2009-65 Licensure of Tobacco Retailers ORDINANCE NO. 2009-65
AN ORDINANCE OF THE CITY OF MENIFEE ADDING
CHAPTER 5.24 TO THE MENIFEE MUNICIPAL CODE
REGARDING THE LICENSURE OF TOBACCO RETAILERS AND
REPEALING RIVERSIDE COUNTY ORDINANCE NO. 838
The City Council of the City of Menifee does ordain as follows:
Section 1. The City Council of the City of Menifee finds as follows based upon
credible evidence presented to the Council:
(a) Minors 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, yielding the tobacco industry $480 million in profits from underage
smokers nationwide. In Riverside County, 10,000 teens light up for the first time and
purchase 5 million packs of cigarettes a year.
(b) In a 2004 California youth-buying survey, 12% of retailers surveyed
unlawfully sold tobacco product to minors.
(c) The rate of tobacco sales to minors in Riverside County is one of the
highest in the State at 44%.
(d) 88% of adults who have ever smoked tried their first cigarette by the age
of 18, and the average age at which smokers try their first cigarette is 14'/.
(e) A requirement for a tobacco retailer license will not unduly burden
legitimate business activities of retailers who sell or distribute cigarettes or other tobacco
products to adults. It will, however, allow regulation of the operation of lawful businesses
to discourage violations of federal, state, and local tobacco-related laws.
(f) 65% of California's key opinion leaders surveyed support implementation of
tobacco-licensing requirements.
(g) Upon incorporation, Menifee adopted Riverside County Ordinance No.
838 which contain the County's tobacco licensing requirements, also adopted by most
Riverside County cities, including those surrounding Menifee, which have entered into
an agreement with the County Environmental Health Department for enforcement
hereof.
(h) In addition, the City has adopted a ban on hookah lounges and may
request enforcement of that ban by County, as well as enforcement of state laws and
regulations.
0) All tobacco retailers in Menifee now are licensed under this program and
the City Council wishes to continue the program by adoption of its own ordinance and by
entering into an agreement with the County Health Department for enforcement of the
ordinance.
Ordinance No.2009-65
Tobacco Licensing Agreement
Section 2. Chapter 5.24 is added to the Menifee Municipal Code to read as follows:
Chapter 5.24: Licensure of Tobacco Retailers
Section
5.24.010 Purpose and Intent.
5.24.020 Definitions.
5.24.030 Tobacco license prerequisite; application process.
5.24.040 License issuance; standards.
5.24.050 License non-transferable.
5.24.060 License term, renewal and fees.
5.24.070 Other licensing requirements and prohibitions.
5.24.080 Compliance monitoring.
5.24.090 License revocation.
5.24.100 Tobacco retailing without a license.
5.24.110 Enforcement of license violations.
5.24.120 Settlement in lieu of hearing.
5.24.010. Purpose and Intent.
The City of Menifee 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. It is the intent of this ordinance to encourage responsible tobacco
retailing and to discourage violations of tobacco-related laws at the local level as allowed
by state, especially those that prohibit or discourage the sale or distribution of tobacco
products to minors, 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
or to regulate in areas already preempted.
5.24.020. Definitions. For the purposes of this ordinance, the following words
and terms shall have the following meanings:
(a) "Arm's Length Transaction" shall mean: a 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 Ordinance is presumed not
to be an Arm's Length Transaction.
(b) "Business" means any sole proprietorship, partnership, joint venture,
corporation or other business entity formed for profit-making purposes, including retail
establishments where goods or services are sold, as well as professional corporations
and other entities where legal, medical, dental, engineering architectural or other
professional services are delivered.
(c) "City" shall mean the City of Menifee or its designee hereunder for the
administration and enforcement of this Chapter.
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(d) "Department" shall mean the Riverside County Department of Health and
Human services or other county department, if so designated by the City Council by
written contract, or any city department designated to administer and/or enforce the
provisions of this Chapter.
(e) "Proprietor" shall mean 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 (10%) 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 can or does have, or can or does share ultimate control over the day-to-
day operations of a business.
(f) "Retail tobacco store" means a retail store utilized primarily for the sale of
tobacco products and accessories; and in which at least 80% of the square footage of
the available retail floor and shelf space is devoted to the sale of tobacco-related
products and accessories. Operation of a hookah lounge as defined by City ordinance
does not fall within the definition of a "retail tobacco store."
(g) "Self-Service Display" shall mean: the open display of Tobacco Products
or Tobacco Paraphernalia in a manner that is accessible to the general public without
the assistance of the retailer or employee of the retailer. A Vending Machine is a form of
Self-Service Display.
(h) "Smoking" shall mean: possessing a lighted Tobacco Product, Tobacco
Paraphernalia, or any other weed or plant (including a lighted pipe, lighted cigar, or
lighted cigarette of any kind), the lighting of a Tobacco Product, Tobacco Paraphernalia,
or any other weed or plant (including a pipe, cigar, or cigarette of any kind).
(i) "Tobacco Paraphernalia" shall mean: cigarette papers or wrappers, pipes,
holders of smoking materials of all types, cigarette rolling machines, and any other item
designed for the smoking, preparation, storing, or consumption of Tobacco Products.
0) "Tobacco Product" shall mean: (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 otherwise 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.
(k) "Tobacco Retailer" shall mean: any Person who sells, offers for sale, or
does or offers to exchange for any form of consideration, tobacco, Tobacco Products, or
Tobacco Paraphernalia; "Tobacco Retailing" shall mean the doing of any of these things.
This definition is without regard to the quantity of tobacco, Tobacco Products, or
Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange.
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5.24.030. Tobacco License Prerequisite; Application and Renewal Process.
(a) It shall be unlawful for any person, except for a retail tobacco store, to act
as a Tobacco Retailer without first obtaining and maintaining a valid Tobacco Retailer's
license pursuant to this Ordinance for each location at which that activity is to occur and
to do so without a valid Tobacco Retailer's license shall constitute a public nuisance. As
used herein, "license" shall include any required review of a license.
(b) A Tobacco Retailer (including the Proprietor of a Tobacco Retailer)
without a valid Tobacco Retailer's license, including, for example, a revoked license:
(1) Shall keep all Tobacco Products and Tobacco Paraphernalia from
public view. The public display of Tobacco Products or Tobacco
Paraphernalia in violation of this provision shall constitute an "offer
for sale"for the purposes of Section 5.24.040 (c) hereof.
(2) Shall not display any advertisement relating to Tobacco Products
or Tobacco Paraphernalia that promotes the sale or distribution of
such products from the Tobacco Retailer's location or that would
lead a reasonable consumer to believe that such products can be
obtained at the Tobacco Retailer's location.
(c) Nothing in this Chapter shall be construed to grant any person obtaining
and maintaining a Tobacco Retailer's 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.
For example, nothing in this ordinance 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 smoking in enclosed places of employment
made applicable to business establishments by California Labor Code section 6404.5.
(d) Applications for a Tobacco Retailer's license or for an annual renewal of
that license shall be submitted to the City or its designee, utilizing a form provided by the
City or its designee, which application shall be in the name of each Proprietor proposing
to conduct retail tobacco sales and shall be signed by each Proprietor or an authorized
agent thereof. It is the responsibility of each Proprietor to be informed of the laws
affecting the issuance of a Tobacco Retailer's license. A license that is issued in error or
on the basis of false or misleading information supplied by a Proprietor shall be revoked
pursuant to Section 5.24.100 hereof.
(e) In addition to any other penalty under this Chapter, a person found to
have engaged in Tobacco Retailing without a valid Tobacco Retailers license shall be
ineligible to apply for or be issued a Tobacco Retailing license according to the following:
(1) After a first violation for a person within any sixty-month (60)
period, no new license may issue for the person as a Proprietor
until thirty (30) days have passed from the date of last violation.
(2) After a second violation for a person within any sixty-month (60)
period, no new license may issue for the person as a Proprietor
until ninety (90) days have passed from the date of last violation.
(3) After three or more violations for a person within any sixty-month
(60) period, no new license may issue for the person as a
Proprietor until five (5) years have passed from the date of last
violation.
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(4) Each day that a person engages in Tobacco Retailing without a
valid Tobacco Retailers license shall constitute a separate
violation.
(f) Tobacco Products and Tobacco Paraphernalia offered for sale or
exchange in violation of this Chapter are subject to seizure and forfeiture. Forfeited
Tobacco Products and Tobacco Paraphernalia shall be destroyed.
(g) All applications or renewals shall contain the following information:
(1) The current name, address, and telephone number of each
Proprietor.
(2) The current business name, address, and telephone number of
the single fixed location for which a Tobacco Retailer's license is
sought.
(3) The current name and mailing address authorized by each
Proprietor to receive all license-related communications and
notices; unless a different mailing address is provided, each
Proprietor shall be understood to consent to the provision of notice
at the business address specified above.
(4) Current Proof that the location for which a Tobacco Retailer's
license is sought has been issued a valid state tobacco retailer's
license by the California Board of Equalization.
(5) Whether or not any Proprietor is a Person who has been
determined to have violated this Chapter or has been a Proprietor
at a location that has been determined to have violated this
Chapter and, if so, the dates and locations of all such violations.
(6) For a renewal, any change in the information listed during the prior
year.
(7) Such other information as the City deems necessary for the
administration or enforcement of this ordinance.
5.24.040. License Issuance or Renewal; Standards.
(a) No license (including any renewal) may issue to authorize Tobacco
Retailing at other than a fixed location, i.e. no license shall issue for Tobacco Retailing
by Persons on foot or from a vehicle of any kind.
(b) Upon the receipt of an application (including a renewal) for a Tobacco
Retailer's license and the license fee therefor, the City or its designee shall issue a
license or renewal unless substantial record evidence demonstrates that one of the
following bases for denial exists:
(1) The application is incomplete or inaccurate.
(2) The application seeks authorization for Tobacco Retailing at a
location for which a prohibition on issuing licenses is in effect
pursuant to this Chapter. However, this subsection shall not
constitute a basis for denial of a license if the applicant provides
the City with documentation demonstrating that the applicant has
acquired or is acquiring the location or business in an Arm's
Length Transaction.
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Tobacco Licensing Agreement
(3) The application seeks authorization for Tobacco Retailing for a
Proprietor for which a prohibition on issuing licenses is in effect
pursuant to this Chapter.
(4) The application seeks authorization for Tobacco Retailing that is
prohibited pursuant to this Chapter, that is unlawful pursuant to
any other City ordinance, or that is unlawful pursuant to any other
local, state, or federal law.
5.24.050. License Non-Transferable.
(a) A Tobacco Retailer's license (including a renewal license) is
nontransferable. If the information required in the license application changes, a new
Tobacco Retailer's 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 Tobacco Retailer at the new location. Or if the business is sold, the new owner must
apply for a license for that location before acting as a Tobacco Retailer.
(b) Notwithstanding any other provision of this Chapter, violations
accumulated against a location or business shall continue to be counted against the
location or business unless the location or business has been transferred to a new
Proprietor and the new Proprietor provides the City with documentation demonstrating
by clear and convincing evidence that the new Proprietor has acquired or is acquiring
the location or business in an Arm's Length Transaction.
5.24.060. License Term, Renewal and Reinstatement after Expiration; Fees.
(a) Term: The term of a Tobacco Retailer license is one (1) year from the date
of issuance or renewal. A Tobacco Retailer's license is invalid unless the appropriate fee
has been paid in full and the term of the license has not expired.
(b) Renewal: Each Tobacco Retailer shall apply for the renewal of his or her
Tobacco Retailer's license no later than thirty (30) days prior to expiration of the term.
(c) Reinstatement after Expiration: A Tobacco Retailer's license that is not
timely renewed shall expire at the end of its term. To reinstate a license that has expired
due to the failure to renew, the Proprietor shall submit the renewal fee plus a
reinstatement fee of ten percent (10%) of the renewal fee and submit a signed
declaration stating the reason for the failure to renew the license in a timely manner.
Unless the Proprietor can show that he has not sold any Tobacco Product or Tobacco
Paraphernalia during any period that the license was expired, the Proprietor may be
subject to additional penalties for violation of this ordinance.
(d) Fees: The fees applicable to this Chapter shall be determined by
Resolution of the City Council. Reinstatement fee shall be at least 10% of renewal fee.
5.24.070. Other Licensing Requirements and Prohibitions.
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(a) Display of License: Each license shall be prominently displayed in a
publicly visible location at the licensed location in such a manner and size that it may be
easily read.
(b) Positive Identification Required: If the purchaser reasonably appears to be
under the age of thirty (30), the person engaging in Tobacco Retailing shall examine the
identification of the purchaser to confirm that the proposed sale is to a purchaser who is
at least the minimum age under state law for purchasing the Tobacco Product or
Tobacco Paraphernalia.
(c) Minimum Age for Persons Selling Tobacco: No person shall engage in
Tobacco Retailing if the person is younger than the minimum age under state law for
being sold or for possessing any Tobacco Product.
(d) Self-Service Displays Prohibited: No person shall display Tobacco
Products or Tobacco Paraphernalia by means of a Self-Service Display or engage in
Tobacco Retailing by means of a Self-Service Display. A Tobacco Retailer who chooses
to display Tobacco Products or Tobacco Paraphernalia in a locked cabinet, case or
similar structure shall post a clear and conspicuous sign on or within five feet of the
display stating that the cabinet, case or structure is locked at all times and must keep the
cabinet locked when not removing products for sale, restocking, or cleaning or
maintaining the cabinet.
(e) Violation of Tobacco-Related Laws: It shall be a violation of a Tobacco
Retailer's license for a licensee, including his or her agent or employee, to violate any
local, state, or federal tobacco-related law, including but not limited to those regarding
signage or those restricting the age of purchase for any product.
5.24.080. Compliance Monitoring.
(a) Compliance with this Chapter shall be monitored by the City or its
designee. Any peace officer may enforce the provisions of this ordinance.
(b) Notwithstanding, neither the City nor its designee shall not enforce any
tobacco-related minimum-age law against a person who otherwise might be in violation
of such law because of the person's age (the "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 enforcement official; or
(2) The Youth Decoy is participating in a compliance check funded in
part, either directly or indirectly through sub-contracting, by the
City, the Department, the California Department of Health
Services or a law enforcement agency.
5.24.080. Revocation of License.
(a) Revocation of License for Violation.
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In addition to any other penalty authorized by law, a Tobacco Retailer's license
may be revoked if the City or its designee finds, after the licensee is afforded notice and
an opportunity to be heard as provided in Chapter 2.2 of this Code or pursuant to
substantially equivalent procedures delegated to the County, that the licensee, or any of
the licensee's agents or employees, has violated any of the requirements, conditions or
prohibitions of this Chapter or has otherwise admitted to a violation of this Chapter.
For a first or second alleged violation within any five-year period, and in order to
avoid a hearing, the City or its designee is authorized to enter into a settlement with the
Proprietor without additional consent of the City Counsel, which settlement shall not be
confidential and which shall contain the following minimum terms:
(1) After an alleged first License Violation at a location within any
sixty-month (60) period:
i. An agreement to stop acting as a Tobacco Retailer for at
least one (1) business day;
ii. A administrative costtsettlement payment to the City or its
designee of at least one thousand dollars ($1000); and
iii. A stipulation that the alleged violation may be counted
when considering what penalty will be assessed for any
future violations.
(2) After an alleged second License Violation at a location within any
sixty-month (60) period:
i. An agreement to stop acting as a Tobacco Retailer for at I
east ten (10) business days;
ii. An administrative settlement payment to the City of at least
five thousand dollars ($5000); and
iii. A stipulation that the violation will be counted when
considering what penalty will be assessed for any future
violations.
(b) New License After Revocation for Violation.
(1) After a first License Violation at a location within any sixty-month
(60) period, no new license may issue for the location until ten
(10) days have passed from the date of the last revocation or
violation, whichever is later.
(2) After a second License Violation at a location within any sixty-
month (60) period, no new license may issue for the location until
thirty (30) days have passed from the date of the last revocation or
violation, whichever is later.
(3) After of a third License Violation at a location within any sixty-
month (60) period, no new license may issue for the location until
ninety (90) days have passed from the date of the last revocation
or violation, whichever is later.
(4) After four or more License Violations at a location within any sixty-
month (60) period, no new license may issue for the location until
five (5) years have passed from the date of the last revocation or
violation, whichever is later.
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(c) Revocation of License Issued in Error.
A Tobacco Retailer's license shall be revoked if the Department finds,
after notice and opportunity to be heard, that one or more of the bases for denial of a
license under this Chapter existed at the time application was made or at any time
before the license issued. The revocation shall be without prejudice to the filing of a new
application for a license.
(d) No Contest Plea.
To the extent allowed by law, a plea of "no contest" or its equivalent by a
Tobacco Retailer for a violation of any law designated in subsection (a) above shall
operate as an admission that this Chapter has been violated for the purposes of license
revocation.
5.24.090. Enforcement.
The remedies provided by this ordinance are cumulative and in addition to any
other remedies available at law or in equity.
(a) Whenever evidence of a violation of this ordinance is obtained in part
through the participation of a Person under the age of eighteen (18) years old, such a
Person shall not be required to appear or give testimony in any civil or administrative
process brought to enforce this ordinance and the alleged violation shall be adjudicated
based upon the sufficiency and persuasiveness of the evidence presented.
(b) Violations of this Chapter may be enforced pursuant to Chapter 11.25 of
this Code providing for administrative citations and fines. Violations of this Chapter also
may be subject to a civil action brought by the District Attorney's office with the consent
of the City. In the event of such enforcement, the administrative fines levied or penalties
sought at a minimum shall be:
(1) A fine not less than two hundred fifty dollars ($250) and not
exceeding one thousand dollars ($1000) for a first violation in any
sixty-month (60) period; or
(2) A fine not less than one thousand five hundred dollars ($1500)
and not exceeding two thousand five hundred dollars ($2,500) for
a second violation in any sixty-month (60) period; or
(3) A fine not less than three thousand dollars ($3,000) and not
exceeding ten thousand dollars ($10,000) for a third or
subsequent violation in any sixty-month (60) period.
(c) Causing, permitting, aiding, abetting, or concealing a violation of any
provision of this Chapter shall constitute a violation.
(d) Violations of this Chapter are hereby declared to be public nuisances.
Section 3. Repeal of County Ordinance. Riverside County Ordinance No. 838 is
repealed in its entirety.
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Section 4. Effective Date. This ordinance shall take effect 30 (thirty) days from the
date of its adoption. The City Clerk shall publish a summary of this ordinance as
required by law.
WALLACE W. EDGERTON, 00R
ATTES
KATHY BENNETT, CITY CLERK
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