Clayton Municipal Code Ch. 8.16 Restrictions on Tobacco Advertising and Promotion and Licensing Of…

The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it is apparent that they have a different meaning:

A. "Advertising display sign" means a sign, billboard, poster, free-standing sign, balloon, pennant or banner that is temporarily or permanently placed on or affixed to the ground, the sidewalk a pole or post, a fence, or a building, or is displayed in the windows or doors of a commercial establishment, and that is used to advertise or promote products.

B. "City Manager" means the City Manager for the City of Clayton or his or her designee.

C. "Mobile Billboard" means any sign, placard, billboard, or other advertisement display upon or affixed to a vehicle which display is used to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right of way or on private property and visible to the public for a duration of time and in a manner which clearly indicates that the sign is for advertising products illegal to sell to minors or which carry a specific brand name, logo, indicia of a product illegal to sell to minors. For the purpose of this chapter, a mobile billboard shall not include any advertisements on the side of a van, truck, or other vehicle, which is primarily used for the transportation of goods or products.

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

E. "Promote" or "promotion" means display of any logo, brand name, character, graphics, colors, designs, or recognizable color or pattern of colors, or any other indicia or product identification with, or similar to, or identifiable with, those used for any particular brand of tobacco product.

F. "Publicly Visible Location" means any outdoor location that is visible from any street, sidewalk or other public thoroughfare, or any location inside a commercial establishment immediately adjacent to a window or door where such location is visible from any street, sidewalk, or other public thoroughfare.

G. "Tobacco Product" shall mean any substance containing tobacco.

H. "Tobacco Retailer" shall mean any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia. "Tobacco Retailing" shall mean the doing of any of these things.

No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of cigarettes or tobacco products on an advertising display sign in a publicly visible location within one thousand six hundred (1,600) feet of the perimeter of an elementary or secondary school, public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts).

The restrictions contained in Section 8.25.020 shall not apply to advertising or promotions for tobacco products:

A. Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare.

B. On vehicles, other than mobile billboards.

C. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product.

D. On tobacco product packaging.

No person may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor, which bears the brand name, alone or in conjunction with, any other word, logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product.

It shall be unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any tobacco product by means of self-service display, rack, counter top or shelf that allows self-service sales for any tobacco product other than vendor-assisted sales.

All tobacco products shall be offered for sale exclusively by means of vendor assistance, with tobacco products in a locked case, or in an area not accessible to the public, and requiring employee assistance to retrieve the tobacco products.

Except as otherwise provided, this chapter shall be administered by the City manager who may develop guidelines to ensure implementation of this chapter.

A. The City Manager or his or her designee shall review, and if determined appropriate act upon any written complaint submitted by any private citizen or City officer or employee concerning any advertising or promotion prohibited by this chapter. The City Manager or his or her designee may serve a written ten (10) day notice upon the person responsible for the alleged advertising display sign or promotion or self-service display prohibited by this chapter. The written notice shall require the person to whom it is sent to either correct the violation within this ten (10) day period or submit, in writing, a response to the claim of violation. The City Manager or his or her designee shall investigate any written response arid determine whether or not a violation has occurred. This determination shall be in writing and a copy of the determination shall be sent to the person making the written complaint and to the person who is alleged to have engaged in the violation

B. Failure to correct specified violations may result in enforcement by any remedy provided by this code. If three (3) notices requiring the correction of any violation of this chapter, whether the violation involves the same or different displays or promotions, are served on the same person within a thirty (30) day period, an enforcement action may be initiated against that person without the serving of another notice, if the additional violation occurs within ninety (90) days of the serving of the third notice.

C. Each separate display of tobacco advertising or promotion prohibited by this chapter shall be considered a separate violation.

D. For purposes of determining liability of persons, firms or corporations, controlling franchises or business operations in multiple locations, each individual franchise or business location shall be deemed a separate entity.

Nothing in this chapter is intended to alter the obligations or restrictions which apply to any person under any other law governing signs, billboards, tobacco advertising or any other matter covered by this chapter. The remedies set forth in this chapter are not exclusive. If any action prohibited by this chapter is also unlawful under any other law, the penalties and remedies under such other law may be pursued in addition to those provided in this chapter.

A. It shall be unlawful for any retailer, individual or entity to sell or offer for sale any tobacco product without first obtaining and maintaining a valid tobacco retailers license for each location where such sales are conducted.

B. This license must be renewed annually.

A retailer, individual or entity who is required to obtain a tobacco retailer license pursuant to this code shall submit an application in the name of the retailer, individual or entity and be signed by the, retailer, individual or entity or agent with written authority to act for same. All applications shall be submitted on a form supplied by the City Manager and shall contain the following information.

A. The name, address and telephone number of the business owner and manager.

B. The business name, address and telephone number of each establishment where tobacco is to be sold.

C. Such other information as the City Manager determines is necessary.

Upon receipt of a completed application for a tobacco retailers license, including payment of the license fee, and the completion of an inspection of the premises, if required by the City Manager, to determine compliance with this chapter, the City Manager shall issue a license. Each licensee shall prominently display the license at the location where tobacco sales are conducted.

The fee for a tobacco retailer's license shall be set by City Council Resolution in an amount which covers the City costs for processing the application, inspecting the tobacco retailer's business premises to determine compliance with the standards contained in this chapter and implementing the licensing program.

A tobacco retailer's license is not transferable whether upon change of ownership, location or otherwise. If there is a change in location, a new tobacco retail license shall be issued for the new address upon receipt of an application for a change of location. The new license shall retain the same expiration date as the previous one.

A. A tobacco retailer's license may be suspended by the City Manager upon a finding, after notice and hearing, that a violation of this chapter, or any other applicable state or federal law governing the sale and distribution of tobacco, has occurred at the licensee's business premises.

B. The City Manager may suspend the licensee's license to sell tobacco products for up to sixty (60) days the first time the City Manager makes a finding of violation. The second time the City Manager makes a finding of violation, within twelve (12) months of the first violation, the licensee's license may be suspended for up to one hundred twenty (120) days. The third time the City Manager makes a finding of violation, within twelve (12) months of the first violation, the licensee's license may be suspended for up to one year.

C. Any suspension of a tobacco retailer's license may be appealed to the City Council within ten (10) days of receipt of the City Manager's decision to suspend the license. Such appeal shall be in writing and must be accompanied by payment of the applicable appeal fee specified in the City Council Resolution.

A. If the City Manager finds, after notice and hearing, that a person required to have a tobacco retailers license is selling or offering tobacco products for sale without a license, that person may be subject to an administrative fine of up to one hundred dollars ($100.00) for a first violation, up to two hundred dollars ($200.00) for a second violation within one year, and up to five hundred dollars ($500.00) for the third and subsequent violation within one year.

B. Each day that tobacco products are offered for sale without a license by a tobacco retailer required to have a license, shall constitute a separate violation. A finding of "offering for sale" shall be made if tobacco products are actually sold or displayed in the retail establishment.

C. Notice of the City Manager's intention to impose a fine shall be served on the tobacco retailer or the person who is the owner of the establishment, by certified mail. The notice shall contain an advisement of the right to request a hearing before the City Manager to contest the imposition of the fine. Such hearing must be requested within ten (10) days of the date of the notice of the fine.

D. Any fine imposed by the City Manager may be appealed to the City Council within ten (10) days of the decision of the City Manager. The appeal must be in writing and must be accompanied by the appeal fee as specified in the City Council Resolution.

By prohibiting the advertising or promotion of tobacco products in outdoor or publicly visible locations, prohibiting the distribution of tobacco-related promotional items and self-service displays of tobacco products, the City of Clayton is only protecting the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for which it may be liable in money damages to any person who claims that such breach proximately caused injury.