ACTION: Approve above recommendation, adopted City Council Ordinance No. 2023-11. Vote: 5-0.
Department: City Manager Item No: PH2
Prepared by: Walter Chung, City Attorney Meeting Date: October 24, 2023 Approved by: John Conley, City Manager Agenda Location: Public Hearing SUBJECT: TOBACCO RETAIL LICENSE CAP
RECOMMENDATION:
1.Open, conduct, and close a public hearing regarding limiting the number of tobacco retail licenses in the City of Vista.
2.Introduce and adopt City Council Ordinance No. 2023- , amending Chapter 3.56 of the Vista Municipal Code concerning the total number of available tobacco retail licenses.
CORRELATION TO CITY COUNCIL GOALS: Public Safety and Climate and Environmental Responsibility.
PRIOR ACTION: On August 8, 2023, the City Council discussed and directed staff to bring back an ordinance capping the number of tobacco retail licenses (Vote: Consensus).
On March 14, 2023, introduced and adopted City Council Ordinance No. 2023-7, amending Chapter 3.56 of the Vista Municipal Code concerning tobacco retail licenses with an increased fine of $1,000 for the first violation and directed staff to allocate all fines collected to youth purposes (i.e. scholarships, prevention services) (Vote: 5-0).
On February 28, 2023, City Council discussed penalties for retailers for tobacco sales to minors and directed to staff to draft an ordinance that incorporates enhanced penalties based on the comments made by Council to be brought back at a future meeting (Vote: 5-0).
Please reference Exhibit 3 for a comprehensive list of City Council actions.
STATEMENT ON THE SUBJECT: Chapter 3.56 of the Vista Municipal Code requires anyone selling tobacco, tobacco products, and/or tobacco paraphernalia to have a City tobacco retailer license. For the majority of tobacco retailers, tobacco sales are ancillary to their main business; however, the City does allow for smoke shops with a discretionary permit.
A tobacco retailer license is issued by the City if the business has completed the required application, provided a copy of their State Tobacco License, and paid the application fee. Staff verify that applications for a smoke shop are not located within 1,000 feet of a school. Tobacco retailer licenses need to be renewed annually in July.
Studies have shown that tobacco product use has negative health effects for tobacco users and persons subjected to smoke from tobacco products. Studies have also shown that, even though it is illegal for anyone under the age of 21 to purchase tobacco products, California youths are readily able to purchase tobacco products. To promote better health and safety for all City residents and visitors, and to reduce the ability of youths to obtain tobacco products from retailers in the City, the City Council wishes to cap the total number of tobacco retail licenses available in the City.
AGENDA
REPORT
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
SUCCESSOR AGENCY
BUENA SANITATION DISTRICT
JOINT POWERS FINANCING AUTHORITY
MEETING DATE: October 24, 2023 PAGE 2
SUBJECT: TOBACCO RETAIL LICENSE CAP
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Currently, the City has 67 issued tobacco retail licenses. There are currently three pending project applications filed with the City that would qualify for a tobacco retailer license if these applicants chose to apply for a tobacco retail license.
As a result, the proposed ordinance would cap the number of retail tobacco licenses at 70. When the issued City retail tobacco licenses reaches 70, the City would not accept any new applications for a retail tobacco license until an existing license is not renewed or revoked.
FISCAL IMPACT: New tobacco retail license fees are typically $250 per license. Based on historical application numbers, less than $1,000 in new license fees are collected on an annual basis.
EXHIBITS:
1.City Council Ordinance No. 2023- , amending Chapter 3.56 of the Vista Municipal Code concerning the total number of available tobacco retail licenses
2.Redline Version of Chapter 3.56 of the Vista Municipal Code
3.Prior City Council Actions
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ORDINANCE NO. 2023-
AN ORDINANCE OF THE CITY COUNCIL OF THE CHARTERED CITY OF VISTA, CALIFORNIA, AMENDING CHAPTER 3.56 OF THE VISTA
MUNICIPAL CODE CONCERNING THE TOTAL NUMBER OF AVAILABLE
TOBACCO RETAIL LICENSES
The City Council of the City of Vista does ordain as follows:
1. Findings. The City Council hereby finds and declares the following:
A. According to the 2022 California Youth Tobacco Survey developed by the California Tobacco Control Program, about 6.6% of California high school students reported using a tobacco product within the last 30 days.
B. According to the 2022 California Youth Tobacco Survey, 25.5% of the youth cigarette smokers reported that they were able to personally purchase cigarettes.
C. According to the 2022 California Youth Tobacco Survey, 44.7% of the respondents stated that they were susceptible to using any tobacco product.
D. According to the 2022 California Youth Tobacco Survey, among high school students that had never smoked, 16.9% were susceptible to future cigarette smoking.
E. It has been determined that initiation of tobacco use at an early age is associated with a greater nicotine dependency resulting in sustained tobacco use which then leads to determinantal long-term health effects. (See Sharapova S, Reyes-Guzman C, Singh T, Phillips E, Marynak KL, Agaku I, Age of Tobacco Use Initiation and Association with Current Use and Nicotine Dependence Among US Middle and High School Students , 2014–2016.) F. The City recognizes that the sale of tobacco products to persons under the age of twenty-one violates both state and federal laws; and because studies, including, but not limited to those stated herein, which the City accepts and adopts, have shown that youth use of any commercial tobacco product is a major health concern as nearly 90% of smokers begin smoking before they have reached the age of eighteen years, and that almost no one starts smoking after age twenty-five; and because marketing analysis, public health research, and commercial tobacco industry documents reveal that tobacco companies have used menthol, mint, fruit, candy, and alcohol flavors as a way to target youth and young adults and that the presence of such flavors can make it more difficult to quit; and because studies show that youth and young adults are especially susceptible to commercial tobacco product availability, advertising, and price promotions at tobacco retail environments; and because commercial tobacco use has been shown to be the cause of many serious health problems which subsequently place a financial burden on all levels of government, this ordinance is intended to limit the availability of tobacco products in the City to protect youth and young adults against the serious health effects associated with tobacco use and initiation of tobacco use.
G. In making these findings, the City Council accepts the conclusions and recommendations of the (1) U.S. Surgeon General reports, E-cigarette Use Among Youth and Young Adults (2016), The Health Consequences of Smoking - 50 Years of Progress (2014) and 10/24/2023 PH2 3 of 15
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ORDINANCE NO. 2023-
CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 2
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Preventing Tobacco Use Among Youth and Young Adults (2012); (2) the Centers for Disease Control and Prevention in their studies, Tobacco Use Among Middle and High School Students - United States, 2011-2015 (2016), and (3) Selected Cigarette Smoking Initiation and Quitting Behaviors Among High School Students, United States, 1997 (1998).
H. In making these findings, the City Council accepts the conclusions and recommendations of the following scholars in these scientific journals: (1) Chen, J., and Millar, W. J., Age of Smoking Initiation: Implications for Quitting, Health Reports, 9(4), 39-46 (1998); (2) D’Avanzo, B., La Vecchia, C., and Negri, E., Age at Starting Smoking and Number of Cigarettes Smoked, Annals of Epidemiology, 4(6), 455-459 (1994); (3) Everett, S. A., Warren, C. W., Sharp, D., Kann, L., Husten, C. G., and Crossett, L. S., Initiation of Cigarette Smoking and Subsequent Smoking Behavior Among U.S. High School Students, Preventive Medicine, 29(5), 327-333 (1999); (4) Giovino, G. A., Epidemiology of Tobacco Use in the United States, Oncogene, 21(48), 7326-7340 (2002); (5) Khuder, S. A., Dayal, H. H., and Mutgi, A. 8., Age at Smoking Onset and its Effect on Smoking Cessation, Addictive Behaviors, 24(5), 673-677 (1999); (6) Luke, D. A., Hammond, R. A., Combs, T., Sorg, A., Kasman, M., Mack-Crane, A., Henriksen, L., Tobacco Town: Computational Modeling of Policy Options to Reduce Tobacco Retailer Density, American Journal of Public Health, 107(5), 740-746 (2017); (7) the 2022 California Youth Tobacco Survey and all prior California tobacco youth surveys, previously titled, the California Student Tobacco Survey; (8) Tobacco Control Legal Consortium, The Verdict Is In: Findings from United States v. Phillip Morris, The Hazards of Smoking, University of California - San Francisco (2006); Xu, X., Bishop, E. E., Kennedy, S. M., Simpson, S. A., and (9) Pechacek, T. F., Annual Healthcare Spending Attributable to Cigarette Smoking: An Update, American Journal of Preventive Medicine, 48(3), 326-333 (2015).
I. By reducing a person’s exposure to the negative effects of tobacco product use, the City intends to promote better health and safety for all its residents and visitors. To promote the health and welfare of the youth and young adults in the City, the City intends to reduce the ability of underage individuals to obtain tobacco products in the City. To accomplish these goals, the number of tobacco retail licenses in the City shall be capped at 70. This number represents all existing issued tobacco retail licenses plus the number of applicants who submitted planning applications for a project that could allow for a tobacco retail license prior to the effectiveness of this ordinance.
J. This ordinance is enacted pursuant to the powers vested in the City of Vista pursuant to Article XI, Sections 5 and 7 of the California Constitution.
2. Code Amendment.
A. Vista Municipal Code is amended to add section 3.56.045 which shall state as follows:
Section 3.56.045 Maximum Number of Licenses
The number of licenses issued under this chapter shall be capped at 70.
When the maximum number of licenses has been issued, the City shall place persons seeking a tobacco retail license on a waiting list. People on the waiting list will be allowed to apply on a first-come, first-serve basis, as existing licenses 10/24/2023 PH2 4 of 15
ORDINANCE NO. 2023-
CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 3
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are not renewed and/or are revoked. A person who has purchased a business that currently possesses a valid City issued tobacco retailer license that is in good standing with the City will be entitled to first priority over any persons on the waitlist and may apply for a tobacco retail license without being placed on the waiting list.
3. Effective Date. This ordinance shall be in full force and effect on the 31st day following the date of adoption.
4. Adoption. INTRODUCED and ADOPTED at a meeting of the City Council held on October 24, 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
JOHN FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
APPROVED
Walter C. Chung
20231016151232
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3 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 giving of tobacco products 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 22956-22963 (Stop Tobacco Access to Kids Enforcement Act (STAKE ACT)) authorizes the Department of Public Health (CDPH), Food and Drug Branch (FDB) to conduct retail inspections to determine compliance with state law prohibiting the sale of tobacco products to underaged persons.
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 any tobacco product or paraphernalia, including electronic smoking devices though a self-service display or vending machine 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.
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 Health and Safety Code section 104559.5 prohibits the sale of most flavored tobacco products including flavored e-cigarettes and menthol cigarettes in retail stores in California.
J. California Business & Professions Code Section 22971.3 authorizes local 10/24/2023 PH2 6 of 15
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3 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.
K. 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.
L. In a 2001 California youth-buying survey, 17.1% of retailers surveyed unlawfully sold tobacco products to minors.
M. In a 2004 San Diego County youth-buying survey, 33.4% of retailers surveyed unlawfully sold tobacco products to minors.
N. The City of Vista has a substantial interest in promoting compliance with federal, state and local laws intended to regulate tobacco sales and use.
O. 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; Ord. No. 2023-7, Amended, 03/14/2023)
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 10/24/2023 PH2 7 of 15
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3 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 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 3.56.045 Maximum Number of Licenses
The number of licenses issued under this chapter shall be capped at 72. When the maximum number of licenses has been issued, the City shall place persons seeking a tobacco retail license on a waiting list. People on the waiting list will be allowed to apply on a first-come, first-serve basis, as existing licenses are not renewed and/or are revoked. A person who has purchased a business that currently possesses a valid City issued tobacco retailer license that is in good standing with the City will be entitled to first priority over any persons on the waitlist and may apply for a tobacco retail license without being placed on the waiting list. (Ord No. 2023- , Added, 10/24/23)
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.
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3 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, 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 10/24/2023 PH2 9 of 15
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3 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) 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 10/24/2023 PH2 10 of 15
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3 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 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 or any applicable city, state or federal law; 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. Require the licensee to pay a fine of $1,000 (one thousand dollars);
b. Advise the licensee of the penalties for further violations of the ordinance; and
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 shall be suspended for 60 days.
3. Upon the finding by the City of a third license violation within any three- year period, the license shall be suspended for one year.
4. Upon a finding by the City of a fourth license violation within any three- year period, the license shall 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 10/24/2023 PH2 11 of 15
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3 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; Ord. No. 2023-7, Amended, 03/14/2023) 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)
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3 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)
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.
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Vista Municipal Code
3 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 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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PRIOR CITY COUNCIL ACTIONS
On August 8, 2023, the City Council discussed and directed staff to bring back an ordinance capping the number of tobacco retail licenses (Vote: 5-0).
On March 14, 2023, introduced and adopted City Council Ordinance No. 2023-7, amending Chapter 3.56 of the Vista Municipal Code concerning tobacco retail licenses with an increased fine of $1,000 for the first violation and directed staff to allocate all fines collected to youth purposes (i.e. scholarships, prevention services) (Vote: 5-0).
On February 28, 2023, City Council discussed penalties for retailers for tobacco sales to minors and directed to staff to draft an ordinance that incorporates the comments made by council to be brought back at a future meeting (Vote: 5- 0).
On September 13, 2016, introduced and adopted City Council Ordinance No. 2016- 13, entitled, An Ordinance of the City Council of the Chartered City of Vista, California, 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). 10/24/2023 PH2 15 of 15
EXHIBIT 3