HomeMy WebLinkAboutAdmin Order 53-01-03-F
ADMINISTRATIVE ORDER NO. 53-01-03-F
of the
City Manager of the City of Eugene
ADOPTING TOBACCO PRODUCTS RETAIL
LICENSE ADMINISTRATIVE RULE R-3.515
The City Manager of the City of Eugene finds that:
A. Under provisions of Sections 2.019 and 3.515 of the Eugene Code, 1971 the City
Manager has authority to adopt rules for administration and implementation of any provisions of that
. Code, including provisions regulating the distribution, sale and consumption of tobacco products
within the City.
B. Pursuant to that authority, and based on the findings contained in Administrative
Order No. 53-01-03 issued on February 9,2001, I proposed the adoption of Tobacco Products Retail
License Administrative Rule R-3.515.
C. Notice of the proposed rule adoption was published in the Register-Guard for five
consecutive days, to-wit, on February 16, 17, 18, 19, and 20, 2001. The Notice was also made
available to persons who had requested such notice, aild provided that written comments would be
received thereon for a period of 15 days from the first date of publication. There were three written
comments received, to which I make the following specific findings:
Comments 1 and 2: Vicki Chandler and Rufus Richey objected to the licensing
program, the manner in which penalties are imposed, and the ordinance.
Findings: These comments address matters established by Council ordinance, which
cannot be altered by rules. No changes were made to the proposed rules as a result of these
comments.
Comment 3. Michael J. Lilly, on behalf of the Oregon Neighborhood Store
Association raised 10 objections to the proposed rules, which are summarized as follows: (1)
that the requirements for the license are arbitrary and capricious; (2) the rule establishes
arbitrary and capricious requirements for displays of tobacco products; (3) the requirement
that the retailer notify the City of all changes in owners, manager, or other persons authorized
to act on behalf of the licensee; (4) that the indemnity provision of R-3.515-G is an
unconstitutional taking of private property without compensation; (5) the City lacked
authority to adopt the ordinance, so cannot adopt the rule; (6) the ordinance and rule create
a tax; (7) the ordinance and rule are an unreasonable restriction of Interstate Commerce; (8)
the ordinance and rule create a taking of private property without due process and just
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compensation; (9) the ordinance violates the equal protection clause of the United States
Constitution; and (10) that the civil penalty formula included in the rule was not sufficiently
similar to OLCC's Responsible Vendor Program.
Findings. The purpose of these rules is to implement the Code provisions adopted
by Council ordinance. The objections raised in comments 5, 6, 7, 8, and 9 are directed to the
ordinance, and no response is made to those comments, nor changes to the proposed rules
as a result of the comments. In response to comment 1, this provision is consistent with
other similar rules, and no changes are being made to the rules as a result of the comment.
In response to comment 2, the frrst sentence ofR-3.515-C-l has been revised to clarify that
modifications will only be required if necessary to be in compliance with Code requirements.
The requirement objected to in comment 3 is necessary in order to ensure that the City is kept
apprized of persons authorized to act on behalf of licensees, and no change is being made to
the rules as a result of this comment. The City has Code and rule provisions in effect
licensing limousine operators, telecommunication providers, private commerce vendors,
solid waste collectors, and public passenger vehicle operators, and all of these rules contain
the indemnity obligation objected to in comment 4. It would be inconsistent to not include
it in these rules, and no change is being made as a result of this comment. In response to
comment 10, the ordinance does not require a program like the Responsible Vendor
Program; instead, it requires that the schedule of penalties include consideration of a
retailer's attempts to provide training and other preventative measures. The rule is consistent
with the intent of the ordinance, and no change is being made to the rules as a result of this
comment.
In addition to the above, during the comment period it was noted that a reference to
Subsection (2) of Section 3.510 had been omitted from the first paragraph ofR-3.515-K-I,
and that omission has been corrected.
Based upon the above findings, which are hereby adopted, and pursuant to the authority
contained in Sections 2.019 and 3.515 of the Eugene Code, 1971, I hereby adopt Tobacco Products
Retail License Administrative Rule R-3.515 as amended as noted above and in the finding to
Comment 2, to provide as follows:
Tobacco Products Retail License
Administrative Rule R-3.515
R-3.515-A
Definitions.
As used in these rules, words and phrases have the meanings ascribed to them in Section
3.005 of the Eugene Code, 1971, unless specifically defined otherwise herein.
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R-3.515-B
License Required.
1. Except as provided in R-3.515-D of this Rule, no retailer shall sell tobacco products
within the City without first applying for, and receiving a tobacco products retail license from the
City.
2. A license application shall be submitted on forms provided by the City, and may
include, but is not limited to the following information:
2.1 The identity of the applicant. If the applicant is a corporation, partnership,
or limited partnership, the name, address, date of birth and social security number of at least
two of the corporate officers and/or partners shall be provided, together with the name(s) of
the person(s) who exercise managerial control over the applicant's business, or is otherwise
authorized to act on behalf of the applicant.
2.2 A description of the tobacco products sold on the premises, where they are
kept or displayed, and the manner in which they are sold.
2.3 The type, manner, and frequency of tobacco regulation training sessions
provided for applicant's staff.
2.4 Any additional information required or deemed necessary by the City in order
to evaluate the applicant's qualification for a tobacco products retail license.
3. If the applicant is the owner of more than one location accessible to persons under
the age of 21 years at which tobacco products are sold, a separate application must be submitted and
a license obtained for each location.
R-3.515-C
Issuance of License.
1. The City may request such additional information as it finds necessary and if
necessary in order to ensure only vendor-assisted sales occur, may require modifications to the
manner in which the applicant displays the tobacco products offered for sale. After the information
required by the City has been provided, the application shall be reviewed and the license shall be
granted if the City finds that:
1.1 The applicant has completed any required modifications to the manner in
which tobacco products are displayed.
1.2 The applicant has obtained any other permits or licenses required by city,
state, or federal law related to the sale or distribution of tobacco products, paid all required
fees, and complied with any conditions precedent to the issuance of the license.
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1.3 Applicant's employees have received training with respect to tobacco
regulations, or the applicant has submitted and received City approval of a proposed schedule
for providing that training.
2. If the same applicant has more than one location accessible to persons under 21 years
of age at which tobacco products are sold, a separate license must be obtained for each location.
3. A tobacco products retail license may not be assigned or transferred.
4. An applicant shall not be issued a license during a period of suspension under R-
3.515-1; if materially misleading information is provided in a license application; or if information
that the applicant is lawfully required to provide is intentionally withheld. Notwithstanding this rule,
the City may issue a license for one location to an owner whose license has been suspended at
another location.
5. Licenses shall be valid for one year beginning July 1 and terminating June 30 of the
following year. Licenses may be reissued for additional one-year periods upon the completion of
a renewal application, subject to the following:
5.1 The licensee has paid all required fees and has complied with the terms of the
license and with all applicable ordinances, rules and other laws;
5.2. The licensee submits an application for renewal, accompanied by the required
fee, no later than May 15;
5.3 Renewal applications submitted between May 15 and May 31 shall be subject
to a late fee in an amount established by the City Manager pursuant to Section 2.020 of the
Eugene Code, 1971;
5.4 Renewal applications submitted after May 31 shall not be accepted by the
City, and the licensee shall be required to submit a new license application;
5.5 The City may suspend or revoke a license during its one-year term for failure
to pay required fees or for noncompliance with applicable ordinances, rules or other laws.
6. The revocation or suspension of a license shall be governed by the procedures set
forth in Sections 3.050 and 3.055 of the Eugene Code, 1971 and R-3.515-I.
7. A licensee shall notify the City if there is any change in the owners, managers, or
other persons authorized to act on behalf of the licensee, within ten days of the date of such change.
8. The license shall contain information about the penalty schedule set forth in Section
3.990(2) of the Eugene Code, 1971 that provides for enhanced penalties for second and subsequent
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violations occurring within a 24 month period, and of the potential imposition of an administrative
civil penalty pursuant to R-3.515-J and R-3.5125-K of this Rule.
9. The license shall be posted in a prominent place at the licensed premises that is
clearly visible to the public.
10. Appeals of denials, revocations and suspensions of licenses shall be governed by the
procedures set forth in Section 2.021 of the Eugene Code, 1971.
R-3.515-D
License Exemptions.
Neither Sections 3.500 to 3.515 of the Eugene Code, 1971 nor this Rule apply to
establishments. at which persons under the age of 21 years are prohibited or have no access to
tobacco products.
R-3.515-E
Tobacco Regulations Training.
1. Licensees shall be responsible for implementing tobacco regulations training for
e~ployees at the commencement of emplOYment, and annually thereafter. All licensees shall
maintain complete and accurate records of all tobacco regulations training program( s) that have been
implemented. The records shall reflect the type of program, the frequency of training sessions, the
names of employees, and the dates the employees completed the training session(s). The records
required herein shall be maintained for a period of five years from the date of the last entry.
2. The licensee must provide the City with access to the records upon request. Failure
to do so, or to maintain current records, may result in suspension or revocation of the license.
3. As used herein, "books and records" shall be construed expansively to include
information in whatever format stored.
R-3.515-F
Compliance with Other Laws.
All licensees must comply with all City, County, State and Federal laws and regulations, that
are applicable to the sale and distribution of tobacco products. It is the responsibility of each
licensee to determine what laws and regulations apply and to comply with them.
R-3.515-G Indemnity.
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Licensee shall indemnify, defend and hold the City of Eugene, its officers, agents, and
employees, harmless from any claims, actions, liability or cost including attorney fees and other costs
of defense, arising out of or in any way related to licensee's activities in connection with the sale and
distribution of tobacco products.
R-3.515-H Fees.
The annual license fee, renewal fee, and late fee shall be established by the City Manager in
the manner provided in Section 2.020 of the Eugene Code, 1971.
R-3.515-I
Suspension and Revocation.
1. In addition to suspension or revocation of a license under Sections 3.050 or 3.055 of
the Eugene Code, 1971:
(a) A licensee's tobacco products retail license maybe suspended for a period of
not more than 45 days upon a judicial or administrative determination that the licensee has
violated Sections 3-.505 to 3.515 of the Eugene Code, 1971 for a second time within a period
of24 months.
(b) Upon failure of a licensee to pay a fine imposed for violation of Sections
3.500 to 3.515 of the Eugene Code, 1971 within 30 days of the date imposed, a licensee's
tobacco products retail license shall be suspended until such time as the fine is fully paid.
(c) A licensee's tobacco products retail license may be revoked upon a judicial
or administrative determination that the licensee has violated Sections 3.505 to 3.515 for a
third or subsequent time within a period of 24 months.
2. No tobacco products shall be sold on the licensee's premises, and all tobacco products
shall be removed from all retail areas of the licensee's premises for the duration of the suspension
or revocation period.
3. . A suspension under Subsection 1.(a) above maybe waived by t~e City if the licensee
purchases and puts into use an ill scanner.
4. A licensee whose license is revoked under Subsection 1.( c) above may not reapply
for a tobacco products retail license for a period of six months from the date of revocation.
R-3.515-J
Administrative Civil Penalty - Procedures.
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1. Imposition of Administrative Civil Penalty. Except as modified in this Subsection
or R-3.515-K, the City Manager may issue a notice of violation and impose an administrative civil
penalty upon the licensee in the manner provided in Section 2.018 of the Eugene Code, 1971 for
violation of the provisions of Sections 3.500 to 3.515, this Rule, or a condition of a tobacco products
retail license. Notwithstanding the provisions of Subsection 2.018(2), no notice to correct shall be
issued prior to imposition of an administrative civil penalty. Failure to pay the administrative civil
penalty within ten days after it becomes final constitutes a violation of this rule and the Eugene
Code, 1971. In addition to any other enforcement mechanisms authorized by the Eugene Code, 1971,
this rule, or federal or state law, the City Manager may withhold issuance of requested licenses or
revoke or suspend any issued licenses if the licensee fails or refuses to pay an administrative civil
penalty imposed pursuant to this rule within the ten day period. If the violation resulting in the
imposition of the administrative civil penalty occurred on real property and the penalty remains
unpaid for a period of 30 days or more after becoming final, the full amount of the unpaid penalty
. and/or fine shall be assessed against the real property upon which the violation occurred and entered
as a lien in the docket of City liens. Notice of the assessment and docketing shall be given to the
property owner at the time the assessment is made. Interest at the rate prescribed by Section 2.022
of the Eugene Code, 1971 shall commence on the date the lien is entered on the lien docket, and the
lien shall be enforced in the same manner as liens' for street improvements.
2. Service. All notices/orders shall be served by personal service or sent by certified
mail and first class mail. Any notice/order served by mail shall be deemed received for purposes of
any time computations hereunder, three days after the date mailed, if to an address within this state,
and seven days after the date mailed, if to an address without this state.
3. Penalties Not Exclusive. Any administrative civil penalty imposed pursuant to this
section shall be in addition to, and not in lieu of, any other penalty authorized by Section 3.990(2)
of the Eugene Code, 1971, or any other action authorized by law.
R-3.515-K Determination of Amount of Civil Penalty.
1. Civil Penalty Formula. If the civil penalty is imposed for violation of Section 3.500
of the Eugene Code, 1971, the amount to be assessed shall be determined in accordance with the
formula contained in Administrative Rule R-2.018. If the civil penalty IS imposed for violation of
Sections 3.510(1)(2) of the Eugene Code, 1971, the amount of the administrative civil penalty to be
assessed under R-3.515-J shall be determined in accordance with the following formula:
(a) The dollar amount of the assessment per day is calculated by
multiplying the amount of the BASE (subsection (b)) by $10.00. Notwithstanding
this formula, the maximum assessment for a violation per day shall be $2,000.00.
(b) The BASE is the sum of"E" plus "P" plus "C" plus "K" where:
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1. "E" is the effort made by the responsible person in taking all
feasible steps or procedures necessary or appropriate to correct or prevent the
violation. The value of "E" shall be:
a. 1, if the responsible person has made an active attempt
to correct or prevent the violation. Whether signs were posted on
both the entrance door and cash register stating it is illegal to sell
tobacco products to persons under 18 years of age; whether an ill
scanner has been purchased and is being used; ifboth a calculator and
a "Born by Today's Date for Tobacco" sign is available for use by
clerks; and whether regularly scheduled staff training is provided
shall be considered in determining if an active attempt has been made
toward correcting or preventing the violation.
b. 3, if the person has made minor attempts to correct or
prevent the violation. A minor attempt would be reflected by only
having signs posted on either the entrance door or at the cash register;
making either a calculator or a "Born by Today's Date for Tobacco"
available for use by clerks; and providing clerks with tobacco
education information after a violation by a responsible party.
c. 5, if the person took little or no action whatsoever to
correct or prevent the violation, or if the violation was so severe as to
require immediate civil penalties. Little or no action includes no
signs posted stating the law with respect to tobacco sales; no aids
available for use by clerks; and either no ill scanner is available or it
is not being used.
2. "P" is the frequency of prior violations of ordinances, rules,
orders, or permits. The value of "P" is based on prior similar violations
verified as valid, regardless of whether enforcement action was taken. The
value of "P" shall be:
a. 5, if the present violation is the first violation of this
code provision by the responsible person, or if a prior violation
occurred more than 24 months previously.
b. 20, if the present violation is the second violation
within 24 months of the first violation.
c. 35, if the present violation is the third violation within
24 months of the first violation.
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d. 35, if the present violation is the fourth or subsequent
violation within 24 months of the first violation.
3. "C" is whether the cause of the violation was an unavoidable
accident, negligence, or a reckless or intentional act. The value of "C" shall
be:
a. 1, if the violation was an unavoidable accident or
caused by others. In making a determination, consideration shall be
given to whether the clerk failed to correctly calculat~. the minor's age
with the use of aids such as a calculator or "Born by Today's Date"
. .
SIgn.
-. < b. . ! . 3, iftlie violation was caused by a responsible person's
negligence. Negligence is the failure to exercise the care that a
prudent person would exercise under the circumstances. This
category applies when a clerk fails to correctly calculate a minor's age
without the use of aids such as a calculator or "Born by Today's
Date" sign; where a clerk asked for age without verifying the minor's
identification; or if the clerk fails to use the store's ill scanner.
c. 5, if the violation was caused by a responsible person's
reckless or intentional acts. A reckless act is marked by a lack of
proper caution or disregard for consequences. An intentional act is
an act done by intention or design. In making this determination,
consideration shall be given to whether a minor has access to tobacco
products (tobacco products not being sold by "vendor assisted sales"
only); whether the clerk uses the store's ill scanner, overrides the
scanner and sells to the minor; or the clerk does not ask for
identification.
4. "K" is the knowledge the responsible person has of City, State
and Federal requirements related to tobacco products sales. The value of"K"
shall be:
a. 1, if the responsible person was uninformed and
unaware that the action constituted a violation.
b. 3, if the responsible person reasonably should have
known the action constituted a violation.
c. 5, if the responsible person was informed the action
constituted a violation either through previous enforcement action,
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III
permitting, licensing or other means.
2. Inspection. Refusal to allow inspection of the location at the time of a violation may
result in a presumption that such aids as a calculator, ill scanner, or "Born By" sign are not available
to clerks.
3. Appeal. Any person required to pay a penalty hereunder may appeal the same to the
City Manager in the manner provided in Section 2.021 of the Eugene Code, 1971.
Dated this tf tr day of March, 2001.
71th(. c.L-a-~
cJ1
James R. Johnson
City Manager
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