COUNTY OF SAN MATEO

Inter-Departmental Correspondence

Board of Supervisors

 

DATE:

February 27, 2008

BOARD MEETING DATE:

March 25, 2008

SPECIAL NOTICE/HEARING:

No

VOTE REQUIRED:

Majority

 

TO:

Honorable Board of Supervisors

FROM:

Supervisor Jerry Hill and Supervisor Rich Gordon

SUBJECT:

Revision of Chapter 4.98, Title 4 of the San Mateo County Ordinance Code, Governing Tobacco Retailer Permits

 

RECOMMENDATION:

Adopt an ordinance repealing and replacing Sections 4.98.100 through 4.98.160 and adding Sections 4.98.170 and 4.98.180 to Chapter 4.98 of Title 4 of the San Mateo County Ordinance Code governing tobacco retailer permits.

 

VISION ALIGNMENT:

Commitments: Ensure basic health and safety for all. Responsive, effective and collaborative government.

Goals 7, 22: Maintain and enhance the public safety for all residents and visitors. The proposed ordinance furthers the County’s vision of maintaining and enhancing the public health and safety of all residents and visitors by discouraging inappropriate tobacco sales. In addition, the County and local governments are effectively communicating, collaborating and developing strategic approaches to issues affecting the entire County.

 

BACKGROUND:

In May of 1998, this Board adopted an ordinance requiring tobacco retailers to obtain a permit in order to sell tobacco products. After the adoption of the ordinance, seven cities adopted similar (but not identical) ordinances. For the cities of San Mateo, Millbrae, San Carlos, Colma, Redwood City, Daly City, East Palo Alto as well as the unincorporated area, the permitting and enforcement activities are performed by the Environmental Health Division of the Health Department. Approximately 83 permits are issued in the unincorporated area and another 296 throughout the seven cities.

 

In 2003, several amendments were made to the ordinance. The most significant amendment broadened the grounds for permit suspension, allowing for suspension if there is any violation of the ordinance code or any federal or state tobacco related law and if the application for the permit was incomplete or inaccurate. The requirements for renewal of a permit were also tightened to ensure that tobacco retailers could not receive a new permit if the present permit is suspended or if there are any outstanding fines. In addition, a new provision was added requiring the tobacco retailer to report to the Sheriff any violations of tobacco related laws by agents or employees of the tobacco retailer.

 

DISCUSSION:

Since the beginning of 2007, there has been a marked increase in the number of permit suspension hearings conducted by the Environmental Health Division. There have been 12 such hearings in 2007 and additional hearings are expected to be scheduled in the coming weeks. This increase has occurred, in part, because the Environmental Health Division begun conducting revocation hearings based upon the reported results of stings targeting sales of tobacco to minors carried out by the California Department of Public Health pursuant to the Stake Act (Business and Professions Code § 22952). It is of note that the Legislature recently amended the Stake Act. Pursuant to this amendment, local law enforcement can now conduct "stings" of tobacco retailers within their jurisdictions (as long as they comply with Stake Act procedures) and collect fines for selling tobacco to minors. This change may encourage the cities to conduct enforcement activities. And, for those cities which have adopted the County’s ordinance, the County will be able to use the city's evidence to revoke the tobacco retailer's permit.

 

It has been determined that our current tobacco retailer permit hearing process can be improved. This proposed revision provides for an effective date of suspension and provides for a stay of a pending suspension if an appeal is requested before the suspension takes effect. In addition, it also provides that appeals are heard by the Licensing Board, which makes the final decision, rather than the Board of Supervisors.

 

The proposed revision adds additional clarity with respect to other portions of the ordinance. It clarifies that permits cannot be renewed if the permitee has outstanding fines issued by the Environmental Health Division and Department of Planning and Building. It also simplifies the ordinance by always requiring new permits for new locations.

 

Finally, the proposed revision strengthens the penalty provisions and provides for more consistent application. In the current version, the Environmental Health Division has discretion to order a suspension of zero to ninety days for a second offense and zero day to a year for a third offense (in any two year period). The proposed revision requires a minimum 30 day suspension for a second offense and a minimum 90 day suspension for a third offense (in any two year period).

 

We have encouraged the cities in the county to make the County’s ordinance effective within each of their jurisdictions, so that there will be a uniform countywide approach to ensuring the legal sale of tobacco products. If the Board adopts the proposed changes, we will encourage the cities to adopt the new version of the tobacco retailer ordinance.

 

FISCAL IMPACT:

There is no net County cost.

_____________________________ _____________________________

JERRY HILL, SUPERVISOR RICH GORDON, SUPERVISOR

cc: John L. Maltbie, County Manager

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