O2277F:\atty\muni\consumerprotection\smoking\2007-O8project\SmokingOrd 1111082d
City Council Meeting: November 11, 2008 Santa Monica, California
ORDINANCE NUMBER 227 (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA ADDING CHAPTER 4.45 TO THE SANTA MONICA MUNICIPAL
CODE TO CREATE A TOBACCO RETAILER LICENSING PROGRAM
WHEREAS, more than 440,000 people die in the United States from tobacco-
related diseases every year, making it the nation's leading cause of preventable illness;
and
WHEREAS, the United States Surgeon General recently. issued a landmark
report describing "massive and conclusive scientific evidence" that ETS causes
premature death and disease in adults and children, including cancer, cardiovascular
disease, and asthma; and
WHEREAS, the. Surgeon General's Report concluded that"there is no risk-free
level of exposure to secondhand smoke" and that exposure to ETS has "immediate
adverse effects" on the cardiovascular system; and
WHEREAS, the Surgeon General's Report concluded that public smoking laws
are having the effect of improving public health and also reducing the incidence of
smoking generally; and
WHEREAS, the Centers for Disease Control estimates that secondhand smoke
exposure causes as many as 300,000 children in the United States to suffer from lower
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respiratory tract infections such as pneumonia and bronchitis, exacerbates childhood
asthma, and increases the risk of acute, chronic middle ear infection in children; and
WHEREAS, the United States Environmental Protection Agency (EPA) has
classified second-hand smoke as a Group A carcinogen, the most dangerous class of
carcinogens; and
WHEREAS, the EPA has concluded that second-hand smoke causes coronary
heart disease in non-smokers; and
WHEREAS, exposure to ETS is the third leading cause of preventable death in
this country, killing over 52,000 non-smokers each year, including 3,000 deaths from
lung cancer; and
WHEREAS, second-hand smoke is especially hazardous to particular groups,
including those with chronic health problems, the elderly, and children; and
WHEREAS, the California Air Resources Board ("GARB") has officially identified
second-hand smoke, or ETS, as a "toxic air' contaminant" pursuant to Health and Safety
Code Section 39660, providing the most authoritative finding to date of the health
dangers of ETS in California; and
WHEREAS, the CARB's Scientific Review Panel found that ETS concentrations
in some outdoor locations was comparable to those found inside smokers' homes; and
WHEREAS, the GARB report noted the following health statistics resulting from
second-hand smoke exposure each year in the state of California:
• Over 400 additional lung cancer deaths
• Over 3,600 cardiac deaths
• About 31,000 episodes of children's asthma
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• About 21 cases of SIDS
• About 1,600 cases of low birth weight in newborns
• Over 4,700 cases of pre-term delivery; and
WHEREAS, what the scientific research has confirmed is reflected in the large
and growing number of local, state, and national governments that have prohibited
smoking in many different outdoor locations in recent years;
WHEREAS, most Californians do not smoke and a majority favor limitations on
smoking in multi-unit residences, as evidenced by the following:
• 86% of Californians are non-smokers; and
• 70% of Californians surveyed approve of apartment complexes requiring
at feast half of rental units be non-smoking, and
• 67% of Californians surveyed favor limiting smoking in outdoor common
areas of apartment buildings; and
WHEREAS, the California Legislature has recognized the danger of tobacco use
and has made reducing youth access to tobacco products a high priority; and
WHEREAS, state law requires all tobacco retailers to be licensed by the Board of
Equalization in order to curb the illegal sale and distribution of cigarettes which deprive
the state yearly of hundreds of millions of tax dollars that fund local and state programs
such as health services, anti-smoking campaigns, cancer research, and education
programs; and
WHEREAS, state law explicitly permits cities and counties to enact local tobacco
retail licensing ordinances, and allows for the suspension or revocation of a local license
for a violation of any state tobacco control law; and
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WHEREAS, almost 90 percent of adult smokers started smoking at or before age
18; and
WHEREAS, in order to help prevent the illegal sale of cigarettes and other
tobacco products to minors, Santa Monica local law prohibits the sale of tobacco
products from vending machines or out of the manufacturer's package or without
required health warnings; 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:
• Nearly half of all youth smokers nationwide buy the cigarettes they
smoke, either directly from retailers or vending machines, or by giving money to
others to purchase the cigarettes for them;
• Minors consume 924 million packs of cigarettes each year nationwide,
yielding the tobacco industry $480 million in profits from underage smokers;
• Most adults who have ever tried smoking have tried their first cigarette
under the age of 18, and are on average under the age of 16; and
WHEREAS, research demonstrates that local tobacco retail ordinances
dramatically reduce youth access to cigarettes; and
WHEREAS, more than sixty cities and counties in California have, passed
tobacco retailer licensing ordinances in an effort to stop minors from smoking; and
WHEREAS, California- retailers continue to sell tobacco to underage consumers,
evidenced by the following`
• 14 percent of all tobacco retailers unlawfully sold to minors in 2004;
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• 32 percent of non-traditional tobacco retailers such as deli, meat, and
produce markets sold to minors in 2004;
• Teens surveyed in 2002 say they bought their, cigarettes at: gas stations
(58%), liquor stores (45%), and supermarkets and small grocery stores (25%);
and
WHEREAS, the local news media has reported recently on the ready availability
of cigarette sales to minors in Santa Monica; and
WHEREAS, Santa Monica 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 ahd tobacco products to minors;
and protecting children from being lured into illegal activity through the misconduct of
adults;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Chapter 4.45 is added to the Santa Monica Municipal Code as
follows:
CHAPTER 4.45
TOBACCO RETAILER LICENSING
Section 4.45.010 Intent.
It is the intent of the City Council, in enacting this ordinance, to
encourage responsibility in tobacco retailing and to discourage violations
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of tobacco-related laws, especially those which prohibit or discourage the.
sale or distribution of tobacco products to minors.
Section 4.45.020 Definitions.
The following words and phrases, as used in this Chapter, shall
have the following meanings:
(a) "Person" means any natural person, partnership, cooperative
association, corporation, personal. representative, receiver, trustee,
assignee, or any other legal entity.
(b) "Proprietor" means a Person with an ownership or managerial
interest in a business covered by this Chapter. An ownership interesf shall
be deemed to exist when a Person has a 10 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 can or does have or share ultimate control over the day-to-day
operations of a business.
(c) "Tobacco Product" means any substance containing tobacco
leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah
tobacco, snuff, chewing tobacco, dipping tobacco or bidis.
(d) "Tobacco Retailer" means any Person who sells, offers for sale
or sample, advertises or otherwise promotes, or does or offers to
exchange for any form of consideration, in public view, any Tobacco
Products.
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Section 4.45.030 Tobacco Retailer License Required.
(a) No Person shall operate as a Tobacco Retailer without first
obtaining and maintaining a valid Tobacco Retailer's license pursuant to
this Chapter for each location at which that activity is to occur.
(b) Tobacco Retailing without a valid Tobacco Retailer's license is a
public nuisance.
Section 4.45.040 Application Procedure.
(a) Applicants for a license under this Chapter shall pay a non-
refundable license fee in an amount established by Council resolution and
sufficient to cover the costs of administration, enforcement and education.
(b) All applications shall be completed on a form prepared and
supplied. by the City Manager or the. Manager's designee.
(c) Applicant shall be required to disclose any violations of the State
tobacco licensing laws at any location within the City of Santa Monica
within the five years prior to the application for which Applicant's state
tobacco retailer's license was either suspended or revoked.
Section 4.45.050 Issuance of License.
(a) Except as otherwise provided herein, and except where a
Tobacco Retailer's establishment would not otherwise be permitted. under
local, state or federal laws, a license shall be issued upon receipt of a
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complete application in conformity with all of the requirements set forth in
the Application Procedure section of this Chapter, and payment of the
license fee.
(b) A Tobacco Retailer's license will not be issued where:
(1) Suspension or revocation proceedings have been
initiated by any local, state or federal agency for violations of local,
state or federal tobacco control laws within the preceding 30-day
period.
(2) Proprietor or any person employed by Proprietor has
been convicted or civilly adjudged liable for violating any local, state
or federal tobacco control law within six months prior to the date of
application.
(3) The Proprietor's Tobacco Retailer's license was revoked
for the same location within the five years preceding the date of the
application.
(4) The Tobacco Retailer has not. obtained a valid state
tobacco retailer's license from the California Board of Equalization.
(5) The Tobacco Retailer does. note have a valid Sahta
Monica business license or is delinquent on the payment of
business tax, late payment penalties or other associated fees.
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(c) Every license issued under this Chapter shall be conditioned
upon compliance with all applicable signage and advertising regulations.
(d) Every license issued under this Chapter shall be posted and
displayed at all times in a conspicuous place within the business location
that is visible to the public.
(e) Notwithstanding any other provision of this Chapter, prior
violations at a location shall continue to be counted against a location and
license ineligibility periods shall continue to apply to a location unless the
location has been fully transferred to a new Proprietor.
Section 4.45.060 License Renewal and Expiration.
(a) A Tobacco Retailer license will be valid until June 30 of every
year and if not renewed will expire. Each Tobacco Retailer shall apply for
the renewal of its Tobacco Retailer's license and submit the license fee no
later than thirty days prior to expiration of the term.
(b) If any material information required for issuance of a license
herein has changed since the original license was issued, a new Tobacco
Retailer's license is required before the business may continue to act as a
Tobacco Retailer.
Section 4.45.070 Prohibitions
(a) No Tobacco Retailer shall violate any local, state or federal law
that relates to the sale, use, smoking, or other regulation of Tobacco
Products.
(b) No Tobacco Retailer shall sell or transfer a Tobacco Product to
another Person who appears to be under the age of twenty-seven years,
without first examining the identification of the recipient to confirm that the
.recipient is at least the minimum age under state law, to purchase and
possess the Tobacco Product.
(c) No Tobacco Retailer shall permit any person who is younger
than the minimum age established by state law for the purchase or
possession of Tobacco Products, to participate in the sale of Tobacco
Products.
(d) Nd Tobacco Retailer shall display Tobacco Products in a
manner that is accessible to the general public without the assistance of
the Tobacco Retailer or its employee.
{e) No Tobacco Retailer shall sell or display cigarettes out of the
manufacturer's package or without required health warnings.
(f) No Tobacco Retailer shall sell Tobacco Products from other than
a fixed location, including but not limited to sales by persons on foot or
from vehicles.
Section 4.45.080 Remedies.
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(a) A Tobacco Retailer's license may be revoked by the City
Manager or the Manager's designee if one of the following conditions
exist:
(1) The information contained in the application, including
supplemental information, if any, is found to be false in any material
respect;
(2) The license was issued in error or on the basis of false or
misleading information supplied by a Proprietor.
(b) In addition to any other remedy authorized by law, a Tobacco
Retailer's license may- be suspended or revoked by the City Mahager or
the Manager's designee if it is determined that the Tobacco Retailer or its.
agents violated the conditions of this Chapter or any local, state or federal
law pertaining to the sale of .Tobacco Products to underage minors, as
follows:
(1) Upon a finding of a first violation, the license may be
suspended for up to 30 days;
(2) Upon a finding of a second violation within five years of
the first violation, the license may be suspended for up to 90 days;
(3) Upon a finding of a third violation within five years of the
first violation, the license may be revoked.
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(c) No Proprietor may re-apply for a Tobacco Retailer's license at
the same retail location for five years after the date of revocation.
(d) The procedure used for revocation shall substantially conform to
that set forth in the Santa Monica Municipal Code regarding business
licenses generally. Any decision to revoke or suspend a license may be
appealed according to the provisions of the Santa Monica Municipal Code.
An appeal shall stay all proceedings in furtherance of the appealed action.
(e) During any period of license suspension or revocation, the
Tobacco Retailer must remove from public view all Tobacco Products and
related advertising.
(f) Violations of this Chapter constitute a misdemeanor.
(g) Violations of this Chapter may be remedied by a civil injunction
or abatement action initiated by the City Attorney.
SECTION 2. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
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have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
,~~/,~ ~1^~ l fir, ' Gt~~
MAR HA JQ E8 M0 Tr=21E
City ttorn y ,
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Approved and adopted this 11~h day of Novemb
State of California )
County of Los Angeles) ss.
City of Santa Monica )
I, Maria Stewart, City Clerk of the City of Santa Monica, do hereby certify that the
foregoing Ordinance No. 2277 (CCS) had its introduction on October 14~h, 2008, and
was adopted at the Santa Monica City Council meeting held on October 28~h, 2008, by
the following vote:
Ayes: Council members: Genser, Holbrook, McKeown, O'Connor, Shriver
.Mayor Katz, Mayor Pro Tem Bloom
Noes: Council members: None
Abstain: Council members: None
Absent: Council members: None
A summary of Ordinance No. 2277 (CCS) was duly published pursuant to California
Government Code Section 40806.
ATTEST:
~ ~
Maria Stewart, City CYerk