HomeMy WebLinkAboutOrd 20-12 Smoke Pollution Control Amend ORDINANCE NO. 20 — 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
WHEREAS, the City Council did hear and use its independent judgment and considered all said
reports, recommendations and testimony hereinabove set forth; and
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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:
CHAPTER 8.43
TOBACCO RETAILERS
Sections:
8.43.010 Purpose.
8.43.020 Intent.
8.43.030 Definitions.
8.43.040 Development Standards and Regulations.
8.43.050 Zoning Clearance.
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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.
"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
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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.
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.B, 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.B, 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.
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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, 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:
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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.
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.
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"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 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.
B. 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.
C. Display of License. Each Tobacco Retailer license shall be prominently displayed in a publicly
visible location at the licensed location.
D. 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 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.
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•
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
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.
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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.
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.
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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.
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
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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 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
H. an admission that the violation occurred and a stipulation that the violation will be
considered in determining the penalty for any future violation.
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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.
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.
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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 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.
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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:
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:
i. 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
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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 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 4th day of December, 2012, by the following vote:
AYES: Councilmembers Biddle, Hildenbrand, Swalwell, and Mayor Sbranti
NOES: Vice Mayor Hart
ABSENT: None
ABSTAIN: None
Mayor
ATT ( P f
City Clerk
Ord No. 20-12,Adopted 12-4-12, Item 4.7 Page 15 of 15