed regarding the alcohol sales establishment’s use shall run with the land.
6. The decision of the Planning Commission shall be final and conclusive, unless timely appealed to the City Council as set forth in Chapter 2, Article 5 of this Title.
(b) Tobacco Retailer Establishment Regulations
This Section requires a tobacco retailer license for new tobacco retailer establishments and existing nonconforming tobacco retailer establishments, unless otherwise exempt; and outlines tobacco retailer licensing and noticing procedures as well as operational standards for tobacco retailer establishments.
(1) Purpose and Intent
(i) The specific purposes for enacting this Section are as follows:
a. To prevent access to tobacco products and tobacco paraphernalia to those under twenty-one (21) years of age;
b. To protect residential, commercial, industrial, civic and religious land uses and minimize the adverse impacts of nonconforming and incompatible uses; c. To provide regulations to address problems associated with the public consumption of tobacco products such as litter, loitering, graffiti, unruly behavior, violence, vandalism, and escalated noise levels, and ensure that tobacco retailer establishments do not become the source of undue public nuisances in the community;
d. To provide for properly maintained tobacco retailer establishments so that the secondary effects of negative impacts generated by these activities on the surrounding environment are mitigated;
e. To monitor tobacco retailer establishments to ensure they do not conduct the sales of illegal goods or products; and
f. To provide opportunities for tobacco retailer establishments to operate in a mutually beneficial relationship to each other and to other surrounding uses. (ii) This Section does not itself authorize or permit tobacco retailer establishments, but only applies to such establishments where otherwise allowed or permitted within an applicable zoning district. The requirements and regulations set forth herein are intended to complement California’s tobacco-related laws and the City does not intend to replace or usurp any powers vested in the California Department of Public Health or other agencies with enforcement duties.
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(2) Administration
(i) Applicability
a. The provisions of this subsection shall be applicable to all new tobacco retailers and existing nonconforming tobacco retailers in the City and shall apply to the extent permissible under other laws to all nonconforming tobacco retailers, as defined in the Development Code, located in the City.
b. The provisions of this Section shall apply to the extent permissible under other laws to all establishments located in the City that conduct retail sales of tobacco products. c. Whenever any provision in this Section, in an existing conditional use permit, or in any other law, ordinance, or regulation of any kind, imposes overlapping or contradictory regulations, or contains restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in this Section. (3) Tobacco Retailer License (TRL) required
(i) Except as provided in subsection (iii) below, all new or existing tobacco retailers must obtain an annual tobacco retailer license (TRL) for each location at which tobacco retailing is to occur pursuant to Subsection 16-3.07.015(b)(4) of this Section and comply with and satisfy all conditions, as set forth in any applicable law or regulation, including any provision of the Development Code, in any entitlement granted, and in any business license issued, prior to engaging in any retail sales of tobacco. (ii) No tobacco retailer license may be issued to authorize retail tobacco sales at any location that is not licensed under state law to sell alcoholic beverages for consumption off the premises (e.g., an off-site alcoholic beverage sales establishment with a license issued by the ABC), except a nonconforming tobacco retailer establishment, as defined in Section 16-1.03.010 of this Title, applying for a TRL as required by this Subsection. (iii) A Tobacco retailer license shall not be required of a tobacco retailer operating as an accessory use to an alcoholic beverage sales establishment that is exempt from obtaining a conditional use permit pursuant to Subsection 16-3.01.015(a)(3)(i)b of this Section.
(4) Tobacco retailer license procedure
(i) Application for a tobacco retailer license shall be submitted in the name of each proprietor of the business 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 of all applicable federal, state, and local statutes, laws, regulations and ordinances, including, without limitation, the City’s laws affecting the granting of a tobacco retailer license.
(ii) All applications for a tobacco retailer permit shall be submitted in conjunction with the location’s business license application (with the exception of nonconforming tobacco establishments which must submit their applications within not less than ninety (90) days of [the effective date of the ordinance]). The application shall contain, at a minimum, the following information:
a. The name, address, telephone number, driver's license or similar identification, including date of birth, of each proprietor of the business that is seeking tobacco
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retailer status.
b. The business name, address, telephone number and business hours of the single fixed location for which tobacco retailer status is sought. c. If the single fixed location is leased, a copy of the lease and the name, address and phone number of the property owner of the single fixed location. d. A single name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this Chapter (the "authorized address"). 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 b above. e. A statement signed by each proprietor that no drug paraphernalia, as defined in Section 16-01.03.010 of this Title, is or will be sold at the business applying for the TRL.
f. Proof that the location for which tobacco retailer status is sought has been issued a valid California Cigarette and Tobacco Products Retailer’s License by the California Department of Tax and Fee Administration.
g. Whether or not any proprietor or prior proprietor of the business, to the best of applicant's knowledge, has admitted violating, or has been found to have violated, this Chapter or whose proprietorship 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 six years.
h. Such other information as the Zoning Administrator deems necessary for the administration or enforcement of this Chapter.
i. All information required to be submitted in order to apply for a tobacco retailer license shall be updated with the City whenever the information changes. A tobacco retailer shall provide the City with any updates within ten (10) business days of a change.
j. A copy of the conditional use permit for the location, if applicable (or an explanation as to why such permit is not required).
k. Proof of a passed initial inspection or proof of a failed initial inspection still within the thirty (30) day re-inspection period, applicable to nonconforming tobacco establishments only.
(iii) Upon the receipt of an application for a tobacco retailer license and the business license fee required by the Development Code (for new establishments; no business license fee is required for existing nonconforming tobacco retailers, provided they have a current valid City business license at the time of application), the City shall grant a TRL in conjunction with the City business license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
a. The information presented in the application is incomplete, inaccurate, or false.
Intentionally supplying inaccurate or false information shall be a violation of the Development Code.
b. The application seeks authorization for tobacco retailing at a location for which this Chapter prohibits issuance of tobacco retailer licenses. However, this paragraph shall not constitute a basis for denial of a TRL if the applicant provides the City with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring a legally nonconforming tobacco retail establishment in an arm's length transaction.
c. The application seeks authorization for tobacco retailing for a proprietor to whom the Development Code prohibits tobacco retailer status to be granted. d. The application seeks authorization for tobacco retailing that is prohibited pursuant to this Chapter (e.g., mobile vending), that is unlawful pursuant to any provision of the Victorville Municipal Code, or that is unlawful pursuant to any other law.
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e. The application seeks authorization for tobacco retailing at a location in non- compliance with the operating standards and/or compliance monitoring requirements set forth in Subsections 16-3.07.015(b)(5) and 16-3.07.015(c) of this Section.
f. A denial of a license application shall be in writing, citing the reasons for such denial and shall be appealable in accordance with the administrative appeal procedures outlined in Chapter 2, Article 2 of this Title.
(iv) A TRL is non-transferable and shall be valid for a period of up to one year. A TRL is further subject to annual renewal, including licensing and inspection fees, in conjunction with the City business license renewal process.
a. A TRL renewal shall only be granted if no violations are found during the annual compliance monitoring inspection required by Subsection 16-3.07.015(c)(1) of this Section.
(v) A TRL may be denied pursuant to Section 16-3.07.015(b)(2)(iii) of this Article. (5) Existing Nonconforming Tobacco Retailer Establishments. (i) Regulations established
a. All nonconforming tobacco retail establishments, as defined in Section 16-01.03.010 of this Title, lawfully operating prior to [effective date of ordinance] are legal nonconforming uses and shall be permitted to continue operating as tobacco retailer establishments. Such establishments may continue to lawfully operate provided the business is conducted in compliance with the operating standards contained in Subsection 16-3.07.015(b)(6)(ii) and all other applicable provisions of the tobacco retailer establishment regulations specified in this Subsection 16-3.07.015(b). (ii) Automatic nonconforming tobacco retailer designation a. As of [the effective date of this ordinance], each tobacco retailer establishment in the City is a nonconforming tobacco retailer establishment, as defined in Section 16-3.01.010 of this Title, provided they were lawfully operating prior to [the effective date of this ordinance]. In order to obtain and maintain legal nonconforming status, each nonconforming tobacco retailer shall:
1. Comply with all requirements and operational standards for tobacco retailer establishments set forth in Subsection 16-3.07.015(b)(6)(ii) of this Section and the nonconforming use provisions in Article 5 of this Chapter;
2. Obtain and maintain an annual tobacco retailer license as set forth in Subsection 16-3.07.015(b)(4), as applicable; and
3. Complete and pass an initial and annual inspection as outlined in Subsection 16-3.07.015(c) of this Section.
(iii) Nonconforming tobacco retailers; Notice
a. Prior to [the effective date of the ordinance] the City shall notify the proprietor of a tobacco retailer of its nonconforming status at the address as shown on their City business license, and also, if not the same, shall notify any property owner at the address shown on the county assessor's property tax assessment records. The notice shall be sent by certified mail with return receipt requested and shall include:
1. A copy of the tobacco operational standards specified in Section 16-
3.07.015(b)(6)(ii) of this Article with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the tobacco retailer establishment for public review;
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2. Notification that the establishment is required to comply with all tobacco operational standards;
3. Notification that initial and annual compliance inspections will be conducted by the City to ensure compliance and that collection of the compliance inspection fee set forth in the City's most recently adopted master fee schedule will be required (as applicable);
4. Notification the establishment is required to comply with all other aspects of the tobacco retailer establishment regulations, including, the requirement to obtain a tobacco retailer license (as applicable).
b. Should the notice be returned, then the notice shall be sent via first-class mail and hand delivered by City Code Enforcement or Planning Department staff to the subject tobacco retailer business location. Failure of any person to receive notice given pursuant to this section shall not affect the nonconforming status of the establishment.
c. Nonconforming tobacco retailers shall be provided not less that ninety (90) days [from the effective date of the ordinance] to comply with the operational standards outlined in Subsection 16-3.07.015(b)(6)(ii) of this Section, unless otherwise granted an exception by the Planning Commission in conjunction with approval of a conditional use permit pursuant to Article 2 of this Chapter.
1. Within the ninety (90) day compliance period provided, tobacco retailers in full compliance with the tobacco operational standards, as determined by the City of Victorville Code Enforcement and Planning Departments in accordance the compliance monitoring procedures set out in Subsection 16-3.07.015(c), and having obtained the required tobacco retailer license shall retain their legal nonconforming tobacco retailer status.
2. Those nonconforming tobacco retailers maintaining non-compliance with the tobacco operational standards at the conclusion of the ninety (90) day compliance period, and one fifteen (15) day re-inspection period if granted after failure of an initial inspection within the ninety (90) day compliance period, regardless of licensure status, shall lose their legal nonconforming status and be deemed a public nuisance, with abatement proceedings to proceed in accordance with Title 13, Chapter 13.02 and Title 16, Chapter 6 of the Victorville Municipal Code.
(6) Tobacco Operational standards
(i) Operational standards; applicability
a. Applicable to all new and existing nonconforming tobacco retailers.
1. Tobacco retailer sales activities and establishments shall be designed, constructed, and operated to conform with all of the tobacco operational standards and display limitations outlined in Subsection 16-3.07.015(b)(6)(ii). b. Failure to comply with any of these requirements shall constitute grounds (but not the sole grounds) for revocation of the TRL and/or the establishment’s business license.
(ii) Tobacco retailer establishments shall be designed, constructed, and operated to conform to all of the following operational standards and tobacco sales limitations:
a. An establishment shall not result in adverse effects to the health, peace, or safety
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of persons residing or working in the surrounding area. b. An establishment shall not result in nuisance activities within the premises or on adjacent properties or roadways, including without limitation, disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, sales to minors, or police detentions and arrests that were not otherwise mitigated during the early stages of disturbance. c. An establishment shall comply with all provisions of local, state or federal laws, regulations or orders, including without limitation, those in the California Health and Safety Code sections 11014.5 and 11364.5; the California Uniform Controlled Substances Act, commencing with California Health and Safety Code section 11000; California Business and Professions Code Sections 22950-22964; as well as any condition imposed on any permits issued pursuant to applicable laws, regulations, or orders. This includes payment of annual City business license fees. d. The premises upkeep and operating characteristics shall be compatible with, and shall not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.
e. The following shall be prohibited at any tobacco retailer business location:
1. Smoking or vaping on the premises at any time.
2. The sale of tobacco products and paraphernalia to a person under the age of
21. 3. Sales solicited or conducted on the premises by minors.
4. The sale of drug paraphernalia.
5. The sale of flavored tobacco products or presumptive flavored tobacco products.
6. Distribution of free or low-cost tobacco, tobacco products or tobacco paraphernalia, as well as tobacco coupons for said items.
7. The sale of tobacco products and paraphernalia via a vending machine, by a sidewalk vendor or mobile vehicle vendor (mobile vending), or via temporary use permit.
f. The display area of tobacco products, including tobacco paraphernalia, shall be subject to the following limitations:
1. Shall not exceed 10 percent of the total floor area of a business establishment, excluding smoke shops, as defined in this Title, maintaining legal nonconforming status and a TRL.
2. Shall be located behind a service counter in a manner that prohibits self-service by the customer.
3. Display area devoted to tobacco paraphernalia shall not exceed a 2 foot in depth by 4 foot in length section of a single shelf space, excluding smoke shops maintaining legal nonconforming status and a TRL.
g. An establishment shall comply with the following public nuisance prevention measures:
1. Lighting: Exterior areas of a single-tenant or multi-tenant property, including but not limited to parking lots, driveways, circulation areas, passageways, recesses, and grounds contiguous to buildings, shall be provided with sufficient illumination levels to make clearly visible the presence of any persons on or about the premises from dusk to dawn in order to provide a safe, secure environment for all persons, property, and vehicles on-site. A minimum of 0.5 foot candle of illumination shall be maintained at any land surface point throughout the area to be illuminated. The overall area to be illuminated on-site shall have a minimum average of 2 foot candles at the land surface. Where a