CC - Item 6A - Tobacco Retailer LicensingROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: BILL R. MANIS, CITY MANAGER,�? Iz rN
DATE: JULY 25, 2017
SUBJECT: TOBACCO RETAILER LICENSING
SUMMARY
The City of Rosemead recognizes the dangers of smoking and secondary smoke. To encourage
responsible tobacco retailing and to discourage violations of tobacco -related laws, especially
those that prohibit the sale or distribution of tobacco products to minors, staff is requesting that
the City Council select one of three possible options.. The incorporation of one of these options
will assist in promoting the health, safety, and general welfare of Rosemead residents and
encourage compliance with Federal, State, and local laws regulating tobacco sales and use.
These options include:
1. Since the City Rosemead has adopted Title 11 of the County of Los Angeles Ordinance
into the Rosemead Municipal Code, the City may enforce Chapter 11.35 (Tobacco
Retailing) of the County of Los Angeles Code of Ordinances and require any business
who sells, offers for sale or distribution, exchanges, or offers to exchange for any form
of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to
the quantity sold, distributed, exchanged, or offered for exchange to obtain a Tobacco
Retail License. A copy of Chapter 11.35 is attached as Attachment "A". If the City
Council selects this option, it may become effective immediately.
2. Require any business who sells, offers for sale or distribution, exchanges, or offers to
exchange for any form of consideration, tobacco, tobacco products, or
tobacco paraphernalia without regard to the quantity sold, distributed, exchanged, or
offered for exchange obtain a Conditional Use Permit and comply with Rosemead
Municipal Code Chapter 17.132. A copy of Chapter 17.132 is attached as Attachment
"B". The cost would be $1,985 and would require a public hearing before the Planning
Commission. Under this process, conditions can be incorporated to set specific
restrictions and require the applicant to submit a written plan on staff training. If the City
Council selects this option, staff will incorporate this option during the Zoning Code
Update this year.
ITEM NUMBER: (0 A
City Council Meeting
July 25, 2017
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3. Develop a new ordinance which would require that owners of all retail businesses
offering tobacco products, tobacco paraphernalia, and/or electronic smoking devices for
sale to the public be subject to a Tobacco Retailer License with annual renewal. The
ordinance will include regulations crafted in a manner to reduce underage access to
tobacco products and establishes performance standards for these business that are
consistent with those for retail establishments engaging in the sale of alcoholic beverages
for off-site consumption. If the City Council selects this option, staff will need to draft a
new ordinance, incorporate the ordinance into Title 5 (Business Licenses and
Regulations), and establish a new fee.
STAFF RECOMMENDATION
It is recommended that the City Council select Option 1 and direct staff to immediately enforce
the Tobacco Retail License to all new tobacco retail stores. All existing tobacco retail stores
shall be permitted to continue. However, any transfer of ownership or business expansion of an
existing tobacco retail store shall require the compliance with the Tobacco Retail License.
FISCAL IMPACT - None
STRATEGIC PLAN IMPACT — None
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Submitted by:
'�` 4�
Lily T. Valenzuela, Interim Community Development Director
Attachment A: Chapter 11.35 of County of Los Angeles Code of Ordinances
Attachment B: Chapter 17.132 of the Rosemead Municipal Code
Attachment A
Chapter 11.35 of the County of Los Angeles
Code of Ordinances
Chapter 11.35 -TOBACCO RETAILING
Sections:
11.35.010 - Purpose and application.
hi promoting the health, safety, and general welfare of its residents, the County of Los Angeles
has a substantial interest in encouraging compliance with federal, state, and local laws regulating
tobacco sales and use; in discouraging the purchase and use of tobacco products by minors; in
increasing compliance with laws prohibiting the sale of tobacco products to minors; and 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, especially those that prohibit 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 otherwise regulated.
(Ord. 2007-0118 § 3 (part), 2007.)
11.35.020 - Definitions.
For the purpose of this chapter, the following words and terms shall have the following meaning:
A. "Arm's length transaction" means 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, when neither is 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. "Department" means the Los Angeles County Department of Public Health.
C. "Director" means the director of the Los Angeles County Department of Public Health or his/her
designee.
D. "Itinerant tobacco retailing" means engaging in tobacco sale or distribution at other than a fixed
location.
E. "License" means a tobacco retailer license issued by the county pursuant to this section.
F. "Licensee" means any proprietor holding a license issued by the county pursuant to this chapter.
G. "Person" means any individual, entity, firm, partnership, joint venture, limited liability company,
association, social or professional club, fraternal organization, corporation, estate, trust, business trust,
receiver, trustee, syndicate, or other group or combination of the above acting as a single unit.
H. "Proprietor" means a person with an ownership 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.
I. "Tobacco product" means any substance containing tobacco leaf, including but not limited to
cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other
preparation which includes any tobacco product.
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J. "Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of
all types, cigarette rolling machines, and any other item designed or used for the smoking or ingestion
of tobacco products.
K. "Tobacco retailer" means any person who sells, offers for sale or distribution, exchanges, or offers to
exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without
regard to the quantity sold, distributed, exchanged, or offered for exchange.
L. "Tobacco retailing" means 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. 2007-0118 § 3 (part), 2007.)
11.35.030 - Mandatory tobacco retail license.
A. Any person intending to act as a tobacco retailer shall, within ninety days of the effective date of the
ordinance codified in this chapter, obtain a tobacco retailing license for each location at which tobacco
retailing is to occur. No license may be issued to authorize tobacco retailing at other than a fixed
location. Itinerant tobacco retailing is prohibited.
B. Nothing in this chapter shall be construed to grant any licensee any status or right other than to act as
a tobacco retailer at the location identified on the face of the license, subject to compliance with all
other applicable laws, regulations, or ordinances. Nothing in this chapter shall be construed to render
inapplicable, supersede, or apply in lieu of any other provision of applicable law.
(Ord. 2007-0118 § 3 (part), 2007.)
11.35.040 - Application procedure for tobacco retail license.
All applications for a license shall be submitted in the name of each proprietor proposing to
conduct tobacco retailing and signed by each prospective proprietor or an authorized agent. Each
license application must be accompanied by the required license fee pursuant to section 8.04.720
of this code. A proprietor proposing to conduct tobacco retailing at more than one location shall
submit a separate application for each location. Every application shall contain the following
information:
A. The name, address, and telephone number of each proprietor;
B. The business name, address, and telephone number of the fixed location for which the license is
sought;
C. Whether or not any proprietor has previously been issued a license pursuant to this chapter that is, or
was at any time, suspended or revoked and, if so, the date of the suspension or revocation;
D. Proof that the location for which a tobacco retailing license is sought has been issued a valid state
tobacco retailer's license by the California Board of Equalization;
E. A signed affirmation by each proprietor that each proprietor is informed of the laws affecting tobacco
retailing licenses; and
F. Such other information as the county deems necessary for the administration of this chapter.
(Ord. 2007-0118 § 3 (part), 2007.)
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11.35.050 - Issuance and renewal of license.
A. Upon receipt of an application and applicable fee, as set forth in section 8.04.720, the applicant(s)
shall be issued a license unless:
The application is incomplete or inaccurate;
2. The department has information that the applicant, or his/her agents or employees, has violated
any local, state, or federal tobacco control law at the location for which the license or renewal
license is sought within the preceding sixty (60) days; or
3. The application seeks authorization for tobacco retailing at an address where a previous license
has been suspended, revoked, or is subject to suspension or revocation proceedings for any
violation of any of the provisions of this chapter. However, this shall not constitute a basis for
denial of a license if either or both of the following apply:
a. The applicant provides documentation which clearly demonstrates that the applicant has
acquired or is in the process of acquiring the premises or business in an arm's length
transaction; or
b. It has been more than five years since the most recent license for that location was revoked.
B. Renewal of tobacco retailing license. A license shall be valid for one year and must be renewed
between thirty and sixty days prior to the expiration of the license. A license may be renewed for
additional one year periods by submission of a renewal application and the applicable fee. Any license
that is suspended, has been revoked within the previous five years, or is subject to suspension or
revocation proceedings shall not be renewed.
(Ord. 2007-0118 § 3 (part), 2007.)
11.35.060 - License nontransferable.
A tobacco retailing license is nontransferable. If a licensee changes business location, that
licensee must obtain a new 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 proprietor must
obtain a license for that location before acting as a tobacco retailer.
(Ord. 2007-0118 § 3 (part), 2007.)
11.35.070 - License violations.
A. It shall be a violation of this chapter for a licensee, or his/her agents or employees, to violate any
federal, state, or local tobacco law or regulation, including any provision of this chapter.
B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall
constitute a violation.
C. Failure to prominently display the tobacco retailing license in a publicly visible location at the licensed
premises shall constitute a violation.
D. The failure of the licensee to allow any peace officer, the director, or any authorized county official to
conduct unscheduled inspections of the premises of the business for the purpose of ensuring
compliance with any federal, state, or local tobacco law or regulation, including any provision of this
chapter, at any time the business is open for business shall constitute a violation.
(Ord. 2007-0118 § 3 (part), 2007.)
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11.35.080 - Compliance checks.
A. Compliance with this chapter shall be monitored by the department or any law enforcement officer.
Any law enforcement officer may conduct compliance checks, including but not limited to youth decoy
operations, and enforce the penal provisions of this chapter.
B. The department shall check the compliance of each tobacco retailer a minimum of one time per twelve
month period. Compliance checks may be unannounced.
(Ord. 2007-0118 § 3 (part), 2007.)
11.35.090 - Administrative fines.
Subject to the requirements of Chapter 1.25 of this county code, the director may impose
administrative fines on persons violating any provision of this chapter or any federal, state, or
local law or regulation incorporated into this chapter. The director may impose a fine upon such
violators in an amount determined by the director. The imposition of any such fine shall in no
way limit the director's ability or authority to impose other requirements of this chapter or seek
other remedies against violators.
(Ord. 2007-0118 § 3 (part), 2007.)
11.35.100 - Suspension or revocation of license.
A. In addition to any other remedy authorized by law, a license may be suspended or revoked as provided
in this section if it is discovered that any of the following occurred:
1. The licensee, or the licensee's agents or employees, has violated any provision of this chapter.
Violation by a licensee at one location shall not be construed as a violation at another location of
the same licensee, nor shall violations by a prior licensee at the same location be accumulated
against a subsequent licensee at the same location;
2. The original or renewal application contained incorrect, false, or misleading information;
3. One or more of the bases for denial listed in section 11.35.050 existed before the license was
issued; or
4. A licensee is convicted of a misdemeanor or felony violation of any federal, state, or local tobacco
law or regulation, including any provision of this chapter.
B. During any period of suspension or revocation, the licensee shall remove all tobacco products and
tobacco paraphernalia from public view. Failure to do so may be considered a subsequent violation.
C. When the director finds a violation as set forth in section 11.35.100(A), the license may be suspended
or revoked as follows:
1. Upon finding by the director of a first license violation within any five-year period, the license may
be suspended for up to thirty days;
2. Upon a finding by the director of a second license violation within any five-year period, the license
may be suspended for up to ninety days;
3. Upon a finding by the director of a third license violation in any five-year period, the license may
be suspended for up to one hundred and twenty days; and
4. Upon a finding by the director of a fourth license violation within a five year period, the license
shall be revoked.
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(Ord. 2007-0118 § 3 (part), 2007.)
11.35.110 - Suspension or revocation procedure.
A. Before a license is suspended or revoked, the director shall provide written notice to the licensee. Said
notice shall include the following:
1. A statement that the proprietor's tobacco retailing license is being suspended or revoked pursuant
to this chapter;
2. The code section violated by licensee or licensee's agents or employees;
3. A description of the violation that occurred;
4. The address of the business where the violation occurred; and
5. The procedure for requesting an administrative review.
B. A licensee served with a notice of suspension or revocation may request an administrative review to
contest the suspension or revocation. The request must be made in writing and filed with the director
within ten calendar days of service of the notice of suspension or revocation. Failure to timely request
an administrative review shall be deemed a waiver of the right to request such a review and a failure
to exhaust administrative remedies.
C. After receiving a timely administrative review request, the director shall schedule an administrative
review within twenty calendar days of receipt of the written request and designate a reviewing officer.
The director may, in his/her discretion, appoint as a reviewing officer any department or other county
employee with expertise in public health who is not directly involved in inspection or enforcement of
tobacco retailing establishments.
D. The proprietor shall be given written notice of the date, time, and location of the administrative review
and the name of the reviewing officer who will conduct the administrative review at least ten calendar
days in advance of the review.
E. The reviewing officer, in his/her discretion, may grant a continuance upon the written request and
showing of good cause. In no event shall the continuance be longer than thirty calendar days from the
originally scheduled review date.
F. At the administrative review, the department has the burden of providing by a preponderance of the
evidence that the alleged violation occurred.
G. The failure to appear at the administrative review shall constitute an abandonment of the review
request and a failure to exhaust administrative remedies.
H. Within ten calendar days after the close of the administrative review, the reviewing officer shall issue
a written decision on the suspension or revocation of the license, including a statement of the basis
for the decision. The reviewing officer's written decision shall constitute the final administrative decision
of the county.
I. If the director revokes a tobacco retailing license, no new license may be issued for five years after
that revocation.
(Ord. 2007-0118 § 3 (part), 2007.)
11.35.120 - Violation—Other penalties.
A. In addition to any other penalties and remedies provided by law, including the provisions of this
chapter, any violation of the provisions of this chapter may be charged as a misdemeanor pursuant to
chapter 1.24 of this code, or, in the discretion of the prosecutor, as an infraction. Any person who
violates any provision of this chapter is subject to a suit for injunction as well as prosecution for any
criminal violation.
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B. In addition to any other penalty under this chapter, a person found to have engaged in tobacco retailing
without a valid tobacco retailing license shall be ineligible to apply for or be issued a tobacco retailing
license as follows:
1. After a first violation for a person within any five year period, no new license may be issued for
the person as a proprietor until thirty days have passed from the date of last violation;
2. After a second violation for a person within any five year period, no new license may be issued
for the person as a proprietor until ninety days have passed from the date of last violation;
3. After three or more violations for a person within any five year period, no new license may be
issued for the person as a proprietor until five years have passed from the date of last violation;
4. Each day that a person engages in tobacco retailing without a valid tobacco retailing license shall
constitute a separate violation; and
5. Any person found by the director to be ineligible to be issued a license pursuant to this section
may request an administrative review within ten days of notice of the violation. The request must
be made to the director in writing. Any administrative review shall be held pursuant to the
provisions of section 11.35.110 of this chapter.
C. Violations of this chapter are hereby declared to be public nuisances.
(Ord. 2007-0118 § 3 (part), 2007.)
11.35.130 - Severability.
If any provision of this chapter or the application thereof to any person or circumstance is held
invalid, the remainder of this chapter or the application of such provision to other persons or
circumstances shall not be affected thereby.
(Ord. 2007-0118 § 3 (part), 2007.)
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Attachment B
Chapter 17.132 of the Rosemead Municipal Code
Chapter 17.132 - CONDITIONAL USE PERMITS
Sections:
17.132.010 - Purpose.
The purpose of a Conditional Use Permit is to provide for uses that have a potential for adverse impacts
on surrounding properties, residents, or businesses. Therefore, when such uses are approved, conditions
are placed on their establishment and operation to mitigate or eliminate such impacts to insure they are not
detrimental to surrounding property.
(Ord. No. 931, § 5(Exh. A), 10-22-13)
17.132.020 - Applicability.
A Conditional Use Permit is required for all land uses that are necessary for the development of the
community, but because of their nature cannot be classified as a permitted use and must be located,
planned, and used in such a manner as not to be detrimental to the property abutting such uses and to the
community as a whole.
(Ord. No. 931, § 5(Exh. A), 10-22-13)
17.132.030 - Application, filing and processing.
The procedure set forth in Chapter 17.120 (Applications and Processing), 17.156 (Public Hearings and
Administrative Review), and 17.160 (Appeals and Requests for Review) shall constitute the procedure
relating to Conditional Use Permits, except as otherwise specifically provided in this chapter.
(Ord. No. 931, § 5(Exh. A), 10-22-13)
17.132.040 - Findings and decision authority.
A Conditional Use Permit may be issued only after a public hearing before the Planning Commission
of the City upon application. The Planning Commission shall also find that the establishment, maintenance
or operation of the use so applied for will not, under the circumstances of the particular case, be detrimental
to the health, safety, peace, morals, comfort or general welfareof persons residing or working in the
neighborhood thereof, not be detrimental or injurious to the property and improvements in the neighborhood
or to the general welfare of the City. All of the following findings shall be made by the Planning Commission
in conjunction with the approval of a Conditional Use Permit:
A. Approval of the application will not be or incompatible or injurious to other properties or land uses
in the vicinity or create conditions materially detrimental to the public health, safety and general
welfare.
B. The use is consistent with the General Plan.
C. The use is consistent with the provisions of this Zoning Code.
D. Processing and approval of the permit application are in compliance with the requirements of the
California Environmental Quality Act.
E. If development is provided for under the Conditional Use Permit, the project is consistent with the
goals and objectives of the applicable standards and Design Guidelines in the overlying district.
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(Ord. No. 931, § 5(Exh. A), 10-22-13)
17.132.050 - Conditions of approval.
The Planning Commission and/or City Council have the authority to impose any additional conditions
upon the Conditional Use Permit which it determines are necessary or desirable to mitigate any potential
impacts. These conditions may address any pertinent factors affecting the operation of the use, and may
include but are not limited to the following:
A. Limitation on duration of use;
B. Operating hours and days;
C. Pedestrian and vehicular circulation. Provision for adequate pedestrian and vehicular circulation,
parking facilities (including vehicular ingress and egress), and public transportation, if applicable;
D. Regulation of nuisance factors. Regulation of nuisance factors including prevention of glare or
direct illumination on adjacent lots, dirt, dust, erosion, gases, heat, noise, odors, smoke, soil
contamination, trash, and vibration;
E. Regulation of temporary structures. Regulation of temporary structures and facilities, including
placement, height and size, location of equipment and open spaces, including buffer areas and
other yards;
F. Landscaping and screening provisions;
G. Waste collection, recycling, and/or disposal. Provision for solid, hazardous, and toxic waste
collection, recycling, and/or disposal;
H. Site maintenance;
I. Lighting provisions (exterior and interior);
J. Police/security and safety measures. Provision for police/security and safety measures, as
appropriate;
K. Signs. Regulation of signs in compliance with Chapter 17.116 (Signs);
L. Indemnification agreement;
M. Signed affidavit for acceptance conditions of approval;
N. Compliance with applicable provisions. A requirement that the approval of the requested limited
term permit is contingent upon compliance with applicable provisions of the Municipal Code and
the successful granting of all required permits and licenses from any other department or
governing agency; and
O. Other conditions. Other conditions that would ensure the operation of the use in an orderly and
efficient manner, and in full compliance with the purpose of this Section.
(Ord. No. 931, § 5(Exh. A), 10-22-13)
17.132.060 - Expiration, modification, extension and revocation of conditional use permit.
A Conditional Use Permit approved in compliance with the provisions of this chapter shall continue to
be valid upon a change of ownership of the business, parcel, service, structure, or use that was the subject
of the permit application in the same area, configuration, and manner as it was originally approved in
compliance with this chapter, except as follows:
A. If the use authorized by any Conditional Use Permit is, or has been unused, abandoned or
discontinued for a period of one year, the Conditional Use Permit shall become null and void and
of no effect.
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B. If any condition attached to a Conditional Use Permit is violated or if any law, statute or City
ordinance is violated, the Conditional Use Permit and privileges shall be suspended; provided
that the applicant has been given written notice to cease such violation and has failed to do so
for a period of thirty (30) days. Repeated violations of any of the conditions attached to a
Conditional Use Permit may be grounds for revocation of the conditional use permit.
C. In the event that the operation of any part of a facility granted by Conditional Use Permit should
result in substantial complaints to the Planning Division, and when staff investigation determines
that the conditions as originally drafted are not sufficient to properly regulate the use, the
conditions may be modified.
D. For any revocation or modification of a Conditional use permit, as set forth in subsection B or C
of this section, the Community Development Director shall follow the revocation and modification
provisions set forth in Chapter 17.168 (Revocations and Modifications).
(Ord. No. 931, § 5(Exh. A), 10-22-13)
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