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Home My WebLink AboutRESOLUTIONS - 01012003 - 2003-255 Contra TO: BOARD OF SUPERVISORS t. Cost FROM: William B. Walker, MD, Health Services Director DATE:: May 13, 2003 County SUBJECT, TOBACCO RETAILER'S LICENSE FEES (Resolution No. 2003/255) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: 1. CONTINUE the April 1, 2003 public hearing on adoption of tobacco retailer's license fees. . CLOSE public hearing. 2. ADOPT resolution setting fees of$25.00 for annual tobacco retailer's license, $348.00 for license revocation hearing or suspension hearing, and $112.00 for retailer re-inspections. 3. DIRECT the Health Services Department to bring the tobacco retailer'slicensing program to the Beard of Supervisors for review in 12 months. FISCAL IMPACT: The annual tobacco retailer's license fee of$25.00 per license will allow the recovery of reasonable administrative costs incurred by the Tax Collector, who is authorized to issue tobacco retailer's licenses.. The hearing fee of$348.00 per hearing will allow the full recovery of the reasonable cost of holding a license suspension hearing or license revocation hearing. The re- inspection fee of$112.00 per re-inspection will allow the full recovery of the reasonable cost of re= inspecting retailers whose license has been suspended or revoked. Some costs of enforcing Ordinance No. 2003-01 will be recovered by funds provided under a California Department of Health Services grant. CONTINUED ON ATTACHMENTLX YES —NO SIGNATURE , -- RECOMMENDATION OF COUNTY ADMINISTRATOR ~RECOMMENDATION'OF BOARD COMMITTEE „ APPROVE OTHER SIGNATURE(SQ�L�,. -, 5" "2=:� ACTION OF`BO 87N a 12MI APPROVE AS RECOMMENDED _ 'OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A'TRUE. AND CORRECT COPY OF AN ACTION TAKEN UNANIMOUS(ABSENT Note l AND ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE AYES: NOES; SHOWN. ABSENT: ABSTAIN; DISTRICT'III SW VACANT ATTESTED gay 23, -2003 CONTACT:Charlotte Dickson,313-621$ JOHN SWEETEN,CLERK OF THE BOARD OF SUPERVISOR4 AND COUNTY ADMINISTRATOR CC William B.Walker,MD HSO Director,20 Allen,Mtz Wendel Brunner,MD,Public Health Director,at 687 Center Avenue,#200,Mtz' BY ,DEPUTY w 1 3 This public hearing is continued from April 1, 2003. on April 1, 2003,3 the Board of Supervisors adopted Resolution No. 2003/186, setting a fee of 5 for ars annual tobacco retailer's license. The fee is authorized by Ordinance No. 2003-01, which prohibits any retailer, individual, or entity from selling or offering for sale any tobacco products in the unincorporated area of the county withoutfirst obtaining a license. On April 1, 2003, the Board of Supervisors also directed Contra costa health Services to determine the actual cost of providing license revocation hearings, license suspension hearing and retailer re-inspections, and to establish fee amounts reflecting those costs and allowing their recovery Contra costa Health Services has determined that a fee of$348 per hearing would allow Health Services to recover the actual cost of providing license revocation hearings and license suspension sior hearings. This fee for a license suspension hearing or a license revocation hearing was calculated based upon hourly rates of salaries and recoverable expenses for the Public Health Director, support staffx and Tobacco Prevention Project staff. clearings, including preparation and follow-up administrative work,, are expected to last one full hour; Contra costa Health Services has determined that a fee of$112 per re-inspection would allow Health services to recover the actual cost of providing a re-inspection. This fee was calculated based upon hourly rates of salaries and recoverable expenses for Tobacco Prevention Project staff, including the project manager and policy coordinator. The Health Services Department anticipates that most re-inspections ('including travel time) will last approximately one hour. A table showing the Health services Department's fee calculations is attached. Health services Finance will *Invoice retailers for hearing fees and re-inspection fees after service are rendered. A license will not be re-issued until these fees are paid. This resolution setting fees of$25.00 per annual tobacco retailer's license, $348.00 per license revocation hearing or suspension sion hearing, and $112.00 per retailer re-inspection wouldap ger e+de Resolution No 2003/186, { TTTCc!: �Yf YM ++�•r F ` g co m cc 120 �t W (0 M 0 VIE. N N U") V- w 6 9 0 ( E7 er" U") 04 00 4) 6 40 Q o • 1 •co f r ...» 40. loo ww sow 88 s CL CIO »0 51 ', �� ,4 fir. err h f. �. �w}tyy►ii•. 0:... t. 0 .�.. Gi 64% 40V w ZO • � ,q 7 c tip m w ce. ,[ •,»,• .. M low C9 a- » LL. CL w W as 78F— r, 2 m LL 0 2 ,moo C? 2 ton „ cE, t3 U w w a 4) Alt ..... .c 4 4.- U 00 '00Q Clq Ul) v- � C� C I " co N N + tn o" ,,, .00 omom 10, x' now tt iii q r. t t fc the County Counsel Contra Costa County 65' Pjne Street 9th Flood` ''hone: (92 5)335-1800 Mrt' z, CA 94563 Fac: (925)645- 7 Date. April 29,2003 T William Walker,M.D.,Health Services Director Attn: Wendel Brunner, M.D., Public Health Director From Silvano B.Marchesi, County Counsel By: Thomas L. Geiger, Deputy County Counsel Re TOBACCO C RETAILER'S'S LI ENSE SUSPENSIONS AND REVOCATIONS SUMMARY We conclude that the County's tobacco retailer's licensing ordinance can be amended to provide for permanent lice�:se'revocation after the license has been suspended several times. While we cannot state to a legal certainty whether a court would uphold a permanent revocation, there appears to be legal authority that would allow a court to do so under the proper circumstances BACKGROUND This responds to the Board's April 1, 2003 request for a discussion of whether tobacco reta'iler's licenses may be permanently revoked for retailers who repeatedly violate,local state or federal tobacco-related laws. "ou carp include this memo as art of the a enda packet for the May 13 2003 Board of Supervisors meeting. DISCUSSION I A. Existing Ql:dinMce On January 13, 2003, the Board of Supervisors adopted Ordinance No. 2003_01. The ordinance prohibits any retailer, individual, r entity:om,sell* car offering for sale� tobacco g y products in the unincorporated area of the county without first+ bta inn license. Each license must _ ust prominently display the license at the location where tobacco retail sales are conducted. Under the ordinance, all tobacco retailer's licenses 'will be issued by the tax.collector. Each license will be issued and due for renewal effective July 1 , and will expire on the subsequent June 30. A license will not be issued unless a licensing fee is paid. Health Services will enforce the ordinance. Several enforcement remedies are available including the issuance of infraction citations or the imposition of administrative fines cif`up_p to $500. the ordinance also establishes methods for suspending or revoking licenses after a hearing. ............ ................................................................... Board of Supervisors April 29, 2003 Page2 --------- ------------------ ------ . ..........all= "MMON&M 101------------------ Under the ordinance, a license tray be suspended for any violation of local, state, or federal tobacco-related laws. A suspension may be up to 30 days for a first violation, up to 90 days for a second violation occurring within two years of the first, and up to one year for each subsequent violation occurring within two years of the most recent pr*ior suspension. The ordinance also provides that a license may be revoked under certain circumstances. A license may be revoked if fees are unpaid, if the license was illegally transferred, or if the license was W issued in error. The ordinance allows a retailer whose license has been revoked to file a new alicatio i-fthe condition resulting in the revocation has been corrected. The ordinancecurrentlydoes ppn %MO not provide for a permanent license revocation. B. PgMognt-Revocat ion Under Ordinance No, 2003-01 3P it is illegal to sell tobacco without a license issued by the County. Under the ordinance,therefore, a tobacco-retailer's license is a permit to do what would otherwise be unlawful. In this respect, a tobacco retailer's license 'issued by the County is like a liquor license issued by the state. Under state law, it is 'Illegal to sell liquor without a license. A liquor license is,therefore a permit to do what would otherwise be unlawful. (Cornell v. Reilly(1954) 127 Cal.App.2d. 1. ' 185.E A liquor license is a twe of property that the state, under its police power has the power to :W AL control and regulate. (Cooper v. State Board o `Eq ualization (.1955) 137 Cal.App.2d 672, 679.) Courts have held there is no proprietary right within the ne meaning of the Constitution"s due process clause to sell liquor. (Ibid) The state is authorized:by its police power and by statute to permanently revoke liquor licenses. Courts have detennined that the statutes that authorize the revocation of liquor licenses do not violate the due process clause. (Ibid) However,the state must not act arbitrarily or capriciously when it revokes licenses. (Santa Ana Food Market, Inc. v. Alcoholic Beverage Control Appeals Bch. (1999)76 Cal.AppAth 570, 574.) The primary purpose of a proceedi*ng to revoke a liquor license is to protect the public,not to punish. (Cornell, supra, 127 Cal.App.2d at 184.) S imilarly the state licenses various professions, vocations, and businesses. The state is entitled to revoke these licenses, and the purpose of doing so is "to protect the public from 'incompetence and lack of integrity in those practicing trades and professions," (Hughes v. Board ofArchitectural Examiners (1998) 17 CalAth 763, 785, citing Murrill v. State 'ca ardofAccountancy(195 0) 97 Cal.App.2d 709, 712.) Ordinance No. 2003-01 was adopted by the County under its police power. The County's police power authorizes It to enact ordinances to protect the health,safety and welfare of its citizens. (Cal. Const., art. XI, § 7.) The County may enact any local,police, sanitary or other y s Board ofSupervisors April 29,200 P 3. ordinance as long as It is not in conflict with state law. (California R7e&Pistol Assn. v 0of West Hollywood(1998) 66 Cal.App.4th 3 2, 1310.) There is no statute authorizing the t t license tobacco retailers, Just as the state's police power authorizes it to regulate and permanently revoke liquor licenses,the County's police power authorizes it to regulate tobacco retailer's licenses. Based on liquor license case law, a court could uphold an ordinance authorizing the County to permanently revoke a tobacco retailer's license as a valid exercise of the County's police power. In addition, court could find that there is no proprietary right to sell tobacco. If the court were to make this finding, it would be able to determine that the permanent revocation of a tobacco retailer's license would.not violate due process, as long as the County did not act arbitrarily or capriciously in revoking the license. Ordinance No. 2003-01 can be amended to provide dor a permanent license revocation after the license has been suspended several times. The,purpose ofproviding tor a permanent revocation only after several suspersi r s would be to lessen the risk that a permanent revocation�+� ild be an arbitrary or capricious exercise the County's,police power. A draft rdina c providingdor permanent revocation iattached. Under n amended ordinance, a tobacco ret ail er s license would be suspended up to 30 days for a first violation of any local, state, or federal tobacco-related,law,UP to days for a s ad. iot' ion occurring within two years of the first, and exp to one year for a third violation.occurring within two years of the second suspension.. The license would be revoked permanently if a fourth violation occurred within two years of the third suspension. If the Board so directs,this ordinance can be placed on an upcoming consent cdt agenda for introduction and subsequent adoption. TGY enice Dennis,Tobacco Prevention Pr0i*ect,'Health Services Department Charlotte Dickson,I oloa co Prevention Project,Health Services'Department i ORDINANCE NO. 2003 - .CRAFT TOBACCO RETAILER'S LICENSE SUSPENSION AND REVOCATION The Centra Costa County Board of Supervisors ordains as follows (omittina the Parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Mode SECTION 1. SUMMARY. This ordinance amends the County Ordinance Code to authorize the permanent revocation of a tobacco retailer's license after the license has been.suspended gree trines. SECTION 11. Section 445-10.016 of the County Ordinance Code is amended to read: 445440.016 License Suspension axed Revocation. (a) Suspension or Permanent Revocation for Violation. (1) Grounds for Suspension or Permanent Revocation. A tobacco retailer's 1 16ense may he suspended or permanently revoked for any violation of this division Division 440 of this cod , or any state or federal tobacco-related laws. (2) Time period, (A) A tobacco retailer's license suspension may be up to 30 days for a first violation, (B) A tobacco retailer's license suspension may be up to 90 days s for a second violation occurring within 24 months of the first violation. (C) A tobacco retailer's license suspension may e up to one year for a third violation occurring within 24 months of the second violation, (D) A tobacco retailer's license may be permanently revoked for a fourth violation occ r r n, within 4 months of the third violation. (b) Revocation Without Prejudice. (1) Grounds for Revocation.Without Prejudice. A tobacco ret aile 's license may revoked without prejudice on any of the following grounds: (A) One or more of the grounds dor denial of a tobacco retailer's license under section 445-10,010existed either when a license app ligation was made or before the tobacco retailer's license wasissued--, ORDINANCE I NCE N . 2003 - DRAFT 1 (B) The tobacco retailer's license fee is unpaid, (C) The tobacco retailer's license has been transferred in violation of section 44 - 1 . 1 . (2) A tobacco retailer whose license has been revoked without prejudice may file a neve application for a tobacco retailer's license if,grounds for revocation without prejudice no longer exist. (c) Notice e of Suspension or Revocation Hearing, it any grounds for suspension or revocation exist,the:director may'issue a Notice of Suspension or Revocation rearing, A notice will be served to a tobacco retailer as specified in Section 445-10,022 and will include all of the following information: (1) The address or a definite description of the location where the tobacco ret .iler's license i issued. (2) The grounds for suspension or revocation,.. (3) The date of the suspension or revocation hearing before the Public:health Director. The notice will set the hearing date no sooner than 20 days and no later than 45 days following the date the notice is served, (d) Hearing. A tobacco retailer's license may be suspended or revoked by the Public Health Director after a tobacco retailer's license suspension or revocation hearing. At the hearing,the licensee will be given the opportunity to testify and t present evidence coneemin tf e rounds set forth in the Notice of Suspension or Revocation Hearing. After consideringthe testimony and evidence submitted at the hearing, the Public Health Director will issue a written decision and will list in the decision the reason or reasons for that decision. The written decision will be seed as spec lea in section 445-10.022, (e) appeal. The decision of the Public Health Director to suspend or revoke a tobacco retailer's license is appealable to the Board of Supervisors and will be beard at a noticed public hearing a pr+ vide� in Chapter 14-4 of this Code. (f) Final Order. The tobacco retailer's license suspension or revocation becomes a final administrative order at one of the followingtimes: (1) the date of the suspension or revocation hearing, if a tobacco retailer fails to appear at a scheduled hearing. (2) On the date the public Health Director's decision is served, if`a.tobacco retailer fair to ORDINANCE NCE N . 2003 ,. DRAFT file a written appeal to the Board of Supervisors within the time specified, (3) the date of the appeal bearing, 'if a tobacco retailer fails to appear at a scheduled appeal hearing before the:hoard of Supervisors. (4) On the date of the decision by the Board of Supervisors, if a tobacco retailer appear t a scheduled appeal hearing before the Board of Supervisors. (g) During a period of license suspension or revocation, the tobacco retailer must remove from public view all tobacco products. girds. 2003- § 2, 2003-01 § 3, 98-50 § 2.) SECTION 111, Section 445-10.018 of the County Ordinance Code is repealed in its entirety. SECTION IV. Section 445-10.020 oft the County Ordinance Code is amended to read: 445 10,020 enforce en t. The County may seek complianee with this chapter by any remedy allowed under this code, including, but not limited to, suspension or revocation(Section 445-10.016), administrative fines Chapter 14-12), criminal citations(Section 14-8,008), and an.y other remedy allowed by law. Ords. 2003- § 4,200 -01 § 3, 98-5 o § 2.) SECTION V. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of supervisors voting for or against t it in the Contra Costa Times, a newspaper published in this County. PASSED on ,by the following vote: AYES* NOES* ABSENT. ABSTAIN: ATTEST: JOHN SWEETEN, Clerk of the Board of Supervisors Board Chair and County Administrator By: [SEAL] Deputy TLG: HA2003 Health ServiceffobaccoVicense suspend revoke ord•wpd, ORDINANCE No. 2003 - DRAFT