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HomeMy WebLinkAbout4.7 Tobacco Retail Comm Pk Smoke Ordor 19 82 /ii � 111 DATE: TO: FROM: STAFF REPORT CITY COUNCIL December 4, 2012 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' CITY CLERK File #560 -90 SUBJECT: Tobacco Retailers Ordinance and Community Park Smoking Prohibition Prepared by Roger Bradley, Assistant to the City Manager & Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: A Fiscal Year 2012 -13 City Council Initiative directs Staff to establish zoning restrictions for new tobacco retailers and a licensing system for all tobacco retailers within the City. Additionally, Staff was directed to include an expansion of the present prohibition of smoking within 100 feet of recreational areas within Community Parks, making Community Parks consistent with the total smoking prohibition within Neighborhood Parks and Squares. The City is adding a new Chapter to the Zoning Ordinance relating to the location of tobacco retailers within the City. Additionally, amendments are proposed to: 1) Chapter 8.08 (Definitions) to add a new definition for Tobacco Retailers; 2) Chapter 8.12 (Zoning Districts and Permitted Uses of Land) to add tobacco retailers as a commercial use type; 3) Chapter 8.30 (Downtown Dublin Zoning District) to regulate tobacco retailers in the Downtown Dublin Specific Plan in the same way as the C -1 and C -2 Zoning Districts; and 4) Chapter 8.116 (Zoning Clearance) to include tobacco retailers as a use that can be approved via the Zoning Clearance process. The City is also adding a new Chapter 4.40 to the Dublin Municipal Code to establish a Tobacco Retailing Licensing System for all tobacco retailers within the City. FINANCIAL IMPACT: There would be a financial impact associated with the preparation of the ordinance. The budget includes sufficient funds to cover the necessary legal review of the ordinance. The tobacco retailers' license includes an annual fee of $287 and application fee of $25. The retailers' license fee is calculated based on the cost to conduct tobacco enforcement operations, which cost the City approximately $7,200 per year. This amount is allocated proportionately to the existing 25 tobacco retailers. RECOMMENDATION: Staff recommends that the City Council waive the reading and adopt an Ordinance adding a new Chapter 4.40 and a new Chapter 8.43 and amending Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land), Chapter 8.30 (Downtown Dublin Zoning District), Chapter 8.116 (Zoning Clearance), and Chapter 5.56 (Smoking Pollution Control) to Page 1 of 3 ITEM NO. 4.7 the Dublin Municipal Code to regulate the location of new tobacco retailers, establish a tobacco retailing licensing system within the City of Dublin, prohibit smoking within Community Parks, and adopt a Resolution amending the City of Dublin Master Fee Schedule to include a tobacco retailers' license fee. Submitted By" Assistant to the City Manager DESCRIPTION: Reviewed By Assistant City Manager Background A Fiscal Year 2012 -2013 City Council initiative directs Staff to establish zoning restrictions and a licensing system for new tobacco retailers within the City. Among other things, the ordinance establishes development standards and regulations for the siting of new tobacco retailers within the City of Dublin. A tobacco retailer is any person or business which sells, offers for sale, exchanges or offers to exchange for any form of consideration tobacco, tobacco products and /or tobacco paraphernalia. Additionally, the ordinance expands the present prohibition of smoking within 100 feet of recreational areas within Community Parks, making Community Parks consistent with the total smoking prohibition within Neighborhood Parks and Squares. On November 20, 2012, the City Council waived the reading and introduced an Ordinance adding a new Chapter 4.40 and a new Chapter 8.43 and amending Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land), Chapter 8.30 (Downtown Dublin Zoning District), Chapter 8.116 (Zoning Clearance), and Chapter 5.56 (Smoking Pollution Control) to the Dublin Municipal Code to regulate the location of new tobacco retailers, establish a tobacco retailing licensing system within the City of Dublin, and prohibit smoking within Community Parks. Additionally, the City Council directed Staff to amend the master fee schedule to include a tobacco retailers licensing fee. A Resolution adopting the license fee is included as Attachment 1. Please refer to the November 20, 2012 City Council Staff Report for a complete discussion of this Ordinance and the accompanying fees (Attachment 2). The City Council is currently requested to waive the second reading and adopt the Ordinance (Attachment 3). NOTICING REQUIREMENTS /PUBLIC OUTREACH: None. ATTACHMENTS: 1. Resolution amending the City of Dublin Master Fee Schedule to include a Tobacco Retailer License Fee. 2. City Council Staff Report dated November 20, 2012 (without attachments). 3. Ordinance adding a new Chapter 4.40 and a new Chapter 8.43 and amending Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land), Chapter 8.30 (Downtown Dublin Zoning District), Chapter 8.116 (Zoning Clearance), and Chapter 5.56 (Smoking Pollution Control) to the Dublin Municipal Code to regulate the location of new tobacco retailers, establish a tobacco Page 2 of 3 retailing licensing system within the City of Dublin, and prohibit smoking within Community Parks. Page 3 of 3 RESOLUTION NO. XX - 12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * ** AMENDING THE CITY OF DUBLIN MASTER FEE SCHEDULE FOR SERVICES PROVIDED BY THE CITY TO INCLUDE A TOBACCO RETAILER LICENSE FEE. WHEREAS, on November 20, 2012, the City Council held a Public Hearing and introduced an ordinance adopting a tobacco retailer licensing system; WHEREAS, the Public Hearing on November 20, 2012 included discussion and direction from the City Council to amend the City of Dublin Master Fee Schedule to include a Tobacco Retailer License Fee to recover the full cost of the City's Tobacco Control Program's administration and enforcement activities within the City of Dublin; WHEREAS, on September 18, 2012, the City Council adopted a Master Fee Schedule for services provided by the City to consolidate fees and charges into a comprehensive document; and WHEREAS, including the Tobacco Retailer License Fee within the City of Dublin Master Fee Schedule will further enhance the City's efforts in effectively administering fees. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby amends the City of Dublin Master Fee Schedule Section 2.01 (Police Services- Permits) to add a new line number 234 for the Tobacco Retailer License Fee to read as follows: 234 Tobacco Retailer License (Dublin Annual license issuance per the $287.00 Municipal Code Chapter 4.40) Municipal Code / per license. PASSED, APPROVED AND ADOPTED this 4th day of December, 2012, by the following vote- AYES- NOES- ABSENT- ABSTAIN: ATTACHMENT 1 Mayor ATTEST: City Clerk 2008407.1 or 19 82 /ii � 111 DATE: TO: FROM: STAFF REPORT CITY COUNCIL November 20, 2012 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' CITY CLERK File #560 -90 SUBJECT: Tobacco Retailers Ordinance and Community Park Smoking Prohibition Prepared by Roger Bradley, Assistant to the City Manager & Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: A Fiscal Year 2012 -2013 City Council Initiative directs Staff to establish zoning restrictions for new tobacco retailers and a licensing system for all tobacco retailers within the City. Additionally, Staff was directed to include an expansion of the present prohibition of smoking within 100 feet of recreational areas within Community Parks, making Community Parks consistent with the total smoking prohibition within Neighborhood Parks and Squares. The City is adding a new Chapter to the Zoning Ordinance relating to the location of tobacco retailers within the City. Additionally, amendments are proposed to: 1) Chapter 8.08 (Definitions) to add a new definition for Tobacco Retailers; 2) Chapter 8.12 (Zoning Districts and Permitted Uses of Land) to add tobacco retailers as a commercial use type; and 3) Chapter 8.116 (Zoning Clearance) to include tobacco retailers as a use that can be approved via the Zoning Clearance process. The City is also adding a new Chapter 4.40 to the Dublin Municipal Code to establish a Tobacco Retailing Licensing System for all tobacco retailers within the City. FINANCIAL IMPACT: There would be a financial impact associated with the preparation of an ordinance. The budget includes sufficient funds to cover the necessary legal review of the ordinance. The tobacco retailers' license includes an annual fee of $287 and application fee of $25. The retailers' license fee is calculated based on the cost to conduct tobacco enforcement operations, which cost the City approximately $7,200 per year. This amount is allocated proportionately to the existing 25 tobacco retailers. RECOMMENDATION: Staff recommends that the City Council: 1) Receive Staff presentation; 2) Open the public hearing; 3) Take testimony from the public; 4) Close the public hearing and deliberate; 5) Waive the reading and introduce an Ordinance adding a new Chapter 4.40 and a new Chapter 8.43 Page 1 of 8 ITEM NO. 6.2 and amending Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land), Chapter 8.30 (Downtown Dublin Zoning District), Chapter 8.116 (Zoning Clearance), and Chapter 5.56 (Smoking Pollution Control) to the Dublin Municipal Code to regulate the location of new tobacco retailers, establish a tobacco retailing licensing system within the City of Dublin, and prohibited smoking within Community Parks; and 6) Direct Staff to amend the City of Dublin Master Fee Schedule to include a tobacco retailers' license fee. Submitted By Assistant to the City Manager DESCRIPTION: Reviewed By Assistant City Manager BACKGROUND A Fiscal Year 2012 -2013 City Council Key Initiative directs Staff to establish zoning restrictions for new tobacco retailers within the City. The proposed Ordinance would create development standards and regulations for the siting of new tobacco retailers within the City. A tobacco retailer is defined as any person or business which sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco, tobacco products and /or tobacco paraphernalia. The proposed Ordinance would require that new tobacco retailers maintain a minimum distance from areas where children are present. The goal of the Ordinance is to maintain a buffer zone between tobacco retailers and areas frequented by youth, thereby decreasing the likelihood of youth attempting to purchase tobacco products. ANALYSIS: The City Council provided direction to Staff on the Zoning Ordinance Amendment and Tobacco Retailer Licensing system on January 17, 2012, April 17, 2012 and September 18, 2012 (Attachments 1, 2 and 3). The direction provided to Staff on the Zoning Ordinance Amendment is summarized below. Minimum Distance from Areas Where Children are Present The City Council opined that the appropriate distance to maintain from a tobacco retailer to youth- oriented areas is 1,000 feet from schools and 500 feet from all other areas where children congregate. Which Areas Should be Included in the Ordinance The City Council opined that the areas that should be included in the definition of youth oriented are: • Schools; • Libraries; • Parks; • Playgrounds; • Youth centers; Page 2 of 8 • City owned & operated recreational facilities. Attachment 4 shows all of the areas in the City where children congregate with a 1,000 foot buffer around schools and a 500 foot buffer around the other areas where children congregate. Should residential zones be included in the Ordinance The City Council opined that residential zones should not be included in the Ordinance. Limited Density of Retail Tobacco Shops The City Council opined that retail tobacco shops (retailers that primarily sell tobacco products) shall be prohibited from siting within 1,000 feet of one another. Grocery stores, drug stores and gas stations are not subject to this requirement. Approval Process for New Tobacco Retailers The City Council opined that a provision be included in the proposed ordinance to require that the approval process for new tobacco retailers be through the Zoning Clearance process. Existing Retailers — Grandfather The City Council opined that existing tobacco retailers should be grandfathered within the Ordinance; therefore, the minimum distance requirement applies only to new tobacco retailers. The direction provided to Staff by the City Council has been incorporated into the proposed Ordinance, which, among other things, adds a new Chapter 8.43 to the Zoning Ordinance to regulate the siting of new tobacco retailers within the City of Dublin (Attachment 5). The following amendments, as further discussed in Attachment 5, are proposed to ensure internal consistency within the Zoning Ordinance. Chapter 8.08 (Definitions) In addition to adding a new Chapter to the Zoning Ordinance to regulate the siting of future tobacco retailers in the City, a new definition for tobacco retailers is proposed to be added to Chapter 8.08 (Definitions) as follows: Tobacco Retailer. The term Tobacco Retailer shall mean any person or business that sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco, tobacco products and /or tobacco paraphernalia, and includes, but is not limited to a Retail Tobacco Shop. Chapter 8.12 (Zoning Districts and Permitted Uses of Land) Staff is proposing to amend Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) to note that future tobacco retailers that meet the requirements outlined in Chapter 8.43 are permitted in the C -1 and C -2 Zoning Districts, by means of a Zoning Clearance. The following rows of the "Land Use Matrix" table in Section 8.12.050 are proposed to be amended as follows (the underlined text is new): COMMERCIAL USE TYPE A R -1 R -2 R -M C -O C -N C -1 C -2 M -P M -1 M -2 Tobacco Retailer - - - - - - ZC ZC - - - Page 3 of 8 Chapter 8.30 (Downtown Dublin Zoning District) Staff is proposing to amend Section 8.30.020 to state that Tobacco Retailers are to be regulated in the Downtown Dublin Specific Plan in the same way as the C -1 and C -2 Zoning Districts. Chapter 8.116 (Zoning Clearance) Staff is proposing amendments to this Chapter of the Zoning Ordinance to note that tobacco retailers are now subject to a Zoning Clearance. The direction provided to Staff on the Tobacco Retailing Licensing System is summarized below. Establish a Tobacco Retailer Licensing System The City Council opined that there should be a retailer licensing system for all existing as well as any future tobacco retailers. Establish a Fee to Obtain a Tobacco Retailer License The City Council opined that there should be a licensing fee at full cost recovery. The retailer license would include an annual fee currently proposed at $287 and an application fee of $25 to recover the annual cost to conduct tobacco enforcement operations, estimated at $7,200 per year. The calculated fee and programs cost are included in the table below. In order to establish the licensing fee, the City Council will need to adopt a Resolution amending the City's Master Fee Schedule to include the license fee. Should the City Council decide to proceed with the ordinance introduction, Staff would recommend that the City Council direct Staff to amend the City's Master Fee Schedule for services provided by the City to include the tobacco retailer license fee. Tobacco Licensure Costs Number Hours Person Completing Task of Staff Spent Expense Police Dept. Enforcement Expenses Personnel Costs Recruit/train youth decoys and chaperones Conducting the operation Officers Sergeant Buy Money Food for Participants Misc. Supplies /Expenses Sergeant 1 4 $505. ©8 Deputy 2 15 $3,235.54 Sergeant 1 15 $;1,894:45 Total Enforcement Cost Per Year Number of Tobacco Retailers in City 25 Enforcement Cost Per Retailer Administrative Expenses Revocation Hearing Preparation/Testimony* Page 4 of 8 Conduct Revocation Hearings* 'Based on 2 revocation hearings per year Total Administrative Expenses Per Year Administrative Cost Per Retailer Total Licensure Cost Total Licensure Cost Per Tobacco Retailer Revocation vs. Suspension for Violations The City Council opined that licenses be revoked for violations and that the appropriate revocation period for violations is as follows: • 1St violation within a 36 month period: Warning. • 2nd violation within a 36 month period: License revoked for 30 days. • 3rd violation within a 36 month period: License revoked for 90 days. • 4th violation within a 36 month period: License revoked for 180 days. • 5 or more violations within a 36 month period: License revoked for 1 year. Fine in Lieu of Revocation The City Council opined that a fine in lieu of a revocation is appropriate under the following conditions: • 1St violation within a 36 month period: Warning. • 2nd violation within a 36 month period: an administrative penalty of at least seven hundred fifty dollars ($750). • After a third violation of this chapter at a location within any thirty -six (36) month period: o An agreement to stop acting as a Tobacco Retailer for at least seven (7) days; and • An administrative penalty of at least one thousand dollars ($1,000). The direction provided to Staff on the Community Park Smoking prohibition is summarized below. At the City Council Meeting on September 18, 2012, the City Council directed Staff to prepare an ordinance amendment for augmenting the City's Smoking Pollution Control policies and regulations. As part of this direction, Staff was to include an expansion of the present prohibition of smoking within 100 feet of recreational areas within Community Parks, making Community Parks consistent with the total smoking prohibition within Neighborhood Parks and Squares. Current Law Smoking is prohibited within Neighborhood Parks and Squares. Additionally, Smoking is prohibited within 100 feet of recreational areas within Community Parks, which includes play areas, playgrounds, picnic areas, sports fields and courts, etc. Community Parks include Emerald Glen Park, Fallon Sports Park, Dublin Swim Center, Dublin Heritage Center, Dougherty Hills Dog Park, Dublin Sports Grounds, and Shannon Park. Proposed Law Under the provisions of the proposed ordinance, smoking would be prohibited in totality within all City of Dublin parks. Page 5 of 8 Please refer to Attachment 5 of this Staff Report for proposed amendments to the Dublin Municipal Code. The amendments include modifications to Title 4, Title 5, and Title 8 of the Dublin Municipal Code. Planning Commission Action On October 9, 2012, the Planning Commission held a public hearing to review the proposed Zoning Ordinance amendments relating to the siting of new tobacco retailers. The Planning Commission Staff Report is included as Attachment 6 and the draft minutes of the Planning Commission meeting are included as Attachment 7. The Planning Commission had an extensive discussion about what the appropriate distance is to maintain around parks. The Planning Commission made a recommendation that the City Council reconsider a 1,000 foot buffer from parks. The Planning Commission voted 3 -0 to adopt a Resolution recommending that the City Council adopt an Ordinance adding a new Chapter 8.43 and amend Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land), Chapter 8.30 (Downtown Dublin Zoning District) and Chapter 8.116 (Zoning Clearance) to the Dublin Municipal Code to regulate the location of tobacco retailers within the City of Dublin (Resolution 12 -38 — Attachment 8). Parks & Community Services Commission Action On October 15, 2012, the Parks & Community Services Commission held a public hearing to review the proposed Ordinance amending Chapter 5.56 and prohibiting smoking within all City parks. The Parks & Community Services Commission Staff Report is included as Attachment 9 and the draft minutes of the Parks & Community Services Commission meeting are included as Attachment 10. The Parks & Community Services Commission had an extensive discussion about the proposed ordinance. As shown in the draft minutes, the Parks & Community Services Commission voted 4 -0 to recommend that the City Council approve an ordinance prohibiting smoking with all City parks. RECEIVED CORRESPONDENCE: On October 31, 2012, the City received a letter from the National Association of Tobacco Outlets ( "NATO ") (Attachment 11). Staff has reviewed the NATO letter and believes that the draft ordinance, as modified to reflect City Council input, addresses many of NATO's concerns. The City Council elected to not include flavored cigars as part of the ordinance, which appears to have been NATO's primary concern. In review of the draft ordinance, the in lieu of penalty was reduced to $750 and $1,000 for violations instead of the $1,000 and $5,000 originally indicated. These "in lieu" penalties can be paid instead of having a business's license revoked for a period of time. The concern about revocation expressed in the letter is understandable. However, the City traditionally conducts no more than two and generally only one sting operation each year. A business would have to both be caught almost each and every time Dublin Police Services conducts a sting operation and reject the "in lieu" settlement option in order to lose the right to sell tobacco as a consequence of its violations. Under the in lieu settlement option, a first violation results in a warning, a second results in a $750 fine, and a third in an lieu of fine of $1,000 and the loss of the right to sell tobacco products for one week. Page 6 of 8 Since the City Council reduced the period in which violations accrue to 3 years, only the most egregious violators of the proposed ordinance would be likely to go beyond 3 violations over that time period. There is a significant escalation in the penalty for fourth and subsequent violations, when the in lieu settlement alternative is no longer available. At that point, violations results in a six month loss of the right to sell tobacco products. However, this would only occur where a business sold to the minor decoy every time Police has conducted an operation over the three year period. Thus, Staff believes that the policy choices made by the City Council, which were vetted by the retailers within our community, are unlikely to have the impacts indicated within the letter. NOTICING REQUIREMENTS /PUBLIC OUTREACH: This item was originally noticed for the City Council meeting on November 6, 2012. In accordance with State law, a public notice was published in the Valley Times and posted at several locations throughout the City. A notice of this hearing was mailed to those requesting such notice ten days before the hearing. A public notice was also sent to all tobacco retailers within the City. The hearing date was later changed to November 20, 2012. On Saturday, November 3, 2012, a revised Public Hearing Notice was published in the Valley Times and was mailed to all tobacco retailers within the City. A letter regarding the date change was also sent to other individuals and organizations that have provided comments, attended meetings, or expressed interests in this topic. ENVIRONMENTAL REVIEW: The California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. Pursuant to CEQA, Staff is recommending that the proposed Ordinance be found exempt from CEQA per CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of the proposed Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the construction of any building or structure, but it sets forth the regulations that shall be followed if and when a building or structure is proposed to be constructed or a site is proposed to be developed. This Ordinance of itself, therefore, has no potential for resulting in significant physical change in the environment, directly or ultimately. ATTACHMENTS: 1. City Council Staff Report dated January 17, 2012 (without attachments). 2. City Council Staff Report dated April 17, 2012 (without attachments). 3. City Council Staff Report dated September 18, 2012 (without attachments) 4. Map of the areas in the City where children congregate with a 1,000 foot buffer around schools & 500 foot buffer around all other areas. 5. Ordinance adding a new Chapter 4.40 and a new Chapter 8.43 and amending Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Page 7 of 8 Land), Chapter 8.30 (Downtown Dublin Zoning District), and Chapter 8.116 (Zoning Clearance) to the Dublin Municipal Code to regulate the location of new tobacco retailers and to establish a tobacco retailing licensing system as well as amending Chapter 5.56 (Smoking Pollution Control to prohibit smoking within the City of Dublin Community Parks. 6. Planning Commission Staff Report dated October 9, 2012 (without attachments). 7. Draft minutes from October 9, 2012 Planning Commission hearing. 8. Planning Commission Resolution 12 -38 recommending that the City Council adopt an Ordinance adding a new Chapter 8.43 and amend Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land) and Chapter 8.116 (Zoning Clearance) to the Dublin Municipal Code to regulate the location of tobacco retailers within the City of Dublin. 9. Parks & Community Services Commission Staff Report dated October 15, 2012 (without attachments). 10. Draft minutes from October 15, 2012 Parks & Community Services Commission hearing. 11. Correspondence from the National Association of Tobacco Outlets dated October 31, 2012. Page 8 of 8 ORDINANCE NO. — 12 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ADDING A NEW CHAPTER 8.43 AND AMENDING CHAPTERS 8.08 (DEFINITIONS), 8.12 (ZONING DISTRICTS AND PERMITTED USES), 8.30 (DOWNTOWN DUBLIN ZONING DISTRICT) AND 8.116 (ZONING CLEARANCE) OF THE DUBLIN MUNICIPAL CODE TO REGULATE THE LOCATION OF TOBACCO RETAILERS WITHIN THE CITY OF DUBLIN, ADDING A NEW CHAPTER 4.40 TO THE DUBLIN MUNICIPAL CODE REQUIRING THE LICENSURE OF TOBACCO RETAILERS, AND AMENDING CHAPTER 5.56 OF THE DUBLIN MUNICIPAL CODE RELATING TO SMOKING POLLUTION CONTROL WHEREAS, studies show that tobacco use among our youth continues to rise with a particular impact among our high school students; and WHEREAS, although it is unlawful to sell tobacco products and /or tobacco paraphernalia to minors, studies have shown that more than 900 million packs of cigarettes are consumed by minors 12 to 17 years of age each year; and WHEREAS, in the City of Dublin over the past 14 year period there has been a 9% sales rate to minors during sting operations; and WHEREAS, the City of Dublin has a substantial interest in discouraging the purchase of tobacco products by minors and protecting children from being lured into illegal activity through the misconduct of adults; and WHEREAS, zoning regulations are necessary to control the location and operation of the sale or exchange of tobacco products and /or tobacco paraphernalia for the protection of public health, safety and welfare; and WHEREAS, it is the intent of City Council to discourage violations of laws forbidding distribution of tobacco products to minors, but not to expand or reduce the degree of which the acts regulated by state or federal laws are criminally proscribed; and WHEREAS, the Planning Commission did hold a properly noticed public hearing on this project on October 9, 2012 and adopted Resolution 12 -38 recommending that the City Council adopt an ordinance adding Chapter 8.43 to the Dublin Municipal Code and amending Chapter 8.08, 8.12, 8.30 AND 8.116 of the Dublin Municipal Code; and WHEREAS, a properly noticed public hearing was held by the City Council on November 20, 2012; and 1 WHEREAS, the City Council did hear and use its independent judgment and considered all said reports, recommendations and testimony hereinabove set forth; and WHEREAS, the City Council finds that the failure of tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents a threat to the public health, safety, and welfare of the residents of the City; and WHEREAS, the City Council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the City, to protect the health, safety, and welfare of our residents; and WHEREAS, research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes; and WHEREAS, the City has a substantial interest in protecting children from being lured into illegal activity through the misconduct of adults; and WHEREAS, it is the intent of the City Council, in enacting this ordinance, to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing and to discourage violations of tobacco - related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine 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 penalties provided therein; and WHEREAS, the City Council of the City of Dublin further wishes to preserve and improve the health of it residents by reducing the possibility of exposure to secondhand smoke and its contaminates by increasing the areas in which smoking is prohibited. NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows: Section 1. Compliance with California Environmental Quality Act ( "CEQA "): The City Council declares this Ordinance is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of this Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the construction of any building or structure, but it sets forth the regulations that shall be followed if and when a building or structure is proposed to be constructed or a site is proposed to be developed. This Ordinance of itself, therefore, has no potential for resulting in significant physical change in the environment, directly or ultimately. Section 2. A new Chapter 8.43 is hereby added to the Dublin Municipal Code to read as follows- 2 CHAPTER 8.43 TOBACCO RETAILERS Sections: 8.43.010 Purpose. 8.43.020 1 ntent. 8.43.030 Definitions. 8.43.040 Development Standards and Regulations. 8.43.050 Zoning Clearance. 8.43.010 Purpose The purpose of this Chapter is to establish regulations for the location and operation of tobacco retailers. 8.43.020 Intent. The intent of this Chapter is to: A. Establish a minimum distance that tobacco retailers must maintain from areas where children are present, such as schools, playground, parks, libraries and City owned and operated recreational facilities. B. Prevent Retail Tobacco Shops from concentrating in a particular geographic area of the City. C. Establish development standards and regulations for the siting of new tobacco retailers within the City. 8.43.030 Definitions. A. The terms used in this Chapter have the meaning set forth below: "Department" means the Community Development Department. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Retail Tobacco Shop" means a business establishment, the main purpose of which is the sale of tobacco, tobacco products, or tobacco paraphernalia. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and other items designed for the smoking or ingestion of tobacco products. "Tobacco Products" means any substance containing any tobacco leaf, including but not limited to cigarettes, cigars, bidis, pipe tobacco, snuff, chewing tobacco, and smokeless tobacco. 3 "Tobacco Retailer" shall have the meaning ascribed to it in Chapter 8.08 of the Dublin Municipal Code. "Tobacco retailing" shall mean engaging in the activities of a Tobacco Retailer. 8.43.040 Development Standards and Regulations. A tobacco retailer shall comply with all development standards and regulations for the zoning district in which it is located and any other applicable provisions of the City Code or regulations, including occupancy, accessibility, California Building Code, and Fire Code requirements. A. Permitted in the C -1, C -2, and Certain Planned Development Zoning Districts. A tobacco retailer may be established only in the C -1 and C -2 Zoning Districts. A tobacco retailer may also be established in a comparable Planned Development (PD) Zoning District if not specifically prohibited by the PD regulations and if the project site has an underlying Retail Commercial or General Commercial Land Use designation. Any tobacco retailer in a PD Zoning District shall be subject to the requirements of this Chapter and the requirements of the PD Zoning District. Where a conflict arises between the requirements of this Chapter and the PD regulations, this Chapter shall take precedence. B. No tobacco retailer shall be located within one thousand (1,000) feet, as measured in a straight line from parcel boundary to parcel boundary, of a parcel that, at the time the tobacco retailer is granted a Zoning Clearance, is occupied by public or private elementary, middle, junior high or high school; C. No tobacco retailer shall be located within five hundred (500) feet, as measured in a straight line from parcel boundary to parcel boundary, of a parcel that, at the time the tobacco retailer is granted a Zoning Clearance, is occupied by a- (i) Playground; (ii) Youth center; (iii) City owned and operated recreational facilities; (iv) Park; or (v) Library. D. Limited Density of Retail Tobacco Shops. No Retail Tobacco Shop shall be granted a permit to operate on a site which is within one thousand (1,000) feet of a site occupied by another Retail Tobacco Shop, as measured in a straight line from parcel boundary to parcel boundary. E. New tobacco retailers. Each application for a Zoning Clearance to operate a Tobacco Retail business shall include, in addition to such other information as reasonably required by the Community Development Director, a map demonstrating that the proposed location of the tobacco retailer is consistent with the minimum distance standards established in Sections 8.43.040.B, 8.43.040.0 and 8.43.040.D. 12 F. Tobacco retailers shall apply for, acquire and maintain a current and valid Tobacco Retailer License as required by Chapter 4.40 of the Municipal Code. G. Sections 8.43.040.13, 8.43.040.0 and 8.43.040.D shall not apply to any tobacco retailer legally in existence as of the original effective date of this Chapter. H. Sections 8.43.040.13, 8.43.040.0 and 8.43.040.D shall not apply to any situation in which a tobacco retailer legally in existence as of the original effective date of this Chapter or a tobacco retailer that has been granted a Zoning Clearance expands its existing operations to an adjacent parcel but does not establish a second location at which tobacco retailing will occur. 8.43.050 Zoning Clearance. A. A Zoning Clearance shall document the compliance of a tobacco retailer with the above requirements and shall be kept on file in the Community Development Department for the duration of the operation of the tobacco retailer. Section 3. The following definition is hereby added to Section 8.08.020 (Definitions) of the Dublin Municipal Code to read as follows: Tobacco Retailer. The term Tobacco Retailer shall mean any person or business that sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco, tobacco products and /or tobacco paraphernalia, and includes, but is not limited to a Retail Tobacco Shop. Section 4. Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of the Dublin Municipal Code is hereby amended to add a new row for the "Tobacco Retailer" use type to the "Commercial Use Types" table. (All other rows of the table in Section 8.12.050 shall remain unchanged by this Ordinance): COMMERCIAL USE TYPE A R -1 R -2 R -M C -O C -N C -1 C -2 M -P M -1 M -2 Tobacco Retailer - - - - - - ZC ZC - - - Section 5. Section 8.30.020 of the Dublin Municipal Code is hereby amended to read as follows: 8.30.020 Downtown Dublin Specific Plan. The Downtown Dublin Specific Plan, adopted by the City Council on February 1, 2011 by Resolution 9 -11, and as may be amended thereafter, shall be used to guide the review of site development review applications in the Downtown Dublin Zoning District. The Downtown Dublin Specific Plan contains all information regarding permitted, 5 conditionally permitted, and prohibited uses, development standards, and design guidelines to direct the development and use of properties within the specific plan area, with the exception of the tobacco retail use types. Tobacco retailers are to be regulated in the same way as in the C -1 and C -2 Zoning Districts. All new development in the Downtown Dublin Zoning District shall be reviewed for consistency with the Downtown Dublin Specific Plan. Section 6. Section 8.116.010 of Dublin Municipal Code is hereby amended to read as follows: 8.116.010 Purpose. The purpose of this Chapter is to establish a procedure for certifying conformance of a building permit, sign application, recreational facility (indoor), large family day care home, tobacco retailer or auto - related use in the Scarlett Court Overlay Zoning District application with the requirements of this Title, the General Plan, any applicable Specific Plans, and the terms and conditions of any applicable permits or variances. Section 7. Section 8.116.020.H is hereby added to the Dublin Municipal Code to read as follows: H. Tobacco retailers that meet the standards specified in Chapter 8.43 (Tobacco Retailers). Section 8. Section 8.116.030.G is hereby added to the Dublin Municipal Code to read as follows: G. Tobacco Retailer. If the Zoning Clearance is for a tobacco retailer, the Applicant shall submit a "Zoning Clearance for Tobacco Retailer" form along with such information requested on said form. Section 9. Section 8.116.040.H is hereby added to the Dublin Municipal Code to read as follows: H. Tobacco Retailer. All tobacco retailers shall be reviewed for compliance with Chapter 8.43 (Tobacco Retailers). The zoning clearance approval for a tobacco retailer shall be a completed "Zoning Clearance for Tobacco Retailers" form with the date and signature of the Community Development Director or his /her designee. 9 Section 10. Chapter 4.40 is hereby added to the Dublin Municipal Code to read as follows: CHAPTER 4.40 TOBACCO RETAILERS Sections: 4.40.010 Purpose. 4.40.020 Definitions. 4.40.030 Tobacco Retailer License Required. 4.40.040 Tobacco Retailer License Application Procedure. 4.40.050 Issuance of License. 4.40.060 License Renewal and Expiration. 4.40.070 Licenses Nontransferable. 4.40.080 Compliance Monitoring. 4.40.090 Revocation of License. 4.40.100 Tobacco Retailing without a License. 4.40.110 Enforcement. 4.40.010 Purpose The purpose of this Chapter is to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing and to discourage violations of tobacco - related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine 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 penalties provided therein. 4.40.020 Definitions "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, neither of which is under any compulsion to participate in the transaction. A sale for which a significant purpose is avoiding the effect of the violations of this Chapter is not an Arm's Length Transaction. "Chief of Police" means the Chief of the Dublin Police Department or his or her designee. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Proprietor" means 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 7 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. "Self- Service Display" means the open display or storage of Tobacco Products or Tobacco Paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person -to- person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of Self- Service Display. "Smoking" means possessing a lighted Tobacco Product, lighted Tobacco Paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a Tobacco Product, Tobacco Paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind). "Tobacco Paraphernalia" means 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. "Tobacco Product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and 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 cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. "Tobacco Retailer" means 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. 4.40.030 Tobacco Retailer License Required. A. It shall be unlawful for any Person to act as a Tobacco Retailer in the City of Dublin 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. Tobacco Retailing without a valid Tobacco Retailer's license is a nuisance as a matter of law. B. Display of License. Each Tobacco Retailer license shall be prominently displayed in a publicly visible location at the licensed location. C. Positive Identification Required. No Person engaged in Tobacco Retailing shall sell or transfer a Tobacco Product or Tobacco Paraphernalia to another Person who appears to be under the age of twenty -seven (27) years without first examining the identification 8 of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the Tobacco Product or Tobacco Paraphernalia. D. False and Misleading Advertising Prohibited. A Tobacco Retailer or Proprietor without a valid Tobacco Retailer license, including, for example, a person whose license has been revoked: 1. Shall keep all Tobacco Products and Tobacco Paraphernalia out of public view. The public display of Tobacco Products or Tobacco Paraphernalia in violation of this provision shall constitute Tobacco Retailing without a license under Section 4.40.100; and 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 could lead a reasonable consumer to believe that such products can be obtained at that location. E. License may be issued only to a business that will engage in Tobacco Retail activities at a fixed location. F. License Conveys a Limited, Conditional Privilege. 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 limited conditional privilege to act as a Tobacco Retailer at the location in the City identified on the face of the permit. For example, nothing in this Chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code, including without limitation the zoning ordinance, building codes, and business license tax ordinance, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a Tobacco Retailer license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5. G. Fee for License. The fee for the issuance and renewal of a Tobacco Retailer's license shall be established from time to time by resolution of the City Council, and shall be due and payable at the time a license application is submitted to the City. The fee shall be calculated so as to include, but not exceed, the cost of administration and enforcement of this Chapter, including the administration of the license program, retailer inspection and compliance checks. 1. In any year where grant funding has been obtained to recover the cost of administration and enforcement of this Chapter, or a portion thereof, the amount of the license fee charged for the twelve months following receipt of the grant funding shall be reduced based on the amount of grant funding received and on the total number of Tobacco Retailers operating in the City 9 4.40.040 Tobacco Retailer License Application Procedure A. Application for a Tobacco Retailer's license shall be submitted in the name of each Proprietor proposing to conduct retail tobacco sales and shall be signed by each Proprietor or an authorized agent thereof. B. It is the responsibility of each Proprietor to be informed regarding all laws applicable to Tobacco Retailing, including those laws affecting the issuance of a Tobacco Retailer's license. No Proprietor may rely on the issuance of a license as a determination by the City that the Proprietor has complied with all laws applicable to Tobacco Retailing. A license issued contrary to this Chapter, contrary to any other law, or on the basis of false or misleading information supplied by a Proprietor shall be revoked pursuant to Section 4.40.090.E of this Chapter. Nothing in this Chapter shall be construed to vest in any Person obtaining and maintaining a Tobacco Retailer's license any status or right to act as a Tobacco Retailer in contravention of any provision of law. C. All applications shall be submitted on a form supplied by the Chief of Police and shall contain the following information: 1. The name, address, and telephone number of each Proprietor of the business seeking a license. 2. The business name, address, and telephone number of the single fixed location for which a license is sought. 3. A single name and mailing address authorized by each Proprietor to receive all communications and notices (the "Authorized Address ") required by, authorized by, or convenient to the enforcement of this Chapter. If an Authorized Address is not supplied, each Proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above. 4. 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 or any agent of the Proprietor has admitted violating, or has been found to have violated, this Chapter and, if so, the dates and locations of all such violations within the previous five years. 6. Such other information as the Chief of Police deems necessary for the administration or enforcement of this Chapter as specified on the application form required by this section. D. A licensed Tobacco Retailer shall inform the Chief of Police in writing of any change in the information submitted on an application for a Tobacco Retailer's license within ten (10) business days of a change. E. The intentional provision of inaccurate or false information shall be a violation of this Chapter. 10 F. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code section 6250 et seq.) or any other applicable law, subject to the laws' exemptions. 4.40.050 Issuance of License A. Upon the receipt of a complete application for a Tobacco Retailer's license and the application fee required by this Chapter, the Chief of Police shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists: 1. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this Chapter. 2. The application seeks authorization for Tobacco Retailing at a location where Tobacco Retailing is prohibited pursuant to Chapter 8.43 of the Dublin Municipal Code. 3. The application seeks a license for the conduct of sales at a location that, at the time the application is submitted, is ineligible for a new permit pursuant to Section 4.40.090. F. B. A denial of a license application shall be in writing, citing the reasons for such denial and shall be appealable to the City Manager, or his or her designee, per the appeal provisions set forth in Section 4.40.090.D. C. A Tobacco Retail license shall be valid for one year from the date of issuance. 4.40.060 License Renewal and Expiration A. Each Tobacco Retailer shall submit a Tobacco Retailer's license renewal application and the license fee on or before the end of the license term. B. Expiration of License. A Tobacco Retailer's license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to Section 4.40.060.A, the Proprietor must: 1. Submit the license fee and application renewal form; and 2. Submit a signed affidavit affirming that the Proprietor either- (i) has not sold and will not sell any Tobacco Product or Tobacco Paraphernalia after the license expiration date and before the license is renewed; or (ii) has waited the appropriate ineligibility period established for Tobacco Retailing without a license, as set forth in Section 4.40.100.A of this Chapter, before seeking renewal of the license. 11 4.40.070 Licenses Nontransferable A. A Tobacco Retailer's license may not be transferred from one Person to another or from one location to another. A new Tobacco Retailer's license is required whenever a Tobacco Retailing location has a change in Proprietor(s). 4.40.080 Compliance Monitoring A. Compliance with this Chapter shall be monitored by the Chief of Police. In addition, any peace officer may enforce the penal provisions of this chapter. The City may designate any number of additional Persons to monitor compliance with this Chapter. B. The City shall not enforce any law establishing a minimum age for Tobacco purchases or possession against a Person who otherwise might be in violation of such law because of the Person's age (hereinafter "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 of the City; 2. The Youth Decoy is acting as an agent of a Person designated by the City to monitor compliance with this Chapter; or 3. The Youth Decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Alameda County Public Health Department or the California Department of Health Services. 4.40.090 Denial or Revocation of License A. Revocation of License. In addition to any other penalty authorized by law or this Chapter, a Tobacco Retailer's license shall be revoked if any court of competent jurisdiction determines, or the Chief of Police finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, 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 pleaded guilty, "no contest" or its equivalent, or violated any law designated in Section 4.40.030 above. 1. The penalty for a first violation of this Chapter at a location within any thirty -six (36) month period shall constitute a warning, and the Tobacco Retailer cited for such violation shall stipulate that the violation will be considered in determining the penalty for any future violation. B. Administrative Hearing. An investigation, inquiry, or hearing may be undertaken or held by the City Manager or his or her designee or assignee. The person to whom a matter is assigned shall be deemed a "Hearing Officer." In any matter so assigned to the Hearing Officer conducting the investigation, inquiry, or hearing, the Hearing Officer shall report within thirty (30) days his or her order, findings, decision, or award based on 12 the record of the case. 1. In such hearings, investigations, and inquiries by the Hearing Officer, he or she shall not be bound in the conduct thereof by the common law or statutory rules of evidence and procedure but inquiry shall be made in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the public parties and carry out justly the spirit and provisions of this Chapter. 2. No formality in any proceeding or the manner of taking testimony shall invalidate any other decision, award, or rule made as specified in this Chapter. No order, decision, award, or rule shall be invalidated because of the admission into the record and the use as any proof of fact in dispute or any evidence not admissible under the common law or statutory rules of evidence and procedure. C. Settlement In Lieu of Hearing. For a second or third alleged violation of this Chapter within any thirty -six (36) month period, the City Manager, or his or her designee, may engage in settlement negotiations and may enter into a settlement agreement with a Tobacco Retailer alleged to have violated this Chapter, without approval of the City Council, to stipulate the penalties provided in this section in lieu of the penalties that would otherwise apply under this Chapter and to forego a hearing on the allegations. Notice of any settlement shall be provided to the Chief of Police and no hearing shall be held. Settlements shall not be confidential and shall contain the following minimum terms: 1. Upon a second alleged violation of this Chapter at a location within any thirty -six (36) month period- i. an administrative penalty of seven hundred fifty dollars ($750); and ii. an admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violation. 2. Upon a third alleged violation of this Chapter at a location within any thirty -six (36) month period- i. an agreement to stop acting as a Tobacco Retailer for at least seven (7) days; ii. an administrative penalty of one thousand dollars ($1,000); and iii. an admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violations. D. Appeal of Denial or Revocation. A decision of the Chief of Police or Hearing Officer to deny or revoke a license is appealable to the City Manager, or his or her designee, and must be filed with the City Clerk within ten days of mailing of the Chief of Police or Hearing Officer's decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager is not available for a revocation made pursuant to subsection (E) below. 13 E. Revocation of License Wrongly Issued. A Tobacco Retailer's license shall be revoked if the Chief of Police or Hearing Officer finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 4.40.050 existed at the time application was made or at any time before the license issued. The decision by the Chief of Police or Hearing Officer shall be the final decision of the City. Such a revocation shall be without prejudice to the filing of a new license application. F. New License after Revocation: 1. 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 said location unless: a. The business at the location has been transferred to a new Proprietor or Proprietors; and b. The new Proprietor(s) provide the City with evidence that the new Proprietor(s) has acquired or is acquiring the location in an Arm's Length Transaction. 2. Issuance of a new license for a location at which a violation of this Chapter has occurred shall not be issued except as follows: a) After revocation for a second violation of this Chapter at a location within any thirty -six (36) month period, no new license may issue for the location until thirty (30) days have passed from the date of revocation. b) After revocation for a third violation of this Chapter at a location within any thirty -six (36) month period, no new license may issue for the location until ninety (90) days have passed from the date of revocation. c) After revocation for a fourth violation of this Chapter at a location within any thirty -six (36) month period, no new license may issue for the location until one - hundred eighty (180) days have passed from the date of revocation. d) After revocation for five or more violations of this Chapter at a location within any thirty -six (36) month period, no new license may issue for the location until one (1) year has passed from the date of revocation. 4.40.100 Tobacco Retailing without a License A. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Chief of Police or a Hearing Officer finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any Person has engaged in Tobacco Retailing at a location without a valid Tobacco Retailer's license, either 14 directly or through the Person's agents or employees, the Person shall be ineligible to apply for, or to be issued, a Tobacco Retailing license as follows: 1. After a first violation of this section at a location within any sixty -month (60) period, no new license may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until sixty (60) days have passed from the date of the violation. 2. After a second violation of this section at a location within any sixty -month (60) period, no new license may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until one - hundred eighty (180) days have passed from the date of the violation. 3. After of a third or subsequent violation of this section at a location within any sixty -month (60) period, no new license may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until two (2) years have passed from the date of the violation. 4.40.110 Enforcement A. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. B. Whenever evidence of a violation of this Chapter is obtained in any part through the participation of a Youth Decoy 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 Chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. C Violations of this Chapter may, in the discretion of the District Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require. D. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall also constitute a violation of this Chapter. E. Violations of this Chapter are hereby declared to be public nuisances. F. In addition to other remedies provided by this Chapter or by other law, any violation of this Chapter may be remedied by a civil action brought by the City, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. Section 11. The definitions for "community park" and "park recreation area" are hereby deleted from Section 5.56.040 of the Dublin Municipal Code. Section 12. Section 5.56.050.0 of the Dublin Municipal Code is hereby amended to read as follows: 15 C. Smoking shall be prohibited in the following unenclosed places- 1 . Dining areas that are part of a restaurant, business, nonprofit entity, place of employment, or located in any public place; 2. Any City park; 3. Any place where people are using or waiting for a service, entry, or a transaction whether or not such service includes the exchange of money including, but not limited to, ATMs, bank teller windows, telephones, ticket lines, bus stops and cab stands; 4. Any City- sponsored event, except in any area designated by the city as a smoking area. City- sponsored events may have one (1) but not more than three (3) designated smoking areas of an appropriate size, provided the area is prominently marked with signs and is located the greatest distance practicable from all areas of high pedestrian traffic, any parking lots, and any area in which smoking is prohibited by this code, state law, or federal law. In no case shall a designated smoking area be placed less than twenty -five (25) feet from such areas; 5. Smoking is prohibited in all multi -unit residence common areas, except that a landlord may designate a portion of the outdoor area of premises as a smoking area as provided in subsection (C)(6)(a) of this section. a. A designated smoking area: Must be located a reasonable distance from any area where smoking is prohibited; and ii. Must be no more than twenty -five percent (25 %) of the total outdoor area of the premises for which it is designated; and iii. Must have a clearly marked perimeter; and iv. Must be identified by one conspicuous sign at the designated smoking area, and one conspicuous sign elsewhere on the premises; and v. Must not overlap with any area in which smoking is otherwise prohibited by this Chapter or other provisions of this code, state law, or federal law. b. If a suitable area cannot be determined, an exemption from the requirements of this section may be granted at the discretion of the City Manager, or his or her designee; provided, that the smoking area does not 16 overlap with any area otherwise prohibited by other provisions of this code, state law, or federal law. c. Nothing shall prevent a multi -unit residence from designating all outdoor areas of the premises as nonsmoking; 6. The unenclosed spaces of any parcel on which a private single - family residence licensed as a family day care home exists. Section 13. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of Dublin hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. Section 14. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 15. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this 4t" day of December, 2012. AYES: NOES: ABSENT: ABSTAIN: 17 Tim Sbranti, Mayor ATTEST: Caroline Soto, City Clerk im