11 Staff Report - Smoking Ordinance Discussion
PREPARED BY: Robert Schultz
Town Attorney
Reviewed by: Town Manager, Assistant Town Manager, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 10/01/2019 ITEM NO: 11
DATE: September 25, 2019
TO: Mayor and Town Council
FROM: Robert Schultz, Town Attorney
SUBJECT: Review of Tobacco Retailers Ordinance and Annual Report from County of
Santa Clara on Implementation of the Ordinance and Discuss Potential
Amendments to the Ordinance to Prohibit the Sale of Electronic Smoking
Devices
RECOMMENDATION:
Staff recommends that Council discuss and provide direction on whether staff should draft
amendments to the Tobacco Retailers Ordinance regarding the prohibition of electronic
smoking device sales.
BACKGROUND:
In 2016, the Town Council recognized the dangers of smoking and secondary smoke and
adopted amendments to the Town’s Smoking Regulations to prohibit smoking in the Town's
public spaces, including outdoor dining areas, entryways, public events, recreation areas, and
service areas and multi-family residential units. In addition, in 2017, the Town Council adopted
an ordinance (Attachment 1) to address regulating the sales of tobacco by businesses in Los
Gatos. The primary components of the Ordinance are:
• Require all establishments selling tobacco products to obtain a Tobacco Retailing
Permit (TRP) from the Town.
• Require an annual Permit renewal.
• Require an annual inspection of the premises for compliance with the requirements.
• Require TRP be displayed in a publicly visible location at the licensed location.
• Prohibit the sale or transfer of tobacco products to anyone under the age of 21.
• Prohibit a person under the age of 21 to engage in tobacco retailing.
• Prohibit all self-service displays of tobacco products.
• Prohibit the sale of flavored tobacco products.
• Prohibit the sale of tobacco products in pharmacies.
PAGE 2 OF 3 SUBJECT: Review of Tobacco Retailers Ordinance and Annual Report from County of Santa Clara on implementation of the Ordinance DATE: September 25, 2019
BACKGROUND (continued):
• Prohibit new tobacco retailing within 1,000 feet of a school, parks, and playgrounds.
• Prohibit any new tobacco retailers within 500 feet of another tobacco retailer.
• Include fines for permit violations.
• Allow for a process for Permit suspension and revocation for violations.
After the Tobacco Retailers Ordinance was adopted by the Town Council, the Town entered
into an Agreement with the County of Santa Clara that allowed the County of Santa Clara to
administer the ordinance and collect the annual permit fees. Attachment 2 is an Annual
Report from the County of Santa Clara on the implementation and enforcement of our Tobacco
Retailer ordinance.
DISCUSSION:
The Town Council did not include this topic at its Strategic Priorities goal setting session or as an
identified Ordinance for the Town Attorney to work on. The Mayor, at his discretion, has
requested this item be placed on the agenda.
The Mayor’s primary concern for needing amendments to our Tobacco Retail Ordinance are
associated with the growth in sales of e-cigarettes, electronic smoking devices and electronic
smoking device paraphernalia, such as vaping devices. According to many studies, the sale of
electronic cigarettes poses a risk to public health. In addition, most electronic cigarettes have
not obtained a premarket review order from the U.S. Food and Drug Administration to
determine their appropriateness for the protection of the public health.
Virtually all e-cigarettes are considered “new tobacco products” under the Family Smoking
Prevention and Tobacco Control Act enacted by Congress in 2009. The U.S. Food and Drug
Administration (FDA) is responsible for conducting a premarket review of all new tobacco
products not on the market as of February 15, 2007. The FDA’s premarket review process is
intended to determine if a tobacco product is appropriate for the protection of the public
health “with respect to the risks and benefits to the population as a whole, including users and
nonusers of the tobacco product, and taking into account- (A) the increased or decreased
likelihood that existing users of tobacco products will stop using such products; and (B) the
increased or decreased likelihood that those who do not use tobacco products will start using
such products.”
Tobacco companies are required to report to the FDA for premarket review any information
concerning health risks, the components, ingredients, additives, and manufacturing methods.
PAGE 3 OF 3 SUBJECT: Review of Tobacco Retailers Ordinance and Annual Report from County of Santa Clara on implementation of the Ordinance DATE: September 25, 2019
DISCUSSION (continued):
Unfortunately, nearly all e-cigarettes on the market have not obtained a premarket review
order and the FDA has not taken appropriate action to enforce the requirements of the
Tobacco Control Act.
Nationwide, electronic cigarette use has increased at alarming rates since the first products
became available about 10 years ago. While there have been many successful efforts to reduce
underage tobacco use, the growing availability of e-cigarettes has reversed those positive
trends. The Town’s current regulations prohibit the sale of all electronic cigarette products that
have “a constituent or additive, an artificial or natural flavor or aroma…”
The Mayor has expressed an interest in protecting the public, particularly our youth, from
products that contribute substantially to increased drug use and exposure to harmful
substances. Both the Mayor and Town Attorney have attended seminars related to this topic
and the materials and other articles are included in Attachment 3 and 4.
If the Council desires, an amendment could be drafted to expand the prohibition on electronic
cigarette products to include any device or delivery system which can be used to consume
nicotine in aerosolized or vaporized form. Products would be identified as prohibited for sale if
they are “new tobacco products” which require FDA premarket review and have not been
issued an order approving their marketing.
CONCLUSION:
Council should discuss and provide direction on whether staff should draft amendments to the
Tobacco Retailers Ordinance.
Attachments:
1. Ordinance No. 2259
2. Los Gatos Tobacco Retail Permit Annual Summary
3. Material Received from Mayor Leonardis
4. Material Received from Bay Area City Attorneys Meeting
ORDINANCE 2259
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
REQUIRING THE LICENSURE OF TOBACCO RETAILERS AND ADDING SECTION
18.60.020 TO THE TOWN CODE OF LOS GATOS ENTITLED PERMITS FOR RETAILERS
OF TOBACCO PRODUCTS AND /OR ELECTRONIC SMOKING DEVICES
WHEREAS, tobacco use causes death and disease and continues to be an urgent public
health challenge; and
WHEREAS, the Town Council recently adopted Ordinance 2254 to regulate smoking
within the Town of Los Gatos and protect the public and environment from secondhand
smoke; and
WHEREAS, nationally, the failure of tobacco retailers to comply with all tobacco control
laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent
threat to the public health, safety, and welfare and therefore is a threat to the public health,
safety, and welfare of the residents of the Town of Los Gatos; and
WHEREAS, a local licensing system for tobacco retailers is appropriate to ensure that
retailers comply with tobacco control laws and business standards of the Town of Los Gatos, to
protect the health, safety, and welfare of the Town's residents; and
WHEREAS, the California Legislature has recognized the danger of tobacco use and has
made reducing youth access to tobacco products a high priority, as evidenced by the fact that:
1. The Legislature has declared that smoking is the single most important source of
preventable disease and premature death in California (Cal. Health & Safety Code §
118950); and
2. State law prohibits the sale or furnishing of cigarettes, tobacco products, and smoking
paraphernalia to anyone under the age of 21 (Cal. Pen. Code § 308); and
3. State law requires that tobacco retailers check the identification of tobacco purchasers
who reasonably appear to be under 21 years of age (Cal. Bus. & Prof. Code § 22956) and
provides procedures for using minors to conduct onsite compliance checks of tobacco
retailers (Cal. Bus. & Prof. Code § 22952); and
4. State law prohibits the sale or furnishing of electronic cigarettes to minors (Cal. Health &
Safety Code § 119405).
WHEREAS, state law requires all tobacco retailers to be licensed by the Board of
Equalization primarily to curb the illegal sale and distribution of cigarettes due to tax evasion
and counterfeiting (Cal. Bus. & Prof. Code §§ 22970.1, 22972); and
1 of 14
Ordinance 2259 May 16, 2017
WHEREAS, state law explicitly permits cities and counties to enact local tobacco retail
licensing ordinances, and allows for the suspension or revocation of a local license for a
violation of any state tobacco control law (Cal. Bus. & Prof. Code § 22971.3); and
WHEREAS, over 148 towns, cities and counties in California have passed tobacco retailer
licensing ordinances in an effort to stop minors from using tobacco; and
WHEREAS, the Town of Los Gatos has a substantial interest in promoting compliance
with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging
the illegal purchase of tobacco products by minors; in promoting compliance with laws
prohibiting sales of cigarettes and tobacco products to minors; and finally, and most
importantly, in protecting children from being lured into illegal activity through the misconduct
of adults; and
WHEREAS, the 2011 Tobacco Products Scientific Advisory Committee (TPSAC) Report
made findings that the availability of menthol cigarettes has an adverse impact on public health
in the U.S. and recommended removal of menthol cigarettes from the marketplace and that the
Menthol's anesthetizing effect makes the smoke "smooth" and easier to inhale while masking
the harshness of tobacco, making menthol cigarettes more appealing to youth and beginner
smokers; and
WHEREAS, a policy statement published by the American Academy of Pediatrics in
November 2015, recommended a complete ban on all flavors used in electronic smoking
devices, including menthol flavoring; and
WHEREAS, in 2016, California Medical Association (CMA) issued a white paper titled
Flavored and Mentholated Tobacco Products: Enticing a New Generation of Users states,
Research supports the finding that flavors and menthol tobacco products are "starter"
products that establish daily habits and increase addiction to tobacco products, make it harder
to quit, and increase use of multiple tobacco products concurrently." although the use of
cigarettes is declining in the United States (U.S.), sales of menthol cigarettes have steadily
increased in recent years, especially among young people and new smokers; and
WHEREAS, the Town Council finds that the regulations imposed by this Section provide
a reasonable opportunity for tobacco retailers to operate within the Town of Los Gatos. In the
establishment of these regulations, the Town Council considered their effects on the number
and suitability of locations for tobacco retailers.
NOW THEREFORE, it is the intent of the Town Council, in enacting this ordinance, to
ensure compliance with the business standards and practices of the Town 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.
2of14
Ordinance 2259 May 16, 2017
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN
AS FOLLOWS:
SECTION I.
Los Gatos Town Code Article VI — Smoking Regulations Section 18.60.020 is hereby added to
read as follows:
Sec. 18.60.020 — Permits for retailers of tobacco products and /or electronic smoking devices.
a) Intent. This Section is adopted to:
1. Ensure compliance with the business standards and practices of the Town;
2. Encourage responsible retailing of tobacco products and electronic smoking devices;
3. Discourage violations of laws related to tobacco products and electronic smoking
devices, especially those that prohibit or discourage the sale or distribution of tobacco
products and electronic smoking devices to persons under 21; and
4. Protect the public health and welfare.
This Section does not expand or reduce the degree to which the acts regulated by federal or
state law are criminally proscribed or alter the penalties provided by such laws.
b) Definitions.
For the purposes of this Section, the following definitions shall apply:
1. 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 or more informed and
willing parties, neither of which is under any compulsion to participate in the
transaction. A sale between relatives, related companies or partners, or a sale for which
a significant purpose is avoiding the effect of the violations of this Section is not an
arm's length transaction.
2. Designee means the agency selected or designated by the Town to enforce or
administer the provisions of this Section.
3. Electronic smoking device means (1) an electronic and /or battery - operated device that
can deliver an inhalable dose of nicotine to the user or (2) any product intended or sold
for use with such a device. "Electronic smoking device" includes any product meeting
this definition, regardless of whether it is manufactured, distributed, marketed or sold
as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic
hookah, electronic vape, vaporizer or any other product name or descriptor.
4. Ownership means possession of a ten percent or greater interest in the stock, assets, or
income of a business, other than a security interest for the repayment of debt.
5. School means a public or private elementary, middle, junior high or high school.
3of14
Ordinance 2259 May 16, 2017
6. Tobacco product means (unless specifically noted elsewhere):
a. Any product subject to Subchapter IX [21 U.S.C. § 387 et seq. ( "Subchapter IX ")) of
the Federal Food, Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b) (products subject
to Subchapter IX); 21 C.F.R. §§ 1100.1- 1100.3 (tobacco products subject to
Subchapter IX)]. Products subject to Subchapter IX include, but are not limited to,
cigarettes, cigarette tobacco, roll - your -own tobacco, smokeless tobacco, cigars, pipe
tobacco, waterpipe tobacco, and electronic nicotine delivery systems (such as; but
not limited to, electronic cigarettes, electronic cigars, electronic hookahs, vape pens,
personal vaporizers, and electronic pipes). Products subject to Subchapter IX also
include components or parts of tobacco products, such as, but not limited to, liquids
that are for use in an electronic nicotine delivery system and that contain tobacco or
nicotine or are derived from tobacco or nicotine ( "e- liquids "), vials that contain e-
liquids, and atomizers. Products that are not subject to Subchapter IX include
accessories of tobacco products, such as, but not limited to, ashtrays, spittoons, and
conventional matches and lighters that solely provide an external heat source to
initiate but not maintain combustion of a tobacco product
b. Any product for use in an electronic nicotine delivery system, whether or not it
contains tobacco or nicotine or is derived from tobacco or nicotine.
Retailer means any person who sells, exchanges, or offers to sell or exchange, for any
form of consideration, tobacco products and /or electronic smoking devices. "Retailing"
shall mean the doing of any of these things. This definition is without regard to the
quantity of tobacco products or electronic smoking devices sold, exchanged, or offered
for sale or exchange.
c) Requirements and prohibitions.
1. Permit required. It shall be unlawful for any person to act as a retailer of tobacco
products and /or electronic smoking devices in the Town of Los Gatos without first
obtaining and maintaining a valid retailer permit pursuant to this Section for each
location at which that activity is to occur. Tobacco product retailing without a valid
tobacco retailer permit is a nuisance as a matter of law.
2. Lawful business operation. It shall be a violation of this Section for any retailer to violate
any local, state, or federal law applicable to tobacco products, electronic smoking
devices, or the retailing of such products.
3. Display of permit. Each current retailer permit shall be prominently displayed in a
publicly visible place at the permitted location.
4. Notice of minimum age for purchase of electronic smoking devices. Retailers shall post
conspicuously, at each point of purchase, a notice stating that selling tobacco products
and electronic smoking devices to anyone under 21 years of age is illegal and subject to
penalties. Such notice shall be subject to the approval of the Town or its Designee.
5. Positive identification required. No retailer shall sell or transfer a tobacco product or
electronic smoking device to another person who appears to be under 30 years of age
without first examining the customer's identification to confirm that the customer is at
4of14
Ordinance 2259 May 16, 2017
least theminimum agerequired under statelawto purchase and possess the tobacco
product.
6. False andmisleading advertising prohibited. A retailer eitherwithout avalid retailer
permit or with asuspended retailer permit:
a. Shall keep alltobacco productsand electronic smoking devicesoutof public view.
b. Shall not display anyadvertisement relating totobacco productsorelectronic
smoking devices thatpromotes the saleor distributionof such productsfrom the
retailer'slocationorthat could lead areasonable consumerto believethat
tobacco productsorelectronic smoking devices can beobtainedat thatlocation.
7. Limitation onstorefront advertising. No more than 15percent of thesquare footage of
the windowsand cleardoors ofan establishment used for retailing shallbear advertising
or signs ofanysort, and alladvertising and signageshall beplaced andmaintained ina
manner that ensures that lawenforcement personnel haveaclear andunobstructed
view ofthe interiorofthe premises, includingthe area inwhich thecash registers are
maintained, fromtheexterior publicsidewalk orentrance tothepremises. However, this
latter requirement shall notapply toanestablishment where there areno windows, or
where existing windows arelocated at aheight that precludes aview oftheinterior of
the premises byaperson standing outside thepremises.
8. Flavoredtobacco products.
a. Except aspermitted inparagraph (c) of thissubsection (8), no retailershallsella
tobacco product containing, as aconstituent or additive, an artificial ornatural flavor
or aroma (other thantobacco) or an herborspice, including strawberry, grape,
orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate,
cherry, orcoffee, that isacharacterizing flavoror aromaofthe tobacco product,
smokeorvapor produced bythetobacco product.
b. A tobacco product shall besubject toa rebuttable presumption thatthe product is
prohibited byparagraph (a) ofthissubsection if:
i) The product'smanufacturer orany otherperson associatedwith the
manufacture orsale oftobacco products makes ordisseminates public
statements orclaims totheeffect thatthe product hasorproduces a
characterizing flavoror aroma, other than tobacco; or
ii) The product'slabel, labeling, or packaging includes astatement orclaim
including anytextand/orimages used to communicateinformationthat the
product hasor produces acharacterizing flavor oraromaother than tobacco.
c.Paragraph (a) ofthis subsection (8) shall not applyto anyretailer that meetsall ofthe
following criteria:
i) Primarily sells tobacco products;
ii) Generates more than 60percent ofits grossrevenues annually from thesale
of tobacco products;
iii) Does not permit anyperson under 21 years of ageto bepresentorenter the
premises atanytime, unlessaccompanied by theperson's parent orlegal
guardian, as defined inSection 6903 of theFamily Code;
iv) Does not sell alcoholicbeverages orfood forconsumptionon thepremises;
and
5of14
Ordinance2259 May16, 2017
v) Posts a sign outside the retail location that clearly, sufficiently, and
conspicuously informs the public that persons under 21 years of age are
prohibited from entering the premises.
9. Vending machines prohibited. No tobacco product or electronic smoking device shall
be sold, offered for sale, or distributed to the public from a vending machine or
appliance, or any other coin or token operated mechanical device designed or used for
vending purposes, including, but not limited to, machines or devices that use remote
control locking mechanisms.
10. Prohibition on sale or distribution of tobacco products or electronic smoking devices
to persons under 21 years. No retailer shall sell, offer for sale, or distribute any
tobacco product or electronic smoking device to any individual who is under 21 years
of age.
d) Eligibility requirements for a permit.
1. No retailer permit maybe issued to authorize retailing at other than a fixed location. For
example, retailing by persons on foot or from vehicles is prohibited.
2. No retailer permit maybe issued to authorize retailing at a temporary or recurring
temporary event. For example, retailing at flea markets and farmers' markets is
prohibited.
3. No retailer permit may be issued to authorize retailing at any location where the
profession of pharmacy is practiced by a pharmacist licensed by the State of California in
accordance with the Business and Professions Code and where prescription drugs are
offered for sale.
4. No retailer permit may be issued to authorize retailing at any location within 1,000 feet
of a school, as measured by a straight line between any point along the property line of
any parcel on which a school is located and any point along the perimeter of the
applicant's proposed business location; provided, however, that the prohibition
contained in this subsection (d)(4) shall not apply to the following:
a. Any retailer of tobacco products operating lawfully on the date immediately prior to
this Section becoming effective; and
b. Any retailer of electronic smoking devices operating lawfully on the date
immediately prior to this Section becoming effective; and
c. Any lawfully operating retailer of tobacco products that would otherwise become
ineligible to receive or renew a retailer permit due to the creation or relocation of a
school.
5. No retailer permit may be issued to authorize retailing at a location which is within 500
feet of a location occupied by another retailer, as measured by a straight line between
any point along the property line of any parcel on which a retailer is located and any
point along the perimeter of the applicant's proposed business location, provided,
however, that the prohibition contained in this subsection (d)(5) shall not apply to:
a. Existing retailers of tobacco products operating lawfully on the date immediately
prior to this Section becoming effective; and
6of14
Ordinance 2259 May 16, 2017
b. Existing retailers of electronic smoking devices operating lawfully on the date
immediately prior to amendment of this Section to regulate the retailing of
electronic smoking devices.
6. Any exemption granted to a retailer pursuant to this Section shall cease to apply upon
the earlier of the following to occur:
a. The retailer fails to timely renew the retailer permit pursuant to this Section.
b. Anew person obtains ownership in the business.
e) Application procedure.
1. It is the responsibility of each retailer to be informed of all laws applicable to retailing,
including those laws affecting the issuance of a retailer permit. No retailer may rely on
the issuance of a retailer permit as a determination by the Town that the retailer has
complied with all laws applicable to retailing. A retailer permit issued contrary to this
Section, contrary to any other law, or on the basis of false or misleading information
supplied by a retailer shall be revoked pursuant to this Section.
2. All retailer permit applications shall be submitted on a form supplied by the Town or its
Designee to implement this Section.
3. A permitted retailer shall inform the Town or its Designee in writing of any change in the
information submitted on an application for a retailer permit within 14 calendar days of
a change.
4. All information specified in an application pursuant to this Section shall be subject to
disclosure under the California Public Records Act (Government Code Section 6250 et
seq.) or any other applicable law, subject to any exemptions.
f) Issuance of permit.
1. Upon the receipt of a complete application for a retailer permit, the application fee, and
the annual permit fee, the Town or its Designee shall issue a retailer permit unless
substantial evidence demonstrates that one or more of the following bases for denial
exists:
a. The information presented in the application is inaccurate or false.
b. The application seeks authorization for retailing at a location for which this Section
prohibits issuance of a retailer permit.
c. The application seeks authorization for retailing by a person to whom this Section
prohibits issuance of a retailer permit.
d. The application seeks authorization for retailing that is prohibited pursuant to this
Section (e.g., mobile vending) or that is unlawful pursuant to any other law.
2. A retailer permit shall be revoked if the Town finds that one or more of the bases for
denial of a retailer permit under this Section existed at the time application was made
or at any time before the retailer permit issued. Such a revocation shall be without
prejudice to the filing of a new permit application.
3. A decision to deny issuance of a retailer permit or to revoke a retailer permit that has
been wrongly issued may be appealed pursuant to this Section.
7of14
Ordinance 2259 May 16, 2017
g) Permit term, renewal, and expiration.
1. Term of permit. The term of a retailer permit is one year. A retailer permit is invalid
upon expiration.
2. Renewal of permit. The Town or its Designee shall renew a valid retailer permit upon
timely payment of the annual permit fee. The Town or its Designee may, in its
discretion, agree to renew any expired retailer permit within the three -month period
following expiration if the retailer pays the annual permit fee and applicable late
charges. For every calendar month, or fraction thereof, that a retailer fails to renew an
expired retailer permit, a late charge equal to 20 percent of the annual permit fee shall
be assessed. A retailer permit renewed within three calendar months of expiration shall
be treated as if timely renewed.
3. Issuance of permit after revocation or expiration of permit. To apply for a new retailer
permit more than three calendar months after expiration of a retailer permit or
following revocation of a retailer permit that was wrongly issued, a retailer must submit
a complete application for a retailer permit, along with the application fee and annual
permit fee. The Town or its Designee shall issue a retailer permit pursuant to the
requirements of this Section.
h) Permits nontransferable.
1. A retailer permit may not be transferred from one person to another or from one
location to another. Whenever a new person obtains ownership in a business for which
a retailer permit has been issued, a new retailer permit shall be required, but any
exemption granted pursuant to Section (d) shall cease to apply.
2. Notwithstanding any other provision of this Section, prior violations of this Section at a
location shall continue to be counted against a location and permit ineligibility and
suspension periods shall continue to apply to a location unless:
a. One hundred percent of the interest in the stock, assets, or income of the business,
other than a security interest for the repayment of debt, has been transferred to
one or more new owners; and
b. The Town or its Designee is provided with clear and convincing evidence,
including an affidavit, that the business has been acquired in an arm's length
transaction.
i) Permit conveys a limited, conditional privilege.
Nothing in this Section shall be construed to grant any person obtaining and maintaining a
retailer permit any status or right other than the limited, conditional privilege to act as a
retailer at the location in the Town identified on the face of the permit.
Sof14
Ordinance 2259 May 16, 2017
j) Fees.
The Town or its Designee shall not issue or renew a retailer permit prior to full payment of
any applicable fees. The Town shall, from time to time, establish by resolution the fees to
issue or to renew a retailer permit. The fees shall be calculated so as to recover the cost of
administration and enforcement of this Section, including, for example, issuing a permit,
administering the permit program, conducting retailer education, performing retailer
inspection and compliance checks, documenting violations, and prosecuting violators, but
shall not exceed the cost of the regulatory program authorized by this Section. All fees
and interest earned from such fees shall be used exclusively to fund administration and
enforcement of this Section.
k) Compliance monitoring.
1. Compliance with this Section shall be monitored by the Town or its Designee. In
addition, any peace officer may enforce the penal provisions of this Section. The Town
Manager may designate any number of additional persons to monitor and facilitate
compliance with this Section.
2. The Town or its Designee shall check each retailer at least once per 12 -month period to
determine if the retailer is complying with all laws applicable to retailing, other than
those laws regulating underage access to tobacco products or electronic smoking
devices. Nothing in this paragraph shall create a right of action in any retailer or other
person against the Town or its agents.
1) Prevention of underage sales.
1. The Town or its Designee shall check each retailer to determine whether the retailer is
conducting business in a manner that complies with laws regulating youth access to
tobacco products or electronic smoking devices. Nothing in this paragraph shall create a
right of action in any retailer or other person against the Town or its agents.
2. The Town or its Designee shall not enforce any law establishing a minimum age for
tobacco product or electronic smoking device purchases or possession against a person
who otherwise might be in violation of such law because of the person's age ( "Youth
Decoy ") if the potential violation occurs when:
a. The Youth Decoy is participating in a compliance check supervised by a peace officer
or a code enforcement official of the Town;
b. The Youth Decoy is acting as an agent of a person designated by the Town to
monitor compliance with this Section; or
c. The Youth Decoy is participating in a compliance check funded in part, either directly
or indirectly through subcontracting, by the Town, or the California Department of
Public Health.
9of14
Ordinance 2259 May 16, 2017
m) Penalties for a violation by a retailer with a permit.
1. In addition to any other penalty authorized by law, an administrative fine shall be
imposed and a retailer permit shall be suspended if any court of competent jurisdiction
determines, or the Town or its Designee finds based on a preponderance of the
evidence, after the retailer is afforded notice and an opportunity to be heard, that the
retailer, or any of the retailer's agents or employees, has violated any of the
requirements, conditions, or prohibitions of this Section, has pled guilty, "no contest" or
its equivalent to such a violation, or has admitted to such a violation.
2. Amount of fine. Each such violation shall be subject to an administrative fine as follows:
a. A fine not to exceed $100.00 for a first violation within a 12 -month period;
b. A fine not to exceed $200.00 for a second violation within a 12 -month period; and
c. A fine not to exceed $500.00 for each additional violation within a 12 -month period.
3. Time period for permit suspension.
a. For a first violation of this Section at a location within any 24 -month period, the
retailer permit shall be suspended for up to 30 calendar days.
b. For a second violation of this Section at a location within any 24 -month period,
the retailer permit shall be suspended for up to 90 calendar days.
c. For each additional violation of this Section at a location within any 24 -month
period, the retailer permit shall be suspended for up to one year.
4. Waiver of penalties for first violation. The Town or its Designee may waive any penalties
for a retailer's first violation of any requirement, condition or prohibition of this Section,
other than a violation of a law regulating youth access to tobacco products or electronic
smoking devices, if the retailer admits the violation in writing and agrees to forego a
hearing on the allegations. Regardless of the Town's or its Designee's waiver of penalties
for a first violation, the violation will be considered in determining the penalties for any
future violation.
5. Corrections period. The Town or its Designee shall have discretion to allow a retailer a
period of time to correct any violation of any requirement, condition or prohibition of
this Section, other than a violation of a law regulating youth access to tobacco products
or electronic smoking devices. If a retailer's violation is corrected within the time
allowed for correction, no penalty shall be imposed under this Section.
6. Appeals. Any penalties imposed under this Section may be appealed pursuant to Section
A18 -381 of this Section.
n) Penalties for retailing without a permit.
1. Administrative fine. In addition to any other penalty authorized by law, an
administrative fine and an ineligibility period for application or issuance of a retailer
permit shall be imposed if a court of competent jurisdiction determines, or the Town or
its Designee finds based on a preponderance of evidence, after notice and an
opportunity to be heard, that any person has engaged in retailing at a location without a
valid retailer permit, either directly or through the person's agents or employees, has
10 of 14
Ordinance 2259 May 16, 2017
pled guilty, "no contest" or its equivalent to such a violation, or has admitted to such a
violation.
2. Amount offine. Each such violation shall be subject to an administrative fine as follows:
a. A fine not to exceed $100.00 for a first violation within a 12 -month period;
b. A fine not to exceed $200.00 for a second violation within a 12 -month period;
and
c. A fine not to exceed $500.00 for each additional violation within a 12 -month period.
3. Time period for permit ineligibility.
a. For a first violation of this Section at a location within any 24 -month period, no new
retailer permit may be issued for the person or the location (unless ownership of the
business at the location has been transferred in an arm's length transaction) until 30
calendar days have passed from the date of the violation.
b. For a second violation of this Section at a location within any 24 -month period, no
new retailer permit may be issued for the person or the location (unless ownership
of the business at the location has been transferred in an arm's length transaction)
until 90 calendar days have passed from the date of the violation.
c. For each additional violation of this Section at a location within any 24 -month
period, no new retailer permit may be issued 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 year has passed from the date of the violation.
4. Waiver of penalties for first violation. The Town or its Designee may waive any penalties
for a retailer's first violation of this Section, unless the violation also involves a violation
of a law regulating youth access to tobacco products or electronic smoking devices, if
the retailer admits the violation in writing and agrees to forego a hearing on the
allegations. Regardless of the Town's or its Designee's waiver of penalties for a first
violation, the violation will be considered in determining the penalties for any future
violation.
5. Appeals. Any penalties imposed under this Section may be appealed pursuant to this
Section.
o) Appeals.
1. A decision to deny issuance of a retailer permit, to revoke a retailer permit that has
been wrongly issued, or to impose penalties for a violation of this Section can be
appealed to a hearing officer, subject to the following requirements and procedures.
The hearing officer shall be the Town Manager or its Designee.
2. All appeals must be in writing, state the grounds asserted for relief and the relief
sought, and be filed with the Town or its Designee within ten calendar days of receipt of
notice of the appealed action. If such an appeal is made, it shall stay enforcement of the
appealed action.
3. No later than 15 calendar days after receipt of the appeal, the hearing officer shall set
an appeal hearing at the earliest practicable time and shall give notice of the hearing to
the parties at least ten calendar days before the date of the hearing.
11 of 14
Ordinance 2259 May 16, 2017
4. Neither the provisions of the Administration Procedure Act (Government Code Section
11500 et seq.) nor the formal rules of evidence in civil or criminal judicial proceedings
shall apply to such hearing. At the hearing, the hearing officer may admit any evidence,
including witnesses, relevant to the determination of the matter, except as otherwise
provided in Section A18- 382(c) of this Section. A record of the hearing shall be made by
any means, including electronic recording, so long as a reasonably accurate and
complete written transcription of the proceedings can be made.
5. The hearing officer may continue the hearing from time to time, in his or her sole
discretion, to allow for orderly completion of the hearing.
6. After the conclusion of the hearing, the hearing officer shall issue a written decision,
which shall be supported by substantial evidence. Notice of the written decision,
including findings of facts, conclusions of law, and notification of the time period in
which judicial review may be sought pursuant to Code of Civil Procedure Section 1094.6,
shall be served upon all parties no later than 20 calendar days following the date on
which the hearing closed. Any decision rendered by the hearing officer shall be a final
administrative decision.
p) Enforcement.
1. Any violation of this Section is hereby declared to be a public nuisance.
2. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this
Section shall also constitute a violation of this Section.
3. Whenever evidence of a violation of this Section is obtained in any part through the
participation of a person under the age of 18 years old, such a person shall not be
required over his or her objection to appear or give testimony in any civil or
administrative process brought to enforce this Section and the alleged violation shall be
adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
4. Violations of this Section may be remedied by a civil action brought by the Town,
including, but not limited to, administrative or judicial nuisance abatement proceedings,
civil code enforcement proceedings, and suits for injunctive relief. For the purposes of
the civil remedies provided in this Section, each day on which a tobacco product or
electronic smoking device is offered for sale in violation of this Section, and each
individual retail tobacco product or electronic smoking device that is distributed, sold, or
offered for sale in violation of this Section, shall constitute a separate violation of this
Section.
5. Any person found guilty of violating any provision of this Section shall be deemed guilty
of an infraction, punishable as provided by California Government Code § 25132.
6. The remedies provided by this Section are cumulative and in addition to any other
remedies available at law or in equity.
12 of 14
Ordinance 2259 May 16, 2017
SECTION II
The Town Council finds and determines that the adoption of this ordinance is exempt
from the requirements of the California Environmental Quality Act (CEQA) per CEQA Guidelines
under the General Rule (Section 15061(b)(3)), which sets forth that the CEQA applies only to
projects which have the potential for causing a significant effect on the environment. It can be
seen with certainty that the proposed Town Code text amendments will have no significant
negative effect on the environment.
SECTION III
If any provision of this ordinance or the application thereof to any person or
circumstances is held to be invalid, such invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable. The Town Council
hereby declares that it would have adopted this ordinance irrespective of the invalidity of any
particular portion thereof and intends that the invalid portions should be severed and the
balance of the ordinance be enforced.
SECTION IV
Except as expressly modified in this Ordinance, all other Sections set forth in the Los
Gatos Town Code shall remain unchanged and shall be in full force and effect.
SECTION V
This Ordinance shall take effect on January 1, 2018. In lieu of publication of the full text
of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be
published at least five (5) days prior to and fifteen (15) days after adoption by the Town Council
and a certified copy shall be posted in the office of the Town Clerk, pursuant to GC 36933(c)(1).
13 of 14
Ordinance 2259 May 16, 2017
SECTION VI
This Ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos on the 2nd day of May, 2017, and adopted by the following vote as an ordinance of
the Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on
the 16`" day of May, 2017.
COUNCIL MEMBERS:
AYES: Marcia Jensen, Steve Leonardis, Rob Rennie, Barbara Spector, Mayor Marico Sayoc
NAYS: None.
ABSENT: None.
ABSTAIN: None.
SIGNED:
f/f " D
MAYOR OF TH TOWN S GATOS
LOS GATOS, C IA
DATE: 5-1-7
ATTEST:
zV&Q-w-t -,\Vn
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE:
14 of 14
Ordinance 2259 May 16, 2017
Santa Clara County Public Health Department
Tobacco-Free Communities Program
City-County Tobacco Retail Permitting Annual Summary
In August 2017, the County of Santa Clara and the Town of Los Gatos entered in a City-County Tobacco
Retail Permitting (TRP) Agreement where the County is responsible for the implementation,
administration, monitoring, and enforcement (except tobacco sales to minors laws) of the Town’s
ordinance. Below is an annual summary of the ordinance within its first year of implementation.
OVERVIEW OF LOS GATOS’S TOBACCO RETAIL LANDSCAPE
Prior to the implementation of the TRP, there were a total of 29 tobacco retailers in the Town of Los
Gatos. However, post-policy implementation has resulted in a decrease of ten tobacco retailers. Five
businesses were restricted from selling tobacco products because they had a licensed pharmacist on-site
(Rite Aid and Safeway), four businesses did not apply for the TRP and are no longer engaging in the sale
of tobacco products (Maple Leaf Donuts, Blossom Valley Valero, Safeway Store 742, and Lunardi’s
Market), and two locations are no longer in business (Smith’s Liquor and Los Gatos Cigar Club).
As of September 2019, a total of 19 businesses are permitted by the Santa Clara County Department of
Environmental Health to sell tobacco products in the Town of Los Gatos (see Table 1). Eleven stores are
located within 500 feet of an existing tobacco retailer and 10 are located within 1,000 feet of a school
(defined as public or private elementary, middle, junior high, and high school). Currently, there are no
adult-only tobacco stores operating in the Town of Los Gatos.
Since the effective date of the Tobacco Retail Permitting Ordinance, no new businesses have made
attempts to apply for a TRP. However, we identified one new e-commerce business engaging in tobacco
sales and we are determining their tobacco retail permit eligibility.
Table 1: List of Permitted Tobacco Retailers in the Town of Los Gatos
Store Name Address 500 ft. of tobacco
retailers
1,000 ft. of schools
1. Los Gatos 76
(Mobil)
666 N. Santa Cruz Ave. 7-11 2233-14221 (235
ft.)
2. Rotten Robbie #1 15299 Los Gatos Blvd. Los Gatos 76 (Los Gatos
Blvd) (258 ft.)
3. Marsh Fuel (Los
Gatos Chevron)
200 Los Gatos Saratoga
Rd.
Village Liquors (160 ft.),
Shell of Los Gatos (396
ft.)
4. Carry Nations 8 N. Santa Cruz Ave. St. Mary's Catholic
School (310 ft.)
5. Los Gatos Valero 16500 Los Gatos Blvd. Los Gatos Wines &
Liquor (85 ft.)
Louis Van Meter
Elementary (302 ft.)
6. 7-Eleven Store
2233-14221
657 N. Santa Cruz Ave. Los Gatos 76 (Santa
Cruz Ave.) (235 ft.)
7. Village Liquors 211 Los Gatos Saratoga
Rd.
Marsh Fuel (160 ft.),
Shell of Los Gatos (411
ft.)
8. Los Gatos Chevron 700 Blossom Hill Rd.
9. Los Gatos Almaden
Chevron
441 Leigh Ave. Stratford School Los
Gatos (755 ft.), South
Valley Carden School
(SJ) (650 ft.), Leigh High
School (SJ) (144 ft.)
10. 7-Eleven Store
2233-14211B
280 E. Main St. Dio Deka (478 ft.) Los Gatos High (177 ft.)
11. Los Gatos Wine &
Liquors
16498 Los Gatos Blvd. Los Gatos Valero (85
ft.)
Louise Van Meter
Elementary (220 ft.)
12. Dio Deka 210 E. Main St. 7-11 #2233-14211B
(478 ft.)
Los Gatos High (110 ft.)
13. Los Gatos Cigar
Club
21 College Ave. Los Gatos High (734 ft.)
14. MJ Market &
Liquor
15665 Los Gatos Blvd.
15. Valero of Los Gatos
(formerly Shell of
Los Gatos)
255 Los Gatos Saratoga
Rd.
Marsh Fuel (396 ft.),
Village Liquors (411 ft.)
16. Rinconada Liquor
Store
1480 Pollard Rd. Rolling Hills Middle
School (Campbell) (348
ft.)
17. Los Gatos 76 15380 Los Gatos Blvd. Rotten Robbie #1 (258
ft.)
18. Black Watch 141 ½ N. Santa Cruz
Ave.
St. Mary's Catholic
School (509 ft.)
19. Lark Ave. 76 15171 Los Gatos Blvd. Rainbow of Knowledge
Elementary School (521
ft.)
LOS GATOS TOBACCO RETAILER INSPECTIONS
The Santa Clara County Department of Environmental Health conducted tobacco compliance checks in
the permitted Los Gatos tobacco retailers during the month of March 2019. Please see Table 2 for
summary of outcomes. All the stores listed above, with the exception of Lark Ave. 76 were visited.
Table 2: Summary of the Tobacco Compliance Checks
Indicator % Stores in
Compliance
Santa Clara County (SCC) TRP Available 94% (n=16)
SCC TRP Posted in Public View 59% (n=10)
California Department of Tax and Fee Administration (CDTFA) Tobacco License Posted
in Public View
88% (n=15)
Self-Service Tobacco and/or Electronic Smoking Device Displayed 100% (n=17)
STAKE Act Warning Signs Posted at Point(s) of Purchase 71% (n=12)
Sale of Cigarette Packs Containing <20 Cigarettes 100% (n=17)
Advertising and Signage Covers >15% of Windows and Clear Doors 88% (n=15)
Advertising and Signage Obstructs a Clear View into the Interior of the Premises 88% (n=15)
Sale of Flavored Tobacco Products 71% (n= 12)
Tobacco Sampling and/or Coupon Distribution 100% (n=17)
Smoking in an Enclosed Space at a Place of Employment 100% (n=17)
As reflected in Table 2, all the stores have a SCC TRP, and almost all the stores had them available in the
store during the time of the visit. A little over half of stores had their SCC TRP posted in public view, a
requirement of the Ordinance, and remaining stores were asked by the Santa Clara County Department
of Environmental Health Inspector to correct the issue. More than three-quarters of stores had their
CDTFA tobacco license posted in public view and those that did not were asked by the Inspector to
correct the issue. Over three-quarters of the stores had their STAKE (Stop Tobacco Access to Kids
Enforcement) Act sign posted at each point of purchase. To support stores come in compliance with this,
Santa Clara County Public Health Department staff have mailed the required signage to the businesses.
Over two-thirds of stores were in compliance with the flavored tobacco restriction, however stores that
were out of compliance were asked to immediately cease the sales of all flavored tobacco products. The
Santa Clara County Department of Environmental Health mailed follow-up letters to businesses notifying
them of their violations and conducted re-inspection visits in September 2019, particularly to ensure
that stores not exempted from the flavored tobacco restriction have continued to cease sales of
flavored tobacco products.
ATTACHMENT 3