Chapter 38 HEALTH AND SANITATION*
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*Cross references: Animals, ch. 10; buildings and building regulations, ch. 14; flood management, ch. 34; manufactured homes, mobile homes, and trailers, ch. 58; solid waste, ch. 82; utilities, ch. 110.
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Article I. In General
Sec. 38-1. Offensive occupations.
Sec. 38-2. Drainage into streets prohibited.
Sec. 38-3. Nauseous odors, accumulations of waste and similar nuisances.
Sec. 38-4. Ratproofing.
Sec. 38-5. Depositing dead animals, garbage or refuse.
Sec. 38-6. Rat control at slaughterhouses and butcher shops.
Sec. 38-7. General sanitary condition required.
Secs. 38-8--38-30. Reserved.
Article II. Smoking in Public Places and Workplaces
Sec. 38-31. Findings; purpose.
Sec. 38-32. Definitions.
Sec. 38-33. Prohibition of smoking in city-owned facilities.
Sec. 38-34. Regulation of smoking in enclosed places.
Sec. 38-35. Regulation of smoking in places of employment.
Sec. 38-36. Optional smoking areas.
Sec. 38-37. Posting requirements.
Sec. 38-38. Vending machines.
Sec. 38-39. Distribution of free samples and coupons; out-of-package sales.
Sec. 38-40. Enforcement; penalties.
Secs. 38-41--38-60. Reserved.
Article III. Tobacco Retailers License Program
Sec. 38-61. Definitions.
Sec. 38-62. Self-service displays prohibited.
Sec. 38-63. Vendor assistance.
Sec. 38-64. Tobacco retailer license required.
Sec. 38-65. Limits on tobacco retailer licenses.
Sec. 38-66. Application procedure.
Sec. 38-67. Issuance of license.
Sec. 38-68. License renewal and expiration.
Sec. 38-69. Licenses nontransferable.
Sec. 38-70. Fees for license.
Sec. 38-71. Other requirements and prohibitions.
Sec. 38-72. Compliance monitoring.
Sec. 38-73. Revocation of license.
Sec. 38-74. License suspension.
Sec. 38-75. Tobacco retailing without a license or with a suspended license.
Sec. 38-76. Enforcement.
Sec. 38-77. Enforcement of state law regarding sales to minors.
Sec. 38-78. Intent as to additional legal restrictions and remedies.
Sec. 38-79. Service.
Sec. 38-80. Severability.
Secs. 38-81--38-100. Reserved.
Article IV. Food
Sec. 38-101. Unwholesome meat.
Sec. 38-102. Unwholesome vegetables and food.
Sec. 38-103. Regulation and control of sale of milk.
Sec. 38-104. Definitions.
Sec. 38-105. Food establishment permit required.
Sec. 38-106. Permit fees for food establishments.
Sec. 38-107. Individual health permits for employees and operations.
Sec. 38-108. Sanitation requirements.
Sec. 38-109. Temperature requirements.
Sec. 38-110. Violations; enforcement.
Sec. 38-111. Severability.
ARTICLE I. IN GENERAL
Sec. 38-1. Offensive occupations.
No person shall carry on, pursue, or maintain, within the city limits, any business or occupation offensive to the senses or prejudicial to public health or comfort.
(Code 1965, § 5100; Ord. No. 18; Ord. No. 235)
Sec. 38-2. Drainage into streets prohibited.
It shall be unlawful for any person, whether owner, occupant, lessee, or agent, to permit the discharge from any drain, sink, water closet, privy, washhouse, bathroom, stable, slaughterhouse, sewer, or private drain to connect with or run into or upon any street, alley, or park.
(Code 1965, § 5101; Ord. No. 18; Ord. No. 235)
Cross references: Streets, sidewalks, and other public places, ch. 90.
Sec. 38-3. Nauseous odors, accumulations of waste and similar nuisances.
It shall be unlawful for any person to permit any premises belonging to him or occupied by him, or any cellar, vault, pool, privy, sewer, slaughterhouse, or private drain thereon or therein, to become nauseous, foul, or offensive or prejudicial to public health; and if any person shall have or permit [on any premises] owned, occupied, or controlled by him any nuisance or any accumulation of filth, garbage, decaying animal or vegetable matter, or any animal or human excrement, or any privy, water closet, or cesspool, the contents thereof filling the same to within 30 inches of the ground surface, the owner or occupant shall be notified to remove and abate such nuisance within two days.
(Code 1965, § 5102; Ord. No. 18; Ord. No. 235)
Cross references: Public nuisances, § 62-31 et seq.
All building and basement walls of all storerooms, warehouses, residences, or other buildings, all chicken yards, pens, chicken coops or houses, and all barns and stables shall be so constructed or repaired by the use of screens, netting, cement, or other material to be approved by the Health Inspector and designed as to prevent rats and other rodents gaining entrance to such buildings, and to prevent rats and other rodents being harbored underneath the same or within the walls thereof; and all food products or other products, goods, wares, and merchandise, whether kept for sale or for any other purpose, shall be so protected as to prevent rats or other rodents from gaining access thereto, or coming in contact therewith; and all storehouses, warehouses, residences, and other buildings in the city shall be provided with one or more traps of such pattern as shall be approved by the Health Inspector, which traps shall be freshly baited twice each week or more often, if necessary. The traps shall be inspected daily and rats or other rodents caught therein removed and the traps reset and re-baited. The traps shall be thoroughly smoked when re-baited.
(Code 1965, § 5103; Ord. No. 18; Ord. No. 235)
Sec. 38-5. Depositing dead animals, garbage or refuse.
It shall be unlawful for any person, whether owner, lessee, occupant, or agent, to keep in any building or areaway, or upon any premises, alley, street, or public place adjacent to any premises, or to dump or place upon any land, or in any water or waterway, any dead animal, butcher's offal, fish, or parts of fish, or any waste vegetable matter, ashes, swill, or any refuse matter whatever. All refuse matter mentioned in this section must be collected and kept in tightly covered or closed metal cans or vessels, with a tag or label bearing the name of the owner securely attached thereto, plainly designating the premises with which the can or vessel is being or is intended to be used.
(Code 1965, § 5104; Ord. No. 18)
Cross references: Animals, ch. 10; solid waste, ch. 82.
Sec. 38-6. Rat control at slaughterhouses and butcher shops.
All slaughterhouses and butcher shops shall have and keep about the premises two or more traps of an approved pattern, which shall be freshly baited at least twice a week, and such traps inspected daily, so that rats or other rodents caught therein may be removed and the traps thoroughly smoked, re-baited, and reset.
(Code 1965, § 5105; Ord. No. 18; Ord. No. 235)
Sec. 38-7. General sanitary condition required.
All buildings, places, and premises in the city shall continuously be kept, by the owners or occupants thereof, in a clean and sanitary condition.
(Code 1965, § 5106; Ord. No. 18; Ord. No. 235)
Secs. 38-8--38-30. Reserved.
ARTICLE II. SMOKING IN PUBLIC PLACES AND WORKPLACES*
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*Cross references: Streets, sidewalks, and other public places, ch. 90.
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Sec. 38-31. Findings; purpose.
(a) Findings. The City Council finds that:
(Code 1965, § 4940; Ord. No. 85-52; Ord. No. 93-4)
(1) The U.S. Environmental Protection Agency has determined that tobacco smoke is the major contributor of particulate indoor air pollution;
(Code 1965, § 4940; Ord. No. 93-4)
(2) Reliable studies have shown that breathing sidestream or secondhand smoke is a significant health hazard, in particular for elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease;
(Code 1965, § 4940; Ord. No. 93-4)
(3) Health hazards induced by breathing sidestream or secondhand smoke include heart disease, lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm;
(Code 1965, § 4940; Ord. No. 93-4)
(4) Nonsmokers with allergies, respiratory diseases, and those who suffer other ill effects of breathing sidestream or secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same;
(Code 1965, § 4940; Ord. No. 93-4)
(5) The smoking of tobacco, or any other weed or plant, is a danger to health;
(Code 1965, § 4940; Ord. No. 93-4)
(6) The health care costs and lost productivity incurred by smoking-related disease and death represent a heavy and avoidable financial drain on our community;
(Code 1965, § 4940; Ord. No. 93-4)
(7) The free distribution of cigarettes and other tobacco products is aimed at encouraging people to begin smoking and using tobacco products and tempts those who quit smoking to begin smoking again.
(Code 1965, § 4940; Ord. No. 93-4)
(b) Purpose. The compelling purpose and intent of this article includes, but is not limited to, promoting the health, safety, and welfare of all people in the community against the health hazards and harmful effects of the use of addictive tobacco products.
(Code 1965, § 4940; Ord. No. 85-52; Ord. No. 93-4)
The following words and phrases, whenever used in this article, shall be construed as hereinafter set forth, unless it is apparent from the context that they have a different meaning:
(Code 1965, § 4941; Ord. No. 85-52; Ord. No. 93-4)
Area open to the public. Any area available to and customarily used by the general public.
(Code 1965, § 4941; Ord. No. 85-52; Ord. No. 93-4)
Bar. An area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages (Department of Alcoholic Beverage Control type 61, 42, or 48 licenses). That area of a restaurant which is devoted to the serving of alcoholic beverages and in which the service of food may be only incidental to the consumption of such beverages shall also be considered a bar. An area in which food service is only incidental shall: (1) not exceed 40 percent of a restaurant's total seating capacity; or (2) shall encompass only those areas in which gross receipts of the restaurant from food do not exceed 40 percent. The operator of each restaurant shall designate by which method it determines its bar area.
(Code 1965, § 4941; Ord. No. 85-52; Ord. No. 93-4)
Bowlers' settee. The area immediately behind the bowling line in which score is kept and seating is provided for bowlers waiting their turn to bowl.
(Code 1965, § 4941; Ord. No. 93-4)
Bowling center concourse. That area separated from the bowling lane, bowlers' settee, and visitors' settee by at least one step or a physical barrier.
(Code 1965, § 4941; Ord. No. 93-4)
Bowling lane. The bowler's approach, the foul line, and the lanes.
(Code 1965, § 4941; Ord. No. 93-4)
Distribute. To give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue, or offer to give, sell, deliver, dispense, or issue.
(Code 1965, § 4941; Ord. No. 85-52; Ord. No. 93-4)
Employee. Any person who is employed by any employer in consideration for direct or indirect monetary wages or profit.
(Code 1965, § 4941; Ord. No. 85-52; Ord. No. 93-4)
Employer. Any person, partnership, or corporation, including a municipal corporation or public entity, who employs the services of two or more persons or [where] two or more persons conduct business within the establishment.
(Code 1965, § 4941; Ord. No. 85-52; Ord. No. 87-3; Ord. No. 93-4)
Enclosed. Closed in by a roof and walls, with appropriate openings for ingress and egress.
(Code 1965, § 4941; Ord. No. 85-52; Ord. No. 93-4)
General public. Shoppers, customers, patrons, patients, students, clients, and other invitees of a commercial enterprise or nonprofit entity.
(Code 1965, § 4941; Ord. No. 85-52; Ord. No. 87-3; Ord. No. 93-4)
Place of employment. Any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including but not limited to work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a place of employment, unless it is used as a child care or health care facility.
(Code 1965, § 4941; Ord. No. 93-4)
Smoking. The carrying or holding of a lighted pipe, cigar or cigarette of any kind, or any other lighted smoking equipment, or the lighting, emitting, or exhaling the smoke of a pipe, cigar, or cigarette of any kind.
(Code 1965, § 4941; Ord. No. 93-4)
Sports arena. Sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling centers, halls, and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition, or witness sporting events.
(Code 1965, § 4941; Ord. No. 93-4)
Vending machine. Any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin, paper bill, or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco accessories.
(Code 1965, § 4941; Ord. No. 93-4)
Visitors' settee. Seating provided immediately behind the bowlers' settee.
(Code 1965, § 4941; Ord. No. 93-4)
Cross references: Definitions generally, § 1-10.
Sec. 38-33. Prohibition of smoking in city-owned facilities.
Smoking is prohibited in all buildings, vehicles, and other enclosed areas occupied by city employees, owned or leased by the city, or otherwise operated by the city.
(Code 1965, § 4942; Ord. No. 85-52; Ord. No. 93-4)
Sec. 38-34. Regulation of smoking in enclosed places.
(a) Smoking is prohibited in the following places within the city:
(Code 1965, § 4943; Ord. No. 85-52; Ord. No. 93-4)
(1) In all enclosed areas available to and customarily used by the general public and all businesses patronized by the public, including but not limited to retail stores, the common areas of hotels and motels, pharmacies, banks, shopping malls, and other offices.
(Code 1965, § 4943; Ord. No. 93-4)
(2) a. Restaurants shall provide 80 percent of a flexible contiguous floor area as nonsmoking on or before the effective date of this article and shall be 100 percent nonsmoking by July 1, 1993. The owner, manager, or operator shall post signs as required by section 38-37 and shall remove all ashtrays from tables and counter(s) in the nonsmoking area.
(Code 1965, § 4943; Ord. No. 93-4)
b. On or after October 1, 1993, restaurants may apply for a hardship exemption for up to 20 percent of their restaurant seating area. The applicant shall have the burden of proof in establishing that this article has created an unreasonable economic effect on his business and threatens the survival of the restaurant. The application shall be made to the City Manager and be reviewed and acted upon pursuant to administrative regulations adopted by Council resolution. The decision of the City Manager shall be final and nonappealable.
(Code 1965, § 4943; Ord. No. 93-4)
(3) a. Waiting rooms, hallways, wards, and semi-private rooms of health facilities, including but not limited to hospitals, clinics, physical therapy facilities, and doctors' offices, except that health facilities shall also be subject to the provisions of section 38-35 regulating smoking in places of employment.
(Code 1965, § 4943; Ord. No. 93-4)
b. A hospital patient may be authorized to smoke by the treating physician while on inpatient status, subject to such restrictions as the hospital may impose.
(Code 1965, § 4943; Ord. No. 93-4)
(4) Elevators, public restrooms, indoor service lines, buses, taxicabs, and other means of public transit under the authority of public entities, and in ticket, boarding, and waiting areas of public transit facilities; provided, however, this prohibition does not prevent the establishment of separate waiting areas for smokers and nonsmokers, provided at least 60 percent of a given waiting area shall be designated as a nonsmoking area.
(Code 1965, § 4943; Ord. No. 93-4)
(5) In the public area(s) of museums and galleries.
(Code 1965, § 4943; Ord. No. 93-4)
(6) Theaters, auditoriums, concert facilities, and halls which are used for motion pictures, stage dramas, musical performances, ballets, or other exhibitions, both indoor and outdoor, except when smoking is part of any such production; provided, however, in outdoor facilities, designated smoking areas may be provided which shall be segregated from nonsmoking areas.
(Code 1965, § 4943; Ord. No. 93-4)
(7) Retail food marketing establishments, including grocery stores and supermarkets.
(Code 1965, § 4943; Ord. No. 93-4)
(8) Public schools and other public facilities under the control of another public agency, which are available to and customarily used by the general public, to the extent that the same are subject to the jurisdiction of the city.
(Code 1965, § 4943; Ord. No. 93-4)
(9) Sports arenas, both indoor and outdoor, and convention halls, except in outdoor sports arenas, designated smoking areas may be provided which shall be segregated from nonsmoking areas.
(Code 1965, § 4943; Ord. No. 93-4)
(10) Bowling centers, including but not limited to bowling lanes, bowlers' settees, visitors' settees, and game rooms; provided, however, that a designated smoking area may be provided on the bowling center concourse. The owner, manager, or operator of the bowling center shall post signs as required by section 38-37 and remove all ashtrays from nonsmoking areas.
(Code 1965, § 4943; Ord. No. 93-4)
(11) Private residences, when used as child care or health care facilities. Board and care facilities shall provide smoke-free living quarters for nonsmoking boarders.
(Code 1965, § 4943; Ord. No. 93-4)
(12) Bingo parlors, except a separate enclosed room, may be designated as a smoking room. The owner, manager, or operator of the bingo parlor shall post signs as required by section 38-37 and remove all ashtrays from the nonsmoking room.
(Code 1965, § 4943; Ord. No. 93-4)
(b) Notwithstanding any other provision of this section, any owner, operator, manager, or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment.
(Code 1965, § 4943; Ord. No. 85-52; Ord. No. 93-4)
Sec. 38-35. Regulation of smoking in places of employment.
(a) Smoking is prohibited in any place of employment, including but not limited to open office areas, shared offices, and private offices occupied by employees performing clerical, technical, administrative, or other business or work functions; and conference and meeting rooms, classrooms, auditoriums, restrooms, medical facilities, hallways, and elevators.
(Code 1965, § 4944; Ord. No. 85-52; Ord. No. 93-4)
(b) The provisions of this section shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter.
(Code 1965, § 4944; Ord. No. 85-52; Ord. No. 93-4)
Sec. 38-36. Optional smoking areas.
Notwithstanding any provision of this article to the contrary, the following areas shall not be subject to the smoking restrictions of this article:
(Code 1965, § 4945; Ord. No. 85-52; Ord. No. 93-4)
(1) A private residence, including one which may serve as a place of employment, except when covered by section 38-34(a)(11).
(Code 1965, § 4945; Ord. No. 85-52; Ord. No. 93-4)
(2) Bars, except as provided otherwise in this article.
(Code 1965, § 4945; Ord. No. 85-52; Ord. No. 93-4)
(3) Licensed card rooms.
(Code 1965, § 4945; Ord. No. 85-52; Ord. No. 93-4)
(4) Hotel and motel rooms rented to guests; provided, however, that each hotel and motel designates not less than 30 percent of its guestrooms as nonsmoking rooms and removes ashtrays from these rooms.
(Code 1965, § 4945; Ord. No. 85-52; Ord. No. 93-4)
(5) Rooms in restaurants, hotel and motel conference or meeting rooms, and public and private assembly rooms while these rooms are being used for private functions.
(Code 1965, § 4945; Ord. No. 85-52; Ord. No. 93-4)
(6) Retail stores that deal exclusively in the sale of tobacco and smoking paraphernalia.
(Code 1965, § 4945; Ord. No. 85-52; Ord. No. 87-3; Ord. No. 93-4)
(7) In places of employment, employers may provide specific smoking areas for employees, provided all of the following conditions are met:
(Code 1965, § 4945; Ord. No. 85-52; Ord. No. 93-4)
a. The smoking area shall be provided with a heating, ventilating and air conditioning (HVAC) system designed such that none of the air from the smoking area will be recirculated into the other areas of the building;
(Code 1965, § 4945; Ord. No. 93-4)
b. The smoking area shall be completely separated from the remainder of the building by solid partitions or glazing without openings other than doors, and all doors leading to the smoking area shall be self-closing. The doors shall be provided with a gasket so installed as to provide a seal where the door meets the stop on both sides and across the top;
(Code 1965, § 4945; Ord. No. 93-4)
c. The smoking areas shall maintain a minimum negative pressure of 0.005-inch water column relative to nonsmoking areas;
(Code 1965, § 4945; Ord. No. 93-4)
d. The employer shall submit written verification and test results to the City Manager or his designee, prepared by a licensed mechanical contractor or engineer, that the HVAC system has been designed and tested and meets the requirements set forth in subsections a through c above;
(Code 1965, § 4945; Ord. No. 93-4)
e. If the HVAC system is part of a smoke removal system or pressurization system, any modifications to these systems to provide smoking areas will require approval from the Contra Costa Fire Department. Written verification of this approval shall be provided to the City Manager;
(Code 1965, § 4945; Ord. No. 93-4)
f. If the specific smoking area is an employee breakroom, lunchroom, or other area which may be used by nonsmoking employees, then a separate nonsmoking breakroom, lunchroom, or other area shall be provided of equal or larger size and include at least equal facilities.
(Code 1965, § 4945; Ord. No. 93-4)
Sec. 38-37. Posting requirements.
(a) "Smoking" or "No Smoking" signs, whichever are appropriate, with letters of not less than one inch in height, or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red diagonal bar across it) shall be clearly, sufficiently, and conspicuously posted in every building or other place where smoking is controlled by this article, by the owner, operator, manager, or other person having control of such building or other place.
(Code 1965, § 4946; Ord. No. 85-52; Ord. No. 93-4)
(b) Every hotel or motel regulated by this article will have posted at its entrance a sign clearly stating that nonsmoking rooms are available, and every patron shall be asked as to his preference.
(Code 1965, § 4946; Ord. No. 93-4)
Vending machines as defined in section 38-32 may be located only on those premises which have either a type 61, type 42, or type 48 license from the Department of Alcoholic Beverage Control. Vending machines must be located at least 25 feet from any entry into the premises.
(Code 1965, § 4947; Ord. No. 85-52; Ord. No. 93-4)
Sec. 38-39. Distribution of free samples and coupons; out-of-package sales.
(a) Distribution of free samples and coupons.
(1) No person, firm, association, or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall, in the course of such business, distribute, direct, authorize, or permit any agent or employee to distribute: (1) any cigarette or other tobacco or smoking products, including any smokeless tobacco products; or (2) coupons, certificates, or other written material which may be redeemed for tobacco products without charge, to any person on any public street or sidewalk; in any public park, playground, or on any other public ground; or in any public building.
(Code 1965, § 4948; Ord. No. 85-52; Ord. No. 93-4)
(2) No agent or employee of any person, firm, association, or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall, in the course of such business, distribute: (1) any cigarette or other tobacco or smoking products, including any smokeless tobacco products; or (2) coupons, certificates, or other written material which may be redeemed for tobacco products without charge, to any person on any public street or sidewalk; in any public park, playground, or on any other public ground; or in any public building.
(Code 1965, § 4948; Ord. No. 93-4)
(3) For purposes of this section, "public ground" and "public building" include sports arenas as defined in section 38-32 and any entertainment facility, except a bar, whether enclosed or not, for which a charge is made for admission, whether publicly or privately owned.
(Code 1965, § 4948; Ord. No. 93-4)
(b) Out-of-package sales. No person shall sell, or offer for sale, cigarettes or smokeless tobacco not in the original packaging provided by the manufacturer.
(Code 1965, § 4948; Ord. No. 93-4)
Sec. 38-40. Enforcement; penalties.
(a) Enforcement.
(1) Administration of this article shall be by the City Manager or his designee.
(Code 1965, § 4949; Ord. No. 85-52; Ord. No. 93-4)
(2) Any citizen who desires to register a complaint hereunder may initiate enforcement consideration with the City Manager or his designee.
(Code 1965, § 4949; Ord. No. 93-4)
(3) Any owner, manager, operator, or employer of any establishment subject to this article may inform persons violating this article of the appropriate provisions hereof.
(Code 1965, § 4949; Ord. No. 93-4)
(b) Penalties.
(1) It is unlawful for any person who owns, manages, operates, or otherwise controls the use of any premises subject to the restrictions of this article to fail to properly post signs required hereunder.
(Code 1965, § 4949; Ord. No. 93-4)
(2) It shall be unlawful for any person to smoke in any area restricted to nonsmoking by the provisions of this article.
(Code 1965, § 4949; Ord. No. 93-4)
(3) Any person or business who violates any provision of this article shall be guilty of an infraction, punishable by:
(Code 1965, § 4949; Ord. No. 93-4)
a. A fine, not exceeding $100.00, for the first violation;
(Code 1965, § 4949; Ord. No. 93-4)
b. A fine, not exceeding $200.00, for a second violation within one year;
(Code 1965, § 4949; Ord. No. 93-4)
c. A fine, not exceeding $500.00, for each additional violation of this article within one year.
(Code 1965, § 4949; Ord. No. 93-4)
(c) Nonretaliation. No person or employer shall discharge, refuse to hire, or in any manner retaliate against any person, employee, or applicant for employment because such person exercises any rights afforded by this article.
(Code 1965, § 4949; Ord. No. 93-4)
(d) Other applicable laws. This article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
(Code 1965, § 4949; Ord. No. 93-4)
Secs. 38-41--38-60. Reserved.
ARTICLE III. TOBACCO RETAILERS LICENSE PROGRAM
As used under this article, the following terms shall have the following meanings unless otherwise indicated from the context:
(Code 1965, § 4840; Ord. No. 01-5; Ord. No. 06-10)
Area which minors Frequent shall mean any public or private kindergarten, elementary, middle school, junior high, or high school, preschool, public library, public playground or playground area in a public park and the Pavilion located at 2000 Kirker Pass Road.
(Ord. No. 06-10)
City Manager means the Concord City Manager, or his or her designee.
(Ord. No. 06-10)
Person means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or other legal entity.
(Ord. No. 06-10)
Self-service display means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A vending machine is a form of self-service display.
(Ord. No. 06-10)
Tobacco paraphernalia means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.
(Ord. No. 06-10)
Tobacco product means (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence.
(Ord. No. 06-10)
Tobacco retailer means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, or who distributes free or low cost samples of tobacco products or tobacco paraphernalia.
(Ord. No. 06-10)
Tobacco retailing shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
(Ord. No. 06-10)
Sec. 38-62. Self-service displays prohibited.
It shall be unlawful for any person within the city to engage in tobacco retailing by means of a self-service display.
(Code 1965, § 4841; Ord. No. 01-5; Ord. No. 06-10)
Sec. 38-63. Vendor assistance.
All tobacco products shall be offered for sale exclusively by means of vendor assistance. Tobacco products shall be located exclusively in a locked case, located behind counters out of reach from customers, or in a similar location that is inaccessible to customers, requiring vendor assistance for the customer to obtain access to the tobacco products.
(Code 1965, § 4842; Ord. No. 01-5; Ord. No. 06-10)
Sec. 38-64. Tobacco retailer license required.
(a) It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this article for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's license is a public nuisance.
(Code 1965, § 4843; Ord. No. 01-5; Ord. No. 06-10)
(b) A tobacco retailer or proprietor without a valid tobacco retailer license, including a person whose license has been revoked or suspended:
(Ord. No. 06-10)
(1) Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under Section 38-69(a).
(Ord. No. 06-10)
(c) Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the limited privilege to act as a tobacco retailer at the location in the city identified on the face of the permit and for the period of time designated. This article shall not be construed to render inapplicable, supercede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5.
(Ord. No. 06-10)
Sec. 38-65. Limits on tobacco retailer licenses.
(a) No license may issue to authorize tobacco retailing at other than a fixed location.
(Code 1965, § 4844; Ord. No. 01-5; Ord. No. 06-10)
Sec. 38-66. Application procedure.
(a) Applications for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof.
(Code 1965, § 4845; Ord. No. 01-5; Ord. No. 06-10)
(b) It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's license. No proprietor may rely on the issuance of a license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this article, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 38-73 of this article. Nothing in this article shall be construed to vest in any person obtaining and maintaining a tobacco retailer's license any status or right to act as a tobacco retailer in contravention of any provision of law.
(Ord. No. 06-10)
(c) All applications shall be submitted on a form supplied by the department and shall contain the following information:
(Ord. No. 06-10)
(1) The name, address, and telephone number of each proprietor of the business that is seeking a license.
(Ord. No. 06-10)
(2) The business name, address, and telephone number of the single fixed location for which a license is sought.
(Ord. No. 06-10)
(3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the "Authorized Address") required by, authorized by, or convenient to the enforcement of this article. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above.
(Ord. No. 06-10)
(4) Proof that the location for which a tobacco retailer's license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization.
(Ord. No. 06-10)
(5) Whether or not any proprietor has admitted violating, or has been found to have violated, this article or whose proprietorship has admitted violating, or has been found to have violated, this article, and, if so, the dates and locations of all such violations within the previous six years.
(Ord. No. 06-10)
(6) Such other information as the department deems necessary for the administration or enforcement of this article.
(Ord. No. 06-10)
(7) All information required to be submitted in order to apply for a tobacco retailer's license shall be updated with the department whenever the information changes. A tobacco retailer shall provide the department with any updates within ten (10) business days of a change.
(Ord. No. 06-10)
Sec. 38-67. Issuance of license.
Upon the receipt of an application for a tobacco retailer's license and the license fee required by this article, the department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
(Code 1965, § 4846; Ord. No. 01-5; Ord. No. 06-10)
(a) The information presented in the application is incomplete, inaccurate, or false. Intentionally supplying inaccurate or false information shall be a violation of this article.
(Ord. No. 06-10)
(b) The application seeks authorization for tobacco retailing for a proprietor to whom this article prohibits a license to be issued.
(Ord. No. 06-10)
(c) The application seeks authorization for tobacco retailing that is prohibited pursuant to this article, that is unlawful pursuant to this code which includes but is not limited to the city's zoning ordinance, building codes, and business license tax ordinance, or that is unlawful pursuant to any other law.
(Ord. No. 06-10)
(d) Failure to pay an outstanding fine.
(Ord. No. 06-10)
Sec. 38-68. License renewal and expiration.
(a) Renewal of license. A tobacco retailer license is invalid unless the appropriate fee has been paid in full and the term of the license has not expired. The term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license and submit the license fee no later than thirty (30) days prior to expiration of the term.
(Code 1965, § 4847; Ord. No. 01-5; Ord. No. 06-10)
(b) Expiration of license. A tobacco retailer's license that is not timely renewed shall expire at the end of its term. To reinstate a license that has expired, or to renew a license not timely renewed pursuant to subparagraph (a), the proprietor must follow the application procedures set forth in Concord Municipal Code Section 38-66.
(Code 1965, § 4847; Ord. No. 01-5; Ord. No. 06-10)
Sec. 38-69. Licenses nontransferable.
(a) A tobacco retailer's license may not be transferred from one person to another or from one location to another. Whenever a tobacco retailing location has a change in proprietors, a new tobacco retailer's license is required.
(Code 1965, § 4848; Ord. No. 01-5; Ord. No. 06-10)
(b) Notwithstanding any other provision of this article, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:
(Ord. No. 06-10)
(1) The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors.
(Ord. No. 06-10)
The fee to issue or to renew a tobacco retailer's license shall be established in the Resolution Establishing Various Municipal Fees and Charges. The fee shall be calculated so as to recover the total cost of both license administration and license enforcement, including, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this article. All fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.
(Code 1965, § 4849; Ord. No. 01-5; Ord. No. 06-10)
Sec. 38-71. Other requirements and prohibitions.
(a) Lawful business operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this article for a licensee, or any of the licensee's agents or employees, to:
(Code 1965, § 4850; Ord. No. 01-5; Ord. No. 06-10)
(1) Violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
(Code 1965, § 4850; Ord. No. 01-5; Ord. No. 06-10)
(2) Violate any local, state, or federal law regulating exterior, storefront, window, or door signage.
(Code 1965, § 4850; Ord. No. 01-5; Ord. No. 06-10)
(b) Display of license. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
(Ord. No. 06-10)
(c) Positive identification required. No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of twenty-seven (27) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product or tobacco paraphernalia.
(Ord. No. 06-10)
(d) Minimum age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.
(Ord. No. 06-10)
Sec. 38-72. Compliance monitoring.
(a) Compliance with this article shall be monitored by the Concord Police Department and any other designee of the City Manager. Any peace officer may enforce the penal provisions of this article.
(Code 1965, § 4851; Ord. No. 01-5; Ord. No. 06-10)
(b) Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance check shall determine compliance with other laws applicable to tobacco retailing.
(Ord. No. 06-10)
Sec. 38-73. Revocation of license.
(a) Grounds for Revocation. A tobacco retailer's license may be revoked on any of the following grounds:
(Code 1965, § 4852; Ord. No. 01-5; Ord. No. 06-10)
(1) One or more of the grounds for denial of a tobacco retailer's license under Section 38-66 existed either when a license application was made or before the tobacco retailer's license was issued;
(Ord. No. 06-10)
(2) The tobacco retailer's license fee is unpaid;
(Ord. No. 06-10)
(3) The tobacco retailer's license has been transferred in violation of Section 38-69; or
(Ord. No. 06-10)
(4) The tobacco retailer has violated any section of this article, or any state or federal tobacco-related laws.
(Ord. No. 06-10)
(b) Notice of revocation hearing. If any grounds for revocation exist, the Police Department may issue a notice of revocation hearing. A notice of revocation hearing will be served to a tobacco retailer and will include all of the following information:
(Ord. No. 06-10)
(1) The address or a definite description of the location where the tobacco retailer's license is issued;
(Ord. No. 06-10)
(2) The grounds for revocation;
(Ord. No. 06-10)
(3) The date of the Revocation Hearing before the City Manager. The notice of Revocation Hearing will set the hearing date no sooner than twenty days and no later than forty-five days following the date the notice of revocation hearing is served.
(Ord. No. 06-10)
(c) Revocation hearing. A tobacco retailer's license may be revoked by the City Manager, after a tobacco retailer's license revocation hearing. At the hearing, the licensee will be given the opportunity to testify and to present evidence concerning the grounds set forth in the notice of revocation hearing. After considering the testimony and evidence submitted at the hearing, the City Manager, will issue a written decision to revoke or not revoke the license and will list in the decision the reason or reasons for that decision. The written decision will be served as specified in Section 38-79. A revocation is without prejudice to the filing of a new application for a tobacco retailer's license. The City Manager's decision is final.
(Ord. No. 06-10)
(d) Final order. The tobacco retailer's license revocation becomes a final administrative order at one of the following times:
(Ord. No. 06-10)
(1) On the date of the revocation hearing, if a tobacco retailer fails to appear at a scheduled revocation hearing;
(Ord. No. 06-10)
(2) On the date of the decision by the City Manager, if a tobacco retailer appears at a scheduled appeal hearing before the City Manager.
(Ord. No. 06-10)
(e) Revocation of license issued in error. A tobacco retailer's license shall be revoked if the Concord Police Department finds, after the license is afforded reasonable notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 38-66 existed at the time application was made or at any time before the license issued. The hearing officer's decision shall be final.
(Ord. No. 06-10)
Sec. 38-74. License suspension.
(a) Grounds for suspension. A tobacco retailer's license may be suspended for any violation of this Article of this code, or any state or federal tobacco-related laws.
(Code 1965, § 4853; Ord. No. 01-5; Ord. No. 06-10)
(b) Notice of suspension hearing. If any grounds for suspension exist, the Concord Police Department may issue a notice of suspension hearing. The notice of suspension hearing will be served to a tobacco retailer as specified in Section 38-79 and will include all of the following information:
(Ord. No. 06-10)
(1) The date of the violation;
(Ord. No. 06-10)
(2) The address or other description of the location where the violation occurred;
(Ord. No. 06-10)
(3) The code section(s) violated, or applicable state or federal law violated, and a description of the violation;
(Ord. No. 06-10)
(4) The time period of the tobacco retailer's license suspension;
(Ord. No. 06-10)
(5) The date of the suspension hearing before the City Manager. The notice of suspension hearing will set the hearing date no sooner than twenty days and no later than forty-five days following the date the notice of suspension hearing is served.
(Ord. No. 06-10)
(c) Suspension hearing. A tobacco retailer's license may be suspended by the City Manager, after a tobacco retailer's license suspension hearing. At the hearing, the licensee will be given the opportunity to testify and to present evidence concerning the notice of suspension hearing. After considering the testimony and evidence submitted at the hearing, the City Manager will issue a written decision to suspend or not suspend the tobacco retailer's license. The City Manager will list in the decision the reason or reasons for the decision and will list the time period of the tobacco retailer's license suspension, if applicable. The written decision will be served as specified in Section 38-79. The City Manager's decision is final.
(Ord. No. 06-10)
(d) Time period of license suspension.
(1) A tobacco retailer's license suspension may be up to thirty days for a first violation;
(Ord. No. 06-10)
(2) A tobacco retailer's license suspension may be up to ninety days for a second violation occurring within twenty-four months of the first violation;
(Ord. No. 06-10)
(3) A tobacco retailer's license suspension may be up to one year for each subsequent violation occurring within twenty-four months of the most recent prior determination.
(Ord. No. 06-10)
(e) Final order. The tobacco retailer's license suspension becomes a final administrative order at one of the following times:
(Ord. No. 06-10)
(1) On the date of the suspension hearing, if a tobacco retailer fails to appear at a scheduled suspension hearing;
(Ord. No. 06-10)
(2) On the date of the decision by the City Manager, if a tobacco retailer appears at a scheduled appeal hearing.
(Ord. No. 06-10)
(f) During a period of license suspension, the tobacco retailer must remove from public view all tobacco products.
(Ord. No. 06-10)
Sec. 38-75. Tobacco retailing without a license or with a suspended license.
(a) In addition to any other penalty authorized by law, if the Concord Police Department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's license, either directly or through the person's agents or employees, the person shall be ineligible to apply for or be issued a tobacco retailing license for that location as follows:
(Code 1965, § 4854; Ord. No. 01-5; Ord. No. 06-10)
(1) After a first violation of this article at a location within any sixty (60) month period, no new license may issue for the person at the location until thirty (30) days have passed from the date of the violation.
(Ord. No. 06-10)
(2) After a second violation of this article at a location within any sixty (60) month period, no new license may issue for the person at the location until ninety (90) days have passed from the date of the violation.
(Ord. No. 06-10)
(3) After a third or subsequent violation of this article at a location within any sixty (60) month period, no new license may issue for the person at the location until five (5) years have passed from the date of the violation.
(Ord. No. 06-10)
(b) In addition to any other penalty authorized by law, if the Concord Police Department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location with a suspended tobacco retailer's license, either directly or through the person's agents or employees, any suspension period shall be extended or, if the license is no longer suspended, a new suspension period shall be imposed as follows:
(Code 1965, § 4854; Ord. No. 01-5; Ord. No. 06-10)
(1) After a first violation of this article at a location by tobacco retailing with a suspended license within any sixty (60) month period, the license may be suspended for an additional thirty (30) days.
(Code 1965, § 4854; Ord. No. 01-5; Ord. No. 06-10)
(2) After a second violation of this article at a location by tobacco retailing with a suspended license within any sixty (60) month period, the license may be suspended for an additional ninety (90) days.
(Code 1965, § 4854; Ord. No. 01-5; Ord. No. 06-10)
(3) After a third or subsequent violation of this article at a location by a tobacco retailing with a suspended license within any sixty (60) month period, the license may be revoked and no new license may issue for the tobacco retailer at the location until five (5) years have passed from the date of the violation.
(Code 1965, § 4854; Ord. No. 01-5; Ord. No. 06-10)
(c) Tobacco products and tobacco paraphernalia offered for sale or exchanged in violation of this article are subject to seizure and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this article. The decision may be appealed pursuant to the procedures set forth in Section 38-74(c). Forfeited tobacco products and tobacco paraphernalia shall be destroyed.
(Ord. No. 06-10)
(d) Each day after the effective date of this article on which tobacco products or tobacco paraphernalia are offered for sale in violation of this article shall constitute a violation of this article separate and apart from any other violation of this article.
(Ord. No. 06-10)
(a) The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity.
(Code 1965, § 4855; Ord. No. 01-5; Ord. No. 06-10)
(b) Violations of this article are subject to a civil action brought by the City Attorney.
(Ord. No. 06-10)
(c) Violations of this article may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.
(Ord. No. 06-10)
(d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this article shall also constitute a violation of this article.
(Ord. No. 06-10)
(e) Violations of this article are hereby declared to be public nuisances.
(Ord. No. 06-10)
(f) In addition to other remedies provided by this article or by other law, any violations of this article may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
(Ord. No. 06-10)
Sec. 38-77. Enforcement of state law regarding sales to minors.
If a clerk or employee sells a tobacco product to a minor, the retailer shall immediately notify the appropriate local law enforcement agency of the violation of Penal Code § 308 for enforcement under that statute.
(Code 1965, § 4856; Ord. No. 01-5; Ord. No. 06-10)
Sec. 38-78. Intent as to additional legal restrictions and remedies.
Nothing in this article is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards, tobacco advertising or any other matter covered by this article. The remedies set forth in this article are not exclusive. If any action prohibited by this article is also unlawful under any other law, the penalties and remedies under such other laws may be pursued in addition to those provided in this article.
(Ord. No. 06-10)
All notices or decisions required to be served by this chapter will be served either by the method specified in subsection (a) or by the method specified in subsection (b). The failure of a person to receive a properly addressed service shall not affect the validity of the proceedings.
(Ord. No. 06-10)
(a) Certified mail. Certified mail will be addressed to the tobacco retailer at the address shown on the license application. Service is deemed complete upon the deposit of the notice or decision, postage pre-paid, in the United States mail. Simultaneously, the same notice or decision may be sent by regular mail. If a notice or decision sent by certified mail is returned unsigned, then service is deemed effective pursuant to regular mail on the date mailed.
(Ord. No. 06-10)
(b) Personal service. Personal service is deemed complete on the date the notice or decision is personally served.
(Ord. No. 06-10)
If any provision of this article or its application to any person or circumstance is declared invalid or unenforceable by a court of competent jurisdiction, this article, to the extent it can be given effect, or the application of this article to persons other than the person to whom it is held invalid, shall not be affected thereby, and to this end, the provisions of this article are severable. If any provision of this article or its application to any person or circumstance is declared invalid or unenforceable by a court of competent jurisdiction, this article, to the extent it can be given effect, or the application of this article to persons other than the person to whom it is held invalid, shall not be affected thereby, and to this end, the provisions of this article are severable.
(Ord. No. 06-10)
Secs. 38-81--38-100. Reserved.
ARTICLE IV. FOOD*
__________
*Cross references: Businesses and business regulations, ch. 18.
__________
Sec. 38-101. Unwholesome meat.
No person shall sell or offer for sale any blown, diseased, or bad meat or fish, or the flesh of any animal which was, when killed, sick or diseased, or the flesh of any animal which died a natural or accidental death, or the flesh of any calf which was killed prior to its attaining the age of four weeks.
(M.C. § 103; Code 1965, § 5300)
Sec. 38-102. Unwholesome vegetables and food.
No person shall offer for sale, sell, or keep for sale any unsound, diseased, or unwholesome fruit, vegetables, or other market produce, or any adulterated article of food, except that the same be marked as required by law.
(M.C. § 104; Code 1965, § 5301)
Sec. 38-103. Regulation and control of sale of milk.
The Health Officer is hereby authorized, empowered, and directed to regulate and control the traffic in milk in the city, and to provide for the inspection of milk, and for the inspection of dairies and dairy cows producing milk for sale or consumption.
(M.C. § 105; Code 1965, § 5302; Ord. No. 168)
Employee. Any person who with or without pay works or handles food in a food-handling establishment or who offers food for sale.
(Code 1965, § 5303; Ord. No. 402)
Food. Includes all articles used for food, drink, confectionery, or condiment, whether simple or compound, and all substances and ingredients used in the preparation thereof.
(Code 1965, § 5303; Ord. No. 402)
Food-handling establishment. Includes restaurants and food selling and processing establishments, except that this article shall not apply to meat, milk, and poultry processing establishments, frozen food lockers, canneries, and slaughterhouses inspected by federal or state agencies, nor to such other plants and establishments for the packing, treatment, and processing of agricultural products and crops of all kinds, including but without limiting the generality of the foregoing plants or establishments for the packing, treating, canning, freezing, dehydrating, and other processing and packaging of agricultural products and crops, and the manufacture or other processing of byproducts therefrom, where such plants or establishments and/or the products thereof are subject to inspection by federal and/or state agencies, to ensure that such products are in a good and sanitary state and condition and suitable for human consumption and which do not sell or deliver directly to the ultimate consumer.
(Code 1965, § 5303; Ord. No. 402)
Food selling and processing establishment. Any room, building, vehicle, facility, structure, or place or portion thereof, whether stationary, movable, permanent, or temporary, which is maintained, used, or operated for the purpose of commercially selling, storing, packaging, transporting, making, cooking, mixing, processing, bottling, canning, packing, slaughtering, or otherwise preparing or handling food or vendors servicing vending machines handling unwrapped, unbottled, or unpackaged or readily perishable food. This does not include restaurants, tank trucks, fresh produce trucks, farm trucks, or vehicles delivering only nonperishable food products in sealed, wrapped, or bottled containers, or vending machines dispensing only bottled beverages or wrapped candy.
(Code 1965, § 5303; Ord. No. 402; Ord. No. 720)
Health Officer. Unless otherwise modified, means the Health Officer of the city, his medical deputies, his sanitarians, or his duly authorized representatives.
(Code 1965, § 5303; Ord. No. 402)
Itinerant food-handling establishment. One which operates for a temporary period in connection with a fair, carnival, circus, public exhibition, or other similar gathering.
(Code 1965, § 5303; Ord. No. 402)
Person. Any individual, firm, copartnership, corporation, or association.
(Code 1965, § 5303; Ord. No. 402)
Restaurant. Any restaurant, coffee shop, cafeteria, short order cafe, luncheonette, tavern, sandwich stand, soda fountain, vehicle, and any other eating or drinking establishment which sells or offers food or drink for sale to the public, as well as kitchens in which food or drink is prepared on the premises for sale or distribution elsewhere.
(Code 1965, § 5303; Ord. No. 402)
Utensils. Includes kitchenware, tableware, glassware, cutlery, containers, machinery, implements, receptacles, supplies, or other equipment used for the storage, preparation, distribution, or serving of food or drink.
(Code 1965, § 5303; Ord. No. 402)
Cross references: Definitions generally, § 1-10.
Sec. 38-105. Food establishment permit required.
(a) It shall be unlawful for any person to operate a food-handling establishment in the city without having a valid, unsuspended, unrevoked permit from the Health Officer, as provided herein. In any establishment where there are separate operations under separate management or ownership, each such operation is required to have a separate permit. Permits must be conditioned on compliance with all laws and regulations applicable to the subject person, premises or operation. Permits shall be issued only on written application, on forms provided by the Health Officer and containing such information regarding the applicant and the premises or operation involved as he deems necessary to facilitate enforcement of this article. Permits shall be dated and contain the name of the permittee and briefly describe or identify the licensed premises or operation.
(Code 1965, § 5304; Ord. No. 402)
(b) Such permits shall be valid to and including the last day of the calendar year in which issued unless sooner suspended or revoked.
(Code 1965, § 5304; Ord. No. 720)
(c) Such permits shall not be transferable from one establishment, location, or premises to another.
(Code 1965, § 5304; Ord. No. 402)
(d) The permit shall be posted and displayed in a conspicuous place.
(Code 1965, § 5304; Ord. No. 402)
(e) No permit is required for vehicles transporting food to food-handling establishments.
(Code 1965, § 5304; Ord. No. 402)
(f) No permit shall be issued by any city agency to any person proposing construction, reconstruction, or alteration of any structure for use as a food-handling establishment until such plans as relate to this article have been approved by the Health Officer.
(Code 1965, § 5304; Ord. No. 402; Ord. No. 720)
Sec. 38-106. Permit fees for food establishments.
(a) The following fees are required for permits hereunder and are due and payable at the time of making application for said permit or renewal thereof, and if the renewal fee is not paid within 30 days after due, the permit becomes void:
(Code 1965, § 5305; Ord. No. 402)
(1) Food-handling establishments: $8.00 per year:
(Code 1965, § 5305; Ord. No. 402)
a. Restaurants;
(Code 1965, § 5305; Ord. No. 402)
b. Food selling and processing establishments.
(Code 1965, § 5305; Ord. No. 402)
(2) Exceptions from $8.00 per year fee:
(Code 1965, § 5305; Ord. No. 402)
a. 1. Incidental food selling: $2.00 per year;
(Code 1965, § 5305; Ord. No. 402)
2. Snack stand incidental to main business operation with less than $100.00 retail value of food in stock, including vending machines: $2.00 per year for each location;
(Code 1965, § 5305; Ord. No. 402; Ord. No. 720)
b. Itinerant food-handling: $2.00 per booth or vehicle per year for carnivals and fairs, and for itinerant fruit and/or vegetable peddlers;
(Code 1965, § 5305; Ord. No. 402; Ord. No. 687)
c. Delivery vehicles: $2.00 per vehicle per year. This applies to any vehicle delivering food products directly to the consumer;
(Code 1965, § 5305; Ord. No. 402; Ord. No. 687)
d. Nonprofit temporary food stands: No fee. This applies to food-handling establishments for fairs, carnivals, or special events for nonprofit organizations.
(Code 1965, § 5305; Ord. No. 402)
(3) Upon sale or transfer of an establishment, the permit therefor shall be void until a renewal application is approved.
(Code 1965, § 5305; Ord. No. 402; Ord. No. 720)
(4) Inspection fees for operations commencing between annual billing periods shall be prorated on a monthly basis.
(Code 1965, § 5305; Ord. No. 720)
Sec. 38-107. Individual health permits for employees and operations.
(a) Every person working or handling food in any food-handling establishment, with or without pay, must secure a health permit from the Health Officer within 30 days of first employment in this city.
(Code 1965, § 5306; Ord. No. 402)
(b) Such health permit shall be the negative report of a county health department chest X-ray or a letter from the Health Officer to the same effect. It shall be valid for two years from date of issuance and must be replaced with a new permit prior to the expiration date. This permit must be in possession of such person and must be readily available for inspection by the Health Officer.
(Code 1965, § 5306; Ord. No. 402; Ord. No. 543)
(c) It shall be the duty of each manager, operator, or owner of any food-handling establishment to employ only persons having a valid health permit. It shall be the employee's duty to have the permit in his possession, or immediately accessible, during working hours.
(Code 1965, § 5306; Ord. No. 402)
Sec. 38-108. Sanitation requirements.
(a) All food-handling establishments must comply with all applicable statutes, ordinances, and rules and regulations of federal, state, and local agencies.
(Code 1965, § 5307; Ord. No. 402)
(b) Exemption from the permit or fee under this article does not constitute exemption from sanitary requirements set forth in this article.
(Code 1965, § 5307; Ord. No. 402)
(c) When food service openings to the outside are used in restaurants, they shall have an area not exceeding 270 square inches with a maximum width of 18 inches and a maximum height of 15 inches. Triangular wide-base openings with a height not exceeding 24 inches are allowed. Additional service openings must be separated by a minimum of three feet. Such openings shall be closeable, at least with a wire screen of not coarser than 16 mesh, when not in use. Each opening shall be further protected by overhead fans or internal positive pressure which would produce an outward air flow of at least 75 linear feet per minute as measured by a standard velometer or have a system of duct work such that the discharge of air produces this outward flow of air through the opening.
(Code 1965, § 5307; Ord. No. 402)
(d) (1) Every establishment where fresh meat is cut shall be provided with a two-compartment metal sink with metal drain boards located conveniently to the meat department, with an adequate supply of hot and cold water under pressure. Such sink is to be used exclusively for washing utensils commonly used by meat cutters.
(Code 1965, § 5307; Ord. No. 402)
(2) This subsection does not apply to those establishments in existence before the effective date of this article having a single-compartment sink which effectively meets the requirements of this article and any other applicable statutes, ordinances, and rules and regulations governing the sanitization of utensils. When such sink is replaced, it must meet the requirements of this article.
(Code 1965, § 5307; Ord. No. 402)
(e) If at any time a person working in any food-handling establishment is found by the Health Officer to be handling food in a manner dangerous to public health, the Health Officer shall have authority to require such person and/or his employer to attend a course of instruction which shall be provided free by the Health Officer, or to discontinue food-handling, or both.
(Code 1965, § 5307; Ord. No. 720)
Sec. 38-109. Temperature requirements.
(a) Readily perishable foods.
(1) All readily perishable cold foods must be maintained at 45 degrees Fahrenheit or lower and all readily perishable hot foods must be maintained at 140 degrees Fahrenheit or higher when in storage, on display, or in transit. Accurate Fahrenheit thermometers, suitable for measuring temperatures of food, shall be conspicuously affixed to food storage equipment, where possible, or shall be available at every establishment. Wastewater from refrigeration equipment in fixed establishments shall be disposed of into an approved sanitary sewage disposal system through an indirect connection. Except for properly handled game, only food intended to be sold or served to the public shall be kept in refrigerated storage cabinets.
(Code 1965, § 5307.1; Ord. No. 720)
(2) Readily perishable foods include, but are not limited to:
(Code 1965, § 5307.1; Ord. No. 720)
a. Custard- and cream-filled pastries, both real and synthetic; prepared salads with dressing; sandwiches using mayonnaise or salad dressing in the filling; and precooked meat, poultry, and fish products not hermetically sealed;
(Code 1965, § 5307.1; Ord. No. 720)
b. Fresh meats, fresh shellfish, fresh poultry, fresh fish;
(Code 1965, § 5307.1; Ord. No. 720)
c. All dairy products from sources not under inspection by other agencies;
(Code 1965, § 5307.1; Ord. No. 720)
d. Canned hams and canned picnics whose label indicates the product must be kept under refrigeration.
(Code 1965, § 5307.1; Ord. No. 720)
(b) Frozen foods. All frozen foods shall be kept at a temperature which will keep such food in a frozen state until ready for processing or preparation. No food which has been completely thawed shall be refrozen.
(Code 1965, § 5307.1; Ord. No. 720)
Sec. 38-110. Violations; enforcement.
(a) Emergency action. Where the Health Officer, himself, or his medical deputy in charge makes a written finding that the public health is endangered by some act, omission, or condition regulated hereunder in connection with any premises or operation licensed hereunder, he may order the immediate cessation of such act or abatement of such condition or action to correct such condition, and may order the temporary emergency suspension of the permit applicable thereto and its removal from the said person or premises, and may post notice of such action in a conspicuous place. Such emergency suspension is in addition to, and not limited by, nor in derogation of any other authority or power which the Health Officer may have under present statutes or regulations. Such emergency suspension, as distinct from any other action authorized by law, is effective for a period of five days, including the first day upon which the permit is suspended. Any activity during that period which is regulated by this article is unlawful. At the end of that period, or sooner, if a similar finding is made that the public health is no longer endangered, the permit becomes valid again, unless a hearing is ordered pursuant hereto.
(Code 1965, § 5308; Ord. No. 402)
(b) Suspension of permit. Where a written complaint is filed with the Health Officer that some applicable law or regulation is being violated by any person, premises, or operation required to be licensed hereunder, he may order a hearing and after hearing may suspend said permit for not more than 90 days or until he is assured of compliance with said applicable laws or regulations, whichever is less, and may post notice of such action in a conspicuous place. At the end of said period, or when the Health Officer is satisfied of said compliance, the permit becomes valid again. Any activity during that period which is regulated by this article is unlawful.
(Code 1965, § 5308; Ord. No. 402)
(c) Revocation of permit. A permit may be revoked and confiscated where it has been suspended once and violation of this article or other applicable laws or regulations, or acts or omissions endangering the public health, continue, and where the Health Officer, himself, or his medical deputy in charge, makes a written finding that correction of the situation is impracticable and that the public health is endangered thereby, and the Health Officer may post notice of such action in a conspicuous place.
(Code 1965, § 5308; Ord. No. 402)
(d) Hearings. In the case of hearings under subsection (a) of this section, notice must be written and delivered to the person involved or in charge of the premises or operation at least 48 hours before the hearing. Other hearings must be preceded by written notice, personally delivered or mailed, to the person to whom the permit was issued at the latest address on file with the Health Officer not less than five nor more than 15 days prior to the hearing date. The hearings shall be held in the City Hall, unless some other location is specified in the notice. The hearings shall be conducted by the Health Officer himself or his medical deputy in charge. Hearings may not be continued or postponed for longer than ten days from the original date without the consent of the permittee.
(Code 1965, § 5308; Ord. No. 402)
(e) Appeal. Any person dissatisfied with the results of any hearing may appeal to the City Council in accordance with section 2-53 of this Code.
(Code 1965, § 5308; Ord. No. 845)
(f) Penalty. Any violation of the provisions of this article is a misdemeanor and constitutes a separate offense on each day committed.
(Code 1965, § 5308; Ord. No. 402)
If any provision hereof or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications hereof which can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.
(Code 1965, § 5309; Ord. No. 402)