HomeMy WebLinkAboutStaff Report 2409-3477CITY OF PALO ALTO
CITY COUNCIL
Special Meeting
Monday, September 23, 2024
Council Chambers & Hybrid
5:30 PM
Agenda Item
8.Adoption of an Ordinance Updating Palo Alto Municipal Code Chapter 4.64 (Permits for
Retailers of Tobacco Products) to Conform with County Amendments and Approval of the
Updated Agreement Between the County of Santa Clara and City of Palo Alto for a
Tobacco Retail Permit Program; CEQA Status – Not a Project Public Comment
City Council
Staff Report
Report Type: CONSENT CALENDAR
Lead Department: Public Works
Meeting Date: September 23, 2024
Report #:2409-3477
TITLE
Adoption of an Ordinance Updating Palo Alto Municipal Code Chapter 4.64 (Permits for
Retailers of Tobacco Products) to Conform with County Amendments and Approval of the
Updated Agreement Between the County of Santa Clara and City of Palo Alto for a Tobacco
Retail Permit Program; CEQA Status – Not a Project
RECOMMENDATION
Staff recommends that Council:
1. Adopt an ordinance amending City of Palo Alto Municipal Code Chapter 4.64, Permits
for Retailers of Tobacco Products to align the code with the Santa Clara County
Tobacco Retail Permit Ordinance; and
2. Approve the updated Agreement Between the County of Santa Clara and City of
Palo Alto for a Tobacco Retail Permit Program.
EXECUTIVE SUMMARY
The City of Palo Alto partners with the Santa Clara County Department of Public Health to
administer the Palo Alto Municipal Code (PAMC) Chapter 4.64, Permits for Retailers of Tobacco
Products.1 The existing ordinance requires permits for tobacco sellers and restricts the sale of
flavored tobacco and electronic cigarette products, among other provisions. The agreement
between the County of Santa Clara and City of Palo Alto for a Tobacco Retail Permit (TRP)
Program outlines each agency’s roles and responsibilities of Tobacco Retail Permit Ordinance
administration. Per the existing agreement, Palo Alto’s ordinance must mirror the County’s
ordinance for the County to conduct its TRP administrative and enforcement responsibilities.
The proposed Ordinance revisions (Attachment A) clarify requirements and increase fines for
noncompliant retailers; the revisions do not include any new restrictions on any tobacco
products. The proposed Agreement revisions (Attachment B), update details about Agreement
1 City of Palo Alto Municipal Code 4.64 Permits for Retailers of Tobacco Products;
https://codelibrary.amlegal.com/codes/paloalto/latest/paloalto_ca/0-0-0-64706
administration, and the roles and responsibilities of City and County staff in Ordinance
oversight and enforcement.
BACKGROUND
Council approved the most recent version of the City of Palo Alto Tobacco Retailer Permit
Ordinance (PAMC Chapter 4.64) on June 8, 2020.2 Existing law requires tobacco retailers to
obtain a permit (TRP), prohibits retailers from selling flavored tobacco and electronic
cigarette products, and stipulates duties for signage, record keeping, and related details.
ANALYSIS
The proposed Ordinance revisions required by the County are administrative in nature and
do not change any criteria for products that are prohibited from sale, or where items can be
sold.
Updated Ordinance provisions include:
1. Fines up to $2,500 and up to a 180-day suspension of a business’s TRP permit
for a second violation of the TRP Ordinance within a five-year period
2. Permanent permit revocation for a third Ordinance violation within a five-year
period. Any business continuing to sell tobacco products after TRP revocation will be
subject to additional fines
3. Increased penalties for retailers operating without a valid permit and the
following related fines:
•Up to $2,500 and 30 days of permit ineligibility for an initial violation
•Up to $5,000 and one year of permit ineligibility for a second violation
within a five-year period
•Up to $10,000 and permanent TRP ineligibility for each subsequent
violation within a five-year period
4. Businesses that have their TRP suspended must post a prominent public notice at
their business during the entire suspension period
5. Businesses must (1) consent to inspection by the County of all areas and records; and
(2) comply with any impound or seizure order issued by the County. Violations of
these provisions would be a basis for suspension/revocation of a TRP
6. If inspections reveal noncompliance with any of the Ordinance requirements, such
that reinspection is needed to determine compliance, the cost of such reinspection
will be billed to the retailer
7. Clarification that a retailer is liable for all enforcement-related fees and costs
8. Tobacco retailers are responsible for the actions of their employees relating to the
2 City Council, June 8, 2020; Agenda Item #4; SR# 11372
https://www.cityofpaloalto.org/files/assets/public/v/1/agendas-minutes-reports/reports/city-manager-reports-
cmrs/year-archive/2020/id-11372-tobacco.pdf?t=62779.86
sale and furnishing of tobacco products at the retail location; nothing in the
Ordinance shall be construed to penalize the purchase, use, or possession of a tobacco
product by any person not engaged in tobacco retailing
9. Businesses must examine an individual’s identification to confirm the age of that
person, regardless of appearance, prior to selling tobacco products to any person
FISCAL/RESOURCE IMPACT
There is no financial impact to the City in adopting this Ordinance revision. Under the
Agreement with the County, the TRP is administered and primarily staffed by the
County.
STAKEHOLDER ENGAGEMENT
The Santa Clara County Department of Health notified Palo Alto tobacco retailers about
proposed Ordinance changes on May 20, 2024 and provided a three-week comment
period.3 One retailer submitted questions about required age checks. The County provided
answers to those questions.4 The City of Palo Alto also provided information about proposed
Ordinance changes on the City’s Smoking Ordinance webpage
(www.cityofpaloalto.org/smokingordinance).
ENVIRONMENTAL REVIEW
Approval of the Ordinance and Agreement is not a project under the California Environmental
Quality Act (CEQA) because it does not cause a direct physical change in the environment or
a reasonably foreseeable indirect change in the physical environment.
ATTACHMENTS
Attachment A: Ordinance Amending PAMC Chapter 4.64
Attachment B: County-Palo Alto Amended and Restated TRP Agreement
APPROVED BY:
Brad Eggleston, Director Public Works/City Engineer
3 County of Santa Clara Public Health Department, May 20, 2024; Retailer Notification,
https://www.cityofpaloalto.org/files/assets/public/v/1/public-works/environmental-compliance/smoking-
ordinance/2024-retailer-notification-for-trp-revisions.pdf
4 County of Santa Clara Public Health Department, 2024 Answers to Retailer Questions,
https://www.cityofpaloalto.org/files/assets/public/v/1/public-works/environmental-compliance/smoking-
ordinance/santa-clara-county-dept-of-health-answers-to-retailer-questions.pdf
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Ordinance No. _____
Ordinance of the Council of the City of Palo Alto Amending Chapter 4.64
(“Permits for Retailers of Tobacco Products”) Of Title 4 (Business Licenses and
Regulations).
The Council of the City of Palo Alto ORDAINS as follows:
SECTION 1. Findings and Declarations. The City Council finds and declares as follows:
A. The City of Palo Alto and the County of Santa Clara have a partnership to regulate tobacco
retailers and the sale of tobacco products in the City of Palo Alto. The City adopts the
County’s relevant ordinance and the County enforces the City’s ordinance.
B. The County adopted County Ordinance NS-517.96 in 2022 to amend its tobacco retailing
ordinance. The City intends to make the same changes to its own ordinance through
adoption of this ordinance.
C. This Ordinance amends Palo Alto Municipal Code Chapter 4.64 (Permits for Retailers of
Tobacco Products) to authorize denial of a permit to a Retailer whose permit was
previously revoked; impose conditions on permits to facilitate enforcement; increase
fines for violations; provide for impound and seizure of noncompliant products; require
posting of public notice during any suspension; and clarify the existing prohibition on the
sale of electronic cigarette products.
SECTION 2. The following sections of Chapter 4.64 (Permits for Retailers of Tobacco
Products) of Title 4 (Business Licenses and Regulations) are hereby amended as follows (new text
underlined, deleted text in strikethrough):
CHAPTER 4.64.
PERMITS FOR RETAILERS OF TOBACCO PRODUCTS
4.64.010 Intent.
(a) This cChapter is adopted to:
(1) Ensure compliance with the business standards and practices of the countyCity;
(2) Encourage responsible retailing of tTobacco pProducts;
(3) Discourage violations of laws related to tTobacco pProducts, especially those that
prohibit or discourage the sale or distribution of tTobacco pProducts and eElectronic
cCigarette pProducts to individuals under twenty- one;
(4) Respond to a new wave of addiction to eElectronic cCigarette pProducts;
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(5) Reduce vulnerability to unexplained illnesses associated with eElectronic
cCigarette pProducts; and
(6) Protect the public health and welfare.
(b) This cChapter 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.
4.64.020 Definitions.
For the purposes of this cChapter, the following definitions shall apply:
(a) "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 cChapter is not an arm's length transaction.
(b) "Department" means any department of the City of Palo Alto or County of Santa Clara
designated by the city manager to enforce or administer this chapter, including the County of
Santa Clara's Department of Environmental Health and any agency or person designated by the
Director of the Department of Environmental Health to enforce or administer the provisions of
this cChapter.
(c) "Distribute or distribution" means the transfer, by any person other than a common
carrier, of a tTobacco pProduct to another person for sale or personal consumption.
(d) "Electronic cCigarette pProducts" means any of the following products:
(1) Any device or delivery system that can be used to deliver nicotine in aerosolized
or vaporized form, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen,
or e-hookah.
(2) Any component, part, or accessory of such a device or delivery system that is used
during its operation.
(3) Any flavored or unflavored liquid or substance containing nicotine, whether sold
separately or sold in combination with any device or delivery system that could be used
to deliver nicotine in aerosolized or vaporized form.
(4) Any product for use in an electronic nicotine device or delivery system whether or
not it contains nicotine or tobacco or is derived from nicotine or tobacco.
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(5) Electronic cCigarette pProducts shall not include any battery, battery charger,
carrying case, or other accessory not used in the operation of the device if sold
separately. Electronic cCigarette pProducts shall not include any product that has been
approved by the United States Food and Drug Administration for sale as a tobacco
cessation product or for other therapeutic purposes where that product is marketed
and sold solely for such approved use. See 21 U.S.C. § 387(a). As used in this
sSubsection, nicotine does not include any food products as that term is defined
pursuant to Section 6359 of the California Revenue and Taxation Code section 6359.
(e) Hearing Officer shall mean the hearing officer appointed by the Department in accordance
with County of Santa Clara Ordinance Code (“County Ordinance Code”) section A38-4.
(fe) “Impound” means the legal control exercised by the Department over the use, sale,
disposal, or removal of any Tobacco Products.
(efg) "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.
Notwithstanding any other definition in this code, an owner means a person who possesses
ownership.
(fgh) "Permit" means a valid permit issued by the Department to a person to act as a retailer.
(ghi) "Retailer" means any person who sells or distributes tTobacco pProducts for any form
of consideration, whether or not they possess a current Permit. Retailing shall mean the doing
of any of these actions. This definition is without regard to the quantity of tTobacco pProducts
sold or distributed.
(hij) "School" means a public or private elementary, middle, junior high, or high school.
(ik) "Sale and sold" includes any sale, exchange, barter or offer for sale.
(jl) "Tobacco pProduct" means (unless specifically noted elsewhere) 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) and Electronic Cigarette Products.) Products
subject to Subchapter IX include, but are not limited to, cigarettes, cigarette tobacco, roll-your-
own tobacco, smokeless tobacco, cigars, pipe tobacco, and waterpipe tobacco, and electronic
cigarette products. 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.
4.64.030 Requirements and prohibitions.
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(a) Permit required. It shall be unlawful for any person to act as a retailer without first
obtaining and maintaining a pPermit pursuant to this cChapter for each location at which
rRetailing occurs.
(b) Lawful business operation. It shall be a violation of this cChapter for any retailer to violate
any local, state, or federal law applicable to tobacco products or the retailing of such tTobacco
pProducts.
(c) Display of pPermit. Each pPermit shall be prominently displayed in a publicly visible place
at the location identified in the pPermit.
(d) Notice of minimum age for purchase of tTobacco pProducts. Retailers shall post
conspicuously, at each point of purchase, a notice stating that selling tTobacco pProducts to
anyone under twenty-one years of age is illegal and subject to penalties. Such notice shall be
subject to the approval of the public health d Department.
(e) Positive identification required. No retailer shall sell or distribute a tTobacco pProduct to
another individual who appears to be under thirty years of age without first examining the
individual's identification to confirm that the individual is at least the minimum age required
under sState law to purchase and possess the tTobacco pProduct.
(f) Minimum age for individuals selling tTobacco pProducts. No individual who is younger
than the minimum age established by state law for the purchase or possession of tTobacco
pProducts shall engage in retailing.
(g) False and misleading advertising prohibited. A retailer without a pPermit:
(1) Shall keep all tTobacco pProducts out of public view.
(2) Shall not display any advertisement relating to tTobacco pProducts that promotes
the sSale or dDistribution of such products from the rRetailer's location or that could
lead a reasonable consumer to believe that tTobacco pProducts can be obtained at that
location.
(h) Limitation on storefront advertising. No more than fifteen percent of the square footage
of the windows and clear doors of a physical storefront used for rRetailing tTobacco pProducts
shall bear advertising or signs of any sort, and all advertising and signage shall be placed and
maintained in a manner that ensures that law enforcement personnel have a clear and
unobstructed view of the interior of the premises, including the area in which the cash registers
are maintained, from the exterior public sidewalk or entrance to the premises. However, this
latter requirement of this subsection (h) shall not apply to an establishment where there are no
windows or clear doors, or where existing windows are located only at a height that precludes a
view of the interior of the premises by an individual standing outside the premises.
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(i) Flavored Ttobacco pProducts.
(1) Except as permitted in paragraph (3) of this subsection (i), no No rRetailer shall
sell a tTobacco pProduct containing, as a constituent or additive, an artificial or natural
flavor or aroma (other than tobacco) or an herb or spice, including but not limited to
strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa,
chocolate, cherry, mint, menthol, or coffee, that is a characterizing flavor or aroma of
the tTobacco pProduct, smoke, or vapor produced by the tTobacco pProduct.
(2) A tTobacco pProduct shall be subject to a rebuttable presumption that the
product is prohibited by paragraph (1) of this subsection if:
(iA) The product's manufacturer or any other person associated with the manufacture or sale
of tTobacco pProducts makes or disseminates public statements or claims to the effect that the
product has or produces a characterizing flavor or aroma, other than tobacco; or
(iiB) The product's label, labeling, or packaging includes a statement or claim–including any
text and/or images used to communicate information–that the product has or produces a
characterizing flavor or aroma, other than tobacco.
(3) Except as provided in paragraph (4) of this subsection (i), paragraph (1) of this subsection
(i) shall not apply to any retailer that meets all the following criteria:
(i) Primarily sells tobacco products;
(ii) Generates more than sixty percent of its gross revenues annually from the sale of tobacco
products;
(iii) Does not permit any individual under twenty-one years of age to be present or enter the
premises at any time, unless accompanied by the individual's parent or legal guardian, as
defined in Section 6903 of the Family Code;
(iv) Does not sell alcoholic beverages or food for consumption on the premises; and
(v) Posts a sign outside the retail location that clearly, sufficiently, and conspicuously informs
the public that individuals under twenty-one years of age are prohibited from entering the
premises.
(4) No retailer that is issued a new permit after September 2, 2020 shall sell or distribute
flavored tobacco products under paragraph (3) of this subsection (i) after permit issuance. No
retailer that receives a permit renewal after September 2, 2020 shall sell or distribute flavored
tobacco products under paragraph (3) of this subsection (i) after permit renewal. Regardless of
the date of permit issuance or renewal, no retailer shall sell or distribute flavored tobacco
products after September 2, 2020.
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(j) Vending machines prohibited. No tTobacco pProduct shall be sSold or dDistributed 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.
(k) Prohibition on sSale or dDistribution of tTobacco pProducts to individuals under twenty-
one. No rRetailer shall sell or distribute any tTobacco pProduct to any individual who is under
twenty-one years of age.
(l) Prohibition on sSale or dDistribution of eElectronic cCigarette pProducts. No person,
whether or not issued a permit, shall Sell or Distribute Electronic Cigarette Products.No retailer
that is issued a new permit after September 2, 2020 shall sell or distribute electronic cigarette
products after permit issuance. No retailer that receives a permit renewal after September 2,
2020 shall sell or distribute electronic cigarette products after permit renewal. Regardless of
the date of permit issuance or renewal, no retailer shall sell or distribute electronic cigarette
products after September 2, 2020.
4.64.040 Eligibility requirements for a pPermit.
(a) No pPermit may be issued to authorize rRetailing at or from other than a fixed location.
For example, rRetailing by persons on foot or from vehicles is prohibited.
(b) No pPermit may be issued to authorize rRetailing at a temporary or recurring temporary
event. For example, rRetailing at flea markets and farmers' markets is prohibited.
(c) No pPermit may be issued to authorize rRetailing at any location where the profession of
pharmacy is practiced by a pharmacist licensed by the sState in accordance with the Business
and Professions Code and where prescription drugs are offered for sale.
(d) No pPermit may be issued to authorize rRetailing at any location within 1,000 feet of a
sSchool, as measured by a straight line between any point along the property line of any parcel
on which a sSchool is located and any point along the perimeter of the pPermit applicant's
proposed business location; provided, however, that the prohibition contained in this
subsection (d) shall not apply to the following:
(1) Any rRetailer of tTobacco pProducts (as such term was defined in the predecessor
Ordinance No. 5418) operating lawfully on June 30, 2018 provided that the rRetailer
obtaineds a pPermit prior to July 1, 2020 pursuant to Sections 4.64.050 and 4.64.060,
and timely reneweds its permit pursuant to Section 4.64.070(b);
(2) Any retailer of electronic smoking devices (as such term was defined in the
predecessor Ordinance No. 5418) operating lawfully on June 30, 2018 provided that the
retailer obtaineds a permit prior to July 1, 2020 pursuant to Sections 4.64.050 and
4.64.060, and timely renews its permit pursuant to Section 4.64.070(b); however, any
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such retailer is subject to the prohibition on the sale and distribution of eElectronic
cCigarette Pproducts established in Section 4.64.030(l); and
(3) Any lawfully operating rRetailer of tTobacco pProducts that would otherwise
become ineligible to receive or renew a pPermit due to the creation or relocation of a
school.
(e) No pPermit may be issued to authorize rRetailing 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 perimeter of an existing retailer's business location and any point along the perimeter of
the pPermit applicant's proposed business location; provided, however, that the prohibition
contained in this subsection (e) shall not apply to:
(1) Any rRetailer of tTobacco pProducts (as such term was defined in the predecessor
Ordinance No. 5418) operating lawfully on June 30, 2018 provided that the rRetailer
obtaineds a pPermit prior to July 1, 2020 pursuant to Sections 4.64.050 and 4.64.060,
and timely renews its pPermit pursuant to Section 4.64.070(b); and
(2) Any rRetailers of electronic smoking devices (as such term was defined in the
predecessor Ordinance No. 5418) operating lawfully on June 30, 2018 provided that the
retailer obtaineds a permit prior to July 1, 2020 pursuant to Sections 4.64.050 and
4.64.060, and timely reneweds its permit pursuant to Section 4.64.070(b); however, any
such rRetailer is subject to the prohibition on the sSale and dDistribution of eElectronic
cCigarette pProducts established in Section 4.64.030(l).
(f) Any exemption granted to a rRetailer pursuant to subsections (d) and (e) shall cease to
apply upon the earlier of the following to occur:
(1) The rRetailer fails to timely renew the pPermit pursuant to Section 4.64.070(b).
(2) A new person obtains ownership in the business.
4.64.050 Application procedure.
(a) It is the responsibility of each rRetailer to be informed of all laws applicable to Rretailing,
including those laws affecting the issuance of a pPermit. No rRetailer may rely on the issuance
of a pPermit as a determination by the Citycity or County of Santa Clara that the rRetailer has
complied with all laws applicable to rRetailing. A pPermit issued contrary to this cChapter,
contrary to any other law, or on the basis of false or misleading information supplied by a
rRetailer shall be revoked pursuant to Section 4.64.060.
(b) All pPermit applications shall be submitted on a form supplied by the dDepartment.
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(c) A permitted retailer shall inform the dDepartment in writing of any change in the
information submitted on an application for a permit within fourteen calendar days of a
change.
(d) 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 the laws' exemptions.
4.64.060 Permit issuance, denial, and revocation.
(a) Upon the receipt of a complete application for a pPermit, the application fee, and the
annual pPermit fee, the dDepartment shall issue a pPermit 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.
(2) The application seeks authorization for rRetailing at a location for which this
cChapter prohibits issuance of a pPermit.
(3) The application seeks authorization for rRetailing by a person to whom this
cChapter prohibits issuance of a pPermit.
(4) The application seeks authorization for a Retailer whose Permit has previously
been revoked or who has otherwise violated any provision of this Chapter within the
last 60 months.
(45) The application seeks authorization for rRetailing that is prohibited pursuant to
this cChapter (e.g., mobile vending, eElectronic Ccigarette pProducts) or that is unlawful
pursuant to any other law.
(6) The application seeks authorization for Retailing by a Retailer who has failed to
pay any fees, penalties, or reinspection fees required by this Chapter.
(b) A permit shall be revoked if the dDepartment finds that one or more of the bases for
denial of a permit under this section existed at the time application was made or at any time
before the permit was issued. Such a revocation shall be without prejudice to the filing of a new
pPermit application.
(c) A permit shall be permanently revoked if the Retailer has committed violations as
specified in section 4.64.130.
4.64.070 Permit term, conditions, renewal, and expiration.
(a) Term of pPermit. The term of a permit is one year. A pPermit is invalid upon expiration.
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(b) Conditions of pPermit. As conditions of pPermit issuance and retention, rRetailer shall:
(1) Allow compliance inspections as described in Section 4.64.110 and expressly
consent to inspection of all areas and records of a Retailer’s business required to effectuate the
purpose of this Chapter, including unlocking and allowing access to any area of Retailer’s
business requested by any individual authorized to monitor and facilitate compliance with this
Chapter.
(2) Comply with any order of the Department to impound any product not
authorized to be sold by this Chapter and cooperate with any Departmental seizure of any
product, subject to appeal of those actions.
(3) Failure to comply with these Permit conditions may result in Permit suspension
or revocation as described in Section 4.64.130.
(bc) Renewal of pPermit. The dDepartment shall renew a pPermit upon timely payment of
the annual pPermit fee provided that the rRetailer is in compliancecomplies with this cChapter,
as amended. The dDepartment may, in its discretion, agree to renew any expired pPermit
within the three-month period following expiration if the rRetailer pays the annual pPermit fee
and applicable late charges. For every calendar month, or fraction thereof, that a rRetailer fails
to renew an expired pPermit, a late charge equal to twenty percent of the annual pPermit fee
shall be assessed. A pPermit renewed within three calendar months of expiration shall be
treated as if timely renewed.
(cd) Issuance of pPermit after revocation or expiration of permit. To apply for a new pPermit
more than three calendar months after expiration of a pPermit or following revocation of a
pPermit that was wrongly issued, a rRetailer must submit a complete application for a pPermit,
along with the application fee and annual pPermit fee. The dDepartment shall issue a permit
pursuant to the requirements of Section 4.64.060.
4.64.080 Permits nontransferable.
(a) A pPermit 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 pPermit has been
issued, a new pPermit shall be required, but any exemption granted pursuant to Section
4.64.040 shall cease to apply.
(b) Notwithstanding any other provision of this Cchapter, prior violations of this cChapter at
a location shall continue to be counted against a location and Ppermit ineligibility and
suspension periods shall continue to apply to a location unless:
(1) 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
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(2) The city Department is provided with clear and convincing evidence, including an
affidavit, that the business has been acquired in an aArm's lLength tTransaction.
4.64.090 Permit conveys a limited, conditional privilege.
Nothing in this cChapter shall be construed to grant any person obtaining and maintaining a
pPermit any status or right other than the limited, conditional privilege to act as a rRetailer at
the location in the city identified on the face of the pPermit. All pPermits are issued subject to
the cCity's right to amend this cChapter, and rRetailers shall comply with all provisions of this
cChapter, as amended.
4.64.100 Fees.
The dDepartment shall not issue or renew a pPermit prior tobefore full payment of any
applicable fees. The city County Board of Supervisors shall, from time to time, establish by
resolution or ordinance the fees to issue or to renew a pPermit. The fees shall be calculated so
as to recover the cost of administration and enforcement of this cChapter, including, for
example, issuing a pPermit, administering the pPermit program, rRetailer education, and
routine rRetailer inspection and compliance checks, documentation of violations, and
prosecution of violators, but shall not exceed the cost of the regulatory program authorized by
this cChapter. All fees and interest earned from such fees shall be used exclusively to fund
administration and enforcement of this cChapter.
4.64.110 Compliance monitoring.
(a) Compliance with this cChapter shall be monitored by the dDepartment. In addition, any
peace officer may enforce the penal provisions of this cChapter. The city managerDepartment
may designate any number of additional individuals to monitor and facilitate compliance with
this cChapter.
(b) The dDepartment or other individuals designated to enforce the provisions of this
cChapter shall check monitor each rRetailer at least once per twelve-month period to
determine if the rRetailer is complying with all laws applicable to retailing, other than those
laws regulating underage access to tTobacco pProducts. Nothing in this paragraph shall create a
right of action in any rRetailer or other person against the cCity, the County of Santa Clara, or its
agents.
(c) Any Retailer found to be in violation of this Chapter shall pay all costs related to
enforcement to ensure retailer’s compliance with this Chapter, including but not limited to,
fees for reinspection to determine compliance after a violation, enforcement costs, litigation
costs, and attorneys’ fees in any administrative or civil matter in which the Department prevails
pursuant to Division A1 of the County Ordinance Code or any other provision of law.
4.64.120 Prevention of underage sales.
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(a) The dDepartment or other departments or individuals designated to enforce the
provisions of this cChapter shall, in conjunction with the police department, check monitor each
rRetailer at least twice per twelve-month period to determine whether the rRetailer is
conducting business in a manner that complies with laws regulating youth access to tTobacco
pProducts. Nothing in this paragraph shall create a right of action in any rRetailer or other
person against the cCity, the County of Santa Clara, or its agents.
(b) The city Department or other departments or individuals designated to enforce the
provisions of this Chapter shall not enforce any law establishing a minimum age for tTobacco
pProduct purchases against an individual who otherwise might be in violation of such law
because of the individual's age ("yYouth dDecoy") if the potential violation occurs when:
(1) The yYouth dDecoy is participating in a compliance check supervised by a peace
officer or a code enforcement official of the cCity or County of Santa Clara;
(2) The yYouth dDecoy is acting as an agent of a dDepartment or individual
designated by the cCity or County of Santa Clara to monitor compliance with this
cChapter; or
(3) The yYouth dDecoy is participating in a compliance check funded in part, either
directly or indirectly through subcontracting, by the cCity, the County of Santa Clara, or
the California Department of Public Health.
4.64.130 Penalties for a violation by a rRetailer with a pPermit.
(a) Administrative fine. In addition to any other penalty authorized by law, an administrative
fine shall be imposed and a permit shall be suspended if any court of competent jurisdiction
determines, or the department finds based on a preponderance of the evidence that the a
rRetailer shall pay a fine if the Retailer, or any of the rRetailer's agents or employees, has
violatedviolates any of the requirements, conditions, or prohibitions of this cChapter, has pled
guilty, "no contest" or its equivalent to such a violation, or has admitted to a such a violation..
(b) Amount of fine. The amount of the administrative fine for each such violation of this
Chapter shall be as follows:
(1) A fine not to exceed one hundred dollars ($100.00) for a first violation within a
twelve-month period;A fine not to exceed $1,000 for each violation identified during the
first instance in which the Retailer has committed a violation or violations;
(2) A fine not to exceed two hundred dollars ($200.00) for a second violation within a
twelve-month period; A fine not to exceed $2,500 for each violation identified during a
subsequent instance if the Retailer has committed a previous violation or violations
within a 60-month period; and
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(3) A fine not to exceed five hundred dollars ($500.00) for each additional violation
within a twelve-month period A fine not to exceed $5,000 for each violation identified
during a subsequent instance after the Retailer twice committed a previous violation or
violations within a 60-month period.
(cb) Time period for permit Permit suspension. In addition to any other penalty authorized
by law, the Department may suspend a permit if the Department demonstrates that the
Retailer or any of the Retailer’s agents or employees has violated any of the requirements,
conditions, or prohibitions of this Chapter. The period of the suspension shall be as follows:
(1) For a first violation of this chapter at a location within any sixty-month period, the
permit shall be suspended for up to thirty calendar days. A suspension not to exceed 30
calendar days for an initial violation.
(2) For a second violation of this chapter at a location within any sixty-month period,
the permit shall be suspended for up to ninety calendar days.A suspension not to
exceed 180 calendar days if a Retailer commits a violation or violations during two
instances within a 60-month period.
(3) For each additional violation of this chapter at a location within any sixty-month
period, the permit shall be suspended for up to one year.When a permit is suspended
based on a violation of this Chapter, the Department shall post a placard at the physical
location used for Retailing Tobacco Products to notify the general public of the
suspension. The placard shall be:
(A) Posted in the front window of the storefront used for Retailing Tobacco Products
within five feet of the front door; or
(B) Posted in a display case mounted on the outside front wall of the physical
location used for Retailing Tobacco Products within five feet of the front door; or
(C) Posted in a location approved by the Department to ensure proper notice to the
general public and to patrons of the physical location used for Retailing Tobacco Products.
(D) Once attached to a building or structure, a placard is not to be removed, altered,
or covered until done so by an authorized representative of the Department or upon written
notification from the Department.
(c) Permanent Permit revocation. In addition to any other penalty authorized by law, the
Department shall permanently revoke a Permit if a retailer commits a violation or violations
during three instances within a 60-month period.
(d) Waiver or reduction of fines and penalties for first violation. The dDepartment may, in its
sole discretion, waive or reduce any fines and penalties for a rRetailer's first violation of any
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requirement, condition, or prohibition of this chaptersection, other than a violation of a law
regulating youth access to tobacco products, if the rRetailer admits the violation in writing and
agrees to forego a hearing on the allegations. Regardless of the dDepartment's waiver of
penalties for a first violation, the violation will be considered in determining the fines and
suspension periods or revocation penalties for any future violation. This subsection shall not
apply to any violation involving a law regulating youth access to Tobacco Products.
(e) Corrections period. The dDepartment shall have discretion to allow a rRetailer a period of
time to correct any violation of any requirement, condition, or prohibition of this cChapter,
other than a violation of a law regulating youth access to tTobacco pProducts. If the
dDepartment exercises its discretion to provide a corrections period, and a rRetailer's violation
is corrected within the time allowed for correction, no penalty shall be imposed under this
section.
(f) Written notice of penalties. Whenever a fine is issued and/or a pPermit is suspended or
revoked based on a violation of this cChapter, the dDepartment shall provide the rRetailer
written notice of the violation and the fine and suspension or revocation, including when the
suspension or revocation shall take effect.
(g) Appeals. Any penalties imposed under this section may be appealed pursuant to Section
4.64.150 of this Chapter.
(h) A timely appeal shall stay enforcement of the appealed penalties until the final
administrative decision of the Department is issued.
4.64.140 Penalties for retailing without a pPermit.
(a) Administrative fine. In addition to any other penalty authorized by law, an administrative
fine and an ineligibility period for application or issuance of a permit a rRetailer shall be
imposed pay a fine if a court of competent jurisdiction determines, or the dDepartment finds
based on a preponderance of evidencedemonstrates, that any the person rRetailer has
engaged in retailing at a location without a valid pPermit, either directly or through the
person's Retailer’s agents or employees., has pled guilty, "no contest" or its equivalent to such
a The amount of the administrative fine for each violation , or has admitted to such a
violation.of this Chapter shall be as follows:
(b) Amount of fine. The amount of the administrative fine for each such violation shall be as
follows:
(1) A fine not to exceed one hundred dollars ($100.00) for a first violation within a
twelve-month period; A fine not to exceed $2,500 for each violation identified during
the first instance in which the Retailer has committed a violation ofor violations without
a valid Permit;
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(2) A fine not to exceed two hundred dollars ($200.00) for a second violation within a
twelve-month period; and A fine not to exceed $5,000 for each violation identified
during a subsequent instance if the Retailer has committed a previous violation or
violations within a 60-month period without a valid Permit; and
(3) A fine not to exceed five hundred dollars ($500.00) for each additional violation
within a twelve-month period. A fine not to exceed $10,000 for each violation identified
during a subsequent instance after the Retailer has twice committed a previous
violation or violations within a 60-month period without a valid Permit.
(cb) Time period for pPermit ineligibility. The ineligibility period shall be as follows:
(1) For a first an initial violation of this section at a location within any sixty-month
period Chapter without a valid Permit, no new pPermit may be issued for to the person
Retailer or the location (unless ownership of the business at the location has been
transferred in an aArm's lLength tTransaction) until thirty calendar days have passed
from the date of the violation.
(2) For a second violation of this section at a location within any sixty-month period,
no new 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 ninety
calendar days have passed from the date of the violation. If a Retailer commits a
violation or violations during two instances within a 60-month period without a valid
Permit, no new Permit may be issued to the Retailer or the location (unless ownership
of the business at the location has been transferred in an Arms Length tTransaction)
until one year has passed from the date of the second violation.
(3) For each additional violation of this section at a location If a Retailer commits a
violation or violations during three instances within any sixty60-month period without a
valid Permit, no new permit may be issued for the person or the Retailer and the
location (unless ownership of the business at the location has been transferred in an
aArm's lLength tTransaction) shall be permanently ineligible for a Permit. until one year
has passed from the date of the violation.
(dc) Waiver of for reduction of fines and penalties for first violation. The dDepartment may,
in its sole discretion, waive or reduce any fines and 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, if the rRetailer admits the violation in writing and agrees to forego a hearing on the
allegations. Regardless of the dDepartment's waiver of fines or penalties for a first violation, the
violation will be considered in determining the penalties for any future violation fines and
suspension periods or revocation for any future violation. This subsection shall not apply to any
violation involving a law regulating youth access to Tobacco Products.
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(ed) Written notice of penalties. Whenever a fine is issued and/or a pPermit is suspended
pursuant to this section, the dDepartment shall provide the rRetailer written notice of the fine
and suspension, including when the suspension shall take effect.
(fe) Appeals. Any penalties imposed under this section may be appealed pursuant to Section
4.64.150. A timely appeal shall stay enforcement of the appealed penalties while the appeal is
ongoing.
4.64.150 Appeals.
(a) Any rRetailer served with a written notice of penalties violation may request an
administrative hearing to appeal the existence of the violation, the amount of the fine, and/or
the length of the a suspension, a revocation of a Permit, the sustained impoundment of
Tobacco Products, and/or seizure of Tobacco Products by returning a completed hearing
request form to the Office of the County Hearing Officer within ten days from the date of the
written notice of penalties.
(b) The rRetailer shall include the following in or with the hearing request form:
(1) A statement indicating the reason the rRetailer contests the written notice of
penalties;
(2) Any evidence the rRetailer wants the hHearing oOfficer to consider;
(3) An advance deposit of the amount of any fine challenged; and
(4) The address of the rRetailer and, if available, an email address that can be used
for contact and correspondence by the Office of the County Hearing Officer and the
Department. The rRetailer may request service of notice by mail.
(c) The hearing request form shall be deemed filed on the date received by the Office of the
County Hearing Officer. A timely appeal shall stay enforcement of the appealed penalties while
the appeal is ongoing.
(d) After receiving a timely hearing request form, the Hearing Officer shall notify the
dDepartment as soon as practicable and then shall schedule an administrative hearing. The
Office of the County Hearing Officer shall provide the rRetailer and the dDepartment at least
ten calendar days' written notice of the date, time, and place of the administrative hearing and
the name of the hHearing oOfficer who will conduct the hearing. The notice shall be given to
the rRetailer either by email, if requested, or by first class mail, postage prepaid.
(e) Between the time the rRetailer requests the administrative hearing and the time of the
hHearing oOfficer's decision, the rRetailer, the dDepartment, and each of their representatives
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shall not engage in ex parte communications with the Office of the County Hearing Officer or
the hHearing oOfficer regarding the matters at issue in the hearing.
(f) The hearing shall be conducted by the hHearing oOfficer on the date, time, and place
specified in the notice to the rRetailer. A rRetailer's failure to appear at the hearing shall
constitute an abandonment of the hearing request and a failure to exhaust administrative
remedies as a precedent to judicially challenge the existence of the violation and the imposition
of the fine and suspension.
(g) At the hearing, the rRetailer and the dDepartment shall have the opportunity to present
evidence, including witnesses, relevant to the hHearing oOfficer's determination of the matter.
Neither the provisions of the Administrative 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. The hHearing oOfficer may admit any evidence, including witnesses, relevant to the
determination of the matter, except as otherwise provided in Section 4.64.160(c).
(h) The written notice of penalties and any other reports prepared by or for the
dDepartment concerning the violation shall be admissible and accepted by the hHearing
oOfficer as prima facie evidence of the violation and the facts stated in those documents.
(i) The hHearing oOfficer may continue the hearing from time to time, in his or herthe
Hearing Officer’s sole discretion, to allow for its orderly completion of the hearing. After
receiving the evidence submitted at the hearing, the hHearing oOfficer may further continue
the hearing and request additional information from either the dDepartment or the rRetailer.
(j) After considering the evidence and testimony submitted the hHearing oOfficer shall issue
a written decision regarding the matters properly raised in the request for administrative
hearing. The hHearing oOfficer's decision shall:
(1) Be based on a preponderance of the evidence.
(2) Include a statement of the reasons for the decision.
(3) Be issued within twenty calendar days of the close of the hearing.
(4) Be served on both the rRetailer and the dDepartment. The decision shall be given
to the rRetailer either by email, if requested, or by first class mail, postage prepaid.
(k) Based on the hHearing oOfficer's decision, the Office of the County Hearing Officer shall
promptly refund to the rRetailer any amount of the advance fine deposit the dDepartment is
not entitled to and shall provide the remainder to the dDepartment.
(l) The hearing officer's written decision shall constitute the final administrative decision of
the city.
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4.64.160 Enforcement.
(a) Any violation of this cChapter is hereby declared to be a public nuisance.
(b) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this
cChapter shall also constitute a violation of this cChapter.
(c) Whenever evidence of a violation of this cChapter is obtained in any part through the
participation of an individual under the age of twenty-one years old, such an individual shall not
be required over his or hertheir objection to appear or give testimony in any civil or
administrative process brought to enforce this cChapter and the alleged violation shall be
adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
(d) Violations of this cChapter may be remedied by a civil legal action brought by the city
attorney or County of Santa Clara Office of the County Counsel pursuant to dDivision A1 of the
Ordinance Code of the County of Santa Clara, including, but not limited to, administrative or
judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for
injunctive relief pursuant to XXXXX of this Code. For the purposes of the civil remedies provided
in this chapter, each day on which a tobacco product is offered for sSale in violation of this
cChapter, and each individual retail tobacco product that is sSold or dDistributed in violation of
this cChapter, shall constitute a separate violation of this cChapter.
(e) Any person found guilty of violating any provision of this chapter shall be deemed guilty
of an infraction, punishable as provided by California Government Code § 25132.
(e) Impoundment.
(1) Based upon inspection findings or other evidence, the Department may impound
Tobacco Products that are suspected of being or found to be offered for sSale or Distribution in
violation of this Chapter. The Department may affix a label to the product that shall be
removed only by the Department following final written determination by the Department as
described below.
(2) No impounded Tobacco Products shall be used, removed, disposed, or offered
for Sale unless the impoundment has been released. The decision by the Department may be
appealed pursuant to the procedures set forth in Section 4.64.150.
(3) Within 30 days of final determination whether the impounded products are
authorized for sale under this Chapter, the Department shall release the impounded materials
or order that unauthorized, impounded product shall be destroyed and properly disposed of at
the cost of the Retailer.
(f) Seizure. Tobacco Products offered for sale in violation of this Chapter are subject to
seizure by the Department and shall be forfeited after the Retailer of the Tobacco Products
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seized is given reasonable notice and an opportunity to demonstrate that the Tobacco Products
were not offered for sale in violation of this Chapter. The decision by the Department may be
appealed pursuant to the procedures set forth in Section 4.64.150. Forfeited Tobacco Products
shall be destroyed and properly disposed of at the cost of the Retailer after all internal appeals
have been exhausted and after the time in which to seek judicial review pursuant to Section
4.64.150 of this Chapter has expired.
(g) All Retailers are responsible for the actions of their employees relating to compliance
with this Chapter. The sale, offer to sell, or furnishing of any Tobacco Products by an employee
shall be considered an act of the Retailer.
(fh) The remedies provided by this cChapter are cumulative and in addition to any other
remedies available at law or in equity.
4.64.170. No conflict with federal or state lawNo conflict with federal or state
lawInterpretation.
(a) Nothing in this cChapter shall be interpreted or applied so as to create any requirement,
power, or duty that is preempted by, or in conflict with, federal or state law, rules, or
regulations.
(b) Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of
a Tobacco Product by any person not engaged in the retailing of such products.
SECTION 3. If any section, subsection, clause or phrase of this Ordinance is for any
reason held to be invalid, such decision shall not affect the validity of the remaining portion or
sections of the Ordinance. The Council hereby declares that it should have adopted the
Ordinance and each section, subsection, sentence, clause or phrase thereof irrespective of the
fact that any one or more sections, subsections, sentences, clauses or phrases be declared
invalid.
SECTION 4. The Council finds that this project is exempt from the provisions of the
California Environmental Quality Act (“CEQA”), pursuant to Section 15061 of the CEQA
Guidelines, because it can be seen with certainty that there is no possibility that the ordinance
will have a significant effect on the environment.
//
//
//
//
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SECTION 5. This ordinance shall be effective 31 days after adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
____________________________ ____________________________
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
____________________________ ____________________________
Assistant City Attorney City Manager
____________________________
Director of Public Works
____________________________
Chief of Police
____________________________
Director of Administrative Services
NOT YET APPROVED
FIRST AMENDED AND RESTATED AGREEMENT BETWEEN
THE COUNTY OF SANTA CLARA
AND CITY OF PALO ALTO FOR
A TOBACCO RETAIL PERMIT PROGRAM
This First Amended and Restated Agreement (“Agreement”), dated for convenience (DATE), is
entered into by and between the County of Santa Clara (“County”) and City of Palo Alto (“City”)
relating to administration and enforcement of a tobacco retail permit program in the City of Palo
Alto. County and City may be referred to in this Agreement individually as a “Party” and
collectively as “Parties.”
Background / Purpose
In 2010, the County added Chapter XXIII to Division A18 of its Ordinance Code (“Chapter
XXIII”), thereby establishing a permit requirement for retailers of tobacco products in the
unincorporated areas of the County of Santa Clara. The County has since expanded the scope of
Chapter XXIII and modified provisions therein. The City has adopted City Chapter 4.64 to
mirror the provisions of Chapter XXIII in their entirety, effective July 1, 2018, and intends to
continue updating City Chapter 4.64 to maintain consistency with Chapter XXIII. The City and
County intend for the County to administer and enforce the City’s tobacco retail permit program
(as described in City Chapter 4.64) within the City, except as otherwise provided in this
Agreement. The County intends to cite violators of the City’s City Chapter 4.64 pursuant to this
Agreement. Terms used in this Agreement, such as, but not limited to, “tobacco products” and
“retailer,” shall be interpreted in accordance with Chapter XXIII and City Chapter 4.64.now
wishes to adopt one or more ordinance(s) to mirror the provisions of Chapter XXIII in their
entirety. The City and County intend for the County to administer and enforce the City’s
tobacco retail permit program within the City, except as otherwise provided in this Agreement.
The County intends to cite violators of the City’s Ordinance Code pursuant to this Agreement.
Agreement
The Parties agree as follows:
1. Designation
The City hereby designates the County to enforce and administer the City Ordinance.
The County shall act as the City Manager’s designee, as defined in Palo Alto Municipal
Code (PAMC) section 4.64.020 (b).
1.2. Scope of Work
Each Party shall perform the work as described in Exhibit A, attached hereto and
incorporated herein by this reference.; provided, however, that the County shall have no
responsibility for administering or enforcing any provisions of the City’s tobacco retailer
permit ordinance that are in addition to or otherwise different from the County’s
provisions.
Page 2 of 12
Agreement for Palo Alto Tobacco Retail Permit Program
3. Legislative Consistency
The County’s administration and enforcement under this Agreement is contingent upon
the City’s adoption and maintenance of a City Ordinance that is the same as the County
Ordinance in all material respects.
3.1 Within 90 days of the County’s adoption of any material amendment to the
County Ordinance, the City’s governing body shall consider and vote upon
an amendment to the City Ordinance that is the same as the County’s
amendment in all material respects. If the City does not adopt such an
amendment within 90 days of the County’s amendment to the County
Ordinance, the County may, in its sole discretion, immediately terminate
this Agreement by sending written notice to the City.
3.2 If the City wishes to amend the City Ordinance other than to conform to the
County’s prior amendment of the County Ordinance as set forth in
Paragraph 3.1 above, the City shall provide the County with the full text of
the proposed amendment 120 days prior to adoption of such an
amendment. If the City adopts an amendment to the City Ordinance other
than to conform in all material respects to the County’s prior amendment of
the County Ordinance, the County may, in its sole discretion, immediately
terminate this Agreement by sending written notice to the City.
3.3 The County shall have no responsibility for administering or enforcing any
provisions of the City Ordinance that are in addition to or otherwise
materially different from the County Ordinance.
2.4. Relationship of Parties / Independent Contractors
Each Party shall perform all work described herein as an independent contractor and not
as an officer, agent, servant or employee of the other Party. None of the provisions of
this Agreement are intended to create, nor shall be deemed or construed to create, any
relationship between the Parties other than that of independent parties contracting with
each other for purpose of effecting the provisions of this Agreement. The Parties are not,
and will shall not be construed to be in a relationship of joint venture, partnership or
employer-employee. Neither Party has the authority to make any statements,
representations or commitments of any kind on behalf of the other Party, or to use the
name of the other Party in any publications or advertisements, except with the written
consent of the other Party or as is explicitly provided herein. Each Party will shall be
solely responsible for the acts and omissions of its officers, agents, employees,
contractors, and subcontractors, if any.
3.5. Term of Agreement
This Agreement is effective from the date that this Agreement is executed by all Parties,
Page 3 of 12
Agreement for Palo Alto Tobacco Retail Permit Program
until terminated in accordance with this Agreement.
4.6. Payment
The City shall adopt, by reference, the County’s fee schedule for annual tobacco retail
permits and tobacco retail permit applications. All annual permit fees and application
fees for the tobacco retail permit program shall be collected and retained by the County.
The County shall advise City of the initial permit fee and application fee necessary to
cover County’s anticipated costs under this Agreement. Thereafter, the County shall
provide notice to the City and tobacco retail permit holders in the City of any increases or
decreases in the cost of the County’s work under this Agreement and any need to revise
permit fees and/or application fees accordingly.
7. Termination
Except as provided in paragraphs 3.1 and 3.2 above, which allow for immediate
termination in the specified circumstances, eEither Party may terminate this Agreement
for any reason upon ninety (90) days’ written notice. Upon service of a termination
notice, the Parties shall use their best efforts to develop a mutually-agreeable plan for
transition of the County’s responsibilities to the City. Upon termination of this
Agreement, the City will be responsible for replacing the County-issued permits.
8. Indemnification and Insurance
In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be
imposed between the Parties pursuant to Government Code Section 895.6, the Parties
agree that all losses or liabilities incurred by Party shall not be shared pro rata but,
instead, County and City agree that, pursuant to Government Code Section 895.4, each of
the Parties hereto shall fully indemnify and hold each of the other Parties, their officers,
board members, employees, and agents, harmless from any claim, expense or cost,
damage or liability imposed for injury (as defined in Government Code Section 810.8)
occurring by reason of the negligent acts or omissions or willful misconduct of the
indemnifying party, its officers, employees or agents, under or in connection with or
arising out of any work, authority or jurisdiction delegated to such party under this
Agreement. No party, nor any officer, board member or agent thereof shall be responsible
for any damage or liability occurring by reason of the negligent acts or omissions or
willful misconduct of the other Parties hereto, their officers, board members, employees,
or agents, under or in connection with or arising out of any work authority or jurisdiction
delegated to such other Parties under this Agreement.
City shall indemnify and hold harmless County, its officers, agents and employees for 50
percent of the amount of any claim, liability, loss, injury or damage arising out of, or in
connection with, performance of this Agreement by County and/or its agents, employees
or subcontractors, excepting only loss, injury or damage caused by the negligence or
willful misconduct of personnel employed by County. City shall immediately notify
County upon learning of any potential or asserted claim, liability, loss, injury or damage
Page 4 of 12
Agreement for Palo Alto Tobacco Retail Permit Program
for which the City may be obligated to indemnify or hold the County harmless pursuant
to any provision of this Agreement.
Without limiting the indemnification both Parties, City shall maintain or cause to be
maintained the following insurance coverage: (1) a policy of commercial general liability
with limits of liability not less than one million dollars ($1,000,000) per occurrence and
two million dollars ($2,000,000) annual aggregate; (ii) a policy of workers’ compensation
providing statutory coverage; (iii) a policy of professional or public officials errors and
omissions liability with limits of liability not less than one million dollars ($1,000,000)
per occurrence/aggregate; and (iv) such other insurance or self-insurance as shall be
necessary to insure it against any claim or claims for damages arising under the
Agreement. Each Party’s Iinsurance afforded by the commercial general liability policy
shall be endorsed to provide coverage to the other Party County as an additional insured.
A Certificate of Insurance certifying that coverage as required herein has been obtained
to the other Party.shall be provided to the County. The requirements of this section may
be satisfied by the provision of similar coverage through a self-insurance program.
9. Compliance with All Laws, Rules, Regulations, Policies and Procedures
The Parties shall comply with all applicable federal, state and local laws, rules,
regulations, policies and procedures.
10. Monitoring / Records
10.1 Monitoring
Each Party shall permit the other Party to monitor its performance of this
Agreement. To the extent permitted by law, such monitoring may include, but not
be limited to, audits and review of records related to this Agreement. Upon
request, a Party shall provide the other Party with access to facilities, financial and
employee records that are related to the purpose of the Agreement, except where
prohibited by federal, state or local laws, regulations or rules. Monitoring shall be
permitted at any time during normal business hours upon no less than 10 business
days advance notice and may occur up to one year following termination of the
Agreement.
Each Party shall designate a project director/coordinator responsible for
overseeing that Party’s performance of this Agreement. Each Party shall notify
the other Party in writing of the designation of the project director/coordinator and
of any change thereto.
10.2 California Public Records Act
The Parties are public agencies subject to the disclosure requirements of the
California Public Records Act (“CPRA”). In the event of a CPRA request for
information related to this Agreement, each Party will use its best efforts to notify
the other Party before such disclosure.
Page 5 of 12
Agreement for Palo Alto Tobacco Retail Permit Program
11. Representations and Warranties
11.1 Conflict of Interest
Each Party City shall comply, and require its subcontractors to comply, with all
applicable (i) requirements governing avoidance of impermissible client conflicts;
and (ii) federal, state and local conflict of interest laws and regulations including,
without limitation, California Government Code section 1090 et. seq., the
California Political Reform Act (California Government Code section 87100 et.
seq.) and the regulations of the Fair Political Practices Commission concerning
disclosure and disqualification (2 California Code of Regulations section 18700 et.
seq.). Failure to do so constitutes a material breach of this Agreement and is
grounds for immediate termination of this Agreement by the Countyeither Party.
In accepting this Agreement, City covenants that it presently has no interest, and
will not acquire any interest, direct or indirect, financial or otherwise, which
would conflict in any manner or degree with the performance of this Agreement.
City further covenants that, in the performance of this Agreement, it will not
employ any contractor or person having such an interest. City, including but not
limited to City’s employees and subcontractors, may be subject to the disclosure
and disqualification provisions of the California Political Reform Act of 1974 (the
“Act”), that (1) requires such persons to disclose economic interests that may
foreseeably be materially affected by the work performed under this Agreement,
and (2) prohibits such persons from making or participating in making decisions
that will foreseeably financially affect such interests. If the disclosure provisions
of the Political Reform Act are applicable to any individual providing service
under this Agreement, City shall, upon execution of this Agreement, provide the
County with the names, description of individual duties to be performed, and
email addresses of all individuals, including but not limited to City’s employees,
agents and subcontractors, that could be substantively involved in “making a
governmental decision” or “serving in a staff capacity and in that capacity
participating in making governmental decisions or performing duties that would
be performed by an individual in a designated position,” (2 CCR 18701(a)(2)), as
part of City’s service to the County under this Agreement. City shall immediately
notify the County of the names and email addresses of any additional individuals
later assigned to provide such service to the County under this Agreement in such
a capacity. City shall immediately notify the County of the names of individuals
working in such a capacity who, during the course of the Agreement, end their
service to the County.
If the disclosure provisions of the Political Reform Act are applicable to any
individual providing service under this Agreement, City shall ensure that all such
individuals identified pursuant to this section understand that they are subject to
the Act and shall conform to all requirements of the Act and other laws and
regulations listed in this subsection including, as required, filing of Statements of
Economic Interests within 30 days of commencing service pursuant to this
Agreement, annually by April 1, and within 30 days of their termination of service
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Agreement for Palo Alto Tobacco Retail Permit Program
pursuant to this Agreement.
11.2 Authority
Each individual executing this Agreement on behalf of a Party represents that he
or she is duly authorized to execute and deliver this Agreement on that Party’s
behalf.
//
//
12. Assignment, Delegation, Subcontracting
Neither Party may assign any of its rights, delegate any of its duties or subcontract any
portion of its work or business under this Agreement without the prior written consent of
the other Party, which such other Party may withhold in its sole and absolute discretion.
No assignment, delegation or subcontracting will release a Party from any of its
obligations or alter any of its obligations to be performed under the Agreement.
13. Governing Law, Jurisdiction and Venue
This Agreement shall be construed and its performance enforced under California law. In
the event that suit shall be brought by either Party to this Agreement, the Parties agree
that venue shall be exclusively vested in the state courts of the County of Santa Clara or,
if federal jurisdiction is appropriate, exclusively in the United States District Court for the
Northern District of California, in San Jose, California.
14. Waiver
No delay or failure to require performance of any provision of this Agreement shall
constitute a waiver of that provision as to that or any other instance. Any waiver granted
by a Party must be in writing, and shall apply to the specific instance expressly stated.
15. Notice
Any notice required to be given by either Party, or which either Party may wish to give,
shall be in writing and served either by electronic mail or be delivered
personally,personal delivery or sent by certified or registered mail, postage prepaid, or by
private messenger or courier services and addressed as follows:
If to COUNTY: If to CITY:
County of Santa Clara Public Health
Department
Sara H. Cody, MD Health Officer and Public
Health Director
976 Lenzen Avenue150 W. Tasman Drive
San Jose, CA 9512695134
City of Palo Alto
Brad EgglestonMike Sartor, Director
of Public Works
250 Hamilton Ave., 6th Fl.
Palo Alto, CA 94301
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Agreement for Palo Alto Tobacco Retail Permit Program
With a copy to:
County of Santa Clara Public Health Department
Contracts and Compliance Unit
976 Lenzen Avenue. Second Floor150 W. Tasman Drive
San Jose, CA 9512634
PHDContracts@phd.sccgov.org
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3)
days after deposit in the mail. Either Party may designate a different person and/or
address for the receipt of notices by sending written notice to the other Party.
16. Third Party Beneficiaries
This Agreement does not and is not intended to confer any rights or remedies upon any
person or entity other than the Parties.
17. Entire Agreement
This document represents the entire Agreement between the Parties with respect to the
subject matter hereof. All prior negotiations and written and/or oral Agreements between
the Parties with respect to the subject matter of this Agreement are merged into this
Agreement.
18. Amendments
This Agreement may only be amended by a written instrument signed by the Parties.
19. Survival
The rights and duties under the following provisions shall survive the termination or
expiration of this Agreement: Section 6 8 – Indemnification and Insurance; Section 108 –
Monitoring/ Records; Section 119 – Conflicts of InterestRepresentation and Warranties;
and Section 1317 – Governing Law, Jurisdiction, and Venue/Venue, and in any
instrument, certificate, exhibit, or other writing attached hereto and incorporated herein.
20. Severability
If any term, covenant, condition or provision of this Agreement, or the application thereof
to any person or circumstance, shall to any extent be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants,
conditions and provisions of this Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
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Agreement for Palo Alto Tobacco Retail Permit Program (Dec. 2023)
21. Contract Execution
Unless otherwise prohibited by law or City or County policy, the Parties agree that an
electronic copy of a signed contract, or an electronically signed contract, has the same
force and legal effect as a contract executed with an original ink signature. The term
“electronic copy of a signed contract” refers to a transmission by facsimile, electronic
mail, or other electronic means of a copy of an original signed contract in a portable
document format. The term “electronically signed contract” means a contract that is
executed by applying an electronic signature using technology approved by the
CountyParties. This agreement
22. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same
instrument.
//
//
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
written below.
Signed:
County of Santa Clara:
City of Palo Alto
Gene ClarkMatthew Hada
Chief Procurement OfficerDirector
of Procurement
Date Brad EgglestonEd Shikada
Director of Public WorksCity
Manager
Date
Approved as to Form and Legality:
Approved as to Form:Attest:
Jenny LamJessica Mar
Deputy County Counsel
Date Tim Shimizu
Assistant City AttorneyLesley
Milton
Palo Alto City Clerk
DateD
ate
Approved:
Approved as to Form:
Sara H. Cody, MD
Health Officer and Public Health
Date Molly Stump
Palo Alto City Attorney
Date
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Agreement for Palo Alto Tobacco Retail Permit Program (Dec. 2023)
Director
Approved:
Tina Cordero
CSCHS Chief Fiscal Officer
Date
County of Santa Clara: City of Palo Alto
Dave Cortese, President Date Date
Board of Supervisors
Approved as to Form and Legality:
Jenny S. Lam Date
Deputy County Counsel
Approved:
John Cookinham Date
SCVHHS Chief Financial Officer
Exhibits to this Agreement:
Exhibit A: Description of Roles by Agency
Attest:
Megan Doyle Date
Clerk of the Board of Supervisors
Approved:
Sara H. Cody, MD Date
Health Officer and Public Health
Director
Page 10 of 12
Agreement for Palo Alto Tobacco Retail Permit Program (Dec. 2023)
EXHIBIT A
DESCRIPTION OF ROLES BY AGENCY
County of Santa Clara
Department of Environmental Health
1. Provide permit applications to all new retailers selling tobacco products in the City of
Palo Alto and issue permits to eligible applicants.
2. Ensure all existing tobacco retail permits that meet and maintain eligibility requirements
are renewed on an annual basis.
3. Maintain database tracking system for all permitted tobacco retailers.
4. Provide list of permitted tobacco retailers to Public Health Department and City of Palo
Alto on an annual basis or more frequently as requested.
5. Collect required permit fees.
6. Meet with all related personnel to: (1) coordinate enforcement strategy; and (2)
develop/maintain policy and procedure for enforcement.
7. Conduct at least one annual inspection of tobacco retailers to ensure compliance with
local, state, and federal laws (except sales to underage individuals).
8. Meet with all related personnel as necessary to: (1) coordinate post compliance check
strategy; and (2) next steps for violations.
9. Conduct follow up inspections, including for complaints received by the public, if
necessary, for ensuring compliance with the tobacco retail permit ordinance. Provide and
promote a clear process for the public to file and track complaints for potential violations
of the tobacco retail permit ordinance.
10. Respond to requests for information from Palo Alto tobacco retailers and the public
regarding requirements under the tobacco retail permit ordinance.
11. Keep records of inspection outcomes for each tobacco retailer and provide annual
inspection report summaries to a single point of contact at the Public Health
Department.
12. Take appropriate enforcement action, as appropriate, to address violations.
13. Notify the City of Palo Alto when Notice of Violations (NOVs) are issued as a result of
violations of the ordinance.
14. Issue NOVs per Ordinance and ensure the tobacco retailer corrects violations and
executes all required corrections identified in the NOV.
15. Coordinate with the Office of County Hearing Officer as appropriate on hearings,
including to supply information on violations where an appeal is requested.
Public Health Department
1. Provide initial list of tobacco retailers to Department of Environmental Health to send
out permit applications.
2. Obtain lists from California Department of Tax and Fee Administration and monitor
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Agreement for Palo Alto Tobacco Retail Permit Program (Dec. 2023)
for any new retailers.
3. Provide on-going technical assistance to Department of Environmental Health on
ordinance requirements. This may include trainings for inspectors, research on flavored
and emerging products, and development of educational materials for tobacco retailers.
4. Map any new retailers to ensure they meet eligibility requirements related to distance
from schools, distance from existing tobacco retailers, and that under the ordinance the
retailer meets all other eligibility requirements.
5. If a business seeking a tobacco retail permit is deemed ineligible by the County due to
ordinance requirements, including attaching any relevant documentation supporting the
basis for business ineligibility (e.g. maps of business location; documentation of
pharmacy license status; copies of 3 or more NOVs issued in a 60-month period.
6. Proactively engage the business community so that they are aware of the TRL
ordinance (e.g., effective date, requirements, fines/penalties) as appropriate.
7. Coordinate with the Office of County Hearing Officer and County Counsel as
appropriate on appeals hearings.
8. Provide an annual update to appropriate Palo Alto staff on enforcement and compliance
activities and outcomes for the program.
City of Palo Alto
Police Department
1. Funding and staffing permitting, cConduct undercover decoy operations at tobacco
retailers to ensure compliance with laws regarding sales of tobacco products to underage
individuals laws. Prior to performing operations, notify Department of Environmental
Health of planned operation dates.
2. Issue citations for any violations of laws regarding sales of tobacco sales products to
underage individuals laws (e.g. PC § 308(a), Palo Alto Municipal Code Chapter 4.64,
CA Business and Professions Code § 22958).
3. Immediately notify the Department of Environmental Health on outcomes of
enforcement operations within 3-5 days of the performed operation. Provide copies
of all documentation associated with the violation: a copy of the citation, written
reports/records, or any additional evidence of violation (e.g. receipts, photo copies
of the tobacco product sold to the underage individual) to the Department of
Environmental Health.
4. Coordinate with the Office of County Hearing Officer and County Counsel as
appropriate on appeals hearings.
Public Works Department
1. Publish information on the City of Palo Alto’s website on the TRP tobacco retail permit
ordinance, for example: where tobacco retailers can get more information on the
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Agreement for Palo Alto Tobacco Retail Permit Program (Dec. 2023)
requirements for selling tobacco in Palo Alto, and how the public can file a complaint or
request more information about the TRP tobacco retail permit ordinance.
2. Act as a resource to other cities that may be interested in a similar partnership with the
County.
3. Update ordinance as needed in collaboration with City Attorney and the County
Departments.
From:Monica Wilson
To:Council, City
Subject:Public Comment 9/23/24
Date:Sunday, September 22, 2024 2:41:27 PM
Attachments:M. Wilson TRL Testimony Palo Alto (9_23_24).docx
CAUTION: This email originated from outside of the organization. Be cautiousof opening attachments and clicking on links.
Dear City Council of Palo Alto,
Please find attached my public comment for the September 23, 2024 City Council meeting.
Thank you,
Dr. Monica WilsonCalifornia Regional Director
Parents Against Vaping Ecigarettes(909) 781-4461
September 23, 2024
Dear City Council Members of Palo Alto,
My name is Dr. Monica Wilson, and I am a parent of four children and an advocate with Parents
Against Vaping (PAVe). I am here to strongly urge the enforcement of the ban on flavored e-
cigarettes and other flavored tobacco products as mandated by Senate Bill (SB) 793, signed
into law by Governor Gavin Newsom and upheld by California voters on November 8, 2022.
As a parent, my foremost concern is the health and well-being of my children. Flavored tobacco
products, including e-cigarettes, are particularly appealing to youth due to their sweet, fruity, and
minty flavors. These products are designed to mask the harshness of tobacco, making them
more palatable and enticing to youth. The tobacco industry's targeting of our children with these
flavored products is deeply concerning and poses a significant public health risk.
The data is alarming. Studies have shown that flavored tobacco products are a primary driver of
youth tobacco use. According to the 2024 National Youth Tobacco Survey, 90% of young
people who have ever used tobacco started with a flavored product. The sweet flavors act as a
gateway, leading to nicotine addiction and increasing the likelihood of progressing to traditional
cigarette smoking. As a result, our children face a higher risk of severe health consequences,
including respiratory issues, cardiovascular disease, and long-term addiction. The impact of
nicotine on a child’s brain which is not fully developed until the mid 20s, can be devastating -
nicotine negatively affects impulse control and attention.
Governor Newsom's signing of SB 793 and its subsequent endorsement by California voters
was a monumental step in protecting our children from the dangers of flavored tobacco.
However, the effectiveness of this law depends on rigorous enforcement at the local level. It is
imperative that retailers comply with the ban and that violations are promptly addressed to
prevent these harmful products from reaching our youth.
As an advocate with Parents Against Vaping, I have seen firsthand the devastating impact that
vaping has had on families across California. Parents are often unaware of the dangers posed
by e-cigarettes and flavored tobacco products until it is too late. We need robust enforcement to
ensure that these products are not available in our communities, particularly to our children.
I urge the City Council of Palo Alto to take decisive action in enforcing SB 793. This includes
regular inspections of retail locations, strict penalties for non-compliance, and ongoing public
education campaigns to raise awareness about the dangers of flavored tobacco products. By
doing so, we can protect the health of our children and prevent a new generation from becoming
addicted to nicotine.
In closing, I want to emphasize that this is not just a regulatory issue; it is a moral imperative. As
parents, community members, and leaders, we have a responsibility to safeguard the health
and future of our children. I implore you to enforce the ban on flavored e-cigarettes and other
flavored tobacco products with the utmost diligence and urgency.
Thank you for your time and consideration.
Sincerely,
Dr. Monica Wilson
Dr. Monica Wilson
Parents Against Vaping Advocate/California Region Director
monica@parentsagainstvaping.org