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Ordinance amending Title 6, Chapter 6.46 of the South San Francisco Municipal Code (Tobacco Retailer Permit) to adopt by reference Title 4, Chapter 4.98 of the San Mateo County Ordinance Code, and repealing in its entirety Title 6, Chapter 6.47 (Sales of Flavored Tobacco Products, Pharmacy Sales of Tobacco Products, and Sales of Electronic Smoking Devices Prohibited). (second reading)
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WHEREAS, in 2008 the City of South San Francisco (City) adopted by reference San Mateo County Ordinance Code (SMCOC) Chapter 4.98 (Tobacco Retailer Permit) as South San Francisco Municipal Code (SSFMC) Title 6, Chapter 6.46; and
WHEREAS, the City’s adoption by reference of SMCOC Chapter 4.98 serves as the mechanism for the County of San Mateo’s (County) enforcement of Tobacco Retailer Permits in the City; and
WHEREAS, effective June 22, 2023, the County Board of Supervisors repealed the former SMCOC Chapter 4.98 (Tobacco Retailer Permit) and enacted a new SMCOC Chapter 4.98; and
WHEREAS, the County’s newly adopted SMCOC Chapter 4.98 strengthens enforcement of tobacco retailer permit requirements, requires two inspections per year of all retailers; establishes retailing restrictions for new businesses; updates the definitions of tobacco products to include synthetic nicotine and to align with the state’s definition of tobacco products, including flavored tobacco products; and prohibits issuing new tobacco retailer permits for any location within 1,000 feet of a “youth populated area” or within 500 feet of an existing tobacco retailer; and
WHEREAS, the County identified that the restrictions under the newly adopted SMCOC Chapter 4.98 are necessary to clarify County Health’s authority to enforce within incorporated areas and to reduce logistical challenges associated with administering and enforcing several city ordinances; and
WHEREAS, pursuant to the County’s newly adopted SMCOC Chapter 4.98, cities that want County Health to administer the tobacco retailer permit within their jurisdiction must pass an ordinance adopting the County’s newly adopted ordinance verbatim or in its entirety by reference, with no changes or additions to ensure County Health has the authority and ability to efficiently enforce a uniform regulatory scheme across all jurisdictions; and
WHEREAS, the County’s newly adopted SMCOC Chapter 4.98 increases fines, mandates a fine for all violations, mandates permit suspensions for multiple violations of sales to underage youth, and mandates two unannounced inspections by County Environmental Health Services staff per year; and
WHEREAS, City adoption of the County’s newly adopted SMCOC Chapter 4.98 by reference authorizes the County to enforce SMCOC Chapter 4.98 in the City, including authorization to suspend a tobacco retailer’s permit and/or imposing administrative fines following enumerated procedures and amounts; and
WHEREAS, administrative fines range from $500 for the first violation within a sixty month period and range up to $1000 for each subsequent violation within a sixty month period; and
WHEREAS, each day that tobacco products are sold or offered for sale without a permit constitutes a separate violation; and
WHEREAS, the City Council now desires to amend Title 6, Chapter 6.46 of the South San Francisco Municipal Code (Tobacco Retailer Permit) to adopt by reference Title 4, Chapter 4.98 of the San Mateo County Ordinance Code to authorize the Chief of San Mateo County Health, or designee, to administer and enforce, on behalf of that city, the provisions of San Mateo County Ordinance Code Chapter 4.98 of Title <https://ecode360.com/43440913>; and
WHEREAS, effective January 1, 2020, SSFMC Chapter 6.47 (Sales of Flavored Tobacco Products, Pharmacy Sales of Tobacco Products, and Sales of Electronic Smoking Devices Prohibited) prohibits the retail sale of flavored tobacco and e-cigarettes citywide at all businesses except for adult only retailers who permitted only those ages 21 years or older on their premises; and
WHEREAS, with adoption by reference of the newly adopted SMCOC Chapter 4.98, the provisions of SSFMC Chapter 6.47 would be in conflict with the new County SMCOC Chapter 4.98 requirements, as SSFMC Chapter 6.47 allows for flavored tobacco and flavored electronic smoking devices to be sold in adult-only retail stores; and
WHEREAS, the City Council now desires to repeal SSFMC Chapter 6.47 in its entirety to bring the SSFMC in compliance with SMCOC Chapter 4.98; and
WHEREAS, to adopt a code by reference the City is required to fully set forth the penalties, in accordance with Government Code Section 50022.4; and
WHEREAS, to adopt a code by reference the City is also required to comply with the procedures set forth in Government Code Section 50022.3; and
WHEREAS, in compliance with Government Code Section 50022.3, after the first reading of this ordinance on March 26, 2025, the City Council scheduled a public hearing; and
WHEREAS, notice of the public hearing was published pursuant to Government Code Section 6066; and
WHEREAS, the City Council held the public hearing on May 14, 2025.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Findings
The City Council of South San Francisco finds that all Recitals are true and correct and are incorporated herein by reference.
SECTION 2. Repeal of Title 6, Chapter 6.47 of the South San Francisco Municipal Code
The City Council hereby repeals in its entirety Title 6, Chapter 6.47 (Sales of Flavored Tobacco Products, Pharmacy Sales of Tobacco Products, and Sales of Electronic Smoking Devices Prohibited) of the South San Francisco Municipal Code. Section 1.01.090 of the South San Francisco Municipal Code shall apply to the repeal of Chapter 6.47.
SECTION 3. Amending Title 6, Chapter 6.46 of the South San Francisco Municipal Code (Tobacco Retailer Permit) to adopt by reference Title 4, Chapter 4.98 of the San Mateo County Ordinance Code
The City Council hereby amends Title 6, Chapter 6.46 of the South San Francisco Municipal Code (Tobacco Retailer Permit), to adopt by reference Title 4, Chapter 4.98 of the San Mateo County Ordinance Code, to read as follows:
Chapter 6.46 TOBACCO RETAILER PERMIT
6.46.010 Adoption by Reference of San Mateo County Ordinance Code Chapter 4.98; Authorization of enforcement by San Mateo County personnel
Chapter 4.98 “Tobacco Retailer Permit” of Title <https://ecode360.com/43440913> of the San Mateo County Ordinance Code, and any amendment thereto, is hereby adopted by reference and made effective in this city. Certified copies of San Mateo County Ordinance Code Chapter 4.98 of Title <https://ecode360.com/43440913>, as adopted hereby, have been deposited with the city clerk, and shall be at all times maintained by the city clerk for use and examination by the public. The city hereby authorizes the Chief of San Mateo County Health, or designee, to administer and enforce, on behalf of that city, the provisions of San Mateo County Ordinance Code Chapter 4.98 of Title <https://ecode360.com/43440913>.
6.46.020 Adoption of San Mateo County Ordinance Code Section 4.98.290; Suspension or Revocation of Permit
San Mateo County Ordinance Code Section 4.98.290 sets forth suspension or revocation of permit provisions as follows:
(a) Grounds for Suspension or Revocation.
(1) A Tobacco Retailer Permit may be suspended or revoked, as set forth below in subdivision (b), if any court of a competent jurisdiction determines, or the Director finds, based on a preponderance of the evidence after notice and opportunity for the Tobacco Retailer to be heard, that either of the following violations have occurred:
i. After the Permit was issued it is determined that the Application for the Permit is incomplete or inaccurate.
ii. The Tobacco Retailer or Tobacco Retailer's agent has violated any of the requirements, conditions, or prohibitions of this Chapter or any applicable local, state, or federal tobacco-related law.
(2) Notwithstanding the foregoing, a Tobacco Retailer Permit shall be suspended or revoked, for the maximum time periods and as set forth in subdivision (b), if any court of competent jurisdiction determines, or the Director finds, based on a preponderance of evidence and after notice and opportunity for the Tobacco Retailer to be heard, that the Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has Sold Tobacco Products to any Person(s) under the age of 21 years.
(b) Time Period of Suspension of Permit.
(1) Upon the first violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to 30 days.
(2) Upon the second violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to 90 days.
(3) Upon the third violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to one year.
(4) Upon the fourth violation within any sixty (60) month period, the Permit to Sell Tobacco Products shall be revoked. If a Permit is revoked, the Retailer shall not be eligible for a new Permit for a period of five (5) years after the effective date of revocation.
(c) Effective Date of Suspension or Revocation. Within ten (10) calendar days of the hearing, the Director shall issue written findings and an order regarding the suspension or revocation, which order will be effective ten (10) calendar days from the date such order was sent by certified mail to the Retailer, unless a timely appeal is filed in accordance with subsection (d).
(d) Appeal of Suspension or Revocation. The decision of the Director is appealable to the San Mateo County Licensing Board and the procedural rules of the San Mateo County Licensing Board shall govern hearings on all appeals of suspensions and revocations.
(1) An appeal must be in writing, be addressed to the Director and be hand- delivered to the offices of the Division of Environmental Health.
(2) An appeal must be received by the Director before the effective date of suspension or revocation provided by subsection (c) in order to be considered.
(3) The filing of a timely appeal will stay a suspension or revocation pending a decision on the appeal by the San Mateo County Licensing Board.
(4) The decision of the San Mateo County Licensing Board shall be a final administrative order, with no further administrative right of appeal.
6.46.030 Adoption of San Mateo County Ordinance Code Section 4.98.300; Administrative Fine
San Mateo County Ordinance Code Section 4.98.300 sets forth administrative fines as follows:
(a) Grounds for Fine. A fine shall be imposed on a Tobacco Retailer upon findings made by the Director, based on a preponderance of the evidence, that any Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has violated any of the requirements, conditions, or prohibitions of this Chapter. A fine shall be imposed in the maximum amounts set forth in subsection (b) of this section upon findings made by the Director that the Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has Sold any Tobacco Product to any Person(s) under the age of 21 years. Any administrative fine shall be imposed solely against the Tobacco Retailer, not the Tobacco Retailer's employees or agents.
(b) Amount of Fine. Upon written findings made by the Director under subsection (a), the person or entity holding the Tobacco Retailer Permit shall be subject to an administrative fine for each such violation as follows:
(1) A fine not exceeding five hundred dollars ($500.00) for a first violation within a sixty (60) month period; and
(2) A fine not exceeding one thousand dollars ($1,000.00) for each subsequent violation within a sixty (60) month period.
(c) Each day that Tobacco Products are Sold or offered for Sale without a Permit or otherwise in violation of this Chapter shall constitute a separate violation. A finding of "offered for Sale" in violation of this Chapter will be made if Tobacco Products are either actually Sold and/or displayed in the retail establishment, or if advertisements offering to Sell Tobacco Products are visible to customers.
(d) Fine Procedures. Notice of the fine shall be served on the Tobacco Retailer by certified mail. The notice shall contain a description of the facts upon which the asserted violation is based and an advisement of the right to request a hearing before the Director contesting the imposition of the fine. Said hearing must be requested within ten calendar days of the date appearing on the notice of the fine. The decision of the Director shall be a final administrative order, with no administrative right of appeal.
(e) Failure to Pay Fine. If a fine imposed pursuant to this Chapter is not paid within 30 calendar days from the date appearing on the notice of the fine or of the notice of determination of the Director after the review provided for under subdivision (c) of this Section, the fine may be referred to a collection agency within or external to the County. In addition, any outstanding fines must be paid prior to the issuance of any new Permit or renewal of a Permit.
SECTION 4. Severability
If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed the Ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 5. Publication and Effective Date
Pursuant to the provisions of Government Code Section 36933, the City Attorney shall prepare a summary of this Ordinance. At least five (5) days prior to the Council meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the Summary, and (2) post in the City Clerk’s Office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk’s Office a certified copy of the full text of this Ordinance. The ordinance shall go into effect 30 days after adoption by the City Council.
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