Berkeley Municipal Code Ch. 20.67 Alcohol Product Advertising

The primary purpose of this chapter is to promote the general welfare and reduce illegal purchase and consumption of alcohol products by minors, which is accomplished by limiting the exposure of minors to alcohol advertisements. (Ord. 6473-NS § 1 (part), 1999)

"Alcohol product" means alcohol, spirits, liquor, wine, beer, or any liquid or solid containing alcohol, spirits, wine or beer which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed or combined with other substances.

"Alcohol product advertising" means any billboard, sign, poster, placard, device, graphic display or other item which promotes or is designed to promote the sale, use or consumption of a particular brand of alcohol products, but shall not mean any advertising on the packaging of the product itself.

"Owner or operator" means and includes the owner of the property at which the advertising subject to this chapter is located, the owner of any billboard or other structure on which alcohol product advertising is located, as well as the operator of any commercial or other establishment at that location.

"Person" means any individual, firm, corporation, partnership, cooperative association, receiver, trustee, assignee, public or private entity or other legal entity.

"Publicly visible location" means any outdoor location and any window of a commercial establishment that is visible to the public from any street, sidewalk, or other public thoroughfare. This shall not be construed to include the inside of any commercial establishment, with the exception of its windows.

"School" means any public or private elementary school, junior high school, or high school. (Ord. 6473-NS § 1 (part), 1999)

No person shall place or maintain or cause or allow to be placed or maintained any alcohol product advertising in any publicly visible location within one thousand four hundred feet of the perimeter of any school. (Ord. 6473-NS § 1 (part), 1999)

This chapter shall not apply to alcohol product advertising which is located:

A. On any sign on the exterior of a commercial establishment which sign has as its primary function the identification of the commercial establishment on which it is located and/or the identification of products which are sold in such establishment as long as such identification of products is generic and does not identify any particular brand of product.

B. Inside any commercial establishment, however, no alcohol product advertising may be placed in the window of a commercial establishment such that it is visible to the public from any street, sidewalk or other public thoroughfare.

C. On commercial vehicles used for transporting alcohol products.

D. On taxicabs. (Ord. 6473-NS § 1 (part), 1999)

The ordinance codified in this chapter shall become operative six months from the date of its adoption. (Ord. 6473-NS § 1 (part), 1999)

Any violation of the provisions of this chapter is declared to be a public nuisance. The procedures for the abatement of such nuisances shall be governed by Berkeley Municipal Code Chapter 1.24 as may hereafter be amended. (Ord. 6473-NS § 1 (part), 1999)

A. Infraction. Any person violating any provision or failing to comply with any requirement of this chapter shall be deemed guilty of an infraction as set forth in Chapter 1.20 of this code.

1. Each separate display of alcohol product advertising in violation of this chapter is deemed to be a separate offense.

2. Each day an item of alcohol product advertising remains in violation of this chapter is deemed to be a separate offense.

B. Civil Action. In addition to any other remedy provided by this chapter, any violation of this chapter may be enforced by a civil action brought by the City or any other interested person. The City or any other interested person may seek and the court shall grant as appropriate:

1. Injunctive relief, both temporary and permanent; and

2. Costs of suit.

3. In any civil action filed pursuant to this chapter, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs; provided, that, pursuant to Government Code Section 38773.5, attorneys’ fees shall only be available in an action or proceeding in which the City has elected, at the commencement of such action or proceeding, to seek recovery of its own attorneys’ fees. In no action or proceeding shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the City in the action or proceeding.

C. Remedies Not Exclusive. Nothing in this chapter shall preclude the City from seeking any other remedy provided by law. (Ord. 7176-NS § 1, 2011; Ord. 6473-NS § 1 (part), 1999)

The City Council may adopt a resolution establishing a fee which must be paid by the owner or operator of a specified location whenever the City Manager, or their designee, determines upon reinspection that a person has failed to comply with any orders, notices or directions issued by the City under this chapter. (Ord. 6473-NS § 1 (part), 1999)

This chapter shall apply to all existing alcohol product advertising in violation of this chapter unless the owners or operators of the location at which such advertising is located provide written documentation to the City Manager, or their designee, within thirty days from the effective date of the ordinance codified in this chapter that this chapter unreasonably interferes with any contracts executed before the date of adoption of said ordinance.

A. Failure to provide such timely, written documentation shall be deemed a waiver of the right to seek an exemption.

B. The City Manager is authorized to grant an exemption from enforcement of this chapter for up to one year from the date of adoption. The decision of the City Manager with respect to such exemption is final. (Ord. 6473-NS § 1 (part), 1999)

The advertiser, the property owner and any operator of any location at which exists prohibited alcohol product advertising shall be jointly and severally liable for violations of this chapter. (Ord. 6473-NS § 1 (part), 1999)