Ordinance - 2206ORDINANCE NO.2206
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WEST
COVINA, CALIFORNIA, AMENDING CHAPTER 14 OF THE WEST
COVINA MUNICIPAL CODE, ADDING ARTICLE X, ESTABLISHING A
TOBACCO RETAIL LICENSE
SECTION I. RECITALS.
The City Council of the City of West Covina, finds and declares that:
WHEREAS, approximately 438,000 people die in the United States from tobacco -related
diseases every year; making it the nation's leading cause of preventable death;' and
WHEREAS, the World Health. Organization (WHO) estimates that by 2030, tobacco will
account for 8.3 million deaths per year, killing 50% more people in 2015 than HIV/AIDS, and
will be responsible for 10% of all deaths worldwide;2 and
WHEREAS, the California Legislature has recognized the danger of tobacco use and has
made reducing youth access to tobacco products a high priority, as evidenced by the fact that:
e The Legislature has declared that smoking is the single most important source
of preventable disease and premature death in California (Cal. Health & Safety Code
§ 118950);
• State law prohibits the sale or furnishing of cigarettes, tobacco products, and
smoking paraphernalia to minors, as well as the purchase, receipt, or possession of
tobacco products by minors (Cal. Pen. Code § 308);
• State law requires that tobacco retailers check the identification of tobacco
purchasers who reasonably appear to be under 18 years of age (Cal. Bus. & Prof.
Code § 22956) and provides procedures for using minors to conduct onsite
compliance checks of tobacco retailers (Cal. Bus. & Prof. Code § 22952);
9 State law prohibits the sale of tobacco products and paraphernalia through
self-services displays with limited exceptions for tobacco stores (Cal. Bus. & Prof.
Code § 22960, 22962);
• State law prohibits the sale of "bidis" (hand -rolled filter -less cigarettes
imported primarily from India and Southeast Asian countries) except in adult -only
establishments (Cal. Pen. Code § 308.1); and
• State law prohibits the manufacture, distribution, or sale of cigarettes in
packages of less than 20 and prohibits the manufacture, distribution, or sale of "roll -
your -own" tobacco in packages containing less than 0.60 ounces of tobacco (Cal.
Pen. Code § 308.3); and -
WHEREAS, despite the state's efforts to limit youth access to tobacco, minors are still able
to access cigarettes, as evidenced by the fact that:
• Each day; nearly 4,000 children under 18 years of age smoke their first
cigarette, and almost 1,500 children under 18 years of age begin smoking;3
• More than 75% of all current smokers in 2001 began smoking before the age
of 18;4
I US Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and
Mortality Weekly Report: Annual Smoking - Attributable Mortality, Years of Potential Life Lost, and Productivity
Losses - United States 1997-2001. 2005, 54(25): p. 625-628. Available at:
www.cdc.gov/minwr/preview/mmwrlitmL/tnm5425al.litin.
2 World Health Organization. World Health Statistics 2007, Part 1: Ten Statistical Highlights in Global Public
Health. 2007, p. 12. Available at: www.who.int/whosis/wliostat2007 l0highlightspdf.
3 Department of Health and Human Services, Substance Abuse and Mental Health Services Administration,
Office of Applied Studies. Results from the 2004 National Survey on Drug Use and Health: National Findings.
2005. Available at: htip://oas.samhsa.gov/NSDUH/2k4nsduh/2k4Results/2k4Results.pdf.
4 Department of Health and Human Services, Substance Abuse and Mental Health Services Administration,
Office of Applied Studies. 2003 National Survey on Drug Use and Health: Results. 2003. Available at:
Ordinance No. 2206
Page 2
• Among middle school students who were current cigarette users in 2004,
70.6% were not asked to show proof of age when they purchased or attempted to
purchase cigarettes from a store, and 66.4% were not refused purchase because of
their age;s
• In 2002, youth smoked approximately 540 million packs of cigarettes,
generating nearly $1.2 billion in tobacco industry revenue 6; and
WHEREAS, California retailers continue to sell tobacco to underage consumers, evidenced
by the following:
• Over 12% of all tobacco retailers surveyed unlawfully sold to minors in
2008;7
• Non-traditional tobacco retailers such as deli, meat, and donut shops sold to
minors in 2007 at a much higher rate than the statewide average, as high as 16%;8
• Teens surveyed in 2002 say they bought their cigarettes at: gas stations (58%),
liquor stores (45%), and supermarkets and small grocery stores (29% combined);9 and
WHEREAS, a requirement that tobacco retailers obtain a Tobacco Retail License will not
unduly burden legitimate business activities of tobacco retailers who sell cigarettes or distribute
tobacco products or tobacco paraphernalia to adults. It will, however, allow the City of West
Covina to regulate the operation of lawful businesses to avoid circumstances which facilitate
violations of federal, state, and local laws; and
WHEREAS, the City of West Covina has a substantial interest in promoting compliance
with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the
illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting
sales of cigarettes and tobacco products to minors; and finally, and most importantly, in
protecting children from being lured into illegal activity through the misconduct of adults; and
WHEREAS; California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d
277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993), have
affirmed the power of the City to regulate business activity in order to discourage violations of
law; and
WHEREAS, the California Constitution, Article XI, section 7, provides cities and counties
with the authority to enact ordinances to protect the health, safety, welfare, and morals of their
citizens; and
WHEREAS, the addition of Sections 14-201 through 14-227 of the West Covina, Municipal
Code require amending Section 1-37.1 of the West Covina Municipal Code to include reference
to the new sections; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEST COVINA DOES
ORDAIN AS FOLLOWS that:
SECTION 1. THE WEST COVINA MUNICIPAL CODE IS AMENDED TO ADD
NEW SECTIONS 14-201 THROUGH 14-227 TO READ AS FOLLOWS:
www.oas.samhsa.gov/nhsda/2k3nsduh/2k3Results.littii#cli5.
5 US Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and
Mortality Weekly Report: Tobacco Use, Access & Exposure to Tobacco Among Middle & High School Students,
U.S., 2004. 2005, 54: p. 297-301. Available at: www.cdc.gov/nunwr/preview/iiunwrhtml/nini5412al.htm.
6 Healton C, Farrelly MC, Weitzenkamp D, et al. "Youth Smoking Prevention and Tobacco Industry Revenue."
Tobacco Control, 15: 103-106, 2006. Available at: http://tobaccocontrol.bmi.com/cizi/content/full/15/2/103.
7 California Department of Health Services, Tobacco Control Section. Youth Purchase Survey, 2008.
8 Id.
9 California Department of Health Services, Tobacco Control Section. Final Report, Tobacco Control Successes
in California: A Focus on Young People, Results from the California Tobacco Surveys, 1990-2002. 2003, p. 11-12.
Available at: www.dhs.ca.gov/tobacco/documents/eval/2003CI'SReport.pdf.
Ordinance No. 2206
Page 3
Section 14-201. Purpose.
This article is adopted pursuant to the city's police powers for the purpose of promoting
compliance with federal, state, and local laws that regulate the sale and use of tobacco products
and paraphernalia. Nothing in this article is intended to, nor does it, duplicate or conflict with
applicable local, state, or federal laws.
Section 14-202. Definitions.
Unless the contrary is stated or clearly appears from the context, the following definitions
govern the construction of the words and phrases used in this chapter:
"City Manager" means the West Covina City Manager or designee;
"Department" means the West Covina Finance Department;
"Director" means the West Covina Finance Director or designee;
"Person" means any natural person or legal entity;
"Proprietor" means a person with an ownership or managerial interest in a business. An
ownership interest is 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 is deemed to exist when a person can or does have, or can or does share,
ultimate control over the day-to-day operations of a business;
"Tobacco product" means any substance containing tobacco leaf or derivatives, and shall
include, without limitation, cigarettes, cigars, pipe tobacco, snus, snuff, chewing tobacco,
dipping tobacco, bidis, or any other preparation of tobacco;
"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking
materials of all types, cigarette rolling machines, and any other item designed for smoking or
ingestion of tobacco products;
"Tobacco retailer" means any person that operates a store, stand, concession, or other
place at which sales, or other exchanges for. value, of tobacco products are made to purchasers
for consumption or use.
"License" means an endorsement on the city's standard business license indicating that
the business is a tobacco retailer.
Section 14-203. Prohibitions.
A. It is unlawful for any person to act as a tobacco retailer without a valid license
issued pursuant to this chapter for each location at which activity is proposed to occur.
B. It is unlawful for any person to act as a tobacco retailer from other than a fixed
location within the city's jurisdiction.
C. It is unlawful for any person to cause, permit, aid, abet, or conceal a violation of
any provision of this chapter.
Section 14-204. Administration by Department.
The Director, Department, and Police Department are authorized to administer and
enforce this chapter.
Ordinance No. 2206
Page 4
Section 14-205. Notices.
A. Where the provisions of this chapter require that an applicant/licensee be served
with notice, such notice is deemed served when personally delivered to such applicant/licensee
or when deposited in the first class U.S. Mail, addressed to such applicant/licensee at the
applicant/licensee's last known address.
B. Unless otherwise provided, written notification to an applicant/licensee of a
license decision will state with particularity the basis for such decision.
Section 14-206. Form and content of application.
A. License applications must be filed by a natural person in the name of each
proprietor proposing to conduct retail tobacco sales.
B. Every application must be signed by the proprietor, or the proprietor's authorized
representative, under penalty of perjury..
C. License applications will be in the form of an endorsement on the city's standard
business license application, in a form prescribed by the Director, and contain all of the
following information:
1. The name, mailing address, and daytime and evening telephone numbers of the
person filing the application;
2. The business name, address, and telephone number of the single fixed location for
which a license is sought;
3. The name and mailing address authorized by each proprietor to receive all
notices. If such an address is not supplied, notices will be sent to the business address;
4. Whether or not the proprietor was previously issued'a tobacco retail license under
this chapter that was suspended or revoked and, if so, the dates of the suspension period or
revocation date; and
5. Such other information as the Department deems reasonably necessary for
administering or enforcing this chapter.
D. A proprietor currently operating at the time of the effective date of this section
shall be required to file an amendment to the proprietor's business license to add the tobacco
retailer license endorsement, in compliance with this section, within sixty (60) days of the
effective date of this section.
E. A prospective proprietor shall be required to file a license application in
accordance with this section prior to any activity which would make the prospective proprietor
subject to this section.
F. There is no additional fee for adding the tobacco retailer license endorsement,
other than the standard business license fee.
Section 14-207. License issuance.
A. The Director must issue a license if-
1. The application was complete in accordance with this chapter;
2. The applicant pays all applicable business license fees;
Ordinance No. 2206
Page S
3. There are no grounds for denying the license; and
4. Applicant accepts the license approval or conditional approval in writing.
B. Use of any license issued pursuant to this chapter must conform to this chapter.
Section 14-208. License denial.
A license can be denied for the following reasons:
A. The application is incomplete;
B. The applicant failed to provide reasonable supplemental application information
requested by the Director;
C. Information submitted by the applicant is materially false;
D. The application is submitted by a proprietor with a suspended license or whose
license was revoked; or
E. The application seeks authorization for tobacco retailing that is prohibited by this
code or unlawful under any other local, state, or federal law.
Section 14-209. General conditions.
Tobacco retailer licensees must:
A. Comply with all local, state, and federal laws regulating tobacco products and
tobacco paraphernalia including, without limitation, this code;
B. Maintain a valid business license issued pursuant to this code;
C. Allow authorized enforcement officers to enter onto licensed premises to ensure
compliance with this chapter during business hours.
Section 14-210. Display of license.
Each license issued by this chapter must be prominently displayed in a publicly visible
location at the licensed tobacco retailer's location.
Section 14-211. License renewal.
Unless suspended or revoked, licenses issued pursuant to this chapter have the same term
as the tobacco retailer's underlying business license. Licenses shall be renewed at the same time
the business license is renewed.
Section 14-212. No additional privileges granted.
Nothing in this chapter is intended to, nor does it, -grant to a properly licensed tobacco
retailer privileges other than permission to operate as a tobacco retailer at the location identified
in the license.
Ordinance No. 2206
Page 6
Section 14-213. Licenses nontransferable.
A license issued to a tobacco retailer pursuant to this chapter is nontransferable. Any
change in business name or location requires a new license issued in accord with this chapter.
Section 14-214. Enforcement.
A. Violations of this chapter or any condition of a tobacco retailer's license issued
pursuant to this chapter shall constitute a public nuisance. Such violations may. be enforced as
follows:
1. As an infraction pursuant to Section 1-37.1 of this code or upon the fourth or
more violation, punishable as a misdemeanor pursuant to Section 1-37.1 of this code.
2. Abated as a public nuisance in compliance with the procedures set forth in
Chapter 15, Articles IX and X of this code. The costs of the abatement shall be assessed against
the owner of the property who shall be responsible for all actual and reasonable costs incurred by
the city, including attorneys' fees. In the event a nuisance abatement assessment is challenged in
a court of competent jurisdiction, the prevailing party shall be entitled to attorneys' fees in
connection with the litigation.
3. Enjoined as unfair business practices that are presumed to nominally damage each
and every resident of the community in which the tobacco retailer operates.
B. Any person acting for the interests of itself, its members, or the general public
may bring an action for injunctive relief to prevent future violations or to recover actual
damages.
C. The remedies provided by this chapter are cumulative and in addition to any other
criminal or civil remedies.
Section 14-215. City prosecutor enforcement authority.
In addition to any other general functions, powers, and duties given to the city prosecutor
by this code or California law, the city prosecutor is authorized to:
A. Prosecute on behalf of the people all criminal and civil cases for violations of this
chapter including, without limitation, administrative or judicial nuisance abatement and suits for -
injunctive relief,
B. Prosecute all actions for the recovery of fines, penalties, forfeitures, and other
money accruing to the city under this chapter.
Section 14-216. Notice of violation.
Upon determining that a person is violating this chapter; the Director must serve a notice
of violation on the apparent violator. The notice must state the basis of such violations and
provide information regarding appeals rights.
Section 14-217. Violations deemed conclusive.
The judgment of any court of competent jurisdiction, or the admission of a tobacco
retailer licensee in any civil or criminal action against a tobacco retailer licensee, whether the
Ordinance No. 2206
Page 7
city is a party or not, that the tobacco retailer has violated any tobacco -related local, state, or
federal law is conclusive of that fact for purposes of enforcing this chapter.
Section 14-218. Administrative fine.
In addition to any other enforcement remedy, the Director may fine a tobacco retailer for
violating this chapter as follows:
A. A fine not exceeding one hundred dollars for a first violation in any twelve month
period;
B. A fine not exceeding two hundred dollars for a second violation in any twelve
month period; or
C. A fine not exceeding five hundred dollars for a third or subsequent violation in
any twelve month period.
Section 14-219. Payment of administrative fines.
An administrative fine must be paid to the city within thirty days from the date of the
notice of violation or, if an appeal is made, within fifteen days after the date of the Director's
notice of the decision to uphold the imposition of administrative fines, whichever is later.
Section 14-220. Delinquent administrative fines — Penalties and Interest.
A. A penalty of ten percent is added on any delinquent fines on the last day of each
month after the due date. The penalty will not exceed fifty percent of the fine.
B. In addition to penalties provided by this section, delinquent fines accrue interest at
the rate of one percent per month, exciusive of penalties, from the due date.
Section 14-221. Liability for fines.
All fines, fees, penalties, and interest imposed pursuant to this chapter are civil debts
owed to the city by the person fined. In the event that judicial action is necessary to compel
payment of any debt owed to the city, the person or persons subject to the fine are also liable for
the costs of suit and attorneys' fees incurred by the city to collect the fine.
Section 14-222. License suspension and revocation.
In addition to any other penalty authorized by law, the Director may suspend or revoke a
tobacco retailer's license for the following reasons:
A. Upon learning or discovering facts that require license denial under this chapter
that were not previously disclosed or reasonably discoverable; or
B. If the licensee violates the tobacco retailer license conditions.
C. If the licensee's underlying business license is suspended or revoked.
Ordinance No. 2206
Page 8
Section 14-223. Suspension time periods. [mil]
A. After serving a notice [alj2)0f violation, the Director may suspend a tobacco
retailer's license as follows:
1. Upon finding a first license violation within any sixty -month period, a thirty day
suspension;
2. Upon finding a second license violation within any sixty -month period, a ninety
day suspension;
3. Upon finding a third license violation within any sixty month period, a one year
suspension;
4. Upon finding a fourth license violation within any sixty -month period, revocation.
B. Nothing in this section is intended to limit the Director's ability to impose a
different suspension period or to revoke a license as the circumstances of a violation may
require.
Section 14-224. No new license after revocation.
Should a tobacco retailer's license be revoked, the proprietor is presumptively
disqualified to apply for a new license in accordance with this chapter. This presumption may be
overcome upon a showing of good cause as to why a license should be issued following a
revocation. Any such showing must be made to the Director's satisfaction or, if the Director
denies a license, to the City Manager as prescribed by this chapter.
Section 14-225. Administrative appeals.
An applicant is entitled to appeal the Director's decisions to the City Manager provided:
A. A request for review must be commenced within ten days from the date on which
written notice of the Director's decision is served on the applicant/licensee. If request is
untimely, the City Manager may, nevertheless, extend the time for commencing such review for
good cause shown.
B. A request for appeal must be on a form provided by the Department and contain
the following information:
1. The name, address and telephone number of the person making the request;
2. A description of the decision, determination or order which is the subject of the
review, and the date such decision, determination or order was made or issued;
3. A brief description of all grounds for making the request; and
4. Such other information as may be required by the Department.
C. Upon receiving an appeal, the City Manager will review the request and, within
ten days of receiving the appeal, provide the appellant with a written notification that:
1. The Director's decision is affirmed;
2. The Director's decision is modified;
3. The Director's decision is reversed and a license is issued.
Ordinance No. 2206
Page 9
D. The City Manager shall conduct a hearing at a time, place, and manner
determined in the City Manager's sole discretion. Should such a hearing be held, the City
Manager shall issue a decision orally at the conclusion of the hearing, but also notify the
applicant and the Director in writing of the City Manager's decision.
E. The City Manager's decision is a final determination.
Section 14-226. Content of notices.
Any notification of action, whether oral or written, must describe with particularity the
facts and the reasons for the decision.
Section 14-227. Right to judicial review.
A. An applicant/licensee may appeal the City Manager's decision by filing an appeal
with the Superior Court pursuant to Government Code Section 53069.4, or any successor statute,
within twenty days from service of the City Manager's decision.
B. Should a licensee file a timely appeal with the Superior Court, any requirement to
pay an administrative fine is suspended and the payment of the fine, if any, will be in accordance
with the Superior Court decision.
SECTION 2. THE WEST COVINA MUNICIPAL CODE IS AMENDED TO REVISE
SECTION 1-37.1 TO READ AS FOLLOWS:
Sec. 1-37.1: Violation; infraction.
The violation of any of the provisions of the West Covina Municipal Code contained in any one
of the following enumerated sections shall be an infraction and shall be punishable as provided
in section 1-37(b); provided, however, that a fourth violation of the same section regardless of
time of occurrence shall constitute a misdemeanor and shall be punished as provided in section
1-37(a). The sections of this Code, a violation of which shall constitute an infraction, are set
forth by chapter as follows:
Chapter 14 - Licenses and Business Regulations:
Section 14-82.
Section 14-203.
APPROVED AND ADOPTED on this 4th day of May, 2010.
Mayor Shelley Sanderson
ATTEST:
i. &�r w
City Clerk La rie,Carrico
Ordinance No. 2206
Page 10
1, LAURIE CARRICO, CITY CLERK of the City of West Covina, California, do hereby certify
that the foregoing Ordinance was regularly introduced and placed upon its first reading at a
regular meeting of the City Council on the 20the day of April, 2010. That thereafter said
Ordinance was duly adopted and passed at a regular meeting of the City Council on the 4th day of
May, 2010, by the following vote:
AYES: Herfert, Herndndez, Lane, Sanderson
NOES:' Touhey
ABSENT: None
ABSTAIN: None
City C1erk.L-urie Carrico
APPROVED AS TO FORM:
G
Cit Attorney Arn d Alvarez-Glasman
CERTIFICATION
I, Susan Rush, Assistant City Clerk of the City of West Covina, State of California, do
hereby certify that a true and accurate copy of Ordinance No. 2206 was duly enacted and passed
by the West Covina City Council, and caused to be posted pursuant to law (G.C. 36933), at the
following locations:
West Covina City Clerk's Office (3rd floor)
Los Angeles County Public Library (West Covina Branch)
West Covina Police Department (front lobby)
Susan Rush, Assistant City Clerk
Posted: zxlzo