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HomeMy WebLinkAboutMINUTES - 12081998 - D10 FHS #38 TO: BOARD OF SUPERVISORS � (C�((��N"� A FROM: FAMILY& HUMAN SERVICES COMMITTEE= STA COUNTY DATE: december 8, 1998 SUBJECT: Tobacco Retailer License SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION#S): 1. ACCEPT the attached report (Attachment A) from the Public Health Director on licensing options for tobacco retailers. 2. INTRODUCE the attached ordnance (Attachment B) imposing a tobacco retailer licensing requirement, waive reading and set December 1 , 1998 for adoption of the ordinance and supporting findings (Attachment C). FISCAL IMPACT The cost of outreach, education and follow-up will be covered by state tobacco funds. The cost of potential litigation is unknown. BACKGROUNDIREASON(S) FOR REC0MMENDATlOh(S): On November 23, 1998, the Family and Human Services Committee heard a report from Wendel Brunner, Public Health Director, on licensing options for tobacco retailers. Dr. Brunner reported that the purpose of the license ordinance was threefold: 1) to send a message to tobacco retailers that CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR" ,RECOMMENDATION OF BOARD COMMITTEE —APPROVE —OTHER SIGNATUREf t Donna Gerber Mark DeSauinter ACTION OF BOARD ON DECEMBER 8, APPROVED AS RECOMMENDED—OTHERX SEE ADDENDUM FOR BOARD ACTION VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS 1A UNANIMOUS(ASSENT _ ) TRUE AND CORRECT COPY OF AN AYES. NOES:At ACTION TAKE �}ENTERED ABSENT:,&'r,,i+y,6_ ABSTAIN: lVal F_ ON MlN IT OF E BOARD OF SUPERVI O THE DATE SHOWN. Contact-Sara Hoffman,338-1090 cc: Sara Haffnm-CAO ATTESTS wendel Brunner,Public Health AQL BATCHELOR,CLERK Charlotte Dl ,Public Health THE$0ARD OF SUPERVISORS IIiana Sl ver,County Counsel D COUNTY ADMINISTRATOR B FHS #38 BACKGROUNDIREASON(S►) FOR RECOMMENDATION(S) cont'd: the right to sell tobacco included responsibility to ensure that tobacco is not sold to minors; 2) to provide for universal registration of tobacco retailers for the purpose of education regarding the laws; and 3) to facilitate compliance with federal, state and county ordinances intended to discourage the purchase of tobacco products by minors. Dr. Brunner explained that the issue of youth access to tobacco has had considerable discussion before the Board of Supervisors and gave a brief background: April 1997 -The Tobacco Prevention Coalition responded to the Board of Supervisors request to make tobacco-free youth a public priority. July 15, 1997 - The Internal Operations Committee directed the Health Services Department to prepare a comprehensive draft model ordinance for consideration. December 1£ 1997 - The Health Services Department, working with the Tobacco Prevention Coalition, presented a comprehensive compendium of provisions restricting youth access to tobacco to the Internal Operations Committee. February 10. 1995-The model ordinance approved by the Internal Operations Committee was presented to the full Board. The Board then directed the Health Services Department, working with County Counsel, to report on various options that the Board could pursue, including an analysis of legal risks associated with the different options. Me 19, 1998-The Health Services Department presented the Board of supervisors with five policy recommendations,which would 1)ban outdoor tobacco advertising within 1600 feet of schools and public playgrounds; 2} ban visible tobacco product advertising in store windows within 1600 feet of schools and public playgrounds; 3) ban self service displays of tobacco products; 4) ban the sale and distribution of promotional items identified with tobacco brands; and 5) require a license or permit for the retail sale of tobacco products. September 15, 1998 - The Board of Supervisors received a report from the Health Services Department with detailed language embodying the above recommendations, including several options for a licensing provision for tobacco retailers. May 19. 1998 and September 15. 1998 - The Board heard extensive testimony from members of the community, including over 40 high school youth. The youth, along with many adults, testified about the need to license tobacco retailers, Qctober 27. 1998- The Board referred the licensing recommendations to the Family and Human Services Committee for further consideration. The Board also set November 3, 1998 as the date for adoption of the Tobacco Free Youth Ordinance 98-43 (Restrictions on Tobacco Advertising and Promotions). Dr. Brunner then reviewed the options for licensing of tobacco retailers with the pros and cons of each of the options. Both Supervisor Mark DeSaulnier and Supervisor Donna Gerber expressed concern regarding youth access to tobacco products. Supervisor Gerber said that tobacco is known as the gateway drug to drugs and alcohol. She further emphasized the need to take actions that would not preempt state law or make the County's ordinance vulnerable to challenge. The committee members then directed the Public Health Director and County Counsel to draft' a licensing ordinance with the following provisions; All tobacco retailers will be licensed annually >- The tobacco retailer license will be prominently displayed at each retail site. The license will be linked to Ordinance 98-43 and to applicable federal, state and local laws intended to discourage the purchase of tobacco products by minors A graduated system of penalties will be structured for violating the ordinance with an appeal process to the Board of Supervisors. 2 ADDENDUM D.10 DECEMBER 8, 1998 On this date,the Board of Supervisors considered a report from the Public Health Director on licensing options for tobacco retailers and a proposed ordinance imposing a tobacco retailer licensing requirement. The following persons presented testimony: Rudi Raab, 2171 McKinley Ave, Berkeley; Doug Case, Case's Sundries Retailer, 2300 Martinez Ave, Martinez; John Handley,No. California Grocers Association, 1807 Tribute Road, Sacramento 95815; Monica Cervantez, Tobacco Industry Gets Hammered By Teens (TIGHT), 88 Breaker Drive,Bay Point; Mr. Wad, 1836 Alhambra Ave, Martinez, Laurie Comstock,4475 Crestwood Circle, Concord; Ranjit Dosanja, 147 Atlantic Ave,Pittsburg; DeLois Basnett, American Lung Association, 105 Astrid, Pleasant Hill; Cheryl Vantress, 2316 Pine Ave, Richmond; Reran Ranju, 5803 Tehama, Richmond; The following persons did not speak, but submitted written comments to the Beard: Jaswant S. Sihota, 1911 D Street,Antioch; Surindar Bherller; 941 Alhambra Ave; Martinez; Tirath Sahota, 3391 Port Chicago Highway, Concord; Todd D. Prest, California Grocers Association; After receiving testimony, the Board took the following actions: 1. ACCEPTED the report from the Public Health Director on licensing options for tobacco retailers; 2. Made the following language modifications to the proposed Tobacco Retailer License Ordinance: A. Section 445-10.002 License Requirement to read: "It shall be unlawful for any retailer, individual, or entity who has been found to be in violation of this Division or Division 440 of this code or any applicable state or federal laws governing the sales and distribution of tobacco within the last 12 months to sell or offer for sale any tobacco products in the unincorporated area of the county without first obtaining and maintaining a valid tobacco retailer's license from Contra Costa County for each location where such sales are conducted. Licenses are valid for one year and licensees must apply for renewal annually for a total of five years. If there are no further violations of the provision of this Division or Division 440 of this code or applicable state and federal laws regulating the sales and distribution of tobacco in that period of five years, a tobacco retailer's license is no longer required for the sale of tobacco products." B. Section 445-10.010-Fee for License: the fee for a tobacco retailer's license shall reflect the actual cost of processing the license, including inspection of the tobacco retailer's business premises and implementation of the licensing program and shall not exceed $500 annually as determined by the Board of Supervisors. .......... C. Section 445-10.014—Suspension of License; Modify Subsection(b) Time Period of Suspension of License to read as follows: "(1) Upon the first time that the Director makes a finding as set forth in Subdivision(a), the license to sell tobacco products may be suspended for up to 60 days. (2)Upon the second time that the director makes a finding as set forth in Subdivision (a)within 12 months of a prior determination the license to sell tobacco products may be suspended for up to 120 days. (3)Upon the third and subsequent time that the Director makes a finding as set forth in Subdivision(a) within 12 months of a prior determination, the license to sell tobacco products may be suspended for up to one year," 3. INTRODUCED Tobacco Retailer License Ordinance; WAIVED reading; and SET December 15, 1998 for adoption of the ordinance and supporting findings. ATTACHMENT A WILLIAM B. WALKER, M. D. CONTRA COSTA HEALTH SERVICES DIRECTOR WENDEL BRUNNER, M.D. / OBPUBLIC HEALTH PUBLIC HEALTH DIRECTOR -�r/� oowftrft```�..., 597 Center Avenue, Suite 200 Martinez, CaliforniaCV \ TZ1 COSTA 455 HEALTH SERVICES Ph (925) 313-6712 Fax (925) 313-6721 E- MAIL ADDRESS wbtunner@hsd.co.contra.costa.ca.us TO: Family and Human Services Committee: Supervisor Donna Gerber, District 3; Supervisor Mark DeSaulnier,District 4 FROM: Wendel Brunner,M.D., Public Health Director op DATE: November 4, 1998 SUBJECT: LICENSING OPTIONS FOR TOBACCO RETAILERS ELEMENTS Elements of a licensing provision should include, at a minimum: • Universal registration of tobacco retailers to create a database that will allow for uniform education of retailers, effective enforcement of the tobacco free youth ordinance 98-43 and facilitation of enforcement of applicable laws regulating sales to minors. • A graduated system of penalties with an appeals process. OPTIONS Several options are delineated in the attached table. They are consistent with options that have been discussed at previous Board meetings and for which the Board has received draft ordinance language. RECOMMENDATIONS Health Services makes the following recommendations regarding licensing of tobacco retailers in Contra Costa County: • License all tobacco retailers upon renewal of the business license. • Require one license to be posted at each retail site. • Link the license to compliance with the tobacco free youth ordinance, 98-43, and to applicable federal and state laws regarding sales to minors. • Impose a graduated system of penalties for violations of the licensure ordinance, with the options of suspending the license up to one year. Create an appeals process. + Contra Costa Community Substance Abuse Services - Contra Costa Emergency Medical Services • Contra Costa Environmental Health + Contra Costa Health Plan • Contra Costa Hazardous Materiais Programs -Contra Costa Mental Health - Contra Costa Public Health - Contra Costa Regional Medical Center • Contra Costa Health Centers - It is our analysis that to be effective, licensure must be universal, that is, it must apply to all retailers of tobacco products. If adopted in Contra Costa, universal licensure will be easier to administer and enforce than a measure which gives a"good retailer"exemption or certificate. Because there is no database in the county or state which tracks stores that have been found to sell to minors,there is no easy way to establish performance based criteria for"good retailer" exemptions. By issuing a tobacco retailer license at the time of renewal of the business license, the County will be able to conduct educational activities with merchants at that time and will be able to phase in implementation of the ordinance over the period of a year. The license should be posted at each retail site. For large supermarket and convenience store chains this means they will have a license posted at each store in the county. This will make the site manager and staff accountable for activity at each store as well as inform patrons of the licensure ordinance. We recommend that the licensure provision be linked to the tobacco free youth ordinance 98-43 as well as applicable laws regulating sales to minors. This will create a comprehensive ordinance addressing both the supply of and demand for tobacco products, and it will create strong incentives for retailers to comply with all of the provisions. Most retailers are in compliance with state and federal laws regulating tobacco sales; those that are not need additional incentives to come into compliance. Should the Board of Supervisors adopt a licensure provision which is linked to the tobacco free youth ordinance and which incorporates penalties including suspension of the license,then Health Services recommends that the licensure provision be substituted for the penalty section of the tobacco free youth ordinance adopted on November 3, 1998. A graduated system of penalties must include measures to suspend the license to sell tobacco, and to fine merchants who sell tobacco without a license. An appeals process should be in place to protect against excessive penalties for occasional or inadvertent violations. cc. William Walker,M.D., Health Services Director x A :. cn ami ' wo ' '~ ° ° ` U W � •.� � � a � o � w 10, y ° ,�. a� ir) cs 0 cl l 48� , a c'` ° CA 14 42- Qn m C4y �.3 p > = ' 0.9 • � i i � I• .5 ,o a J TZ O° r o 044 0 a o c a c o o W a a� Z 04 was •� � � a � a�a.�� e� 18 �.7 w° : Wim' ea riVf q{ rr .vrttvrr..r +�.� v.:r:;;::::!;+,xr v.:�: .. ... .................................................................................................................................................................................................... ATTACHMENT'B ORDINANCE NO. 98- ( TOBACCO RETAILER LICENSE) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): [Gov. C. § 25120] SECTION I. SUMMARY. This ordinance imposes a licensing requirement on tobacco retailers and penalties for violations. [§25129.] SECTION II. Chapter 445-10 is added to the County Ordinance Code, to read: Chapter 445-10 Tobacco Retailer License 445-10.002 License Requirement. It shall be unlawful for any retailer, individual, or entity to sell or offer for sale any tobacco products in the unincorporated area of the county without first obtaining and maintaining a valid tobacco retailer's license from Contra Costa County for each location where such sales are conducted. Licenses are valid for one (1) year and licensees must apply for renewal annually. (Ord. 98- , § 2.) 445-10.004 Enforcement of State Law. If a clerk or employee sells a tobacco product to a minor, the retailer shall immediately notify the appropriate local law enforcement agency of the violation of Penal Code section 308 for enforcement under that statute. (Ord. 98-_, § 2.) 445-10.006 Application Procedure. An application for a tobacco retailer's license shall be submitted in the name of the person proposing to conduct retail tobacco sales on the business premises and shall be signed by such person or agent with written authority to act for such person. All applications shall be submitted on a form supplied by the Contra Costa Health Services Department and contain the following information: (1) The name, address, and telephone number of the applicant; (2) The business name, address, and telephone number of each establishment where tobacco is retailed; and (3) Such other information as the Director of the Health Services Department' determines is necessary for implementation of this chapter. (Ord. 98-_, § 2.) 445-10.008 Issuance and Display of License. Upon receipt of a completed application for a tobacco retailer's license, including payment of fees, the Director or his or her designee will issue a license, which each licensee must prominently display at the location where tobacco retail sales are conducted. (Ord. 98-_, § 2.) 1 For purposes of this chapter,Director means Director of the Contra Costa Health Services Department unless otherwise specified. ORDINANCE 98- 445-10.410 Fees For License. The fee for a tobacco retailer's license shall reflect the cost of processing the license and shall be determined by the Board of Supervisors. (Ord. 98-_, § 2.) 445-10.012 License is Nontransferable. The tobacco retailer's license is nontransferable. If there is a change in location, a new tobacco retail license will be issued for the new address upon receipt of an application for change of location. The new license will retain the same expiration date as the previous one. (Ord. 98-_, § 2.) 445-10.014 Suspension of License. (a) Grounds for Suspension. In order to discourage violations of law, a tobacco retailer's license may be suspended, as forth in subdivision (b),by the Director upon a finding, after giving the licensee notice and opportunity to be heard, that the licensee or his or her employee has violated any of the provisions of this division or Division 440 of this code or any applicable state or federal laws as otherwise allowed by law. (b) Time Period of Suspension of License. (1) Upon the first time that the Director makes a findings as set forth in subdivision(a), the license to sell tobacco products may be suspended for up to thirty(30) days. However,prior to imposing the suspension, the Director may by letter advise licensee that if licensee trains all sales employees at the location in order to prevent further violations and to comply with applicable laws and ordinances e.g,.prohibition of self-service displays of tobacco products (see Chapter 445-6), to ensure future compliance with said laws, the suspension will not go into effect. The licensee must file with the Director within thirty (30) days of the issuance of the letter advising licensee of this, an affidavit signed by licensee and the sales employees that said training has been completed. If licensee fails to timely submit the affidavit,the Director may notify licensee that the license is suspended for up to thirty (30) days. (2) Upon the second time that the Director makes a finding as set forth in subdivision (a) within twelve months of the first determination, the license to sell tobacco products may be suspended for up to ninety (90) days. (3) Upon the third and each subsequent time that the Director makes a finding as set forth in subdivision (a)within twelve months of the prior determination, the license to sell tobacco products may be suspended for up to one year. (c) Appeal of Suspension. The decision of the Director to suspend a tobacco retailer's license is appealable to the Board of Supervisors and shall be heard at a noticed public hearing as provided in Chapter 14-4 of this Code. (Ord. 98-_, § 2.) 445-10.016 Administrative Fine. (a) Grounds For Fine. If the Director, after giving notice and an opportunity to be heard to the person who is the owner of a tobacco retail establishment, finds that such person does not have a valid tobacco retailer's license and is selling or offering tobacco products for sale, the owner of the retail establishment may be subject to an administrative fine, as permitted under Government Code section 53069.4, or applicable County ordinance, as follows: (1) up to a maximum one hundred dollars ($100) for a first violation, ORDINANCE 98- 2 . . .. ......__... ...._._. _........ ......... ........ ......... ._....... ......... ......... ......... ..... ...... .............._ (2)up to a maximum two hundred dollars ($200) for a second violation within one year, (3)up to a maximum five hundred dollars ($500) for the third and subsequent violations within one year. Each day that tobacco products are offered for sale without a license shall constitute a separate violation as set forth in section 14-8.006. A finding of"offering for sale"will be made if tobacco products are actually sold and or displayed in the retail establishment.' (b)Fine Procedures. Notice of the fine shall be served on the tobacco retailer or person who is owner of the establishment by certified mail following the procedures set forth in section 14-6.412 of this Code. The notice shall contain an advisement of the right to request a hearing before the Director contesting the imposition of the fine. Said hearing must be requested within ten (10) days of the date of the notice of the fine. (c) Appeal to Municipal Court. Any fine imposed by the Director may be appealed to the municipal court. (d) Failure to Pay Fine. If said fine is not paid within thirty(30) days from the date of mailing the notice of the fine or of the notice of determination of the Director after the hearing, the fine shall be referred to the Office of Revenue Collection. In addition, any outstanding fines must be paid prior to the issuance of any license by the Contra Costa County Health Services Department. (Ord 98-_, § 2.) SECTION III. EFFECTIVE DATE. This ordinance shall become operative thirty days after the date it is finally adopted. Within 15 days after passage, this ordinance shall be published once with the names of supervisors voting for and against it in the a newspaper published in this County. [§§ 25123 & 25124.] PASSED on , by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: PHIL BATCHELOR, Clerk of the Board and County Administrator By: Deputy Board Chair DJSIds H:\GR0UPS\STAFRL10ENSE.WPD ORDINANCE 98- 3 ORDINANCE 9$- 4 ATTACHMENT C FINDINGS The Board of Supervisors hereby finds and declares: 1. The findings adopted by the Board on November 3, 1998, in support of the adoption of the ordinance restricting tobacco advertising and promotion (Division 445 of the County Ordinance Code) are incorporated by reference, as though fully set forth herein. 2. Contra Costa has a substantial interest in promoting compliance with state laws prohibiting sales of cigarettes and tobacco products to minors, in promoting compliance with federal, state, and local laws intended to discourage the purchase of tobacco products by minors, and in protecting children from being lured into illegal activity through the misconduct or illegal acts of adults. 3. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers of tobacco to sell cigarettes or distribute tobacco products. It will, however, allow the County to regulate the operation of lawful businesses to avoid circumstances which facilitate violations of the state, federal and local laws related to tobacco products. 4. It is the intent of the Board of Supervisors, in enacting this ordinance, to discourage violations of laws whichprohibit sale or distribution of tobacco products to minors but not to expand or reduce the degree to which the acts regulated by state or federal law are criminally proscribed. HAGROUMSTAMTOBLICE WPD 12/88/1998 14.`18 7544459 PAGE g1 an Com /�t�: 7�b�.tca �iv�c .i �►�tw�.. Of 9051-09 (Imo.S') 75-V-T- 5r re,GtJ tS m55 op, tit "" J!ty ' tuJ'6 4h&i V%AAI I�W"t -knw r t .,�, , .USA res CIMI 4 es7C�.� f 4wwfift-r�� lie!Ir' . ' Who � �,�►- Xw 4n& c4.00jdf4po�,hj,, Air 4h%me )y'04tr,UJFb Of `e =�c �► ' w fig /0 ALSO OR Alm a � cr - 12/08/1998 14:10 7544459 PAGE 02 � ar. 4 s,. mal &V o iv Posess;VO7 0 "air 66, ,.a ss 4 hAW A { - ., j ,tt,4 ' he&14 4we eofo 04 " 4,f � arra! WOMEN.SWM+•16w.i�Y.r 1rw►x i�MM C A Le►O R N t A r a tJ RocEis ior.er7w7sr.�+ ■r ASSOCIATION WAwMom aIWOOR =-MM vl M � y epi rMM* December 7. 19" *AWN* '�•"sw The Honorable Jim Rogers Yin FOCIOM le �.� .r.--aw Chairman ofttee Board Comm Costa lid of Supavisvrs 651 Pine Strom Mw*mz,CA 94553 ftWfti"M d Re: Proposed Tabacte Retailers Liesue now".0-Mw blear Cbsirtrun Rawr. ,M"W*e+ r or,' "`a.'°- On be if of the California Crows Association(CGA),which r+epreserits all MMUM" of the n1alor supernwket+chains that do buWnm in C r4r*Cora Camey, I .waw «.•.+ wreuld like to exproas our ems with the licensing proposal that is before *.w4� the . �. O"W" While all reasonable people oriel oWnhations,agree,tow smoking is a serious sr.rawo. problem in our man". And we beffieve flat s atailem perems,educators,and .,�,,., o,,,�,, ex►riw ned citlssms should work together in order to beat achieve a meaningful declined in the teundw sof you*who wwk+e. Hawrvrer, we strongly reel that tlra propoeal OW the board will be discuning ,�. doss not dive your Wit- CGA firs been at strong x*parta r of educaflon pis olid penalties for n sailers who soil tobacco produce to rMnors. We +•• a'"""••+ "••••••» understand ttre Importance of encouraging ali rotatlom to Omp►ly with already ftW+`+MI, emst ng state and tinder W taws basming the age of tobacco pr+ocl xs to minors. That is why we bav a nursed and actively participate in programs auah as WeCsrd(a nationally recogrdzed anti-youth s olting program)and strovly advocate lull adherence to do STARE A+ck which pr+ovkhm dial penalties up to SOW to anyone:found to have sold a tobacico products to a min". «e We would recommend that the couay to a coopermwn with responsible tobaeoo retailers,emb s*on a countywide Berri-taco edtxmoott program. so CA To dlllsa and,we would tike to Participate with the county to make talking available to alt tvbaoco retailers in the county. Saunders have abown that tisrasgh ratideer edutartim a dramatic and rirrneingki reduction in teen access to cacao products can be obtained. ewrrwr+er.w e+ a00 G Rew1,ldN 700 Merarrrea�se.CA m'lila tenet♦iw.ra.a�tt iyKc♦i4/J�.t1'49 #atwk�t.rxt Oa.YMrld TtM6 dtwer.lhe WO # Web,G►Wf31 y1N.�il�/47CI»i0}0 Pam 34ZtU2.7Y3t EMnil: Tyrothe efthrts of our retry and the wocard progwi,according to ft California lClepart at of Hoaltb Serrric suM mar rets we ft Ifts likely pbm for t udwr to obtain u*mcco pcodads. Provin&training works! Our kAl try reducw our win pwamtW ftem 19.3%last year to panty S.1%in 1998. With your AWPO t„bcKh V *ad 00D my rratailers can do even mm, IM we beHirm dw the gWro wh W=with a 1 owaft raphom et will my g to(WY NtbftivdY punish anal not add the dim need of r*Wlw+&mttion tlazxuShOUt the U&MO retailer commmity,wWch WApdospereurnr ts, 1141Jor eeG xvk a ""sb*&mot shops,buwfing AU e^and many otber outlets. We very much approcime your+! 'Al +derxa and look ward to wt iw* with the�to�tm snaking in Cotgra C+wa County. ptum do asst b"hm to 000t4d me at(50)4324610 so we nay bo&to*at *ttpdw on this issue. Bioomly, CALIFORNIA GROCERS ASSoaAnm TODD D.PREST Dh)War.L0oe1 CoverauneW Relations