ACTION:
____________________________
Clerk/Secretary
Department: City Manager Item No:
Prepared by: Amanda Lee, Acting City Manager Meeting Date: February 28, 2023 Approved by: Amanda Lee, Acting City Manager Agenda Location: Discussion SUBJECT: PENALTIES FOR RETAILERS FOR TOBACCO SALES TO MINORS RECOMMENDATION: Discuss penalties for retailers for tobacco sales to minors.
PRIOR ACTION: On September 13, 2016, adopted City Council Ordinance No. 2016-13, amending Chapters 3.56 and 8.16 of the Vista Municipal Code concerning tobacco retail licenses and access to and possession of smoking materials by underage persons (Vote: 5-0).
On May 11, 2010, introduced and adopted City Council Ordinance 2010-12, amending Title 3, Chapter 3.56, Section 3.56.060.B of the Vista Municipal Code relating to term of tobacco retail license (Vote: 5-0).
A complete list of prior actions is included in Exhibit 2.
STATEMENT ON THE SUBJECT: Councilmember Melendez requested the City Manager place a discussion item on an upcoming City Council meeting agenda to discuss penalties for retailers for tobacco sales to minors.
FISCAL IMPACT: There is no direct fiscal impact associated with this discussion item.
EXHIBITS:
1.VMC 3.56 Tobacco Retail License
2.VMC 8.12 Smoking in Public Places
3.VMC 8.16 Access to & Use of Tobacco by Minors
4.Prior City Council Actions
AGENDA
REPORT
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
SUCCESSOR AGENCY
BUENA SANITATION DISTRICT
JOINT POWERS FINANCING AUTHORITY
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D1
Discussed penalties for retailers for tobacco sales to minors and provided direction to staff to collaborate comments made by council and public and bring back a policy for penalties at a future meeting. Vote: 5-0
Vista Municipal Code
Chapter 3.56
Tobacco Retail License
Sections:
3.56.010 Legislative Findings
3.56.020 Purpose
3.56.030 Definitions
3.56.040 Requirement for Tobacco Retail License
3.56.050 Applications Procedure
3.56.060 Issuance and Renewal of License
3.56.070 Display of License
3.56.080 License Fee
3.56.090 Licenses Nontransferable
3.56.100 License Violation - Compliance Monitoring
3.56.110 Suspension or Revocation of License
3.56.120 Denial, Suspension and Revocation - Appeals
3.56.130 Hearings - Generally
3.56.140 Conduct of Hearing
3.56.150 Form and Contents of Decision of Hearing Officer - Appeal to City Manager - Finality of Decision
Section 3.56.010 Legislative Findings
The City Council finds and determines that:
A. California Penal Code Section 308 prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to persons under 21 years of age, as well as the purchase, receipt, or possession of tobacco products by persons under 21 years of age.
B. California Business & Professions Code Section 22956 requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 21 years of age.
C. California Business & Professions Code Section 22952 and California Penal Code Section 308 require that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under 21 years of age is illegal.
D. California Business & Profession Code Section 22962 prohibits the sale or display of cigarettes though a self-service display and prohibits public access to cigarettes without the assistance of a clerk.
E. California Penal Code Section 308.1 prohibits the sale of "bidis" (hand-rolled filterless cigarettes imported primarily from India and Southeastern Asia countries) except at those businesses that prohibit the presence of persons under 21 years of age.
F. California Penal Code Section 308.3 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.
G. California Education Code Section 48901(a) prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees.
H. Chapter 8.16 of the Vista Municipal Code regulates access to and use of tobacco products by persons under 21 years of age.
I. California Business & Professions Code Section 22971.3 authorizes local authorities to adopt tobacco retailer licensing laws to provide for the suspension and revocation of the local tobacco retailer license for any violation of a state tobacco control law.
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J. Despite the above referenced restrictions, minors continue to obtain cigarettes and other tobacco products at alarming rates. Each year an estimated 924 million packs of cigarettes are consumed by minors 12 to 17 years of age.
K. In a 2001 California youth-buying survey, 17.1% of retailers surveyed unlawfully sold tobacco products to minors.
L. In a 2004 San Diego County youth-buying survey, 33.4% of retailers surveyed unlawfully sold tobacco products to minors.
M. The City of Vista has a substantial interest in promoting compliance with federal, state and local laws intended to regulate tobacco sales and use.
N. Studies have shown that local tobacco retail licensing programs coupled with a strong enforcement program substantially reduces youth access to tobacco. (Ord. No. 2005-12, Added, 06/28/05; Ord. No. 2016-13, Amended, 9/13/16) Section 3.56.020 Purpose
The purpose of this chapter is to encourage responsible tobacco retailing and discourage violations of tobacco-related laws that prohibit the sale or distribution of tobacco products to persons under 21 years of age and tobacco-related laws that prohibit the display of tobacco products within reach of the public, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalty provided therefore.
(Ord. No. 2005-12; Ord. No. 2016-13, Amended, 9/13/16)
Section 3.56.030 Definitions
When used in this chapter, the following definitions shall have the meanings given by this section, whether or not these words or phrases are capitalized:
"Hearing Officer" means the City employee designated by the City Manager to serve in this capacity.
"Itinerant Tobacco Retailing" means engaging in tobacco retailing at other than a fixed location.
"Person" means any individual, firm, partnership, joint venture, limited liability company, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit. "Proprietor" means a person with an ownership or managerial interest in a business.
An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has, or can have, sole or shared control over the day-to-day operations of a business. "Tobacco Product" means: (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or other distributed with the expectation that the product or matter will be introduced into the human body, but does not include any product specifically approved by the Federal Food and Drug Administration for use in treating nicotine or tobacco product dependence. "Tobacco Paraphernalia" includes cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco products.
"Tobacco Retailer" means any person who sells, offers for sale, exchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia
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without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. "Tobacco Retailing" shall mean selling, offering for sale, exchanging, or offering to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange. (Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.040 Requirement for Tobacco Retail License A. It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retail license pursuant to this chapter for each location at which tobacco retailing is to occur. No tobacco retail license will be issued to authorized tobacco retailing at other than a fixed location. No license will be issued for itinerant tobacco retailing or tobacco retailing from vehicles.
B. Nothing in this chapter shall be construed to grant any person obtaining a tobacco retail license any status or right other than the right to act as a tobacco retailer at the location in the City identified on the face of the license, subject to compliance with all other applicable laws, regulations, and ordinances. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on indoor smoking made applicable to business establishments by Labor Code Section 6404.5.
(Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.050 Applications Procedure
A. Application for a tobacco retail license shall be submitted to the Finance Department in the name of each proprietor proposing to conduct tobacco retailing and shall be signed by each proprietor or an authorized agent thereof. A proprietor proposing to conduct tobacco retailing at more than one location shall submit a separate application for each location.
B. All applications shall be submitted on a form supplied by the City and shall contain the following information:
1. The name, address, and telephone number of each proprietor.
2. The business name, address and telephone number of the fixed location for which a tobacco retail license is sought.
3. The name and mailing address authorized by each applicant to receive all license-related communications and notices (the "authorized address"). Failure to supply an authorized address shall be understood to consent to the provision of notice at the business address specified in paragraph 2, above.
4. Whether or not any applicant has previously been issued a license pursuant to this chapter that is or was at any time suspended or revoked and, if so, the dates of the suspension period or the date of revocation.
5. Such other information as the City Manager deems necessary for the administration or enforcement of this chapter.
(Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.060 Issuance and Renewal of License
A. Upon the receipt of an application for a tobacco retail license and the payment of a tobacco retail license fee, the City shall issue a license unless:
1. The application is incomplete or inaccurate.
2. The application seeks authorization for tobacco retailing at an address that appears on a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of this chapter; provided, however,
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this subparagraph shall not constitute a basis for denial of a license if either or both of the following apply:
a. The applicant provides the City with documentation demonstrating that the applicant has acquired or is acquiring the premises or business in an arm's length transaction. For the purposes of this subparagraph, an "arm's length transaction" is defined as sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter that occurred at the location, is presumed not to be an "arm's length transaction." b. It has been more than three years since the most recent license for that location was revoked.
3. The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect or by a proprietor which or who has had a license revoked, pursuant to this chapter.
4. The application seeks an authorization for tobacco retailing that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state, or federal law.
5. The City has information that the applicant or his or her agents or employees have violated any local, state, or federal tobacco control law at the location for which the license or renewal of the license is sought within the preceding 30 day period.
6. The issuance of a tobacco retail license would be in conflict with any other City ordinance.
B. Beginning from the effective date of this ordinance, all current licenses and any new licenses issued pursuant to the provisions of this chapter shall expire on June 30, 2011, regardless of the date of issuance and then June 30, annually, thereafter, unless prior thereto revoked by the City. An application to renew such license shall be made no later than 30 days prior, but no earlier than 60 days prior to the expiration of the license. A license may be renewed annually by submitting a tobacco retail license application to the Finance Department along with payment of a tobacco retail licensing fee; provided, however, a tobacco retail license that is suspended, has been revoked, or is subject to suspension or revocation proceedings shall not be renewed. The applicant shall follow all of the procedures and provide all of the information required by Section 3.56.050 above. The City shall process the application according to the provisions of this section.
C. If the information required in the license application pursuant to Section
3.56.050(C), items 1, 2, or 3, changes, a new tobacco retail license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a retailer at the new location. If the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.
D. A tobacco retail license that is not timely renewed pursuant to this chapter shall be automatically suspended by operation of law. If not renewed, a license shall be automatically revoked two years after the renewal date. To reinstate the paid status of a license that has been suspended due to the failure to timely pay the renewal fee, the tobacco retailer must:
1. Submit the renewal fee plus a reinstatement fee of ten percent of the renewal fee; and
2. Submit a signed affidavit affirming that he or she has not sold any tobacco product or tobacco paraphernalia during the period the license was suspended for failure to pay the renewal fee.
(Ord. No. 2005-12, Added, 06/28/05; Ord. No. 2010-12, Amended, 5/11/10)
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Section 3.56.070 Display of License
Each license shall be prominently displayed in a publicly visible location at the licensed premises.
(Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.080 License Fees
The fee for issuance or renewal of a tobacco retail license shall be established by resolution of the City Council and shall be in addition to the City's business license fee and any other license or permit fee imposed by this code upon the applicant. The tobacco retail license fee shall be paid to the City at the time the license application is submitted. (Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.090 Licenses Nontransferable
A tobacco retail license is nontransferable and is valid only for the person and location of license issued, unless it is suspended or revoked for cause, for the period indicated. If a tobacco retail licensee changes the location of his or her business, that tobacco retail licensee must obtain a new tobacco retail license prior to acting as a tobacco retailer at the new location.
If a business licensed to conduct tobacco retailing is sold or transferred, the new owner must obtain a tobacco retail license for that location before acting as a tobacco retailer. (Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.100 License Violation - Compliance Monitoring A. It shall be a violation of a tobacco retail license for a tobacco retail licensee or his or her agents or employees to violate any local, state or federal tobacco-related law.
B. Compliance with this chapter shall be monitored by the San Diego Sheriff's Department. Any peace officer or code compliance official also may enforce this chapter. The San Diego Sheriff's Department shall check compliance of each tobacco retailer at least one time per 12 month period and shall conduct additional compliance checks as warranted. The compliance checks shall be conducted to determine, at a minimum, if the tobacco retailer is complying with tobacco laws regulating underage sales. The San Diego Sheriff's Department shall use youth decoys and comply with protocols for the compliance checks developed in consultation with the San Diego County Department of Health and Human Services and the San Diego District Attorney. When appropriate, the compliance checks shall determine compliance with other tobacco-related laws.
C. The City shall not enforce any tobacco-related minimum-age law against a person who otherwise might be in violation of such law because of a person's age (hereinafter "youth decoy") if the potential violation occurs when:
1. The youth decoy is participating in a compliance check supervised by a peace officer or a Code compliance official; or
2. The youth decoy is participating in a compliance check funded in part by the San Diego County Department of Health and Human Services or funded in part, either directly or indirectly through sub-contracting, by the California Department of Health Services. (Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.110 Suspension or Revocation of License A. In addition to any other penalty authorized by law, a tobacco retail license may be suspended or revoked if the City finds, after notice to the tobacco retail licensee and
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opportunity to be heard, that the tobacco retail licensee or his or her agents or employees has or have violated any of the provisions of this chapter; provided, however, violations by a licensee at one location may not be accumulated against other locations of that same tobacco retail licensee, nor may violations accumulated against a prior tobacco retail licensee at a licensed location be accumulated against a new tobacco retail licensee at the same licensed location.
1. Upon a finding by the City of a first license violation within any three-year period, the City shall:
a. Issue a written warning to the licensee.
b. Advise the licensee of the penalties for further violations of the ordinance.
C. Require the licensee to provide documentation to the City that all employees engaged in the retail sales of tobacco have received training in a City approved program within 60 days after the warning, or such other time as shall be set by the City.
2. Upon a finding by the City of a second license violation within any three- year period, the license may be suspended up to 30 days.
3. Upon the finding by the City of a third license violation within any three- year period, the license may be suspended for up to 90 days.
4. Upon the finding by the City of a fourth license violation within any three- year period, the license may be suspended for up to one year.
5. Upon a finding by the City of a fifth license violation within any three-year period, the license may be revoked.
B. A tobacco retail license shall be revoked if the City finds, after notice and opportunity to be heard, that any one of the conditions listed below exist. The revocation shall be without prejudice to the filing of a new application for a tobacco retail license.
1. One or more of the bases for denial of a tobacco retail license under Section 3.56.060 existed at the time the tobacco retail license application was made or at anytime before the tobacco retail license was issued.
2. The application is incomplete for failure to provide the information required by Section 3.56.050.
3. The information contained in the application, including supplemental information, if any, is found to be false in any material respect.
4. The application seeks authorization for tobacco retailing that is unlawful pursuant to this Code, or that is unlawful pursuant to any other local, state, or federal law.
C. In the event the City suspends or revokes a tobacco retail license, written notice of the suspension or revocation shall be served upon the tobacco retail licensee within five days of the suspension or revocation in a manner prescribed in Section 3.56.050. The notice shall contain:
1. A brief statement of the specific grounds for such suspension or revocation;
2. A statement that the tobacco retail licensee may appeal the suspension or revocation by submitting an appeal, in writing, in accordance with the provisions of Section
3.56.120, to the City, within ten calendar days of the date of the service of the notice; and
3. A statement that the failure to appeal the notice of suspension or revocation will constitute a waiver of all rights to an administrative appeal hearing, and the suspension or revocation will be final.
(Ord. No. 2005-12, Added, 06/28/05)
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Section 3.56.120 Denial, Suspension and Revocation - Appeals A. Any tobacco retail license applicant or licensee aggrieved by the decision of the City in denying, suspending, or revoking a tobacco retail license, may appeal the decision, by submitting a written appeal to the City Clerk within ten calendar days from the date of service of the notice of denial, suspension, or revocation. The written appeal shall contain:
1. A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant;
2. A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the protested action should be reversed or otherwise set aside;
3. The signatures of all parties named as appellants and their official mailing addresses; and
4. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.
B. The appeal hearing shall be conducted by a hearing officer.
C. Upon receipt of any appeal filed pursuant to this section, the City Clerk shall transmit said appeal to the hearing officer who shall calendar it for a hearing. The hearing officer shall give the parties at least 15 calendar days written notice of the time and place of the hearing either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal. Upon good cause, the hearing officer may grant one extension for the date of the hearing not to exceed 15 days from the original date set for the hearing.
D. Only those matters or issues specifically raised by the appellant in the notice of appeal shall be considered in the hearing of the appeal.
E. Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the notice and order, or any portion thereof.
F. Following the hearing on the appeal by the hearing officer, the decision of the hearing officer may be appealed to the City Manager or his or her designee. A decision of the City Manager or his or her designee shall be the final decision of the City.
G. During a period of license suspension the tobacco retail licensee must remove from public view all tobacco products and tobacco paraphernalia at the address that appears on the suspended or revoked tobacco retail license.
(Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.130 Hearings - Generally
A. At the time set for hearing, the hearing officer shall proceed to hear the testimony of material witnesses, the appellant, and other competent persons, including members of the public, respecting those matters or issues specifically listed by the appellant in the notice of appeal.
B. The proceedings at the hearing shall be electronically recorded. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the party's own expense.
C. The hearing officer may, upon the request of the appellant or upon the request of the City, grant continuances from time to time for good cause shown, or upon his or her own motion.
(Ord. No. 2005-12, Added, 06/28/05)
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Section 3.56.140 Conduct of Hearing
A. Hearings need not be conducted in accordance to the technical rules relating to evidence and witnesses. Government Code Section 11513, Subsections (a), (b) and (c) as presently written or hereinafter amended shall apply to hearings under this chapter.
B. Oral evidence shall be taken only upon oath or affirmation.
C. Irrelevant and unduly repetitious evidence shall be excluded.
D. Each party shall have these rights, among others:
1. To call and examine witnesses on any matter relevant to the issues of the hearing.
2. To introduce documentary and physical evidence.
3. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing.
4. To impeach any witness regardless of which party first called the witness to testify.
5. To rebut evidence presented against the party.
6. To represent himself, herself, or itself, or to be represented by anyone of his, her, or its choice who is lawfully permitted do so.
E. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact that may be judicially noticed by the courts of this state or that may appear in any of the official records of the City of any of its departments. (Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.150 Form and Contents of Decision of Hearing Officer - Appeal to City Manager - Finality of Decision
A. If it is shown, by a preponderance of the evidence, that one or more bases exist to deny, suspend, or revoke the tobacco retail license, the hearing officer shall affirm the City's decision to deny, suspend, or revoke the tobacco retail license. The decision of the hearing officer shall be in writing and shall contain findings of fact and a determination of the issues presented.
B. The decision of the hearing officer shall inform the appellant that the decision may be appealed to the City Manager by filing a written appeal with the hearing officer within ten days of receipt of the decision of the hearing officer. The written appeal shall be forwarded to the City Manager upon receipt.
C. Within 15 days of receipt of the written appeal, the City Manager shall review the record of the hearing and issue a written decision to grant or deny the appeal. A decision of the City Manager shall be final. The City Manager shall provide appellant with a copy of his or her decision and that the time for judicial review is governed by California Code of Civil Procedure Section 1094.6. Copies of the decision shall be delivered to the parties personally or sent by certified mail to the address shown on the appeal. The decision shall be final when signed by City Manager and served as provided in this section.
(Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.160 Enforcement
A. In addition to any other remedy, any person violating any provision of this chapter shall be guilty of a misdemeanor for each day a violation continues.
B. Any violation of this chapter may be remedied by a civil action brought by the City Attorney. The City may recover reasonable attorney fees and costs of suit in any civil action
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brought by the City Attorney to remedy any violation of this chapter.
C. Violations of this chapter are hereby declared to be public nuisances subject to abatement by the City.
D. In addition to criminal sanctions and other remedies set forth in this chapter, administrative penalties may be imposed pursuant to Section 1.13.060 of this code against any person violating any provision of this chapter. Imposition, enforcement, collection and administrative review of administrative penalties imposed shall be conducted pursuant to Chapter 1.13 of this code.
(Ord. No. 2005-12, Added, 06/28/05)
Section 3.56.170 Severability
If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, that decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.
(Ord. No. 2005-12, Added, 06/28/05)
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Chapter 8.12
Smoking in Public Places
Sections:
8.12.010 Purpose
8.12.020 Definitions
8.12.030 Prohibitions
8.12.040 Exceptions—Areas Where Smoking is Permitted
8.12.050 Posting of Signs
8.12.060 Retaliation Against Persons Requesting Compliance Prohibited
8.12.070 Penalties and Enforcement
Section 8.12.010 Purpose
Because smoking of tobacco, or any other weed or plant, is a positive danger to health and a cause of material annoyance, inconvenience, discomfort and a health hazard to those who are present in confined places, and in order to serve public health, safety and welfare, the declared purpose of this chapter is to prohibit the smoking of tobacco, or any other weed or plant, in public places, places of employment, and controlled locations in accordance with this Chapter. (Prior Code 14-31; Ord. No. 89-49, Enacted 1/8/90; Ord. No. 92-6, Amended 05/26/92; Ord. No. 2013-17, Amended 8/13/13; Ord. No. 2022-12, Amended 06/28/22)
Section 8.12.020 Definitions
For the purpose of this chapter, the following words and phrases shall apply:
A. "Smoke" or "Smoking": the carrying of a lighted pipe, lighted cigar, or lighted cigarette of any kind or the lighting of a pipe, cigar, or cigarette of any kind, whether the combustible material is tobacco or another substance.
B. "Place of Employment": any area which is a place of employment for purposes of Section 6405.5 of the Labor Code.
C. "Public Place":
1. Any enclosed area, other than a place of employment and those locations subject to the section 8.12.040, to which the public is invited or in which the public is permitted, including, but not limited to, restaurants, retail stores, retail service establishments, restrooms, theatres, waiting rooms, reception areas, educational facilities, health facilities and public transportation facilities.
2. Any unenclosed dining area of an Eating Establishment plus a Reasonable Distance from said Unenclosed Dining Area.
3. Any area within the boundary of the City Hall Complex, Wave Water Park, the Public Library or an immediately adjacent parking lot owned by the City and serving those facilities, except within a designated smoking area. For the purpose of this section, the term "boundary" shall mean the interior edge of the public sidewalk, but not including the sidewalk adjacent to the public or private street surrounding the City Hall Complex, Wave Water Park, or Public Library or an immediately adjacent parking lot owned by the City and serving those facilities. For those areas of the City Hall Complex, Wave Water Park, Public Library, or an immediately adjacent parking lot owned by the City where no public or private street abuts, the boundary shall be designated by a boundary fence.
D. "Designated Smoking Area": an outdoor area, designated by the City Manager, within the City Hall Complex, the Public Library or an associated and immediately adjacent E8XI119 T 2 (vista 6/28/22)
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parking lot owned by the City serving those facilities which is: (1) identified by conspicuous signage, and (2), which is at least twenty (20) feet away from any doorway or window that opens to the outdoors.
E. "Controlled Location": any of the following enclosed locations: (1) warehouse facilities covered by Labor Code section 6404.5(d)(6); (2) tobacco shops and lounges; (3) any portion of a lobby for a hotel, motel or similar establishment that is subject to exclusion from a place of employment under Labor Code section 6404.5(d)(2); (4) any meeting or banquet rooms within a hotel, motel, or a similar establishment that is subject to exclusion from a place of employment under Labor Code section 6404.5(d)(2); and (5) any small business that is potentially excluded from the definition of place of employment by Labor Code section 6404.5(d)(14).
F. "Eating Establishment": means a coffee shop, cafeteria, short-order cafe, luncheonette, sandwich shop, soda fountain, ice cream parlor, restaurant or similar establishment serving food to the public. This definition does not include bar establishments principally devoted to serving alcoholic beverages and in which serving food is incidental to the consumption of alcoholic beverages.
G. "Unenclosed Dining Area": any area, not fully enclosed by a roof and/or walls, including streets and sidewalks, available to or customarily used by the general public or employees to consume food.
H. "Reasonable Distance": a distance of no less than twenty (20) feet in any direction from the boundaries of an area in which smoking is prohibited. (Prior Code 14-31; Ord. No. 89-49, Enacted 1/8/90; Ord. No. 92-6, Amended 05/26/92; Ord. No. 2009-18, Amended, 9/22/09; Ord. No. 2013-17, Amended 8/13/13; Ord. No. 2013-19, Amended 10/22/13; Ord. No. 2014-15, Amended, 06/24/14; Ord. No. 2022-12, Amended 06/28/22) Section 8.12.030 Prohibitions
A. No person shall smoke in a public place, a controlled location, or place of employment, except in designated smoking areas as defined in Section 8.12.040.
B. No ashtrays or smoking disposal receptacles shall be placed in areas where smoking is prohibited.
(Prior Code 14-31.3; Ord. No. 89-49, Enacted 1/8/90; Ord. No. 92-6, Amended 05/26/92; Ord. No. 2013- 17, Amended 8/13/13; Ord. No. 2022-12, Amended 06/28/22) Section 8.12.040 Exceptions -Areas Where Smoking is Permitted The following areas are exempt from the mandatory no-smoking provisions of this chapter, and permit smoking.
A. Private residences, except private residences licensed as family day care homes, during hours of operation as a family day care home.
B. Guestroom accommodations in a hotel, motel, or similar transient lodging establishment, if approved by the management of that facility, but not to exceed forty percent of all available guestroom accommodations.
C. Employee breakrooms designated by an employer for smoking, provided that all requirements of Labor Code section 6404.5(d)(13) are satisfied.
D. Cabs of motortrucks or truck tractors, as defined in the Vehicle Code, if no nonsmoking employees are present.
E. Patient smoking areas in long-term health care facilities, approved by the management of the facility, as defined in Section 1418 of the Health and Safety Code.
F. Theatrical production sites, if smoking is an integral part of the story in the theatrical production, if approved by the management of the facility.
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G. Medical research or treatment sites, if smoking is an integral to any research and treatment being conducted, if approved by the management of the facility. (Prior Code 14-31.5; Ord. No. 89-49, Enacted 1/8/90; Ord. No. 2013-17, Amended and Renumbered 8/13/13; Ord. No. 2022-12, Amended 06/28/22)
Section 8.12.050 Posting of Signs
A. Where smoking is prohibited throughout an entire building and in all theatres, a sign stating "No smoking" shall be posted at each entrance to the building or theatre.
B. Where smoking is prohibited in an Unenclosed Dining Area of an Eating Establishment, a sign stating "No smoking" shall be posted at each entrance to the Unenclosed Dining Area.
C. Where smoking is permitted in designated areas of a building: (1) a sign stating "Smoking is prohibited, except is designated areas" shall be posted at each entrance to the building; (2) the area where smoking is permitted shall be posted each entry to that area with a sign stating "Designated smoking area except for guestrooms covered by the following clause;," and (3) for hotels or motels which allowed smoking in select guest rooms as permitted by this Chapter, a sign shall be posted in each such guestroom which shall substantially read "Designated smoking room" with an additional notice advising the guest that smoking may only occur within that room.
D. Employers shall provide written information to employees concerning smoking at the place of employment, including the location of designated smoking areas, if any.
E. The manner of such posting, including the wording, size, color design and place of posting, whether on the walls, doors, tables, counters, stands or elsewhere, shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place so long as clarity, sufficiency, and conspicuousness are apparent in communicating the intent of this chapter.
(Prior Code 14-31; Ord. No. 89-49, Enacted 1/8/90; Ord. No. 2013-17, Amended and Renumbered 8/13/13; Ord. No. 2022-12, Amended 06/28/22)
Section 8.12.060 Retaliation against Persons Requesting Compliance Prohibited No person shall intimidate or threaten any reprisal or effect any reprisal for the purpose of retaliating against another person because such other person seeks to attain compliance with the provisions of this chapter.
(Prior Code 14-31; Ord. No. 89-49, Enacted 1/8/90; Ord. No. 2013-17, Amended and Renumbered 8/13/13; Ord. No. 2022-12, Amended 06/28/22)
Section 8.12.070 Penalties and Enforcement
A. Each incident of smoking in violation of this chapter is punishable pursuant to Chapter 1.16 of this code, or in alternative by the administrative code enforcement remedies of Chapter 1.13 of this code.
B. Except as otherwise provided, enforcement of this chapter is at the sole discretion of authorized governmental officers to enforce this chapter pursuant to Chapters 1.13 and 1.16 of this code. Nothing in this chapter shall create a right of action in any person against the city or its agents for damages or to compel public enforcement of this chapter against private parties.
C. Nothing in this Chapter shall limit the ability of any authorized governmental officer to issue citations or to enforce any provision of state law prohibiting smoking.
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D. Labor Code section 6404.5, and not this Chapter, applies to the smoking of tobacco products in a place of employment and violations of that statute will be cited pursuant to that authority, not pursuant to this Chapter.
E. The owner, operator, or manager of any public place, controlled location, or place of employment shall inform any person who violates this chapter by smoking in a public place or place of employment not designated as a smoking area, of the provisions of this chapter and may refuse services or sales to such persons or effect disciplinary actions.
F. The City Manager or his designee shall be responsible for compliance with this chapter when facilities which are owned, operated, or leased by the City of Vista are involved. (Prior Code 14-31; Ord. No. 89-49, Enacted 1/8/90; Ord. No. 92-6, Amended, 05/26/92; Ord. No. 2013- 17, Amended and Renumbered 8/13/13; Ord. No. 2022-12, Amended 06/28/22)
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Chapter 8.16
Access to and Possession of Smoking Materials by Minors Sections:
8.16.005 Definitions
8.16.010 Minor Possessing Smoking Materials — Prohibited
8.16.015 Retail Sale of Smoking Materials by Minors
8.16.030 Prohibition of Sale of Smoking Materials by Vending Machine
8.16.035 Retail Sale of Smoking Materials
8.16.038 Sale of Single Cigarettes Prohibited
8.16.040 Violation — Penalty
Section 8.16.005 Definitions
"Electronic Smoking Device" means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. Electronic smoking device includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. Electronic smoking device does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.
"Electronic Smoking Device Paraphernalia" means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices.
"Smoking Materials" means (1) tobacco in any form; (2) cigars, cigarettes and pipe fillers composed of any combustible substance of any kind; (3) an electronic smoking device; and (4) electronic smoking device paraphernalia.
"Smoking Materials Vending Machine" means a coin-operated mechanical container or device, used or intended to be used for the retail sale of smoking materials. "Underage Person" means a person under the age of 21.
(Prior Code 14-33; Ord. No. 94-11, Amended, 04/26/94; Ord. 2014-14, Repealed and Replaced, 06/24/14; Ord. No. 2016-13, Amended, 9/13/16)
Section 8.16.010 Minor Possessing Smoking Materials for Use— Prohibited It is unlawful for any person under the age of 21 years to use, or to have in their possession, any smoking materials. A violation of this section shall be an infraction and is subject to a fine in an amount permitted by law, or by the provisions of Chapters 1.12 or 1.16 of this code. This section does not apply in instances where it would be preempted by applicable state law, including without limitation sales made to active duty military personnel who are at least 18 years of age and present an identification card issued by the United States Armed Forces.
(Prior Code 14-32; Ord. No. 90-38, Amended, 09/24/90; Ord. No. 94-11, Amended, 04/26/94; Ord. 2014- 14, Repealed and Replaced, 06/24/14; Ord. No. 2016-13, Amended, 9/13/16) Ex
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Section 8.16.015 Retail Sale of Smoking Materials by Minors A. It shall be unlawful for any person under the age of 21 years to directly engage in the retail sale of smoking materials unless the minor is supervised during the sale transaction by a person over the age of 21 years.
B. It shall be unlawful for any person who owns, operates, or manages a business to allow a person under the age of 21 years to directly engage in the retail sale of smoking materials unless the minor is supervised during the sale transaction by a person over the age of 21 years.
(Ord. No. 96-21, Enacted, 12/10/96; Ord. 2014-14, Repealed and Replaced, 06/24/14; Ord. No. 2016-13, Amended, 9/13/16)
Section 8.16.030 Prohibition of Sale of Smoking Materials by Vending Machine No person, firm, or corporation shall sell, offer for sale, or distribute, smoking materials from a smoking materials vending machine, or any other coin or token operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.
(Ord. No. 94-11, Amended, 04/26/94; Ord. No. 96-21, Amended, 12/10/96; Ord. 2014-14, Repealed and Replaced, 06/24/14)
Section 8.16.035 Retail Sale of Smoking Materials
A. It shall be unlawful for any person, business, or tobacco retailer to sell, permit to be sold, offer for sale or display for sale, any smoking materials by means of self-service merchandizing, or by means other than vendor-assisted sales. "Self-service merchandising" means open display of smoking materials that the public has access to without the intervention of an employee.
"Vendor-assisted" means only a store employee has access to the product and must assist the customer by supplying the product, and the customer does not take possession of the product until it is purchased.
B. Any business which primarily sells smoking materials is exempt from this section if persons under the age of 21 years are excluded from entering the business premises.
C. Businesses which need to make substantial modifications to the business premises to comply with this section must comply within 60 days after the ordinance becomes effective. All other businesses must comply by the 31 st day following adoption.
D. A business which meets all of the following criteria shall be exempt from this section:
1. Allows members only to purchase products.
2. Requires all members to be 18 years or older.
(Ord. No. 96-15, Enacted, 07/23/96; Ord. No. 96-22, Amended, 12/10/96; Ord. 2014-14, Repealed and Replaced, 06/24/14; Ord. No. 2016-13, Amended, 9/13/16) Section 8.16.038 Sale of Single Cigarettes Prohibited It shall be unlawful for any person or business entity to sell, permit to be sold, offer for sale or display for sale, single cigarettes, whether or not such cigarettes are in the original packaging. This subsection does not apply to electronic smoking devices. (Ord. No. 96-21, Enacted, 12/10/96; Ord. 2014-14, Repealed and Replaced, 06/24/14)
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Section 8.16.040 Violation - Penalty
Any violation of this chapter is an infraction and shall be punishable according to the provisions of Chapters 1.12 and 1.16 of this code.
(Ord. No. 94-11, Enacted, 04/26/94; Ord. 2014-14, Repealed and Replaced, 06/24/14)
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Prior City Council Actions
VMC Chapter 3. 56 Tobacco Retail License
On September 13, 2016, adopted City Council Ordinance No. 2016-13, amending Chapters 3.56 and
8.16 of the Vista Municipal Code concerning tobacco retail licenses and access to and possession of smoking materials by underage persons (Vote: 5-0).
On May 11, 2010, introduced and adopted City Council Ordinance 2010-12, amending Title 3, Chapter 3. 56, Section 3. 56.060. 13 of the Vista Municipal Code relating to term of tobacco retail license (Vote: 5-0).
On June 28, 2005, adopted City Council Ordinance 2005-12, adding Chapter 3. 56 to the Vista Municipal Code requiring the Licensing of Tobacco Retailers (Vote: 4-0, Campbell absent).
On June 14, 2005, the City Council removed Ordinance 2005-12 from the Consent Calendar and directed staff to amend the language of the penalty section of the Ordinance, and reintroduced City Council Ordinance 2005-12, adding Chapter 3.56 to the Vista Municipal Code (Vote: 5-0).
On May 24, 2005, the City Council introduced Ordinance 2005-12 during the Discussion portion of the meeting (Vote: 3-2, Campbell and Lopez opposed).
VMC Chapter 8. 16 Access to and Possession of Smoking Materials by Minors On September 13, 2016, adopted City Council Ordinance No. 2016-13, amending Chapters 3.56 and
8.16 of the Vista Municipal Code concerning tobacco retail licenses and access to and possession of smoking materials by underage persons (Vote: 5-0).
On June 24, 2014, introduced and adopted City Council Ordinance 2014-14, amending Chapter 8.16 of the Vista Municipal Code regarding Possession of Smoking Materials by Minors (Vote: 4-1, Rigby opposed).
On December 10, 1996, adopted City Council Ordinance 96-21, amending Chapter 8.16 of the Vista Municipal Code to Prohibit the Sale of Tobacco from Vending Machines, Regulate the Sale of Tobacco by Minors, and Prohibit the Sale of Single Cigarettes (Vote: 5-0).
On August 13, 1996, adopt City Council Ordinance 96- 15, adding Section 8.16.035 to Chapter 8.16 of the Vista Municipal Code Relating to the Retail Sale of Tobacco Products (Vote: 4-1, Estes Opposed).
On July 23, 1996, introduced City Council Ordinance 96-15, adding Section 8.16.035 to Chapter 8.16 of the Vista Municipal Code Relating to the Retail Sale of Tobacco Products (Vote: 5-0).
On April 26, 1994, adopted City Council Ordinance 94-11, amending Chapter 8.16 of the Vista Municipal Code to Regulate the Location of Tobacco Vending Machines (Vote: 5-0).
On September 24, 1990, adopted City Council Ordinance 90-38, amending Chapter 14 of the Vista Municipal Code to Prohibit Minors from Possessing Tobacco Products (Vote: 4-1, Wade opposed).
On September 17, 1990, City Council closed the Public Hearing and introduced City Council Ordinance 90-38 Prohibiting Possession of Tobacco by Minors (Vote: 3-2, Asmus and Wade opposed).
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On August 27, 1990, continued the public hearing for City Council Ordinance 90-33 amending Chapter 14 to prohibit minors from possessing tobacco for use and to regulate the location of cigarette vending machines to September 17, 1990 (Vote: 3-1, Wade opposed, Smith absent).
On August 13, 1990, the City Council continued the Public Hearing for Regulation of Cigarette Vending Machine Locations to August 27, 1990 (Vote: 5-0).
On May 2, 1990, the City Council discussed a proposed ordinance on Tobacco Use and Cigarette Vending Machines and directed staff to obtain additional community input. 02/28/2023 D 1 19 of 19
From:Kevin Stevenson
To:Public Comments
Subject:Public Comment
Date:Sunday, February 26, 2023 11:46:37 PM
You don't often get email from [email protected]. Learn why this is important Hello, council.
I'm speaking in favor of appointing Councilwoman Melendez to SANDAG. Mayor Franklin has proven that he will not do anything to help North County with transportation and will be another anti-Vargas individual just like Jones, White, Keim and the rest of the GOP clowns.
Melendez is actually interested in her constituents and will not participate in a pathetic stunt lime Franklin did.
I would also like to speak against D3 and D4. These are nothing more than right-wing virtue signal efforts to do away with any and all public funding for infrastructure. These taxes are very beneficial to fixing roads and improving public transportation.
Thank you so much.
Sincerely,
Kevin Stevenson
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