Victorville City Council
June 18, 2024

CITY COUNCIL

ATTACHMENT B
Executive Summary, Excerpt Minutes
& PC Staff Report

EXECUTIVE SUMMARY

PLAN22-00002

PROJECT DESCRIPTION: An Amendment to the Victorvil le 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 a re not limited to standards relating to property maintenance, alcohol and tobacco display a rea, alcohol and tobacco signage, tobacco paraphernalia, and the prohibited sales of single-serve alcoholic beverages and drug paraphernalia, as well as initial and annual c ompliance inspection and licensing processes.

APPLICANT: CITY OF VICTORVILLE

PLANNING COMMISSION PUBLIC HEARING DATES: May 8, 2024

SUMMARY FOR MAY 8, 2024, PLANNING COMMISSION MEETING

NUMBER OF PEOPLE WHO COMMENTED: 10

NUMBER OF PEOPLE SPEAKING IN FAVOR: 5

NUMBER OF PEOPLE SPEAKING OPPOSED: 0

NUMBER OF WRITTEN COMMENTS IN FAVOR: 5

NUMBER OF WRITTEN COMMENTS OPPOSED: 0

STAFF RECOMMENDATION: Recommend City Council A pproval

PLANNING COMMISSION ACTION: Recommended City Co uncil Approval

PLANNING COMMISSION VOTE: Marsh Aye
Mesen Aye
Thomas Aye
Cook-Askins Jr. Aye
Kurth No

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 sta ndards and introducing new operating standards applicable to new and existing businesses within the City of Victorville, which include but are not limited t o standards relating to property maintenance, alcohol and tobacco display area, alco hol and tobacco signage, tobacco paraphernalia, and the prohibited sales of single-serve alcoholic beverages and drug paraphernalia, as well as initia l 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 t he 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 recommendati ons including the revision to the resolution.

Moved: Commissioner Thomas
Seconded: 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.

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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

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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

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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)

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• 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

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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

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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

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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

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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.

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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

Resolution No. P-24-005 - PLAN22-00002 May 8, 2024

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

Resolution No. P-24-005 - PLAN22-00002 May 8, 2024

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
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 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.}

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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

Resolution No. P-24-005 - PLAN22-00002 March 13, 2024

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.

Resolution No. P-24-005 - PLAN22-00002 March 13, 2024

(c) Monitoring, inspections, and violations
(1) Compliance monitoring
(i) Applicability. Excepting for 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 the City Manager or his/her designee 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. Nothing in this Section shall create a right of action in any off-site alcoholic beverage sales establishment, tobacco retailer establishment, or other person against the City or its agents in conducting these annual inspections.
(ii) Scope of Alcohol Sales Establishment and Tobacco Retailer Inspections. The City Manager, or his or her designee, 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 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-

Resolution No. P-24-005 - PLAN22-00002 March 13, 2024

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 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 and/or Planning Department 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

Resolution No. P-24-005 - PLAN22-00002 March 13, 2024

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 City Manager or his/her designee 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

Resolution No. P-24-005 - PLAN22-00002 March 13, 2024

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 an administrative citation or notice pertaining to a violation of this Title, shall have the option to appeal such citation or notice in accordance with Chapter 6, Article 1 of thereof.
(iv) 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 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 all remedies available under this Code or 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.

ORDINANCE NO. 2299

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VICTORVILLE APPROVING AMENDMENT DEV13-00001, AN AMENDMENT TO TITLE 5 AND TITLE 16 OF THE VICTORVILLE MUNICIPAL CODE, INCLUDING BUT NOT LIMITED TO THE FOLLOWING:

LAND USE ALLOWANCES, APPEALS, ALCOHOL SALES, TIMING OF DEVELOPMENT

IMPACT FEE COLLECTION, MASSAGE ESTABLISHMENTS, TEMPORARY USES, SIGNS

AND DEVELOPMENT STANDARDS
WHEREAS, Pursuant to Title 7, Chapter 4, Article 2 of the Government Code of the State of California, the Victorville Planning Commission held a public hearing on the 10th of April, 2013, to hear arguments for and against the amendments and, after hearing all testimony offered; the Commission adopted Resolution No.P-13-011, which recommended to the City Council the adoption of Amendment DEV13-00001; and
WHEREAS, the City Council held a public hearing on the 4th of June, 2013, to hear arguments for and against the amendments and, after hearing all testimony offered; the City Council approved Amendment DEV13-00001 and adopted Ordinance No. 2299; and WHEREAS, this project has been determined to be categorically exempt from the California Environmental Quality Act (CEQA) based upon CEQA Guidelines Section 15061 (b)(3), as there is 110 possibility that the proposed ame11dme11ts will have a significant effect on the environment; and
WHEREAS, the City Council determines that this Ordinance is reasonable and necessary to protect and promote the general health, safety and welfare of the residents ofthe City of Victorville.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF VICTORVILLE DOES HEREBY ORDAIN AS FOLLOWS:

That the Victorville Municipal Code be amended as follows:

Entered-Ouegtys
Table 7-1 Permitted, Conditional, Accessory and Temporary Land Uses {See attached Land Use Table 7-1 for changes}
16-3.07 .020 Special requirements for certain permitted and conditional uses (a) Alcohol sales
(1) Finding of public convenience or necessity
(i) Prior to the establishment of any business selling alcoholic beverages, the Zoning Administrator, when required pursuant to 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.
(ii) If any other discretionary approvals are required, the public convenience or necessity finding shall be incorporated into that process. (2) Off-site alcohol sales
(i) This subsection does not apply to existing establishments currently selling off-site (off-sale) alcoholic beverages with an active beer, wine or liquor license unless the license has lapsed for more than six months or are currently prohibited from selling single-serve alcoholic beverages through a Conditional Use Permit, a Finding of Public Convenience or Necessity and/or a through a Department of Alcoholic Beverage Control license.
(ii) An establishment selling alcohol for off-site consumption shall be prohibited from selling single-serve alcoholic beverages, including, but not limited to, beer, malt liquor and alcoholic energy drinks of any size; wine of less than 750ml in size; distilled spirits of less than 375ml in size; or any other individual alcoholic beverage for single-serve consumption.
(b) Homeless Shelters
( 1 ) A homeless shelter may include general office activities and provide for services clients such as, donations, mail reception, referral services, job placement services, worship, bible study, group meetings and clothing assistance. (2) The maximum length of stay for a resident(s) of a homeless shelter shall be six months.
(3) A homeless shelter shall be at a minimum of 1,000 feet from a nursing home, school, public park, assembly facility or another homeless shelter. ( 4) Homeless shelters shall be located within ½ mile of a public transportation facility or bus stop.

ORDINANCE NO. 2339

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VICTORVILLE RELATING TO VARIOUS AMENDMENTS TO TITLE 16 OF THE

VICTORVILLE MUNICIPAL CODE, INCLUDING BUT NOT LIMITED TO

TRANSITIONAL HOUSING, REASONABLE ACCOMMODATION, LIGHT
AUTO REPAIR, THE DEFINITIONS SECTION, THE LAND l)SE TABLE AND

THE PROHIBITION OR REGULATION OF CERTAIN USES WITH AN

ENVIRONMENTAL EXEMPTION
WHEREAS, in recent years the City of Victorville C'Victorville") has experienced an economic downturn, including, but not limited to, deteriorating commercial neighborhoods, decreasing per capita sales revenue and increased public safety costs, all of which negatively impact the quality of life within Victorville and compromises Victorville's ability to provide services and attract new businesses; and
WHEREAS, the City finds the negative impacts of the economic downtown on the commercial retail market is adversely affecting the commercial lease rates and therefore is attracting less desirable and problematic businesses in the City; and
WHEREAS, on January 9, 2014, the City Council of Victorville (the "City Council") conducted a p�blic strategic planning session where the City Council identified goals and objectives to strive for over the next three year period; and
WHEREAS, <:it the January 9, 2014 planning session, the identified goals by City Council were, specifically: (1) a safer community, (2) a higher residential value, and (3) a prettier, cleaner community, with pride of ownership and improved streets; and WHEREAS, the City Council finds that the Planning· Commission held a public workshop on September 10, 2014, to discuss problematic land uses, and based on the research submitted, deliberated to further prohibit certain problematic land uses; and WHEREAS, the City Council finds that a joint meeUng/workshop of the City Council and Planning Commission was held on April 29, 2014, regarding certain commercial uses including alcohol establishments, with presentation by Supervising Agent Armando Gonzalez with the Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
California Department of Alcoholic Beverage Control and Victorville Police Captain Sam Lucia; and
WHEREAS, the City Council finds that the Planning Commission, at their December 10, 2014 meeting, in accordance with City Council Strategic Plan goals and objectives for a safer, prettier, cleaner community, directed Staff to propose an ordinance to address certain land uses in order to reduce the potential negative effects of those uses within Victorville; and WHEREAS, pursuant to Section 16-2.01 .020 of the Victorville Municipal Code, Victorville has initiated an amendment to Title 16 of the Victorville Municipal Code as a means to implement the City Council's goals; and
WHEREAS, Pursuant to Title 7, Chapter 4, Article 2 of the Government Code, State of California, the Victorville Planning Commission held a public hearing that was opened on February 5, 2015; and closed July 8, 2015, to hear arguments for and against the Ordinance relating to various amendments to Title 16 of the Victorville Municipal Code (the "Development Code") and; after hearing all testimony offered; the Victorville Planning Commission adopted Resolution No. P-15-003, which recommended to the City Council the adoption of Municipal Code amendments specified in Planning Case No. DEV15-00001; and WHEREAS, the City Council finds that there is a need for strengthening, clarifying and modifying the Development Code, including the land use table, in order to keep the Victorville Municipal Code current and reduce confusion or discrepancies; and WHEREAS, the City Council finds that adding definitions in the Development Code will aid in land use decisions and assist the public and developers with land use needs; and WHEREAS, the City Council finds there is a need to prohibit or regulate additional land uses not yet specified in the Development Code and that adding definitions for various land uses will assist in overall land use prohibition and regulation in Victorville; and Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
WHEREAS, the City Council finds that adding a light automobile repair land use within the General Commercial District will provide flexibility and encourage occupancy and development, while adding the special requirements will maintain the intent of the District; and WHEREAS, the City Council finds that revised alcohol allowances will allow for reduced retail building size and greater discretion by the Planning Commission on allowable alcohol related uses since larger retail outlets will provide higher quality development, security, and compliance with California Department of Alcoholic Beverage Control requirements; and WHEREAS, the City Council finds that prohibiting and regulating certain land uses will assist in creating a safer community by eliminating the ability of certain harmf4I businesses to locate in Victorville, thus deterring the patrons of these businesses from loitering in retail areas which may occur due to the nature and operations of certain land uses; and WHERl;:AS, the City Council finds that prohibiting and regulating certain businesses in commercial neighborhoods will. create a safer community by improving the perception people and business owners have about Victorville; and
WHEREAS, the City Council finds that prohibiting and regulating certain uses in commercial neighborhoods will create a safer community by attracting quality businesses to Victorville, therefore improving the strength and vitality of retail neighborhoods; and WHEREAS, the City Council finds that prohibiting and regulating certain uses will create a prettier, cleaner community by keeping undesirable businesses out of commercial areas and attracting desirable businesses and owners to commercial neighborhoods; and WHEREAS, the City Council finds that prohibiting and regulating certain businesses in commercial neighborhoods will increase lease rates and increase per capita sales revenue by attracting quality new businesses with higher volume sales and higher business success rates; and
Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
WHEREAS, the City Council finds and determines that there is a need to prohibit and regulate certain land uses by Ordinance in order to help achieve the City Council goals of creating a safer, prettier and cleaner community; and
WHEREAS, with respect to Transitional Housing, Supportive Housing and Emergency Shelters, the City Council hereby finds and declares that:
• adding housing and emergency shelter definitions to the Development Code will clarify the different types of community housing and emergency shelters; and • adding housing and emergency shelter definitions to the Development Code will give support to Victorville complying with state housing laws; and • adding a transitional housing definition will ensure that Victorville meets the goals and policies of the Housing Element of the Victorville General Plan; and • adding a transitional housing definition will protect residential neighborhoods in Victorville by defining what qualifies as transitional housing; and • definitions for transitional housing, supportive housing, and emergency shelters are comprised of definitions of those uses provided by California Government Code Section 65582 and California Health and Safety Code Section 50801 as .applicable; and • addin transitional and su ortive housin to the land use table will clari where those land uses can occupy while complying with state housing laws; and • establishing a transitional and supportive housing land use allowance in Victorville will assist with meeting the goals and policies of the Housing Element of the General Plan and comply with state housing law while concurrently protecting residential neighborhoods; and
• the need to incorporate transitional and supportive housing into the Development Code will help Victorville reach the goals and policies as set forth within the 2013 - 2021 Housing Element of the General Plan by the September 16, 2015 target date.

Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
• making an allowance for emergency shelters, transitional housing, and supportive housing into the Development Code will satisfy state law, specifically California Government Section 65583; and
WHEREAS, with respect to Massage Establishments and Body Art Facilities, the City Council hereby finds and declares that
• adding massage and body art related definitions to the Development Code will clarify the different types of land uses and associated employees; and • massage and body art related definitions are comprised of definitions provided by the California Business and Professions Code Section 4601 and the California Health and Safety Code Section 119301 as applicable; and
• modifying and adding special regulations for massage establishments and body art facilities is necessary due to the potential for illegal activity associated with those uses and for the protection of the health, safety and welfare of the citizens of Victorville; and • adding special regulations for massage establishments is needed due to the high number of massage businesses that have located in Victorville since the State modified regulation allowances of those businesses by local jurisdictions; and • adding special regulations for body art facilities is needed due to the potential for additional body art facilities within Victorville and the possible negative effects to the community and neighboring businesses associated with these facilities such as loitering, illegal activity, and blight; and
• adding special requirements for massage establishments will help to regulate those uses inasmuch as the State delegated additional regulation allowances of massage establishments to local jurisdictions on January 1, 2015; and • modifying and addlng special regulations for massage establishments and body art facilities will assist Victorville in implementing the Goals a_nd Policies of the Land Use Element of the General Plan by balancing land uses, protecting existing development Ordinance 2339 - DEV15:-00001 Amendments July 21, 2015
from incompatible land uses, ensuring the integrity of each land use district, and enhancing the appearance of the Victorville community; and WHEREAS, with respect to Gold Exchange, Money Service Business and Pawn Shops, the • City Council hereby finds and declares that:
• adding money service business and pawnshop definitions to the Development Code will clarify the different types _of land uses; and
• the pawn shop definition is derived from definitions provided by the California Financial Code Section 21000 and the California Business and Professions Code Section 21626 as applicable; and
• gold exchange, money service businesses, and pawnshop businesses are associated with a higher volume of police calls than other businesses in Victorville and are indirectly linked to other crimes by being in the business of exchanging goods for money and/or their tendency to keep large amounts of cash on-site; and • money service, gold exchange, and pawnshop businesses take advantage of lower income individuals with less options for banking and/or loan services; and • money service, gold exchange, and pawnshop businesses are indirectly associated with crime due to the nature of the business in which an exchange of goods and/or checks for cash occurs on-site; and
• gold exchange and pawnshop businesses enhance and expedite the ability of criminals to receive cash in exchange for stolen goods because they provide a location and a (
means to dispose of stolen property; and
• the City Council held public hearings on June 24, 2014; August 5, 2014; and February 3, 2015; and granted moratoriums on new money service businesses due to their potential negative impacts beginning June 26, 2014 and effective through August 5, 2015; and • applicable findings and recitals provided in City Council Ordinances 2319, 2320, and 2330 provide a foundation for the prohibition of money service businesses; and Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
• Victorville currently has seventeen money service businesses to serve a population of approximately 125,000; and
• prohibiting money service, gold exchange, and pawnshop businesses are required for the health, safety and welfare of the residents of Victorville; and • prohibiting money service, gold exchange, and pawnshop businesses from operating in Victorville will protect the general health, safety and welfare of the residents; and • prohibiting gold exchange, money service, and pawnshop businesses from operating in Victorville will assist in implementing the Goals and Policies of the Land Use and Safety Elements of the General Plan by protecting existing development from incompatible land uses, ensuring the integrity of each land use district, enhancing the appearance of the Victorville community; and ensure adequate police protection capabilities by reducing the strain on law enforcement personnel; and
WHEREAS, with respect to Medical Marijuana Dispensaries and Hydroponics Stores, the City Council hereby finds and declares that:
• adding medical marijuana dispensary and hydroponic store definitions to the Development Code will clarify the different types of land uses; and • the . medical marijuana dispensary definition is present in Section 13.02.145 of the Victorville Municipal Code; and
• medical marijuana dispensaries are deemed a public nuisance and it is unlawful to establish, maintain, or operate a medical marijuana dispensary in Victorville pursuant to Chapter 13.02 of the Victorville Municipal Code entitle "Nuisances"; and • medical marijuana dispensaries and hydroponic stores are directly linked to crime and illegal activity by being in the business of supporting the use and cultivation of a Schedule 1 narcotic as defined by the United States Controlled Substances Act; and • hydroponic stores typically provide all mediums, supplies, and general information used to cultivate marijuana; and
Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
• stand alone hydroponic stores became prevalent in urbanized areas only after California medical marijuana laws were passed; and
• hydroponic stores are typically associated with marijuana cultivation and may contribute to an increased amount of illegal narcotics within Victorville; and • prohibiting medical marijuana dispensaries and hydroponic stores are required for the health, safety and welfare of the residents of Victorville; and • prohibiting medical marijuana dispensaries and hydroponic stores from operating in Victorville will protect the general health, safety and welfare of the residents; and • prohibiting medical marijuana dispensaries and hydroponic store from operating in Victorville will assist in implementing the Goals and Policies of the Land Use and Safety Elements of the General Plan by protecting existing development from incompatible land uses, ensuring the integrity of each land uses district, enhancing the appearance of the Victorville community; and ensure adequate police protection capabilities by reducing the strain on law enforcement personnel; and
WHEREAS, with respect to Internet Cafes, the City Council hereby finds and declares that:
• updating the internet cafe definition in the Development Code will clarify the land use and help prevent illegal activities; and
• in this modern age of technology and electronics, Wi-Fi and smart phones, high speed internet access and fiber optics, computers/laptops, ·and education, the idea of an internet cafe where people pay to access the internet is outdated, along with the idea that a cafe owner will make enough profit to pay the locations rent is unrealistic; and • internet cafes are associated with a higher volume of police calls than other businesses in Victorville and are directly linked to illegal gambling, also known as "sweepstakes"; and
Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
• internet cafes provide provides a means for patrons to engage in illegal gambling through the use of "sweepstakes" on computer terminals made to look, feel, and act like slot machines; and
• "sweepstakes" which utilize a method intended to be used by a person interacting with an electronic video monitor to simulate gambling or play gambling-themed games in a business establishment that (A) directly or indirectly implements the predetermination of sweepstakes cash, cash-equivalent prizes, or other prizes of value, or (B) otherwise connects a sweepstakes player or participant with sweepstakes cash, cash-equivalent prizes, or other prizes of value have been deemed prohibited in the State of California pursuant to Section 17539.1 of Business and Professions Code; and • the prohibition of internet cafes will not prevent colleges, government agencies, hotels, schools, social services, amenities within a multi-family development from offering internet access and/or computer labs/banks for use by their guests/students; and • prohibiting internet cafes is required for the health, safety and welfare of the residents of Victorville; and
• prohibiting internet cafes from operating in Victorville will protect the general health, safety and welfare of the residents; and
• prohibiting internet cafes from operating in Victorville will assist in implementing the Goals and Policies of the Land Use and Safety Elements of the General Plan by protecting existing development from incompatible land uses, ensuring the integrity of each land uses district, enhancing the appearance of the Victorville community; and ensure adequate police protection capabilities by reducing the strain on law enforcement personnel; and
WHEREAS, with respect to Tobacco Uses, the City Council hereby finds and declares that:
• based in part on the information contained in this section, the failure of tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the sale of tobacco Ordinance 2339 - DEV15-00001 Amendments July·21, 2015
products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of the Victorville; and
• approximately 480,000 people die in the United States from tobacco-related diseases every year, making tobacco use the nation's leading cause of preventable death according to the U.S. Department of Health and Human Services; and • 5.6 million of today's Americans who are younger than 18 are projected to die prematurely from a smoking-related illness according to the U.S. Department of Health and Human Services; and
• WHEREAS, a November 2011 Policy Brief by Healthy High Desert mentioned that tobacco use continues to be a significant health risk factor in the High Desert with 20% of adults and 15% of high school seniors smoking cigarettes. In addition, one in five high school students uses marijuana; and
• the California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority, as evidenced by the facts that:
o The Legislature has declared that smoking is the single most important source of preventable disease and premature death .in California (Cal. Health & Safety Code§ 118950); and
o State law prohibits the sale or furnishing of cigarettes, tobacco products, and tobacco paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Cal. Pen. Code§ 308); and o State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 18 years of age (Cal. Bus. & Prof. Code § 22956) and provides procedures for using minors to conduct onsite compliance checks of tobacco retailers (Cal. Bus. & Prof. Code§ 22952); and o State law prohibits the sale of tobacco products �nd paraphernalia through self­ Ordina.nce 2339 - DEV15-00001 Amendments July 21, 2015
service displays with limited exceptions for tobacco stores (Cal. Bus. & Prof.

Code § 22960, 22962); and
o State law prohibits the sale of "bidis" (hand-rolled filter-less cigarettes imported primarily from India and Southeast Asian countries) except in adult-only establishments (Cal. Pen. Code § 308.1 ); and
o State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than 20 and prohibits the manufacture, distribution, or sale of "roll-your­ own" tobacco in packages containing less than 0.60 ounces of tobacco (Cal.

Pen. Code § 308.3); and
o State law prohibits the sale or furnishing of electronic cigarettes to minors (Cal.

Health & Safety Code § 119405); and
• state law requires all tobacco retailers to be licensed by the Board of Equalization primarily to curb the illegal sale and distribution of cigarettes due to tax evasion and counterfeiting (Cal. Bus. & Prof. Code §§ 22970.1, 22972); and • state law explicitly permits cities and counties to enact local tobacco retail ordinances, and allows for the suspension or' revocation of a local license for a violation of any state tobacco control law (Cal. Bus. & Prof. Code § 22971.3); and • California courts have affirmed the power of Victorville to regulate business activity to discourage violations of law. ( See, e.g., Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985); Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993); Prime Gas, Inc. v. City of Sacramento, 184 Cal. App. 4th 697 (201 O)); and • despite the State's efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the facts that:
o In California, 36.8 percent of high school students have smoked a whole cigarette by 14 years of age according to a 2012 report from the California Department of Public Health; and
Ordinance 2339 "" DEV15-00001 Amendments July 21, 2015
o In California, 64 percent of adult smokers started by the age of 18 according to a 2012 report from the California Department of Public Health; and o Among middle school students who were current cigarette users in 2004, 70.6 percent were not asked to show proof of age when they purchased or attempted to purchase cigarettes from a store, and 66.4 percent were not refused purchase because of their age based on a study published by the U.S. Department of Health and Human Services in 2005; and
o In 2002, youth smoked approximately 540 million packs of cigarettes, generating nearly $1.2 billion in tobacco industry revenue, according to a 2006 study by Healthon C, Farrelly MC, et al.; and
• California retailers continue to sell tobacco to underage consumers, evidenced by the following:
o 7 .6 percent of all tobacco retailers were witnessed unlawfully selling to minors in 2013 according to the California Department of Public Health; and o Among the 14.2 percent of minors nationwide who smoked cigarettes in 2011,

14.0 percent had usually obtained their own cigarettes by buying them in a store or gas station according to a study by the U.S. Department of Health and Human Services published in 2012; and
• Victorville has a larger population percentage of minors (33%) as compared to the state average (25%) and therefore has a higher number at risk of exposure to tobacco products and services; and
• the widespread presence of tobacco in retail settings normalizes the use of tobacco products and triggers smoking urges among former smokers and those attempting to quit; and
• the Institute of Medicine recommends restricting the number and location of tobacco outlets to discourage tobacco use and to reduce tobacco-related disease; and Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
• retailers that have state licenses to sell alcohol are accustomed to complying With state law licensing requirements and laws requiring age verification because they face fines, license suspension, and license revocation if they sell alcohol to persons under age 21; and
• retailers that have a state license to sell alcohol for consumption off the premises must be approved through a state application process. Factors examined upon such applications-including whether there is an overconcentration of retailers in an area and whether a retailer is too close to residences or areas frequented by youth-are also relevant to whether a retailer should be granted the right to sell tobacco; and • efforts to decrease perceptions of smoking as a socially acceptable behavior in bars, nightclubs and other establishments where smoking is permitted may help reduce smoking among young adults according to the American Journal of Public Health; and
• exemptions from smoke -free air laws have facilitated the emergence of niche tobacco markets, such as hookah bars and tobacco shops; and • separating places where smoking is permitted from places where tobacco is sold is necessary to promote the health of our residents by reducing impulsive smoking and social pressure to smoke; and
• WHEREAS, with respect to SmokeNape Shops and Smoking/Hookah Lounges, the City Council incorporates the tobacco recitals hereinabove and further finds and determines that:
• the need to prohibit new smoke/vape shops and smoking/hookah lounges based on those recitals and the recitals within this Section in order to protect for the health, safety and welfare of the residents of Victorville; and
• there exists a lack of state and federal control on E-cigarettes and other tobacco and _tobacco related products; and
Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
• the U.S. Food and Drug Administration (FDA) does not currently regulate electronic smoking devices and the potential health risks of vaping are not yet fully understood by the general population, especially youth; and
• • under California law it is currently illegal to sell an electronic cigarette device to a minor, however, this law does not prohibit minors from purchasing e-liquids that are sold separately from the electronic smoking device, including both nicotine-based liquids and non-nicotine liquids; and since vape shops increasingly sell e-liquids (including candy and fruit varieties) separately from the electronic smoking devices, the City Council wishes to prohibit these establishments; and
• hookah lounges, vape shops and smoke shops create a social environment where people can comfortably gather to vape and smoke; sometimes, these businesses will also have TVs, a DJ, or food and drink. The use of electronic smoking devices and other smoking devices indoors undermines existing clean indoor air laws and exposes customers and employees to potentially hazardous chemicals, such as formaldehyde, acetaldehyde, lead, nickel, and chromium, and negatively impacts neighboring businesses; and
• numerous California cities have adopted moratorium ordinances to prevent new vape shops from entering the market and more than 70 cities and GOUnties in California require have regulations pertaining specifically to the sale of electronic smoking devices; and
• over 8 percent of all tobacco retailers statewide were witnessed unlawfully selling to minors in 2012, and tobacco stores (defined as businesses in which at least 80 percent of merchandise was tobacco products) sold to minors at a much higher rate than the statewide average, as high as 20.5 percent according to the 2012 report by the State Health Officer's Report on Tobacco Use and Promotion in California by the California Department of Public Health; and
Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
• many cigarette, tobacco, vape and smoke shops sell items that are commonly known to be drug paraphernalia, including bongs and pipes used to smoke methamphetamine and other illicit drugs, and claim that such items are intended for tobacco use; and WHEREAS, with respect to Drug Paraphernalia, the City Council hereby finds and declares that:
• state law prohibits sales of "drug paraphernalia"; and • many retailers nevertheless sell items that are commonly known to be "drug paraphernalia," including bongs and pipes used to smoke methamphetamine and other illicit drugs, claiming that such items are intended for tobacco use; and • several California cities require compliance with state drug paraphernalia laws as a condition of obtaining and maintaining a local business license; and WHEREAS, with respect to Reasonable Accommodations, the City Council hereby finds and declares that:
• the Federal Fair Housing Act, Section 3604(f)(3)(b) of Title 42 of the United States Code and the California Fair Employment and Housing Act, Section 12955 of the California Government Code obligate local governments to make reasonable accommodations in their land use, zoning and building codes when flexibility is necessary to provide individuals with disabilities an equal opportunity to use and enjoy a dwelling; and • providing a reasonable accommodation in housing se9tion to the Development Code will ensure that Victorville complies with these state and federal fair housing laws; and • providing a reasonable accommodation in housing section to the Development Code will ensure. that Victorville meets the goals and policies of the Housing Element of the Victorville General Plan; and
• including a reasonable accommodation in housing section to the Development Code will promote housing opportunities for those persons with disabilities; and Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
• including a reasonable accommodation section to the Development Code will allow flexibility in regulatory barriers, including zoning, land use and building codes, for those persons with disabilities seeking fair access to housing; and • the need to provide for reasonable accommodation in housing for persons with disabilities will allow those individuals with equal housing opportunities and will satisfy the goals and policies of the Housing Element of the General Plan as well as the above mentioned state and federal laws; and
• providing reasonable accommodation in housing will satisfy an existent and important need for persons with disabilities in Victorville; and
• providing reasonable accommodation in housing will allow for realistic flexibility within the Development Code for persons with disabilities; and • providing reasonable accommodation in housing will allow for equal housing opportunities for persons with disabilities; and
• providing reasonable accommodation in housing is a goal of the Housing Element of the General Plan; and
• providing reasonable accommodation in housing is required by federal and state housing laws, specifically the Federal Fair Housing Act, Section 3604(f)(3)(b) of Title 42 of the United States Code and the California Fair Employment and Housing Act, Section 12955 of the California Government Code; and
WHEREAS, the City Council finds that the facts and findings set forth in the recitals hereinabove, justify and substantiate the definitions, land use requirements, and prohibitions included in the subsequent Code Amendments to be made by this Ordinance; and WHEREAS, the City Council finds on their own independent judgment that this project has been determined to be categorically exempt from the California Environmental Quality Act (CEQA) based upon CEQA Guidelines Section 15061(b)(3), as there is no possibility that the proposed .amendments will have a significant effect on the environment inasmuch as the amendments do Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
not increase land use allowances or modify existing standards that will negatively affect the environment, as they are intended to align with state housing law, provide flexibility to commercial land uses, expand definitions for land use clarification and promote the safety and well being of the community through land use restrictions on specific land uses.

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. Additions, Deletions, �nd Revisions of of Various Sections of Title 16 to the Victorville Municipal Code
That Title 16 of the Victorville Municipal Code be amended as follows:

Legend
Existing Text
QeleteEl +e�
Revised Text
New Text
{Editing Notes}
Title 16 Amendments
Chapter 1 : Development Department
Article 3: Definitions
Sec. 16-1.03.010 Definitions
Body art facility
* Additions*
a fixed location in which a body art practitioner performs. or demonstrates for the purpose of instruction. body art. including reception areas. the procedure area. and the decontamination and sterilization area. excluding those locations where body art is only provided on an out-call basis.

Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
Body art practitioner
ody a client. These activities include tattooing. body
an and brandin
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 vaporized liquid solution that frequently. though not always, contains nicotine. 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.

Drug Paraphernalia
has the meaning set forth in California Health & Safety Code Section 11014.5. as that Section may be amended from time to time.

Emergency shelter
housing with minimal supportive services for homeless persons that is limited to occupancy of six months or less by a homeless person. No individual or household may be denied emergency shelter because of an inability to pay.

Residential, group or community care facility
any facility, place or building that is maintained and operated to provide residential care for six or fewer people as defined, regulated. and licensed by state law; including but not limited to the physically handicapped. • mentally impaired. incompetent persons. abused or neglected children and the elderly. Community Care Facilities include but are not limited to the following: residential facility. adult day care facility. therapeutic day services facility. foster family agency, foster family home. small family home. social rehabilitation facility, . community treatment facility, full service adoption agency, noncustodial adoption agency. and transitional shelter care facility. Any of these facilities in a single-family zoning district shall be subiect only to those restrictions that apply to other residential dwellings of the same type in the same zone if required by state Jaw.

Transitional housing
housing configured as rental housing developments. with supportive services for up to twenty-four months but not less than six months. Transitional housing is designated and targeted for recently homeless persons and is intended to move recently homeless persons to permanent housing as quickly as possible and recirculate the assisted housing to another eligible program recipient. This type of housing includes self-sufficiency development services. and limits rents and service fees to an ability-to-pay formula reasonably consistent with the United States Department of Housing and Urban Development's requirements for subsidized housing for low-income persons. Rents and service fees paid for transitional housing may be reserved. in whole or in part. to assist residents in moving to permanent housing.

Supportive housing
housing with no limit on length of stay, that is occupied by persons with low incomes who have one or more disabilities. including mental illness. HIV or AIDS. substance abuse.· or other chronic health condition, or individuals eligible for services provided pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code) and may include. among other Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
populations. adults. emancipated minors. families with children. elderly persons, young adults aging out of the foster care system. individuals exiting from institutional settings. veterans. and homeless people; and that is linked to an onsite or offsite service that assists the supportive housing resident in retaining the housing. improving his or her health status. and maximizing his or her ability to live and. when possible. work in the community.

Automobile repair. Light
automobile repair that includes tire/wheel installation. service. and repair; alignment service; shocks and brake service; lube and oil change service; and other related light automobile repair. service, and maintenance as determined by the Zoning Administrator.

Light automobile repair does not include service or repairs that require mechanical expertise. machining (other than brake drum/rotor repair). engine removal. exhaust repair. and body/panel repair.

Automobile repair. Heavy
automobile repair that includes service or repairs that require mechanical expertise. machining (other than brake drum/rotor repair). engine removal. exhaust repair. body/panel repair. other related heavy automobile repair. and heavy equipment:ltractor­ trailer repair and/or service as determined by the Zoning Administrator. Heavy automobile repair does not include auto wrecking yards. salvage yards, storage yards. or any other functions not intended to repair/service automobiles on-site planned to be returned to road worthy condition.

Hydroponic store
means any business whose primary sales consist of product and apparatus used for growing plants without soil or in a non-soil medium such as water or other nutrient rich solutions: with or without an inert medium (i.e. gravel. perlite. etc.). and/or controlled conditions of light. temperature. and humidity. For the purpose of this Title. hydroponic stores also include businesses whose sales include grow lights (i.e. plant lights). artificial light sources. and other supplies typically used for hydroponics as the primary use.

Hydroponics stores are also synonymous with aeroponics. aquaculture. fogponics. etc.

Internet cafe
an establishment that provides four (4) or more computers and/or other electronic devices, for access to that system commonly referred to as the ''internet", E-mail, playing video games over the internet, sweepstakes. and/or access to other computer software programs, to the public for compensation and for public access. Internet Cafe is also synonymous with PC Cafe, Cyber Cafe, Cyber Centers, Sweepstakes Cates. Gambling Arcades. etc. Those facilities provided by colleges. government agencies. hotels. schools. social services. or included as an amenity within a multi-family development shall not be considered an Internet Cafe for the purpose of this Title.

Massage establishment
a fixed location where massage is performed for compensation. excluding those locations where massage is only provided on an out-call basis.

Massage technician
means a person who is certified by the California Massage Therapy Council and who administers massage for compensation. including massage practitioners and massage • therapists as defined by California Massage Therapy Council.

Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
Medical marijuana dispensary
means any business. facility or location. whether fixed or mobile. where medical mariiuana is made available to. distributed by or distributed to one or more of the following: a primary caregiver. a qualified patient. or a patient with an identification card as those terms are defined in Health and Safety Code Section 11362. 5 et seq.

Money service
businesses not considered financial institutions such as. but not limited to. payday loans. check cashing, title loans, automobile title loans. or money transmitters not registered with. and regulated by the Securities and Exchange Commission or the Commodity Futures Trading Commission.

Pawnshop
means any business whose primary operations include lending money on the security of pledged goods left in pawn. or in the business of purchasing tangible personal property to be left in pawn on the condition that it may be redeemed or repurchased by the seller for a fixed price within a fixed period of time. This definition shall also include businesses that purchase tangible personal property such as precious metals with the intent to resell items in bulk and/or deconstructed. establishments known variously as gold buying, gold exchan e etc. as determined b the Zonin Administrator.

Smoking lounge
a business establishment that is dedicated, in whole or in part, to the smoking of tobacco or other legal substances and vaporizing, including, but not limited to, establishments known variously as cigar lounges, hookah cafes, hookah lounges, tobacco clubs, tobacco bars, vape, vapor cafes. vapor lounges. etc. ( collectively referred to as "smoking lounge( s )").

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, of ingesting by any other means into the body of tobacco, tobacco products, or other controlled substances as defined in California Health and Safety Code Section 11054 et seq. Items or devices classified as tobacco paraphernalia include but are not limited to the following: pipes, punctured metal bowls, bongs, water bongs, electric pipes. e-cigarettes, e-cigarette iuice, buzz bombs. vaporizers. hookahs, and devices for holding burning material .. 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. For the purposes of this chapter. the term "tobacco product" excludes any product that has been specifically approved by the United States Food and Drug Administration (FDA) for sale as Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
product or for other medica/purposes. where such product is such an approved purpose.

Chapter 3: Zoning and Land Use Requirements
Article 7: Land Use and Special Requirements
Sec. 16-3.07.010 Table 7-1 Permitted, Conditional, Accessory and Temporary Land Uses * Additions/Change*
T
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heavy
Automotive -
repair - light -
Aute lleely -aREI 13aiRt
Car wash -automated
Car wash - -
full service
Car wash- -
self service
Gas/service -
station
Parking -structure
Rental -agency
Vehicle sales -- new
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Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
11 - I - - I - I - I - 11
*Change/Deletion*
•- •.

Tobacco sales
(See Sec. 16-
.... 3.07.020;
Tobacco

12.roductand

12.ara12.hernalia
sales
requirements/
Smel1e shep p p
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looRge
{Remaining unchanged subsections of Sec. 16-3.07 .020 as proposed shall be re- designated alphabetically} • *Change*
{Delete Sec. 16-3.24.120 titled "Finding of public convenience or necessity" and remove from title page listing of Article 24 of Title 16, Chapter 3} *Delete* Sec. 16-3.07.020
Special requirements for certain permitted and conditional uses *Change* (a) Alcohol sales
( 1) Conditional use permit required
(i) Except as provided in subsection (ii) and (iii) 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 this Code, in any entitlement and in any license issued, prior to engaging in any alcoholic (ii) Unless otherwise required by this chapter, a conditional use permit shall not be required of an establishment consisting of a general retail store, a grocery store, or a retail pharmacy with greater than 12,000 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, ca_!l lose its exemption pursuant to revocation procedures provided in Chapter 7 of this Title. If such revocation is Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
granted, such establishment will need to comply with obtaining a conditional use permit prior to continuing the sale of alcohol.
(iii) Unless otherwise required by this chapter, a conditional use permit shall not be required of a restaurant, as defined, establishment that serves alcoholic beverages for on-site consumption, limited to on-sale beer and wine, non-fortified products only.
(2) Finding of public convenience or necessity
(i) In areas with an over-concentration of alcohol licenses for off-site consumption as defined pursuant to Business and Professions Code Section 23958.4, 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 either the City Council, Planning Commission, or Zoning Administrator, as applicable,· to businesses wishing to obtain an off-site license in over-concentrated areas that com ly with the following crte ·a: ....,,,..---..__
a. The retailer must occupy greater than 12,000 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;
b. A retailer tied to a fueling station with less than 12,000 8,000 square feet of gross floor area shall be limited to off-site beer and wine, non-fortified products only;
c. No more than 10% of the floor area may be devoted to alcoholic beverage displav. unless a larger percentage of display is otherwise approved by the Planning Commission;
d. At least 10% of the floor area must be devoted to food and non-alcoholic beverage sales;
If lo ati n of th bigb ri e r a, w i.c is
e me as ollce epa men ca s or service o a co o -re a a nc e c s 20% greater than the average number 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 for the Department of Alcoholic Beverage Control;
f. The property/building/use has no outstanding Building or Health Code violations or Code Enforcement activity;
g. The site is properly maintained, including building improvements, landscaping, and lighting; and
h. The owner/applicant has no history of violations with the Alcoholic Beverage Control Board and/or City of Victorville.
(ii) Prior to the establishment of any business selling alcoholic beverages, when within the Zoning Administrator's purview, the Zoning Administrator, when required pursuant to 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.

Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
(iii) If any other discretionary approvals are required, the public convenience or necessity finding shall be incorporated into the process for such discretionary approval review.
(3) Distance requirements
(i) No off-site alcoholic beverage establishment shall be located within 600 feet of residentially zoned property, public or private schools, religious facilities, or parks o pl yg o n , xc p .
a. A general retail store, or grocery store, or retail pharmacy with greater than 12,000 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
c n· n
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.
(ii) No Bar or Nightclub 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.
(iii) For purposes of this section, distances shall be measured between the closest property lines of the affected locations.
( 4) Operational standards - applicable to off-site alcoholic beverage sales activities (i) Off-site alcoholic beverage sales activities shall be designed, constructed, and operated to conform to all of the following operational standards and alcohol sales limitations:
a. An establishment selling alcoholic beverages shall not result in adverse effects to the health Reace or safety of ersons residing or working in the Sllrr un i re .
b. An establishment selling alcohol for off-site consumption shall be prohibited from selling single-serve alcoholic beverages, including, but not limited to, beer, malt liquor and alcoholic energy drinks of any size; wine of less than 750ml in size; distilled spirits of less than 375ml in size; or any other individual 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. This restriction does not apply to existing establishments selling alcoholic beverages for off-site consumption with an active beer, wine or liquor license established prior to July 18, 2013 (the effective date of Ordinance 2299), unless the license has lapsed for more than 90 or more consecutive days, or was originally prohibited from selling single-serve alcoholic beverages through a Conditional ·Use Permit, a Finding of Public Convenience or Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
Necessity and/or a through a Department of Alcoholic Beverage Control license.
c. An establishment selling alcoholi.c beverages shall not result in nuisance activities within the premises or in close proximity of the premises, 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.
d. An establishment shall comply with all provisions of local, state or federal . laws, regulations or orders, including but not limited to those of the ABC,· California Business and Professions Code§§ 24200, 24200.6, and 25612.5, as well as any condition imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes compliance with annual city business license fees.
e. The premises upkeep c;1nd operating characteristics shall be compatible with, and shall not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.
f. An establishment shall comply with the following public nuisance prevention measures:

1. Lighting: Exterior areas of the premises and adjacent parking lots shall be provided with sufficient lighting in a manner that provides adequate illumination for alcohol establishment patrons while not spilling onto surrounding residential and commercial properties. A photometric study may be required to demonstrate compliance.

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.

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 alcoholic beverages 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. Presentation of Documents: A copy of the conditions of approval and the California Department of Alcoholic Beverage Control license shall be required to be kept on the premises and presented to any enforcement officer or authorized state or county official upon request.

7. Mitigating Alcohol Related Problems: The establishment shall be required to operate in a manner appropriate with mitigating alcohol Ordinance 2339 - DEV15-00001 Amendments July 21, 2015
related problems that negatively impact those individuals living or working in the neighborhood including but not limited to congregation of individuals, violence, drunkenness, public urination, solicitation, drug­ dealing, drug use, and loud noise on or near the premises. Such mitigation measure 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.

8. Drug Paraphernalia: An off-site alcohol establishment shall be prohibited from selling drug/tobacco paraphernalia products 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 in violation of the California Uniform Controlled Substances Act commencing with California Health and Safety Code section 11000.

9. 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.

10. Window Obstructions: To ensure a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance, no more than 15% of windows and entry doors shall be blocked by signs, vending machines, shelves, racks, storage, etc.

11. Training: Each off-site operator and their employees selling alcohol shall complete the Responsible Beverage Service (RBS) Training component.

To satisfy this requirement, a certified program must meet the standards of the Alcohol Beverage Control Responsible Beverage Service Advisory Board or other certifying/licensing body designated by the state of California. Proof of completion shall be kept on the premises and provided to City officials within 48 hours of a written request.

12. 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.
(ii) Failure to comply with any of these requirements shall constitute grounds for revocation of a conditional use permit and/or business license. These above requirements, shall not be considered the sole· grounds for revocation of a conditional use permit and/or business license.

Ordinance 2339 - DEV15-00001 Amendm�nts July 21, 2015
(16) Any person practicing outcall massage services within City limits shall have a valid state massage certification from the State Massage Therapy Council. and shall carry the certificate with them at all times while performing massage[s] in the city and _shall provide such certification if requested by any Police Officer or Code Enforcement Officer.
(18) The owner of any massage establishment or aR-outcall massage service within the City is responsible for the conduct of all employees working within the City limits. Any violation of provisions of this chapter, or any other ordinance of the city, shall be justification for revocation of the owner's business license and any associated Conditional Use Permit or Home Occupation Permit.
(18) Any massage establishment whose Conditional Use Permit has been revoked. or any Conditional Use Permit that has expired, shall conform with all requirements of Title 16 as applicable, prior to application submittal of a new Conditional Use Permit. (19) Any massage establishment or outcall massage service operated or maintained contrary to the provisions of this chapter or other ordinances of the city shall result in the revocation of the business license in accordance with the procedures of this Code.

Additionally, any violations of this chapter are hereby deemed a public nuisance and may be abated according to Chapter 1.04 and/or remedied in accordance with Chapter

1.05 of the Victorville Municipal Code.
(20) Any massage technician or therapist that violates any provision of this chapter or other ordinance of the city shall result in the revocation of their business license in accordance with the procedures of this Code.
(21) All massage establishments shall post a current list of all licensed massage technicians providing massage services at the location. The list shall be displayed in a conspicuous public place within the massage establishment and shall only include those licensed massage technicians that have been verified by the City of Victorville in coniunction with business license approval . .
(22) All massage establishments shall display the applicable standards contained within this section in a conspicuous· public place within the massage establishment. (m) Tobacco product and paraphernalia sales requirements *Addition* {Jl No license may be issued to authorize retail tobacco product and paraphernalia sales at any location that is not licensed under state law to sell alcoholic beverages for consumption off the premises (e.g. an "off-sale" license issued by the California Department of Alcoholic Beverage Control).
{21 The display area of tobacco produ'cts. including paraphernalia. shall not exceed 10 percent of the total floor area of a business establishment. @ The 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.
&:l The display of tobacco products and paraphernalia shall be located behind a service counter in a manner that prohibits self-service by the customer. {.fil It shall be a violation of this municipal code for any licensee or any of the licensee's agents or employees to violate any local. state, or federal Jaw regulating controlled substances or Drug Paraphernalia. such as. for example. California Health and Safety Code section 11364. 7.
{§1 No smoking or vaping shall be permitted on the premises at any time. {11 The sale of tobacco products and paraphernalia to a minor is prohibited. {.fil No sales may be solicited or conducted on the premises by minors. {fil No distribution of free or /ow-cost tobacco. tobacco products or tobacco paraphernalia. as well as coupons for said items. shall be permitted.
(n) Body art facility operating requirements *Addition* ( 1) The provisions of this section shall not apply to facilities that solely provide ear piercing as an accessory use to a primarily retail location. that only pierces the ear with a disposable. single-use. pre-sterilized clasp and stud or solid needle that is applied using a mechanical device to force the needle or stud through the ear. unless otherwise required by the County of San Bernardino Health Department. (2) No body art facility may be located within three thousand (3,000) feet of another body art facility nor within six hundred (600) feet of an elementary. secondary or high school: nor within two hundred (200) feet of a Jot in the residential zone. (3) No alcoholic beverages shall be sold or consumed on the premises. (4) No persons under eighteen (18) years of age shall be permitted within the business. (5) All business-related activities shall be conducted wholly within a building. "No Loitering" signs shall be placed along the business frontage and shall be enforced by the business owner.
(6) No window coverings shall prevent visibility of the interior of the tenant space from outside the premises during operating hours. Any proposed window tint shall be approved in advance by the Development Department.
(7) Pool tables or other amusement devices are not permJtted anywhere within the business.
(8) A valid license and/or permit from the San Bernardino County Health Department shall be maintained at all times for the facility and obtained prior to the issuance of a business license.
(9) Every person performing body art services for compensation shall obtain and maintain a valid registration with the San Bernardino County Health Department. (10) Each body art practitioner shall maintain a valid registration with the San Bernardino County Health Department, a copy of which shall be conspicuously posted in the location where body art services are provided.
(11) Maintain verification that all body art practitioners working at the establishment have a valid registration with the San Bernardino County Health Department. which shall be provided at the request of local authorities.
- (12) The business shall be in conformity with all city. state and federal Jaws. (13) The interior of the business shall be maintained with adequate illumination to make the conduct of patrons within the premises readily discernible to persons of normal visual acuity.
(14) All outcall body art services with a principal place of business located inside or outside of City limits which provides body art services within City limits shall obtain and maintain a city business license.
(15) Any person practicing outcall body art services within City limits shall have a valid registration with the San Bernardino County Health Department. and shall carry the registration with them at all times while performing body art in the city and shall provide such registration if requested by any Police Officer or Code Enforcement Officer.

PLANNING COMMISSION

ATTACHMENT D
Pub
lic Comments

Cal
ifornia │ Oregon │ Washington │ Wisconsin │ Michigan │ Alaska Litigation │ Employment Law │ Personal Injury │ Gaming │ Land Use │ Indian Law │ Alcohol Licensing

SOLOMON SALTSMAN & JAMIESON
A Partnership of Professional Corporations
426 Culver Boulevard │ Playa Del Rey, CA 90293
Telephone: 310.822.9848 │ Facsimile: 310.822.3512
Toll Free: 800.405.4222
www.ssjlaw.com
R. Bruce Evans
Partner
[email protected]

March 12, 2024
Via Email: [email protected]
14343 Civic Drive
PO Box 5001
Victorville, CA 92393-5001
RE: Code Amendment - PLAN22-00002
Planning Commission Item 7 (3.13.24)
Proposed Amendments to Victorville Municipal Code re: Alcohol and Tobacco Sales To Whom It May Concern,
Our office represents a cross section of retailers in Victorville, including national brands and independent markets both corporate and independent, and whose offerings include alcoholic beverages and tobacco.

We have recently become aware that the City is considering amendments to its Municipal Code which significantly alter the requirements and impose new operating restrictions for alcohol and tobacco retailers in the City – in particular, Case No. PLAN22-00002, which will be considered as Agenda Item #7 at the Victorville Planning Commission meeting on March 13, 2024.

First, we and our clients appreciate the extreme burdens cities face in dealing with the homeless crisis and the legitimate need to impose objective standards to prevent nuisance activity at alcohol and tobacco retail locations.

However, some of the changes contemplated by this legislation that seek to impose new alcohol sales restrictions business are contrary to state law.

The proposed restriction on existing ABC-licensed premises from selling individual containers of beer, wine, and/or distilled spirits is contrary to state law.

California
Business & Code § 23790 exempts existing alcohol retailers from later enacted zoning ordinances imposing new restrictions on alcohol sales, so long as the retailer neither changes its license classification nor substantially changes its mode or character of operation.

City of Victorville March 11, 2024
PLAN22-00002 (Draft Ordinance) Page 2 of 4
As explained below, the City cannot impose new restrictions on single sales at existing alcohol retailers who are currently permitted to sell singles because B & P § 23790 exempts these stores from subsequently enacted zoning ordinances that impose new restrictions on alcohol sales.

B & P Code § 23790 provides in relevant part:

No retail license shall be issued for any premises which are located in any territory where the exercise of the rights and privileges conferred by the license is contrary to a valid zoning ordinance of any county or city. Premises which had been used in the exercise of those rights and privileges at a time prior to the effective date of the zoning ordinance may continue operation under the following circumstances:
(a) The premises retain the same type of retail liquor license within a license classification.
(b) The licensed premises are operated continuously without substantial change in mode or character of operation.

B & P Code §23790 specifically exempts existing alcohol retailers who satisfy the two prongs of this provision from subsequently enacted zoning requirements. In Boccato v. Hermosa Beach, 29 Cal.App.4th 1797 (1994), the facts are essentially identical to this matter. In Boccato, the owners of liquor stores challenged an ordinance which required them to obtain conditional use permits in order to continue selling alcoholic beverages. The court found that B and P Code § 23790 “exempts from zoning ordinances off-sale liquor stores that predate the enactment of such ordinances provided that [the] two conditions [of section 23790] are met.” Therefore, the court agreed with the store owners and found that Section 23790 preempted the local zoning ordinance to the extent that the ordinance purported to regulate previously existing businesses licensed to sell alcoholic beverages by requiring such businesses to obtain conditional use permits in order to continue to sell alcoholic beverages. Id.

Additionally, in Korean American Legal Advocacy Foundation v. City of Los Angeles, 23 Cal.App.4th 376, 385 (1994) the court noted that “[i]f the purpose and effect of the City’s ordinances are to regulate the manufacture, sale, purchase, possession or transportation of alcoholic beverages [then] we would have to agree [that] the state has expressly preempted local regulation.”
In this case, it is clear the amended ordinance’s ban on single sales at existing businesses and the City’s application of that ordinance would regulate and restrict previously existing rights and privileges in selling alcohol and therefore, is in violation of B & P Code §23790.

The ban on exterior advertising of alcoholic beverages
For all of the reasons stated above, B & P Code 23790 prohibits the City from imposing on existing retailers a blanket advertising ban on alcoholic beverages. Clearly, advertising impacts the sale of alcohol by a willing purchaser. Additionally, this provision constitutes “a blanket prohibition against truthful, nonmisleading speech about a lawful product” in violation of

City of Victorville March 11, 2024
PLAN22-00002 (Draft Ordinance) Page 3 of 4
retailer’s speech rights under the First Amendment to the United States Constitution. 44 Liquormart, Inc. v. Rhode Island, 517 U.S.484, 504 (1996). In fact, any laws abridging signage “based on communicative content” are “presumptively unconstitutional.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015).

Retailers in Victorville are already regulated by how much advertising can be on the windows.

Business and Professions Code Sections 25612.5(c)(7) provides:

No more than 33 percent of the square footage of the windows and clear doors of an off- sale premises shall bear advertising or signs of any sort, and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the premises.

The local regulation of flavored tobacco products
T
he draft ordinance also contains a proposed ban on the sale of “flavored tobacco products” or “presumptive flavored tobacco products.” (Proposed VMC 16-3.07.015(b)(4)(i)(e)(5)). It is understood the City has wide latitude to regulate tobacco sales compared to alcohol. The state has clearly shown its intent to restrict flavored tobacco products and the legislation has been fast moving and with recent beefed-up enforcement (providing the California Department of Public Health responsibility and jurisdiction to enforce these provisions), as noted in the Staff Report.

Given the potential discrepancies between the draft city ordinance and currently-existing (but likely expanding) state law, our clients are concerned about inconsistent enforcement. Confusion over product classifications (as flavored or non-flavored) caused by the lack of clear labeling and legal requirements on the tobacco companies to list flavor additives on the product ingredient list remains a problem. Accordingly, our clients respectfully submit that the regulation of flavored tobacco products be left to the state for consistent enforcement.

Conclusion and Request for Continuance
The undersigned has been involved in similar issues arise in multiple cities throughout California and each city has ultimately concluded, or a court ordered, that the city does not have authority to impose new alcohol restrictions on existing alcohol retailers.

We respectfully request the Wednesday, March 13th Planning Commission hearing on this matter be continued so that Planning Staff and the City Attorney have adequate time to review the information and legal positions set forth in this letter. Additionally, the text of the proposed ordinance was not made available until Friday, March 8th and the business community most impacted by this ordinance has had limited time to review it, which further supports a continuance.

Thank you for your consideration. Please let me know if Staff will support the continuance so we can advise our clients it is not necessary to show up to the March 13th Planning Commission meeting.

City of Victorville March 11, 2024
PLAN22-00002 (Draft Ordinance) Page 4 of 4
Very Truly Yours,

SOLOMON, SALTSMAN & JAMIESON
R. BRUCE EVANS
R. BRUCE EVANS
Licensed in California

1 Alex Jauregui
From: Planning Division
Sent: Wednesday, March 13, 2024 12:33 PM
To: Alex Jauregui
Subject: FW: Public Comment - Planning Commission Meeting March 13, 2024 Importance: High
Hi, this was just received.

Robyn Hernandez
Secretary | Planning
F
rom: Carolina Gabaldon <[email protected]> Sent: Wednesday, March 13, 2024 12:07 PM
To: City Clerk <[email protected]>; Planning Division <[email protected]> Subject: Public Comment - Planning Commission Meeting March 13, 2024 [EXTERNAL EMAIL]: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

G
ood afternoon, City of Victorville Planning Commission Members, My name is Carolina Gabaldon, and I am a District 4 resident of Victorville and a High Desert Community Coalition member. The HDCC brought significant concerns related to liquor stores and smoke shops to the city council several years ago, and conditions are very similar now. Today, you are presented with a recommendation to move an ordinance forward to the city council to address our concerns related to public health and safety in our community.

As a mother, I am concerned that my children are starting to believe that it is normal for people to drink and sell drugs at gas stations, smoke shops, and convenience stores. We have witnessed several fights and other public nuisance-related activities outside these locations in strip malls near our neighborhood grocery store, pharmacies, and gas stations we visit for day-to-day activities. As a coalition member, I have assessed several stores in other districts with similar conditions. Finally, as a public health educator, I understand the value of regulations to improve public health and safety in communities.

Therefore, I respectfully request that the Planning Commission approve the recommendation before you this evening, noting the following:

1. The alternative recommendation is to allow existing businesses to maintain the ability to sell single-serve beverages does not protect our youth. Mini liquor bottles are placed on counters next to candy displays, and many single-serve beverages are enticing to youth and advertised on storefront entrances. Trash and litter around these locations are mainly mini-liquor bottles and smashed cans. People loiter outside stores selling these products, drinking in public, panhandling to purchase these reduced-price items, and they are often aggressive or fight with others. In short, the alternative will not improve conditions at existing businesses.

2. The 12-month time frame to bring existing businesses into compliance with the ordinance is too long. There is already a moratorium on applications for new liquor stores since alcohol outlet density is over-concentrated. New applications

2 do not allow single-serve beverages to be sold, and it would be better for all stores to have the same regulations. I suggest a six-month timeframe to bring existing businesses into compliance is appropriate, as alcoholic beverages have a short expiration date, allowing businesses plenty of time to remove these items from their shelves and sell their current supply.

Last, I commend your efforts to recommend an ordinance that combines alcohol outlet and smoke shop retailer regulations. This will address the problem conditions at alcohol and tobacco retailers and provide less strain on code enforcement to ensure compliance. I am happy that the planning commission is addressing community concerns and is taking action to improve the health and safety of Victorville residents and youth.

Sincerely,
Carolina Gabaldon BS, MPH
Adjunct Faculty - Lecturer
Certified QLT Course Designer & Peer Reviewer
California State University, San Bernardino
Department of Health Science and Human Ecology
5500 University Parkway
San Bernardino, California 92407
Department - (909) 537-5339
Cell - (760) 220-6161
CSUSB Email: [email protected]
Personal Email: [email protected]
https://www.csusb.edu/

1 Alex Jauregui
From: Sarah St. Louis
Sent: Wednesday, March 13, 2024 2:48 PM
To: Alex Jauregui; Daisy Kawasaki
Subject: FW: 3/13/2024- Public Comment- Agenda Item #7
From: Alexis Lyken <[email protected]>
Sent: Wednesday, March 13, 2024 1:48 PM
To: Planning Division <[email protected]>
Subject: 3/13/2024- Public Comment- Agenda Item #7
[EXTERNAL EMAIL]: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Ma
rch 13, 2024
Re: Planning Commission
Public Comment - Agenda Item 7
Dear Planning Commissioners
I am a Victorville Resident from District 3. I am writing in support of the proposed TRL/DAO and to raise my concerns about the availability of single-serve alcohol products and Meth pipes in Victorville convenience stores and smoke shops, respectively. I have lived in Victorville for over 5 years, near Elvado rd and Hook Blvd. I frequent Michaels liquor store for the occasional chip and drink; it is the only convenience store in walking distance. And, too commonly, I am put in an unsafe situation, where I am harassed and followed. Outside of the store, there typically is heavy activity, with people drinking in their cars/or in groups, and it is a common occurrence to see single-served alcohol bottles on the ground. If I feel uncomfortable, I can only imagine how others may feel or, even worse, what environment
this makes for youth. There are two schools near this liquor store, one to the west and the other to the east. The impact of seeing empty alcohol bottles or witnessing adults congregating and consuming alcohol in front of a store can have lasting impacts on a child and what they deem to be normal behavior. This is not normal behavior; we need to take action to protect our youth and community from normalizing these actions and allowing this activity to happen so close to schools and residential areas.

I have a younger cousin who lives in the High Desert. He is only 22 but has been battling a methamphetamine addiction for over 8 years. I am so disappointed that meth pipes are available for purchase at every smoke shop in Victorville. These pipes are illegal under California law, yet they are still able to be sold throughout the high desert and at a low price. For people like my cousin that are struggling with an addiction, how easy does it make meth use to have these products available for purchase? I urge you all to pass the TRL/DOA; these ordinances have the ability to address several substance-related issues that are currently affecting our youth.

We don't have time to wait; every day, impressions are being made that will forever affect the trajectory of a child's life. Please make a decision that works to protect the community and not to support the sale of products that harm us.

Sincerely,

2 Alexis Lyken.

1 Sarah St. Louis
From: Devil Kitty <[email protected]>
Sent: Wednesday, April 10, 2024 2:24 PM
To: Planning Division
Subject: Comments for tongihts meet
[EXTERNAL EMAIL]: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hello, I am Ja
calyn Harden, a member of FNL, and president of Serrano High School's chapter. A major issue that I have seen within the High Desert community is the unsafe conditions of gas stations, liquor stores, and smoke/vape shops.

My main focus, however, will be on gas stations. When I get gas, I have to pay inside, and when doing so, I notice loiterers who smoke, making the area feel very unsafe. On top of that, loiterers make the area look dirty and unclean, which can turn some people away from shopping there. Moving away from gas stations, let's focus on vape and smoke shops. They are super accessible to teens, and I know this because some people I know have been able to buy vapes when they weren't even 18. Teens should not be able to buy vapes at all due to the huge effects it has on their lives, especially those under 18. We need to crack down on this because as long as there are willing teens, the smoke and vape shops will sell to them, as long as they get a pretty penny.

From uncleanliness to easy accessibility, gas stations, and vape/smoke shops must be improved upon. Teens, like myself, may get overwhelmed by all the dirtiness and loitering, to the point where they don't want to be alone when simply getting gas. Lastly, with accessibility, we should not allow the shops to sell to teens when the effects are detrimental to them, it is imperative to be investing in their future to make it better, not worse.

Thank you for taking the time to listen to my speech,
-Jacalyn Harden

Cal
ifornia │ Oregon │ Washington │ Wisconsin │ Michigan │ Alaska Litigation │ Employment Law │ Personal Injury │ Gaming │ Land Use │ Indian Law │ Alcohol Licensing

SOLOMON SALTSMAN & JAMIESON
A Partnership of Professional Corporations
426 Culver Boulevard │ Playa Del Rey, CA 90293
Telephone: 310.822.9848 │ Facsimile: 310.822.3512
Toll Free: 800.405.4222
www.ssjlaw.com
R. Bruce Evans
Partner
[email protected]

April 24, 2024
Via Email and FedEx: [email protected]
14343 Civic Drive
PO Box 5001
Victorville, CA 92393-5001
RE: City of Victorville Case Number: PLAN22-00002
Proposed Amendments to Victorville Municipal Code re: Alcohol and Tobacco Sales Comments Re: Proposed Municipal Code Amendments to Flavored Tobacco I write to you on behalf of a number of retail businesses located in the City of Victorville. These businesses are concerned about several of the proposed changes to the Victorville Municipal Code. I have previously written to Planning Staff concerning the proposed ordinance’s ban on single beer sale and alcohol advertising.

Additionally, our clients are concerned about the proposed local regulation of the sale of “flavored tobacco products” and “presumptive flavored tobacco products” in the Victorville Municipal Code.

News coverage has documented confusion among retailers as to which products are permitted, and which are not under local regulations. Compounding the confusion, state and municipal agencies have failed to provide consistent guidance such as banned product lists or evaluative standards.

There is no need for the City to voluntarily to conduct duplicative enforcement in an area already regulated by the state. Doing so invites the risk of arbitrary, incorrect, and inconsistent enforcement. The State has enacted a comprehensive legislative scheme regarding flavored tobacco products. It has appointed an agency – the Department of Public Health - with the appropriate scientific and procedural expertise to promulgate and enforce clear and enforceable regulations for the implementation of these statutes. The state Department of Justice is currently disbursing over a hundred fifty million dollars through the Tobacco Grants Program in order to develop coherent enforcement standards and educate retailers in compliance with the law. Under these circumstances, it would be most practical to allow the state’s regulatory scheme to be fully developed and implemented.

City of Victorville April 24, 2024
PLAN22-00002 (Draft Ordinance) Page 2 of 3
In areas where municipal bans have also been enacted over and above the state- wide ban,
problems have arisen regarding inconsistent enforcement. In the absence of these guidelines – or at least clearly applicable scientific standards to apply - retailers also face the specter of arbitrary and incorrect enforcement. My office is aware of instances in which municipalities have also attempted to suspend tobacco licenses for products which are not marketed or packaged as flavored tobacco products.

For example, in a recent case our office was involved in, a northern California city cited stores for selling Dutch Masters Gold Fusion and Black & Tan Mild Royale cigarillos, which the City asserted were flavored. This was a shock to retailers, who had been informed by the manufacturers that these products were not flavored, and the advertising for these products likewise did not claim that either the Gold Fusion or the Royale products contained any non- tobacco characterizing flavors. The Dutch Masters website described the product as "rich and decadent,” and a “smooth blend of sweet and aromatic tobaccos come together in a dark natural leaf wrapper." Similarly, the Black & Mild product was not advertised with any descriptors of flavor except the statement that it contained a “sophisticated and smooth blend” of tobacco.” The key statutory language focusses on non-tobacco characterizing flavors. Neither of these products contains, or is marketed or packaged as containing, any non-tobacco characterizing flavors “relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice.” (Health & Safety Code §104559.5 subs. (a), para. (1).) The retailers remain confused about whether certain products are flavored in the mind of local government given the guidance from the state definition and messages from the manufacturers that these products are not, on their face, unlawful flavored tobacco products as defined by state law.

Once state agencies, retailers and manufacturers alike are finally on the same page about what products are banned and which products are not, the City will be able to accurately determine

City of Victorville April 24, 2024
PLAN22-00002 (Draft Ordinance) Page 3 of 3
whether Victorville’s particular circumstances require further regulations above and beyond the scope of the state’s actions.

Under these circumstances, we respectfully submit it would be most practical to allow the state’s regulatory scheme to be fully developed and implemented, at which point the City will be able to accurately determine whether Victorville’s particular circumstances require further regulations above and beyond the scope of the state’s actions.

Thank you for your consideration.

Very Truly Yours,

SOLOMON, SALTSMAN & JAMIESON
R. BRUCE EVANS
R. BRUCE EVANS
Licensed in California

PLANNING COMMISSION

ATTACHMENT I
Dra
ft Inspection Checklist

City of Victorville
14343 Civic Drive
PO Box 5001
Victorville, CA 92393-5001
(760) 955-5135
Fax (760) 269-0070
[email protected] Department of Development Planning  Building  Code Enforcement  Business License  Animal Control New Alcohol Retail Establishments – Compliance Checklist ☐ 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. ☐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. ☐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. ☐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.
☐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:
• "California State Law prohibits the sale of alcoholic beverages to persons under 21 years of age." • "No Loitering or Public Drinking."
• "It is illegal to possess an open container of alcohol in the vicinity of this establishment." ☐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.
☐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. ☐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 California Department of Alcoholic Beverage Control.
☐ Posting of Documents: A copy of these operational standards, any applicable California Department of Alcoholic Beverage Control 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 enforcement officer or authorized state or county official. ☐Single-serve alcoholic beverages prohibited
☐Drug paraphernalia prohibited

City of Victorville
14343 Civic Drive
PO Box 5001
Victorville, CA 92393-5001
(760) 955-5135
Fax (760) 269-0070
[email protected] Department of Development Planning  Building  Code Enforcement  Business License  Animal Control Tobacco Retail Establishments – Compliance Checklist
☐ 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. ☐ 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. ☐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. ☐Prohibited 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.
☐Required Signage: 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:
• "California State Law prohibits the sale of tobacco products to persons under 21 years of age." • "No Loitering or Public Drinking."
• "It is illegal to possess an open container of alcohol in the vicinity of this establishment." ☐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.
☐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. ☐Posting of Documents: A copy of these operational standards, any applicable California Department of Tax and Fee Administration or city operating conditions and licenses, 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 enforcement officer or authorized state or county official. ☐ Smoking or vaping on the premises is prohibited.
☐The sale of tobacco products and paraphernalia to a person under the age of 21 is prohibited. ☐The sale of drug paraphernalia is prohibited.
☐The sale of flavored tobacco products or presumptive flavored tobacco products is prohibited. ☐The distribution of free or low-cost tobacco, tobacco products or tobacco paraphernalia, as well as tobacco coupons for said items is prohibited.
☐ The display area of tobacco products, including tobacco paraphernalia shall not exceed 10 percent of the total floor area of a business establishment (excludes non-conforming smoke shops with a valid deemed approved status). ☐The display area of tobacco products, including tobacco paraphernalia shall be located behind a service counter in a manner that prohibits self- service by the customer. ☐The 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 (excludes non-conforming smoke shops with a valid deemed approved status).

Agenda Item# 2
Revised Resolution & Public
Comments

Presentation
Municipal Code Amendment
Case No. PLAN22-00002
Agenda
Item #2

Regulation
History
 Ordinance No. 2299 – July 18, 2013
• Single-serve alcoholic beverages prohibited
 Ordinance No. 2324 – November 10, 2014
• Additional off-site alcohol regulations & distance
standards
 Ordinance No. 2339 – September 17, 2015
• Added tobacco product and paraphernalia
requirements
Basis for
Amendment
 Lack of compliance monitoring process
• No established process to ensure V.M.C. compliance
 New State laws (SB 793 & AB 935)
• Flavored tobacco sales prohibited throughout
California
 Planning Commission Recommendation
• New tobacco/tobacco paraphernalia requirements
and alcohol standards w/monitoring procedures
Amendment
Overview
 Updates existing operating standards and introduces
new operating/performance standards addressing:
• Property maintenance and site upkeep
• Tobacco/tobacco paraphernalia display area
• Exterior alcohol and tobacco signage
 Prohibits the sale of drug paraphernalia & flavored
tobacco
 Requires annual compliance inspections and licensing
 Maintains single-serve alcoholic beverage allowances
for nonconforming businesses
Existing
Regulations
(Alcohol Sales)
 Conditional Use Permit (CUP) Required
• Most new alcoholic beverage sales establishments
 Finding of Public Convenience or Necessity
(FPCN)
• Required within overconcentrated census tracts
 Separation Requirements
• Off-site alcoholic beverage sales and bars/
nightclubs prohibited within 600 ft. of sensitive
land uses.

Existing
Regulations
(Alcohol Sales)
 Operational Standards
• Public Nuisance Measures
 Site standards
 Operational standards
• Prohibited Sales / Operations
 Drug paraphernalia
 Window coverings
 Exterior advertising of alcoholic
products, tobacco / tobacco
paraphernalia

Existing
Regulations
(Tobacco Sales)
 Operational Standards
• Display area limitations
 Tobacco/tobacco paraphernalia
 Product location behind service
counter
• Prohibited Sales / Operations
 On-site smoking
 Sales to or by minors
 Sales of drug paraphernalia

New &
Updated
Regulations
(Alcohol Sales)
 Deemed Approved
• Designates most non-conforming alcoholic beverage sales businesses as “Deemed Approved Establishments”
 Subject to previously approved CUP’s & performance
standards
 Non-conforming single-serve alcoholic beverage sales
permitted to remain
• Subject to initial and annual compliance inspections
 Training Requirements
• Required training through the California Department of Alcoholic Beverage Control updated to the Licensee
Education on Alcohol and Drugs (LEAD) program
New &
Updated
Regulations
(Tobacco Sales)
 Tobacco Retailer License
• Requires most non-conforming tobacco retail
businesses to obtain a Tobacco Retailer License
 Subject to all existing/proposed operating
standards (Smoke shops provided exemption from
display area limitations)
• Subject to annual compliance inspections
 Provides exemption from inspections for large
retailers
New &
Updated
Regulations
(Tobacco Sales)
 Operational Standards
• Public Nuisance Measures
 Site standards regarding lighting,
refuse collection, and landscaping
maintenance
 Operational standards that include
loitering deterrents, mitigation of
alcohol related problems, employee
training
• Prohibited Sales / Operations
 Flavored tobacco
 Mobile vending / vending machines
 Window coverings
 Excess advertising of tobacco/
tobacco paraphernalia

New &
Updated
Regulations
(Monitoring)
 Inspections
• Initial compliance inspection
• Annual compliance inspection
 Licensing
• Compliant alcohol retailers maintain “Deemed Approved Status”
• Compliant tobacco retailers granted “Tobacco Retailer License”
 Violations
• Violations & monitoring schedule
Example
Implementation
(Nonconforming
Businesses)
Notification
• 90-day compliance notice upon effective date of ordinance Compliance Inspection
• Within 90-day compliance period
Compliance Re-inspection
• 15-days to correct violations
Business License Update/Revision
• Passed Compliance Inspection
Annual Monitoring
• With Business License Renewal
Example
Implementation
(New Businesses)
Entitlement
• Conditional Use Permit required
Business License Application
• Deemed Approved information
Compliance Inspection
• 30-days prior to Business License
Compliance Re-inspection
• 15-days to correct violations
Business License Issuance & Annual Monitoring
• Passed Compliance Inspection required annually
Implementation
Overview
 Enforcement Schedule
• New Businesses
 Upon effective date of Amendment
• Non-Conforming Businesses (Deemed Approved)
 On effective date of ordinance with 90-day
compliance period
• Compliant Businesses
 Annually with Business License renewal period
Questions?