Novato Municipal Code § 7-13 Leaf Blower Restrictions

7-1.1 Definitions. As used in this section:

a. "Food" shall mean all articles used for human consumption as food, drink, confectionery, or condiment, whether simple or compound.

b. "Food Establishment" shall mean any building, room, stand, vehicle, enclosure, place, space, or area where any cooked or uncooked article of food is stored, prepared, manufactured, processed, wrapped, canned, packed, bottled, distributed, served, or displayed.

c. "Health Officer" shall mean the health officer of Marin County or his authorized representative. Pursuant to Health and Safety Code Section 476, the Health Officer shall enforce and observe in the City of Novato all of the following:

1. Orders, quarantine regulations and rules prescribed by the State Department and other rules and regulations issued under the provisions of the Health and Safety Code; and

2. Statutes relating to the public health; and

3. Chapter VII of the Code of the City of Novato.

d. "Employee" shall mean any person working in a food establishment, whether with or without pay, who handles food during any phase of its storage, preparation, manufacture, distribution, serving, or display, or who comes in contact with food equipment, utensils, or machinery. (The owner of a food establishment, if engaged in food handling, is subject to the same requirements as any other person so engaged.)

(Ord. No. 29, § 1; Ord. No. 1056, § VI)

7-1.2Certificates. It shall be unlawful for any person to operate any food establishment within the incorporated City of Novato without a valid certificate issued by the county health officer or his authorized representative. Such certificate shall be displayed prominently in the place of business for which it is issued.

(Ord. No. 29, § 2)

7-1.3Compliance with California Restaurant Act, Chest X-Rays Required. No certificate to operate such place of business shall be issued until all of the provisions of this section and of the California Restaurant Act, and all rules and regulations of the State Board of Public Health, have been complied with. Further, no certificate to operate shall be issued until there is presented to the county health officer satisfactory evidence that all employees of the establishment have had at least minifilm x-rays of the chest within the preceding 12 months and have been found free of any infectious disease in a communicable stage. Such certificate shall expire six months after date of issuance. A certificate is not transferable upon change of ownership of a food establishment.

Inspections under this section shall be based upon provisions of the California Restaurant Act and on rules and regulations of the State Board of Public Health and subsequent modification thereof.

(Ord. No. 29, § 2)

7-1.4Suspension of Certificate; Hearing. A certificate may be suspended by the health officer for violation of any provision of this section, but not until after the holder has been given an opportunity for a hearing before the health officer. After the hearing a reasonable time shall be allowed by the health officer for correction of the violations. During that correctional period the certificate may be suspended, and the food establishment may be ordered closed during the suspension if the health officer deems such action necessary for the protection of the public health. The suspension shall be lifted if full compliance with sanitary requirements is obtained at the end of the time allowed; if compliance is not obtained, the certificate shall then be revoked.

(Ord. No. 29, § 2)

7-1.5Penalties. Any person who operates a food establishment within the incorporated area of the city without a valid certificate from the county health officer is guilty of an infraction and upon conviction shall be punished as specified in subsection 1-3.1.

(Ord. No. 29, § 3; Ord. No. 1056, § VII)

7-1.6Enforcement. The following designated employee positions may enforce the provisions of Chapter VII by the arrest or by the issuance of citations. Persons employed in such positions and authorized to exercise the authority provided in Penal Code Section 836.5 are authorized to issue citations with the approval of the health officer for any violations of Chapter VII. The designated employee positions are:

a. Health officer; or

b. The designee of the health officer.

(Ord. No. 1056, § VIII)

7-2.1Violation Defined. Any persons, firm, or corporation, whether as principal agent, employee, or otherwise, creating, causing, committing, or maintaining:

a. Any trash, garbage, refuse or rubbish to be placed, deposited, dumped, maintained, or permitted upon or in any public park, square, school, street, or highway (including sidewalk, parkway, or any other portion of the right-of-way thereof), bay, lake, waterway, drainageway, easement, or other public place; or

b. Any trash, garbage, refuse or rubbish to be placed, deposited, dumped, maintained, or permitted upon or in any private property so as to be dangerous or injurious to health; or

c. Any mud, dirt, or other foreign matter to be carried onto or deposited in any public street or highway by any truck or other vehicle, whether escaping from its contents, dropping from its wheels or tires, or otherwise; or

d. Any extremely hazardous waste, hazardous waste, or infectious waste as defined in Health and Safety Code Section 25115 et seq., or any toxic substance as defined in Health and Safety Code Section 28745 to be spilled upon or in any public park, square, school, street or highway (including sidewalk, parkway, or any other portion of the right-of-way thereof), bay, lake, waterway, drainageway, easement, or other public place, or upon private property; or

e. Any public or private property to be maintained in any condition which creates dust causing perceptible injury to the adjacent properties or so pollutes the air as to sensibly impair the enjoyment thereof shall be guilty of an infraction, and upon conviction shall be punished as specified in subsection 1-5.1.

(Ord. No. 1056, § XIX)

7-2.2 Enforcement. The following designated employee positions may enforce the provisions of section 7-2 by the arrest or issuance of citations. Persons employed in such positions and authorized to exercise the authority provided in Penal Code 836.5 are authorized to issue citations with the approval of the community development director for any violations of section 7-2. The designated employee positions are:

a. Community development director; or

b. The designee of the community development director.

It shall be the duty of the chief of police of the city to render any and all necessary assistance to the community development director for the enforcement of section 7-2.

(Ord. No. 1056, § XIX)

7-3.1 Title. This section shall be known as the "Novato Smoke-Free Air and Health Protection Ordinance."

(Ord. No. 1616, § II, 1-24-2017)

7-3.2. Definitions. The following words and phrases, whenever used in this section shall have the meanings defined in this section unless the context clearly requires otherwise:

a. Bar means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area.

b. City means the City of Novato, State of California.

c. Child care facilities means any family day care regulated by Sections 1597.30 through 1597.621 of the California Health and Safety Code and any day care center for children regulated by Section 1596.90 et seq. of the California Health and Safety Code. It does not include foster homes or residential care facilities.

d. Common area means every enclosed area and unenclosed area of a multi-unit residence that residents of more than one unit of that multi-unit residence are entitled to enter or use, including, for example, halls, paths, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, restrooms, laundry rooms, cooking areas, and eating areas.

e. Common interest complex means a multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development as defined by California Civil Code Section 4100.

f. Dining area means any area, including streets and sidewalks, which is available to or customarily used by the general public, and which is designed, established, or regularly used for consuming food or drink.

g. Electronic smoking device means an electronic and/or battery-operated device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic smoking device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

h. Enclosed area means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

1. Any type of overhead cover, whether or not that cover includes vents or other openings, and at least three walls or other vertical constraint to airflow including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or

2. Four walls or other vertical constraints to airflow including, but not limited to, vegetation that exceeds six feet in height, whether or not those constraints include vents or other openings.

i. Multi-unit residence means property containing two or more units, including, but not limited to, a common interest complex, except the following specifically excluded types of housing:

1. A mobile home park unit;

2. A single-family residence; and

3. Detached or attached in-law or accessory dwelling unit to single-family residence.

j. Nonprofit entity means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, unincorporated association, or other entity created for charitable, religious, philanthropic, educational, political, social, or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A government agency is not a nonprofit entity within the meaning of this section.

k. Person means any natural person, cooperative association, personal representative, receiver, trustee, assignee, or any other legal entity including a government agency.

l. Public place means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement, including, but not limited to: bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, buses, bus shelters, public transportation facilities, hotels and motels, bed and breakfast facilities, fairs, farmers' markets, theaters, sidewalks and streets. "Public place" does not mean within private vehicles in or on public places.

m. Reasonable distance means a distance of 20 feet in any direction from an area in which smoking is prohibited.

n. Recreational area means any area that is publicly or privately owned, controlled or used by the city and open to the general public for recreational purposes, regardless of any fee or age requirement. The term "recreational area" includes, but is not limited to, parks, picnic areas, playgrounds, sports fields, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, skateboard parks and amusement parks.

o. Service area means any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to receive a service, wait to receive a service, or to make a transaction, whether or not such service or transaction includes the exchange of money. The term "service area" includes, but is not limited to, areas including or adjacent to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines, or cab stands.

p. Smoke means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition, or vaporization, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco, marijuana, cocaine or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term "smoke" includes, but is not limited to, tobacco smoke, electronic smoking device vapors, marijuana smoke, and crack cocaine smoke.

q. Smoking means the inhaling and/or exhaling of smoke and/or the inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

r. Tobacco product means:

1. Any product containing, made, or derived from tobacco, marijuana or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff; and

2. Any electronic smoking device.

3. Notwithstanding any provision of subsections 1. and 2. to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

s. Unenclosed area means any area that is not an enclosed area.

t. Unit means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes, but is not limited to, an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single-room occupancy ("SRO") facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or accessory dwelling unit.

(Ord. No. 1616, § II, 1-24-2017)

7-3.3 Prohibition of Smoking and Tobacco Product Use in Enclosed Places.

a. Smoking and the use of tobacco products are prohibited in the enclosed areas of the following places within the City of Novato:

1. Public places; and

2. Multi-unit residences and common areas; and

3. Dining areas; and

4. Service areas.

b. Smoking and the use of tobacco products are prohibited by this chapter in all other enclosed areas except as provided below:

1. Inside private vehicles.

2. Inside private, single-family residences except private residences used as child care facilities or health care facilities.

3. Inside in-law or accessory dwelling units attached to or detached from single-family residences.

4. As provided under subsection 7-3.5.

(Ord. No. 1616, § II, 1-24-2017)

7-3.4 Prohibition of Smoking and Tobacco Product Use in Unenclosed Areas.

a. Smoking and the use of tobacco products are prohibited in the unenclosed areas of the following places within the city:

1. Recreational areas;

2. Service areas;

3. Public places;

4. Dining areas;

5. Bars;

6. Common areas of multi-unit residences, provided, however, that a person with legal control over a common area may designate a portion of the unenclosed area of the common area as a designated smoking area if the area meets all of the following criteria:

(a) The area must be located a reasonable distance from any unit or enclosed area where smoking is prohibited by this section or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. In the case of a nonsmoking area created by agreement or designation, this provision does not apply unless the person designating the smoking area has actual knowledge of, or has been given notice of, the agreement or designation. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate that as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;

(b) The area must not include, and must be a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;

(c) The area must be no more than ten percent of the total unenclosed area of the multi-unit residence for which it is designated;

(d) The area must have a clearly marked perimeter;

(e) The area must be identified by conspicuous signs;

(f) The area must be completely within an unenclosed area; and

(g) The area must not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this section or other provisions of this Code, state law, or federal law; and

7. Other public places.

b. Nothing in this section prohibits any person or nonprofit entity with legal control over any property from prohibiting smoking and tobacco product use on any part of such property, even if smoking or the use of tobacco products is not otherwise prohibited in that area.

(Ord. No. 1616, § II, 1-24-2017)

7-3.5 Smoking Restrictions for New and Existing Units of Multi-Unit Residences.

a. With respect to all existing units of multi-family residences in which smoking was permitted under Novato City Ordinance No. 1533 immediately prior to the effective date of this, the Novato Smoke-Free Air and Health Protection Ordinance ("this ordinance"), said units shall become subject to this ordinance:

1. On the expiration of the unit's lease or rental agreement in effect on the effective date of this ordinance;

2. On the first day of the next rental period following the said effective date as to those units rented on a month-to-month basis;

3. When the lease or rental agreement existing on the said effective date is renewed;

4. When a new lease or rental agreement is entered with a new or existing tenant; or

5. On January 1, 2018, whichever comes first.

b. Notwithstanding subsection 7-3.5.a. to the contrary, each and every unit of a multi-family residence the occupancy of which becomes available for the first time on or after the effective date of this ordinance shall be subject to and controlled by section 7-3.

(Ord. No. 1616, § II, 1-24-2017)

7-3.6 Required and Implied Lease Terms for Units in Multi-Family Residences.

a. Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence entered into, renewed, or continued month-to-month after the effective date of this ordinance shall include the provisions set forth in subsection b. below on the earliest possible date when such an amendment is allowable by law after providing the minimum legal notice.

b. Every lease or other rental agreement governed by subsection a. above shall be amended or prepared to include the following provisions:

1. A clause providing that as of the commencement date of the agreement, it is a material breach of the agreement to allow or engage in smoking in the unit. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit."

2. A clause providing that it is a material breach of the agreement for the tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than in a designated smoking area. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists."

3. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, "It is a material breach of this agreement for the tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property."

4. A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the agreement. Such a clause might state, "Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law."

c. Whether or not a landlord complies with subsections a. and b. above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsections a. or b. apply and shall become effective as of the earliest possible date on which the landlord could have made the amendments or included the clauses in the agreements pursuant to subsections a. or b.

d. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multi-unit residence, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant to breach said provisions, shall be liable for the breach to:

1. The landlord; and

2. Any occupant of the multi-unit residence who is exposed to smoke or who suffers damages as a result of the breach.

e. This section shall not create additional liability in a landlord to any person for a tenant's breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a multi-unit residence if the landlord has fully complied with this subsection 7-3.6 and subsection 7-3.4.a.6.

f. Failure to enforce any smoking provision required by this section shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself.

(Ord. No. 1616, § II, 1-24-2017)

7-3.7 Reasonable Smoking Distance Required.

a. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited.

b. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under this section.

c. The prohibitions in subsections a. and b. shall not apply to unenclosed areas of private residential properties that are not multi-unit residences.

(Ord. No. 1616, § II, 1-24-2017)

7-3.8 Other Requirements and Prohibitions.

a. No person or nonprofit entity shall knowingly permit smoking or the use of tobacco products in an area which is under the legal or de facto control of that person or nonprofit entity and in which smoking or the use of tobacco products is prohibited by law.

b. No person or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within an area under the legal or de facto control of that person or nonprofit entity and in which smoking or the use of tobacco products is prohibited by law, including, without limitation, within a reasonable distance required by this section from any area in which smoking or the use of tobacco products is prohibited. Notwithstanding the foregoing, the presence of ash receptacles in violation of this subsection shall not be a defense to a charge of smoking or the use of tobacco products in violation of any provision of this section.

c. No person shall dispose of used smoking or tobacco product waste within the boundaries of an area in which smoking or tobacco product use is prohibited, including within any reasonable distance required by this section.

d. A person or nonprofit entity that has legal or de facto control of an area in which smoking and the use of tobacco products are prohibited by this section shall post a clear, conspicuous and unambiguous "No Smoking" and "No Use of Tobacco Products" or "Smokefree" and "Tobacco-Free" sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs shall have letters of no less than one inch in height and shall include the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it). Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in subsection 7-3.7. At least one sign with the county phone number to which complaints can be directed must be placed conspicuously in each place in which smoking is prohibited. For purposes of this section, the city manager or his/her designee shall be responsible for the posting of signs in regulated facilities owned or leased in whole or in part by the city. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking or the use of tobacco products in violation of any other provision of this section.

e. No person or nonprofit entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this section.

f. Each instance of smoking or tobacco product use in violation of this section shall constitute a separate violation. For violations other than for smoking, each day of a continuing violation of this section shall constitute a separate violation.

(Ord. No. 1616, § II, 1-24-2017)

7-3.9 Penalties and Enforcement.

a. The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity.

b. Each incident of smoking or use of tobacco products or other conduct in violation of this section shall be punishable pursuant to section 1-5 of this Code. In addition, any peace officer or code enforcement official also may enforce this section.

c. The city code enforcement official shall require, while an establishment is undergoing otherwise mandatory inspections, certification from the owner, manager, operator or other person having control of such establishment that all requirements of this section have been complied with.

d. Violations of this section are subject to a civil action brought by the City of Novato, punishable by a civil fine not less than two hundred fifty dollars ($250.00) and not exceeding one thousand dollars ($1,000.00) per violation.

e. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this section shall also constitute a violation of this section.

f. Any violation of this section is hereby declared to be a nuisance.

g. In addition to other remedies provided by this section or by other law, any violation of this section may be remedied by a civil action brought by the city attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

h. Any person acting for the interests of itself, its members, or the general public (hereinafter "private enforcer") may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this section against any person who has violated this section two or more times. Upon proof of the violations, a court shall grant all appropriate relief, including:

1. Awarding damages; and

2. Issuing an injunction or a conditional judgment.

Except as otherwise provided, enforcement of this section is at the sole discretion of the city. Nothing in this section shall create a right of action in any person against the city or its agents to compel public enforcement of this section against private parties.

i. The purposes of this section are to restrict and/or prohibit smoking. This section establishes no new rights for a person who engages in smoking. Notwithstanding: (a) any provision of this section or other provisions of this Code; (b) any failure by any person to restrict smoking under this section; or (c) any explicit or implicit provision of this Code that allows smoking in any place, nothing in this Code shall be interpreted to limit any person's legal rights to seek redress or recovery of damages under other laws as a result of smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

j. For all purposes within the jurisdictional boundaries of the city, nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance and a trespass. Any person bringing a civil action to enforce the nuisance provision contained in this section need not prove an injury different in kind or in degree from injury to others to prove a violation of this section.

(Ord. No. 1616, § II, 1-24-2017)

7-3.10 Public Education. The city manager or his or her designee shall coordinate with the County of Marin Health and Human Services Department to ensure that the citizens and community of Novato may participate in the county's existing tobacco education program. The program will explain and clarify the purposes and requirements of this section to citizens affected by it, and to guide it. However, lack of such education shall not provide a defense to a violation of this section.

(Ord. No. 1616, § II, 1-24-2017)

7-3.11 Other Laws. It is not the intention of this section to regulate any conduct where the regulation of such conduct has been preempted by the State of California.

(Ord. No. 1616, § II, 1-24-2017)

Footnotes:

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Editor's note— Ord. No. 1616, adopted Jan. 24, 2017, repealed § 7-3 in its entirety and enacted a new § 7-3. Former § 7-3 pertained to similar subject matter and derived from Ord. No. 1533, § 2.

7-4.1 Title. This section 7-4 shall be known as the "City of Novato's Urban Runoff Pollution Prevention Ordinance" and may be so cited.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.2 Purpose and Intent. The purpose of this section is to facilitate the health, safety, and general welfare of the City of Novato's citizens and to protect and enhance watercourses, fish and wildlife habitat by:

a. Minimizing discharges other than storm runoff to storm drains or watercourses;

b. Responding to the discharge of spills, preventing and controlling the discharge of spills to storm drains or watercourses and prohibiting dumping or disposal of materials other than stormwater;

c. Reducing pollutants in stormwater discharges to the maximum extent practicable;

d. Requiring operators of construction sites, new or redeveloped land, and industrial and commercial facilities to install, implement, or maintain appropriate best management practices (BMPs); and

e. Requiring development projects to maintain or reduce the volume, velocity, peak flow rate and duration of runoff as compared to pre-development stormwater runoff and preventing stormwater pollution whenever possible, through stormwater management controls and ensuring that these management controls are properly maintained.

The intent of this section is to protect and enhance the water quality of the state's, and the nation's watercourses, water bodies, and wetlands in a manner pursuant to and consistent with the Clean Water Act. (33 U.S.C. § 1251 et seq.), the Porter-Cologne Water Quality Control Act (California Water Code section 13000 et seq.), and the Phase II Small Municipal Separate Storm Sewer System (MS4) National Pollutant Discharge Elimination System (NPDES) Permit, Water Quality Order No. 2013-0001-DWQ, General Permit No. CAS000004 (Phase II Stormwater Permit) and subsequent revisions and amendments thereto.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.3 Definitions.

a. Any terms defined in the Phase II Stormwater Permit, the Federal Clean Water Act and acts amendatory thereof or supplementary thereto, and/or defined in the regulations for the stormwater discharge permitting program issued by the Environmental Protection Agency on November 16, 1990 (as may from time to time be amended) and used in this section shall have the same meaning as in said permit, Act or regulations. Such terms include, but are not limited to, the following:

1. Authorized enforcement official means the following city officials: the city manager or his/her duly authorized official.

2. BASMAA Post-Construction Manual means the most recent version of the Bay Area Stormwater Management Agencies (BASMAA) Post-Construction Manual.

3. Best management practices (BMPs) means schedules of activities, prohibitions of practices, good housekeeping practices, pollution prevention practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to waters of the United States. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste recycling or disposal, or drainage from raw material storage.

4. City means the City of Novato.

5. Construction activity means any activity that involves soil disturbing activities including, but not limited to, clearing, paving, grading, disturbances to ground such as stockpiling, and excavation.

6. Discharge of a pollutant means:

(a) The addition of any pollutant or combination of pollutants to waters of the United States from any point source, or

(b) Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft which is being used as a means of transportation.

The term includes additions of pollutants to waters of the United States from: surface runoff which is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which do not lead to a treatment facility; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works.

7. Discharger means a person or entity who or which, respectively, causes, permits to occur or performs a discharge.

8. Hydromodification means modification of hydrologic pathways (precipitation, surface runoff, infiltration, groundwater flow, return flow, surface water storage, groundwater storage, evaporation and transpiration) that results in negative impacts to watershed health and functions.

9. Illicit connection means any device or method that conveys non-stormwater to a municipal separate storm sewer (storm drain) system (MS4) or receiving water.

10. Illicit discharge means any discharge to a municipal separate storm sewer (storm drain) system (MS4) that is prohibited under local, state, or federal statutes, ordinances, codes, or regulations. The term "illicit discharge" includes all non-stormwater discharges not composed entirely of stormwater and discharges that are identified under the discharge of pollutants subsection of this section. The term "illicit discharge" does not include discharges that are regulated by an NPDES permit (other than the NPDES permit for discharges from the MS4).

11. Incidental irrigation runoff means unintended amounts (volume) of runoff, such as unintended, minimal overspray from sprinklers that escapes the landscaped area of intended use. Water leaving an intended use area is not considered incidental if it is part of the facility design, if it is due to excessive application, if it is due to intentional overflow or application, or if it is due to negligence.

12. Low impact development (LID) means a sustainable practice that benefits water supply and contributes to water quality protection. LID uses site design and stormwater management to maintain the site's pre-development runoff rates and volumes. The goal of LID is to mimic a site's predevelopment hydrology by using design techniques that infiltrate, filter, store, evaporate, and detain runoff close to the source of rainfall.

13. Maximum extent practicable(MEP) means the minimum required performance standard for implementation of municipal stormwater management programs to reduce pollutants in stormwater. Clean Water Act § 402(p)(3)(B)(iii) requires that municipal permits "shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the administrator or the state determines appropriate for the control of such pollutants." MEP is the cumulative effect of implementing, evaluating, and making corresponding changes to a variety of technically appropriate and economically feasible BMPs, ensuring that the most appropriate controls are implemented in the most effective manner. This process of implementing, evaluating, revising, or adding new BMPs is commonly referred to as the iterative process.

14. MCSTOPPP means the Marin County Stormwater Pollution Prevention Program.

15. MS4 means municipal separate storm sewer system. The city-owned conveyance or system of conveyances, including roads with drainage systems, city streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains.

16. NPDES means National Pollutant Discharge Elimination System (NPDES).

17. NPDES permit means an NPDES permit issued by the United States Environmental Protection Agency, the State Water Resources Control Board, or a California Regional Water Quality Control Board pursuant to the Clean Water Act that authorizes discharges to waters of the United States.

18. Non-stormwater discharge means any discharge that is not entirely composed of stormwater.

19. Phase II stormwater permit means the NPDES general stormwater permit applicable to the County of Marin, Water Quality Order No. 2003-00052013-0001-DWQ, General Permit No. CAS000004, and any subsequent amendment, reissuance or successor to this NPDES permit.

20. Point source means any discernible, confined, and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill, leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater runoff.

21. Pollutant. Dredged soil, solid waste, incinerator residue, filter backwash, sewage, pet wastes, manure, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)), heat, wrecked or discarded equipment, sediment, cellar dirt, contaminated waste discharged from hot tubs, pools or spas, dumped yard wastes, and industrial, municipal, and agricultural waste; or sand and gravel placed in such a way as to be carried away by stormwater into the storm drains and watercourses of the city.

22. Post-construction measures requirements means the provisions in Section E.12 of the Phase II Stormwater Permit that contain design standards or performance criteria to address the post-construction phase impacts of new projects and redeveloped projects on stormwater quality and quantity. The BASMAA Post-Construction Manual describes projects subject to the post-construction measures.

23. Premises means any building, lot parcel, real estate, or land or portion of land whether improved or unimproved, including adjacent sidewalks and parking strips.

24. Receiving water means surface water that receives regulated and unregulated discharges from activities on land.

25. Storm drains includes, but is not limited to, those stormwater drainage conveyance facilities within the city by which stormwater may be conveyed to waters of the United States, including any roads with drainage systems, municipal streets, catch basins, curbs, gutters, culverts, ditches, manmade channels or storm drains, which are not part of a publicly owned treatment works (POTW) as defined at 40 Code of Federal Regulations (C.F.R) 122.2.

26. Stormwater or stormwater runoff means stormwater runoff, snow and ice melt runoff, surface runoff and drainage.

27. Stormwater control plan means a plan that meets those criteria contained in the most recent version of the BASMAA Post-Construction Manual.

28. Stormwater facilities operation and maintenance plan means a plan identifying the locations and characteristics of stormwater management facilities on a newly developed or redeveloped site and describing maintenance activities, schedules, and responsibilities to ensure the ongoing proper operation of those facilities.

29. Stormwater management facility means any device designated to detain, retain, filter, or infiltrate stormwater.

30. Urban runoff means stormwater runoff from an urbanized area including streets and adjacent domestic and commercial properties that carries pollutants of various types into the storm drainage system and receiving waters.

31. Urbanized area means a densely settled core of census tracts and/or census blocks that have a population of at least 50,000, along with adjacent territory containing nonresidential urban land uses as well as territory with low population density included to link outlying densely settled territory with the densely settled core.

32. Watercourse means:

(a) An elongated open depression, or channel, in which water may or does flow;

(b) A conduit or channel intended for the conveyance of water whether open or closed;

(c) A stream or course of running water flowing on the earth; or

(d) A ditch or artificial channel created for the conveyance of water.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.4 Responsibility for administration. This section shall be administered for the city by the authorized enforcement official. In administering this section, the authorized enforcement official has the authority to request and require the submittal of information deemed necessary to assess compliance with this section and the Phase II Stormwater Permit.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.5 Construction and application. This section shall be construed to assure consistency with the requirements of the Federal Clean Water Act (33 U.S.C. § 1251 et seq.) and acts amendatory thereof or supplementary thereto, and applicable implementing regulations, including the current and future versions of the water quality control plan for the San Francisco Bay basin and the Phase II Stormwater Permit.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.6 Discharge of pollutants. The discharge of non-stormwater to the city storm drain system is prohibited. All discharges of material other than stormwater must be in compliance with an NPDES permit issued for the discharge.

a. Discharges of waste from the MS4 that are prohibited by statewide water quality control plans or applicable regional water quality control plans (basin plans) are prohibited.

b. Discharges of stormwater from the MS4 to waters of the United States in a manner causing or threatening to cause a condition of pollution or nuisance as defined in Water Code § 13050 are prohibited.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.7 Exceptions to discharge prohibition. The following discharges are exempt from the prohibition set forth in subsection 7-4.6 above:

a. Discharges regulated under another NPDES permit issued to the discharger and administered by the State of California under authority of the United States Environmental Protection Agency, provided that the discharger is in full compliance with all requirements of the permit and other applicable laws or regulations.

b. Discharges or flows from firefighting activities unless they are identified as significant sources of pollutants to waters of the United States.

c. Discharges from the following activities, provided any pollutants in the discharges are identified and appropriate control measures to minimize the impacts of such discharges are developed and implemented:

1. Water line flushing;

2. Individual residential car washing;

3. Diverted stream flows;

4. Rising groundwaters;

5. Uncontaminated ground water infiltration (as defined at 40 C.F.R. § 35.2005(20)) to separate storm sewers;

6. Uncontaminated pumped groundwater;

7. Discharges from potable water sources;

8. Foundation drains;

9. Air conditioning condensation;

10. Springs;

11. Water from crawl space pumps;

12. Footing drains;

13. Flows from riparian habitats and wetlands;

14. Dechlorinated swimming pool discharges; and

15. Incidental irrigation runoff from landscaped areas, provided the conditions in item d. of this section are met.

d. Incidental irrigation runoff is the unintended amounts of runoff that leave the area of application such as minimal overspray. Water leaving the intended area of application is not incidental if it is due to the design, excessive application, or intentional overflow or application. Irrigation systems must be designed to conserve water and prevent water leaving the area of application. Persons responsible for controlling irrigation systems shall prevent excessive irrigation runoff by:

1. Detecting leaks and correcting the irrigation system within 72 hours of discovering the leak;

2. Properly designing and aiming sprinkler heads to only irrigate the planned application area;

3. Not irrigating during precipitation events; and

4. Where recycled water is used for irrigation, designing and managing holding ponds such that no discharge occurs unless it is the result of the 25-year 24-hour storm event. Any releases from holding ponds must be reported to the regional water board and the County of Marin within 24 hours of the discharge.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.8 Discharge in violation of permit. Any discharge that would result in or contribute to a violation of the Phase II Stormwater Permit and any amendment, revision or reissuance thereof, either separately considered or when combined with other discharges, is prohibited. Liability for any such discharge shall be the responsibility of the person(s) so causing or responsible for the discharge, and such persons shall defend, indemnify and hold harmless the city in any administrative or judicial enforcement action relating to such discharge.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.9 Illicit discharges and illicit connections. The establishment, use, maintenance or continuance of illicit discharges to the city storm drains or watercourse is prohibited. This prohibition is expressly retroactive and applies to connections made in the past, regardless of whether made under a permit or other authorization or whether permissible under the law or practices applicable or prevailing at the time of the connection.

a. Any person responsible for a discharge, spill, or pollutant release shall promptly cease and desist discharging and/or cleanup and abate such a discharge as directed by the authorized enforcement official.

b. Any person responsible for an illicit connection shall promptly remove the connection as directed by the authorized enforcement official.

c. The city may perform clean-up and abatement work and recover its costs from the responsible person as provided in subsection 7-4.14.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.10 Reduction of pollutants in urban runoff. Any person engaged in activities which will or may result in pollutants entering the city storm drains shall undertake all practicable measures to cease such activities, and/or eliminate or reduce such pollutants. Such activities shall include, but not be limited to, ownership and use of parking lots, gasoline stations, industrial facilities, commercial facilities, and ground disturbing activities.

a. Littering. Except for pollutants lawfully disposed of by way of containers or at a licensed dumping ground, no person shall throw, deposit, place, leave, maintain, keep, or permit to be thrown, deposited, placed, left, maintained or kept, any refuse, rubbish, garbage, or other discarded or abandoned objects, articles, and accumulations, in or upon any street, alley, sidewalk, storm drain, inlet, catch basin, conduit or other drainage structures, business place, or upon any public or private land or other premises in the city so that the same might be or become a pollutant discharged to water.

The occupant or tenant, or in the absence of occupant or tenant, the owner, lessee, or proprietor of any premises in the City of Novato in front of which there is a paved sidewalk shall maintain said sidewalk free of dirt or litter to the maximum extent practicable. Sweepings from said sidewalk shall not be swept or otherwise made or allowed to go into the gutter or roadway, but shall be disposed of in receptacles maintained on said real property as required for the recycling or disposal of garbage.

b. Standard for parking lots and similar structures. Persons owning or operating a parking lot, gas station area of pavement or similar structure shall clean those structures as frequently and thoroughly as practicable in a manner that does not result in discharge of pollutants to the city storm drain system or watercourse.

c. Best management practices for construction activity, new development and redevelopment.

1. Any person performing construction activities in the city shall implement appropriate BMPs to prevent the discharge of construction wastes or contaminants from construction materials, tools and equipment from entering the storm drain system or watercourse.

2. Construction-phase BMPs include erosion and sediment controls and pollution prevention practices. Erosion control BMPs may include, but are not limited to, scheduling and timing of grading activities, timely revegetation of graded areas, the use of hydroseed and hydraulic mulches, and installation of erosion control blankets. Sediment control may include properly sized detention basins, dams, or filters to reduce entry of suspended sediment into the storm drain system and watercourses, and installation of construction entrances to prevent tracking of sediment onto adjacent streets. Pollution prevention practices may include designated washout areas or facilities, control of trash and recycled materials, tarping of materials stored on site, and proper location of and maintenance of temporary sanitary facilities. The combination of BMPs used, and their execution in the field, must be customized to the site using up-to-date standards and practices. The city will provide references to current guidance manuals and BMP information on request. The use of erosion and sediment control BMP products that contain plastic monofilament netting shall not be allowed.

3. Financial security may be required to ensure that temporary measures to control stormwater pollution are implemented and maintained during construction and after construction for a period determined by the city. Financial security shall consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the city and in a form acceptable to the city.

4. When any work is being done contrary to the provisions of this section, the authorized enforcement official may order the work stopped by notice in writing served on any persons engaged in doing or causing the work to be done. Such work shall stop until the authorized enforcement official authorizes the work to proceed. This remedy is in addition to and does not supersede or limit any and all other remedies, both civil and criminal provided in the City of Novato Municipal Code.

5. The city has the authority to review designs and proposals for construction activities and new development and redevelopment sites to determine whether adequate BMPs will be installed, implemented, and maintained during construction and after final stabilization (post-construction).

6. All construction plans and applications for construction activity submitted to the city shall consider the potential for erosion and sedimentation at the construction site, and shall include appropriate erosion and sedimentation controls.

7. Erosion and sediment control plan requirements:

(a) An erosion and sediment control plan (ESCP) shall be required for:

(1) Any project subject to a grading permit under chapter VI excavations and fills;

(2) Any project subject to a building permit or other permit that has the potential for significant erosion and/or significant non-stormwater discharges of sediment and/or construction site waste;

(3) Any other project as required by the authorized enforcement official considering factors such as whether the project involves hillside soil disturbance, rainy season construction, construction near a creek or an intermittent or ephemeral drainageway, or any other condition or construction site activity that could lead to a non-stormwater discharge to a storm drain if not managed by effective implementation of an ESCP.

(b) The ESCP shall be submitted for review and approval by the authorized enforcement official. The project applicant shall follow the most recent version of the MCSTOPPP Construction Erosion and Sediment Control Plan Applicant Package to prepare the ESCP. At a minimum, the ESCP shall include:

(1) Description of the proposed project and soil disturbing activity;

(2) Site-specific construction phase BMPs;

(3) Rationale for selecting the BMPs, including, if needed, soil loss calculations;

(4) List of applicable permits associated with the soil disturbing activity, such as: the state's construction general permit (CGP); Clean Water Act Section 404 Permit; Clean Water Act Section 401 Water Quality Certification; Streambed/Lake Alteration Agreement (1600 Agreements);

(5) Proof that the applicant has obtained the applicable permits associated with the soil disturbing activity must be submitted prior to approval of the ESCP; and

(6) Project information as required by the ESCP applicant checklist provided in the MCSTOPPP Construction Erosion and Sediment Control Plan Applicant Package:

i. Owner and contractor contact information;

ii. Site information (location, status, size of project, size of disturbed area);

iii. Project watershed; and

iv. Planned start date and anticipated completion date (as may be revised from time to time).

(c) For projects subject to the state's general construction permit (CGP), project applicants may submit a stormwater pollution prevention plan (SWPPP) developed pursuant to the CGP in lieu of submitting an ESCP.

(d) Implementation of an approved ESCP shall be a condition of the issuance of a building permit, a grading permit, or other permit issued by the city for a project subject to this section. The ESCP shall be implemented year round and must be updated to reflect changing conditions on the project site. Any modifications to the ESCP shall be submitted to the city for review and subject to city approval.

8. Prior to and/or during construction, the city may establish controls on the volume and rate of stormwater runoff from new developments and redevelopment as may be appropriate to minimize peak flows or total runoff volume, and to mimic the pre-development site hydrology. These controls may include limits on impervious areas or provisions for detention and retention of runoff on site.

d. Post-construction permanent measures. The city may require, as a condition of project approval, permanent structural controls designed for the removal of sediment and other pollutants and for control on the volume and rate of stormwater runoff from the project's added or replaced impervious surfaces. The selection and design of such controls shall be in accordance with criteria established or recommended by state, federal, and local agencies, and where required, the BASMAA Post-Construction Manual. Where physical and safety conditions allow, the preferred control measure is to retain drainageways above ground and in as natural a state as possible or other biological methods such as bioretention areas.

e. Stormwater control plan requirements.

1. For each new development and redevelopment project subject to the post-construction measures requirements, or where required by the nature and extent of a proposed project and where deemed appropriate by the city, every applicant shall submit a stormwater control plan (SCP) that meets the criteria in the most recent version of the BASMAA Post-Construction Manual, and shall implement conditions of approval that reduce stormwater pollutant discharges through the construction, operation and maintenance of source control measures, low impact development design, site design measures, stormwater treatment measures and hydromodification management measures. Increases in runoff shall be managed in accordance with the post-construction measures requirements.

2. The SCP is separate and distinct from the ESCP requirements described in subsection 7-4.10c.

3. Where projects are required to have a SCP, project applicants shall follow the appropriate SCP template, based on the project type, as set forth in the BASMAA Post-Construction Manual.

4. Implementation of an approved SCP and submittal of an approved stormwater facilities operation and maintenance plan by the applicant shall be a condition precedent to the issuance of a building permit or a construction permit for a project subject to this section.

5. Financial security may be required to ensure that stormwater management facilities operate and are maintained following construction for a period which may be determined by the city. Financial security shall consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the city and in a form acceptable to the city.

6. All stormwater management facilities shall be designed in a manner to minimize the need for maintenance and reduce the chances of failure. Design guidelines are outlined in the BASMAA Post-Construction Manual.

7. All stormwater management facilities shall be maintained according to the BASMAA Post-Construction Manual and the approved stormwater facilities operation and maintenance plan. The person(s) or organization(s) responsible for maintenance shall be designated in the plan. Unless a different time period is provided for in the plan, those responsible for maintenance shall inspect the stormwater management facilities at least annually. The plan shall describe how the maintenance costs will be funded. Upon the failure of a responsible person to maintain the stormwater management facilities in accordance with this section or the plan, the city may perform the maintenance and recover its costs from the responsible person as provided in subsection 7-4.12.

8. For each new development and redevelopment project subject to the post-construction measures requirements, or where deemed appropriate by the city, access in favor of the city to stormwater management facilities for inspections, as provided in subsection 7-4.12, and through such means as may be appropriate, including, but not limited to, legal agreements, recorded covenants or easements, shall be provided by the property owner.

9. All project proponents and their successors, or successors in fee title, in control of a new development and redevelopment project subject to the post-construction measures requirements, shall submit one of the following as a condition prior to final inspection and approval of building permit closure:

(a) The project proponent's signed statement accepting responsibility for the operations and maintenance of stormwater management facilities until such responsibility is legally transferred to another entity;

(b) Written conditions in the sales or lease agreements or deed for the project that requires the buyer or lessee to assume responsibility for the operations and maintenance of the stormwater management facilities until such responsibility is legally transferred to another entity;

(c) Written text in project deeds, or conditions, covenants and restrictions for multi-unit residential projects that require the homeowners' association or, if there is no association, each individual owner to assume responsibility for the operation and maintenance of the stormwater management facilities until such responsibility is legally transferred to another entity; or

(d) Any other legally enforceable agreement or mechanism, acceptable to the city, that assigns the operation and maintenance of the stormwater management facilities to the project owner(s) or the permittee.

f. Notification of intent and compliance with general permits. Each industrial discharger, discharger associated with construction activity, or other discharger, described in any general stormwater permit addressing such discharges, as may be adopted by the United States Environmental Protection Agency, the state water resources control board, or the regional water quality control board, shall provide permit registration documents, and comply with, and undertake all other activities required by any general stormwater permit applicable to such discharger.

Each discharger identified in an individual NPDES permit relating to stormwater discharges shall comply with and undertake all activities required by such permit.

g. Compliance with best management practices. Where best management practices guidelines or requirements have been adopted by any federal, State of California, regional, and/or local agency, for any activity, operation, or facility that may cause or contribute to stormwater pollution or contamination, illicit discharges, and/or discharge of non-stormwater to the storm drain system, every person undertaking such activity or operation, or owning or operating such facility shall comply with such guidelines or requirements as may be determined by the authorized enforcement official in any permit approved for the subject activity, operation or facility.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.11 Watercourse protection.

a. Every person owning, occupying, leasing, renting, or in control of premises through which a watercourse passes, shall:

1. Keep and maintain that part of the watercourse within the premises reasonably free of trash, debris, and other obstacles which would and/or could pollute, contaminate, or significantly retard the flow of water through the watercourse;

2. Maintain existing privately owned structures within or adjacent to a watercourse so that such structures will not become a hazard to the use, function, or physical integrity of the watercourse; and

3. Not remove healthy noninvasive bank vegetation beyond that actually necessary for said maintenance, nor remove said vegetation in such manner as to increase the vulnerability of the watercourse to erosion.

b. No person shall commit or cause to be committed any of the following acts, unless a written encroachment permit has first been obtained in conformance with section 15-2 of the Novato Municipal Code:

1. Discharge into or connect any pipe or channel to a watercourse;

2. Modify the natural flow of water in a watercourse;

3. Deposit in, plant in, or remove any material from a watercourse including its banks, except as required for necessary maintenance;

4. Construct, alter, enlarge, connect to, change, or remove any structure in a watercourse; or

5. Place any loose or unconsolidated material adjacent to or within a watercourse so as to cause a diversion of the flow, or to cause a probability of such material being carried away by stormwaters passing through such watercourse.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.12 Violations constitute a public nuisance; abatement; remediation.

a. Nuisance declared. Any condition caused or allowed to exist in violation of any of the provisions of this section constitutes a threat to the public health, safety and welfare, and is deemed and declared to be a public nuisance. This public nuisance may be summarily abated, and/or enjoined or otherwise be compelled to cease and desist, and/or remedied or remediated in any fashion permitted under the law by the authorized enforcement official, or by actions taken by the city attorney.

b. Abatement procedure; costs; lien. The city may abate any public nuisance under this section under the provisions set forth in section 1-6. The cost of such abatement and/or remediation, including city staff time and attorney's fees, shall be the responsibility of the owner of the premises. Said costs, to the extent incurred by the city, shall be a lien upon and against the premises and shall continue in existence until said costs are paid. Said lien shall be imposed, foreclosed upon and/or collected in accordance with the applicable provisions of state law and this Code.

c. Inspections and sampling; authority and procedure.

1. The authorized enforcement official is hereby authorized to inspect any and all premises for any violation of the provisions of this section. The authorized enforcement official may, within the limitations of applicable state and federal law, enter any building or any premises (including, but not limited to, facilities, equipment, practices, or operations) at all reasonable times to inspect the same for any or all of the following situations, as determined by the authorized enforcement official:

(a) Routine inspections to ensure implementation of BMPs and other requirements of this section;

(b) Active or potential stormwater discharges;

(c) Whenever there is reasonable cause to believe that there exists any condition which constitutes a violation of the provisions of this section or the Phase II Stormwater Permit;

(d) Actual violations of this section or the Phase II Stormwater Permit;

(e) Whenever necessary to enforce any of the provisions of this section or the Phase II Stormwater Permit; or

(f) To perform any duty imposed upon the official by this section.

2. The authorized enforcement official must present proper credentials to, and obtain consent from the owner or occupant to enter. In the event the owner and/or occupant refuses entry, the official shall request assistance of the city attorney to obtain an administrative warrant for the premises, pursuant to the provisions of state law.

3. Sampling rights/burden on city. The authorized enforcement official is hereby authorized to conduct routine sampling and monitoring on or adjacent to the premises under review. The cost of such routine sampling and/or monitoring activities, including test reports and results, shall be borne by the city. The authorized enforcement official may, within the limitations of law, enter such premises at reasonable times to conduct sampling and monitoring operations, provided that the official presents proper credentials to, and obtains consent from the owner or occupant to enter. In the event the owner and/or occupant refuses entry, the official shall request assistance of the city attorney to obtain an administrative warrant for the premises, pursuant to the provisions of state law.

4. Sampling obligation/burden of owner. Whenever the authorized enforcement official has reasonable cause to believe that the owner and/or occupant of a premises is engaged in an activity and/or operating a facility that is causing or contributing to stormwater pollution or contamination, illicit discharges, and/or the discharge of non-stormwater or other unlawful material, to the storm drain system, the official may require the owner and/or occupant to conduct sampling and/or monitoring activities on the premises, and to furnish such test results and reports as the official may determine. The burden and cost of undertaking such sampling and monitoring activities including test results and reports, shall be borne by the owner of the premises under review. The type and method of sampling and monitoring shall be determined by the official but must bear a reasonable relationship to the need for testing and monitoring and to the benefits to be obtained, as determined by the enforcement official.

5. Exigent circumstances. Whenever a condition is found to exist in violation of this section that presents an immediate and present danger to the public health, safety or welfare requiring immediate remedial action to prevent injury to persons or property, the authorized enforcement official shall, subject to budgetary and policy provisions governing conduct of his/her actions in these matters, take whatever reasonable and appropriate action is necessary to neutralize, prevent, mitigate or lessen the danger, including, but not limited to, entry upon private premises for inspection, sampling and monitoring, and abatement.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.13 Violations; misdemeanors or infractions; punishment. The violation of any provision of this section, or failure to comply with any of the mandatory requirements of this section, shall constitute a misdemeanor, except that, notwithstanding any other provision of this section, any such violation of this section may, in the discretion of the enforcement authority, constitute an infraction. If convicted of a misdemeanor, a person shall be subject to payment of a fine, imprisonment, or both, not to exceed the limits set forth in California Government Code section 36901. If convicted of an infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in California Government Code section 36900. A person, firm, corporation, or organization shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this section is committed, continued or allowed by the person, firm, corporation or organization, and shall be punishable accordingly.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.14 Violations; civil action for enforcement. The violation of any provision of this section, or the failure to comply with any of the requirements of this section, may be enforced by a civil action brought by the city attorney in any court having appropriate jurisdiction. In any such action, the city may seek any or all of the following remedies:

a. A temporary or permanent injunction.

b. Costs of investigation, inspection, sampling, or monitoring activities concerning the violation, and costs of suit, including the city's attorney's fees.

c. Costs of remediating the premises.

d. Compensatory damages including, but not limited to, loss and/or destruction of water quality, wildlife, fish, aquatic habitat, and other adverse environmental effects. Damages recovered under this subsection shall be paid to the city and shall be used exclusively for costs of sampling and monitoring, of establishing stormwater discharge pollution control systems, and of implementing and/or enforcing the provisions of this section.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.15 Violations; administrative enforcement action. In addition to any other enforcement powers and/or remedies provided in this section, an authorized enforcement official may issue an order to a person to cease and desist from the discharge, practice, operation or other activity causing or likely to cause a violation of this section. Such order shall be directed to those persons violating the section stating clearly and concisely the nature of the violation, the requirements for compliance, a timetable for compliance, and such other remedial and/or preventive action as may be necessary. Upon the violator's failure to comply with such order, the city shall take further enforcement action as specified in this section, or in accordance with any other appropriate provision of local, state or federal law. At the discretion of the authorized enforcement official, orders to cease and desist may take the following form:

a. Verbal warnings, as may be issued during inspections;

b. Warning letters and orders to abate pollution;

c. Warning letters with requirements to submit written reports; or

d. Formal violations and legal action as described in this section and as authorized by section 1-6 of the City of Novato Municipal Code.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.16 Remedies not exclusive. The enumerated remedies provided in this section are in addition to and do not supersede or limit and all other remedies, both civil and criminal. The remedies provided for herein shall be cumulative to, and not exclusive of, each other.

7-4.17 Authority to arrest and issue citations. The authorized enforcement official shall have the authority to cite or to request that the police department arrest any person who violates any provision of this section in the manner provided by the California Penal Code for the arrest or release on citation of misdemeanors or for citation of infractions and notice to appear, as prescribed by section 5, 5c, and 5d of Title 3, Part 2 of the California Penal Code, including section 853.6, or as the same may be hereinafter amended. It is the intent of the city council that the immunities provided in Penal Code section 836.5 be applicable to public officers or employees acting within the course and scope of their employment pursuant to this section.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

7-4.18 Coordination with hazardous materials inventory and response program. To the extent reasonably feasible, the city shall exercise good faith efforts to have included in any business plan developed in accordance with Chapter 6.5 of Division 20 of the Health and Safety Code and relevant to businesses affecting stormwaters in Novato a program for compliance with this section including the prohibitions on non-stormwater discharges and illicit discharges, and the requirement to reduce stormwater pollutants to the maximum extent practicable.

(Ord. No. 1600, § 1(Exh. A), 6-16-2015)

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Editor's note— Ord. No. 1600, § 1, (Exh. A), adopted June 16, 2015, repealed § 7-4 in its entirety and enacted a new § 7-4 to read as set out herein. Former § 7-4 pertained to similar subject matter and derived from Ord. No. 1329, § 1.

7-5.1 Title. This section 7-5 shall be known as the "City of Novato Clean Stormwater Activity Fee Ordinance" and may be so cited.

(Ord. No, 1331, § 1)

7-5.2 Purpose and Intent. The purpose of this section is to ensure the future health, safety, and general welfare of the citizens of the City of Novato by establishing a funding source to provide enforcement of the city's Urban Runoff Pollution Prevention Ordinance, to provide maintenance and repair of the city's stormwater drainage facilities, to provide capital improvements to the city's storm drainage system, and to provide other clean stormwater activities.

The intent of this section is to protect and enhance the water quality of the State's, and the Nation's watercourses, water bodies, and wetlands in a manner pursuant to and consistent with the Clean Water Act. (33 U.S.C. §1251 et seq.)

(Ord. No. 1331, § 1)

7-5.3 Definitions.

a. Storm drainage system shall mean and include but is not limited to those stormwater drainage conveyance facilities within the city by which stormwater may be conveyed to waters of the United States, including any roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels or storm drains, which are not part of a Publicly Owned Treatment Works (POTW) as defined at 40 CFR 122.2.

b. Clean stormwater activities shall mean and include but is not limited to, all programs required by the Marin County Stormwater Pollution Prevention Program and the BURCP Basin Plan Permit, the operation and maintenance of the city's stormwater drainage system, any capital improvements to repair, rehabilitate, replace, or improve components of the stormwater drainage system, the enforcement of the Urban Runoff Pollution Prevention Ordinance (section 7-4) and related regulations, the administration of this section and of section 7-4, and any other activities related to the foregoing.

(Ord. No. 1331, § 1; Ord. No. 1340, § 1)

7-5.4 Establishment of Fee for Clean Stormwater Activities. Every person, corporation or entity which owns real property within the City of Novato shall pay an annual fee to the City of Novato for clean stormwater activities.

(Ord. No. 1331, § 1)

7-5.5 Calculation of Fee. The methodology for calculating the fee per parcel due for clean stormwater activities shall be established by the city council of the City of Novato by resolution. Said rate may be adjusted from time to time in accordance with the city's procedure for adopting rates, fees, and charges.

(Ord. No. 1331, § 1; Ord. No. 1340, § 2)

7-5.6 Clean Stormwater Fund Established. A Clean Stormwater Fund is hereby established in the City of Novato. All income and revenue collected from real property owners pursuant to this section shall be paid into the Clean Stormwater Fund. Said income and revenue shall be expended only for clean stormwater activities, and shall not be expended for any other purpose.

(Ord. No. 1331, § 1)

7-5.7 Collection of Fee; Interest and Penalties. The city manager is authorized to have the fees imposed by this section collected by the County of Marin in conjunction with the County of Marin's collection of property tax revenues for the City of Novato. In the event that the County of Marin collects the fees imposed by this section, the imposition of additional penalties, fees, charges and interest upon property owners who fail to pay the fee imposed by this section, or who fail to pay any delinquent amount under this section, shall be subject to and governed by the rules, regulations and procedures utilized by the County of Marin in its collection of property taxes, charges and fees for the City of Novato and its collection of this additional fee for the City of Novato. Every penalty imposed and such interest as accrues under the provisions of this ordinance shall become a part of the fee required by this section.

(Ord. No. 1331, § 1)

7-5.8 Delinquent Fees. Delinquent fees are hereby made a lien upon the real property served by the stormwater drainage system. The amount of any fee, penalty, charge or interest imposed under the provisions of this section shall be deemed a debt owed to the City of Novato.

(Ord. No. 1331, § 1)

7-5.9 Remedies. The city may seek legal, injunctive, or other equitable relief to enforce this section. In any such action the city shall be entitled to reasonable attorneys fees and costs. The remedies established in this section are cumulative and in addition to any other remedies available to the city for the collection of the fees imposed by this section.

(Ord. No. 1331, § 1)

7-6.1 Definitions. For purposes of this section, the following definitions shall apply:

a. "Customer" means any person obtaining prepared food from the retail food vendor.

b. "Disposable food packaging" means any plates, bowls, trays, cartons, cups, lids, and hinged or lidded containers that are designed for one-time use and are used in the transport, storage or consumption of prepared food or takeout food. This includes, but is not limited to, packaging for food left over from partially consumed meals prepared at retail food vendors. This definition does not include single-use disposable straws, utensils or hot cup lids.

c. "Polystyrene foam" means and includes blown polystyrene and expanded and extruded foams which are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres, injection molding, foam molding and extrusion-blow molding (extruded foam polystyrene). Polystyrene foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays and egg cartons.

d. "Prepared food" means food or beverages which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises or facilities of a retail food vendor. Prepared food does not include raw meats, fish and/or poultry which are sold from a butcher case or similar appliance. Prepared food includes food eaten either on or off the premises or away from the facilities of the retail food vendor, including takeout food.

e. "Takeout food" means food or beverages requiring no further preparation to be consumed and which generally are purchased to be consumed off the premises or away from the facilities of the retail food vendor.

f. "Retail food vendor" means any vendor, business, organization, entity, group or individual that provides prepared food at a retail level, including a food service establishment or a motor vehicle or mobile unit based vendor of prepared food.

(Ord. No. 1577, § 2, 5-7-2013)

7-6.2 Prohibited Polystyrene Foam Disposable Food Packaging. On and after January 1, 2014, except as otherwise provided in this section, retail food vendors are prohibited from providing prepared food or takeout food to customers in, on or with disposable food packaging, when any part of such packaging includes polystyrene foam.

(Ord. No. 1577, § 2, 5-7-2013)

7-6.3 Exemptions.

a. The following shall be exempt from the provisions of this section:

1. Foods prepackaged outside the limits of the City of Novato;

2. Coolers and ice chests that are intended for reuse; and

3. Emergency supplies or services procured by public agencies to be used in an emergency for the immediate preservation of the public peace, health or safety.

b. The city manager may exempt a retail food vendor from the requirements of this section for a period of time to be determined by the city manager on a case-by-case basis for undue hardship. Undue hardship includes, but is not limited to, situations unique to the food vendor not generally applicable to other persons in similar circumstances. Retail food vendors seeking an exemption shall provide a written request setting forth the reasons and documentation showing factual support for the requested exemption.

(Ord. No. 1577, § 2, 5-7-2013)

7-6.4 Enforcement and Penalties.

a. Enforcement of this section shall be the responsibility of the city manager and such code enforcement officials as may be designated by the city manager.

b. It is unlawful to violate any provision of this section.

c. A violation of the provisions of this section is subject to enforcement by the provisions of chapter 1-6 of this code.

(Ord. No. 1577, § 2, 5-7-2013)

7-7.1 Definitions. For purposes of this section, the following definitions shall apply:

a. "Checkout bag" means a carryout bag intended to convey or protect goods, products or packaged food products provided by a store to a customer at the point of sale.

b. "Customer" means any person purchasing goods from a store.

c. "Operator" means the person in control of, or having the responsibility for, the operation of a store, which may include, but is not limited to, the owner of the store.

d. "Plastic carryout bag" means any bag made predominantly of plastic derived from either petroleum or a biologically-based source, such as corn or other plant sources, which is provided to a customer at the point of sale. "Plastic carryout bag" includes compostable and biodegradable bags but does not include reusable bags or product bags.

e. "Postconsumer recycled material" means a material that would otherwise be destined for solid waste disposal, having completed its intended end use and product life cycle. "Postconsumer recycled material" does not include materials and by-products generated from, and commonly reused within, an original manufacturing and fabrication process.

f. "Product bag" means any bag without handles used exclusively to carry produce, meats, or other food items such as bulk foods to the point of sale inside a store or to prevent such food items from coming into direct contact with other purchased items.

g. "Recyclable" means material that can be sorted, cleansed, and reconstituted using available recycling collection programs for the purpose of using the altered form in the manufacture of a new product. "Recycling" does not include burning, incinerating, converting, or otherwise thermally destroying solid waste.

h. "Recyclable paper carryout bag" means a paper bag that meets all of the following requirements:

1. Contains no old growth fiber;

2. Is 100 percent recyclable overall and contains a minimum of 40 percent postconsumer recycled material;

3. Is capable of composting, consistent with the timeline and specifications of the American Society of Testing and Materials (ASTM) Standard D6400;

4. Is accepted for recycling in curbside programs in the City of Novato;

5. Has printed on the bag the name of the manufacturer, the location (country) where the bag was manufactured, and the percentage of postconsumer recycled material used; and

6. Displays the word "Recyclable" in a highly visible manner on the outside of the bag.

i. "Reusable bag" means a bag with handles that is specifically designed and manufactured for multiple reuse and meets all of the following requirements:

1. Has a minimum lifetime of 125 uses, which for purposes of this subsection, means the capability of carrying a minimum of 22 pounds 125 times over a distance of at least 175 feet;

2. Has a minimum volume of 15 liters;

3. Is machine washable or is made from a material that can be cleaned or disinfected;

4. Does not contain lead, cadmium, or any other heavy metal in toxic amounts;

5. Has printed on the bag, or on a tag that is permanently affixed to the bag, the name of the manufacturer, the location (country) where the bag was manufactured, a statement that the bag does not contain lead, cadmium, or any other heavy metal in toxic amounts, and the percentage of postconsumer recycled material used, if any; and

6. If made of plastic, is a minimum of at least 2.25 mils thick.

j. "Single Use Carryout Bag" means a bag made of plastic, paper, or other material, that is provided by a store to a customer at the point of sale that is not a reusable bag and does not meet the requirements of a reusable bag. A "single use carryout bag" does not include a "product bag" or a bag provided by a pharmacy pursuant to Chapter 9 (commencing with Section 4000) of Division 2 of the California Business and Professions Code to a customer purchasing a prescription medication.

k. "Store" means a retail establishment located within the incorporated area of the City of Novato that meets any one or more of the following definitions:

1. A full-line, self-service retail store with gross annual sales of $2,000,000, or more, that sells a line of dry grocery, canned goods, or nonfood items and some perishable items;

2. A store of at least 10,000 square feet of retail space that generates sales or use tax pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law (Part 1.5 (commencing with Section 7200) of Division 2 of the Revenue and Taxation Code) and that has a pharmacy licensed pursuant to Chapter 9 (commencing with Section 4000) of Division 2 of the Business and Professions Code; or

3. A drug store, pharmacy, supermarket, grocery store, convenience food store, foodmart, or other entity engaged in the retail sale of a limited line of goods that includes milk, bread, soda, and snack foods, including those stores with a Type 20 or 21 license issued by the department of alcoholic beverage control.

7-7.2 Plastic Carryout Bags Prohibited.

a. No store shall provide to any customer a plastic carryout bag.

b. This prohibition applies to bags provided for the purpose of carrying away goods from the point of sale and does not apply to product bags.

7-7.3 Permitted Bags. All stores shall provide or make available to a customer only recyclable paper carryout bags or reusable bags for the purpose of carrying away goods or other materials from the point of sale, subject to the terms of this section. Nothing in this section prohibits customers from using bags of any type that they bring to the store themselves or from carrying away goods that are not placed in a bag, in lieu of using bags provided by the store.

7-7.4 Regulation of Recyclable Paper Carryout Bags.

a. Any store that provides a recyclable paper carryout bag to a customer must charge the customer at least $0.10 for each bag provided, except as otherwise provided in this section.

b. The city council may increase the $0.10 minimum charge by resolution.

c. No store shall rebate or otherwise reimburse a customer any portion of the minimum charge required in subsection a., except as otherwise provided in this section.

d. All stores must post signage clearly indicating the per bag charge for recyclable paper carryout bags.

e. All stores must indicate on the customer receipt the number of recyclable paper carryout bags provided and the total amount charged for the bags.

f. All monies collected by a store for recyclable paper bags under this section will be retained by the store.

7-7.5 Use of Reusable Bags.

a. All stores shall make reusable bags available for purchase by a customer for at least $0.10 for each bag provided, except as otherwise provided in this section.

b. The city council may increase the $0.10 minimum charge by resolution.

c. A store may provide reusable bags to customers at no cost until three months after the effective date of the section. On and after three months after effective date of the section, a store may provide reusable bags to customers at no cost only when combined with a time-limited store promotional program. Such events shall not exceed a total of 30 days within any consecutive 12-month period.

d. Each store is strongly encouraged to educate its staff to promote reusable bags and to post signs encouraging customers to use reusable bags.

e. No store shall rebate or otherwise reimburse a customer any portion of the minimum charge required in subsection a., except as otherwise provided in this section.

f. All stores must post signage clearly indicating the per bag charge for reusable bags.

g. All stores must indicate on the customer receipt the number of reusable bags provided and the total amount charged for the bags.

h. Each store is strongly encouraged to charge for a reusable bag at least what it cost to procure the reusable bags in order to encourage maximum reusability and not cause them to be treated as throw-away.

i. All monies collected by a store for reusable bags under this section will be retained by the store.

7-7.6 Exempt Customers. All stores must provide at the point of sale, free of charge, either reusable bags or recyclable paper carryout bags or both, at the store's option, to any customer participating either in the California Special Supplemental Food Program for Women, Infants, and Children pursuant to Article 2 (commencing with Section 123275) of Chapter 1 of Part 2 of Division 106 of the Health and Safety Code or in the Supplemental Food Program pursuant to Chapter 10 (commencing with Section 15500) of Part 3 of Division 9 of the Welfare and Institutions Code.

7-7.7 Operative Date. This section shall become operative six months after its effective date, for stores defined in subsections 7-7.1.k.1 and 7-7.1.k.2. For stores defined in subsection 7-7.1.k.3, this section shall become operative 12 months after its effective date.

7-7.8 Enforcement and Violation—Penalty.

a. The city code enforcement official or his/her designee has primary responsibility for enforcement of this section.

b. If the code enforcement official or his/her designee determines that a violation of this section has occurred, he/she will issue a written warning notice to the operator of a store that a violation has occurred and the potential penalties that will apply for future violations.

c. Any store that violates or fails to comply with any of the requirements of this section after a written warning notice has been issued for that violation shall be guilty of an infraction.

d. Violations of this section shall be punishable as follows:

Plastic Bag Compliance Fee Matrix

e. A fine shall be imposed for each day a violation occurs or is allowed to continue.

f. Any store operator who receives a written warning notice or fine may request an administrative review of the accuracy of the determination or the propriety of any fine issued, by filing a written notice of appeal with the city manager no later than 30 days after receipt of a written warning notice or fine, as applicable. The notice of appeal must include all facts supporting the appeal and any statements and evidence, including copies of all written documentation and a list of any witnesses that the appellant wishes to be considered in connection with the appeal. The appeal will be heard by the city manager. The city manager will conduct a hearing concerning the appeal within 45 days from the date that the notice of appeal is filed, or on a later date if agreed upon by the appellant and the city manager, and will give the appellant ten days prior written notice of the date of the hearing. The city manager may sustain, rescind, or modify the written warning notice or fine, as applicable, by written decision. The city manager will have the power to waive any portion of the fine in a manner consistent with the decision. The decision of the city manager is final and effective on the date of service of the written decision, is not subject to further administrative review, and constitutes the final administrative decision.

7-7.9 No Conflict with Federal or State Law. Nothing in this section is intended to create any requirement, power or duty that is in conflict with any federal or state law.

(Ord. No. 1590, § 2, 3-18-2014)

7-8.1 Title. This section shall be known as "Novato's Tobacco Retailers' Licensing Law."

(Ord. No. 1615, § II, 1-31-2017)

7-8.2 Definitions. The following words and phrases, whenever used in this section, shall have the meanings defined in this subsection unless the context clearly requires otherwise:

a. Arm's length transaction means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this [section] is not an arm's length transaction.

b. Characterizing flavor means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provisions of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.

c. Cigar means:

1. Any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco; or

2. Any paper or wrapper that contains tobacco and is designed for smoking or ingestion of tobacco products.

For the purposes of this subsection, "cigar" includes, but is not limited to, tobacco products known or labeled as "cigar," "cigarillo," "tiparillo," "little cigar," "blunt wrap," or "cigar wrap."

d. City means the City of Novato, State of California.

e. Department means city manager, and any agency or person designated by the department to enforce or administer the provisions of this section.

f. Electronic smoking device means an electronic device which can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic smoking device" includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

g. Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor.

h. Person means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

i. Pharmacy means a retail establishment in which the profession of pharmacy by a pharmacist licensed by the State of California in accordance with the Business and Professions Code is practiced and where prescriptions are offered for sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals.

j. Proprietor means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or shares ultimate control over the day-to-day operations of a business.

k. Self-service display means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.

l. Smoking means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

m. Tobacco paraphernalia means any item designed for the consumption, use, or preparation of tobacco products.

n. Tobacco product means:

1. Any product containing, made, or derived from tobacco, nicotine, or other substance that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, snuff;

2. Any electronic smoking device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah;

3. Notwithstanding any provision of subsections 1. and 2. to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

o. Tobacco retailer or 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. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. No. 1615, § II, 1-31-2017; Ord. No. 1673, § I, 10-26-2021)

7-8.3 Requirements and Prohibitions.

a. Tobacco Retailer's License Required. It shall be unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's license pursuant to this section for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's license is a nuisance as a matter of law.

b. 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 is issued, it shall be a violation of this section for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to tobacco products, or tobacco retailing.

c. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

d. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product to another person who appears to be under the age of 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.

e. Minimum Age for Persons Selling Tobacco. No Person who is younger than 18 years of age shall engage in tobacco retailing.

f. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

g. False and Misleading Advertising Prohibited. A tobacco retailer without a valid tobacco retailer license or a proprietor without a valid tobacco retailer license, including, for example, a person whose license has been suspended or revoked:

1. Shall keep all tobacco products out of public view. The public display of tobacco products in violation of this provision shall constitute tobacco retailing without a license under subsection 7-8.12; and

2. Shall not display any advertisement relating to tobacco products that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location.

h. Flavored Tobacco Products. No tobacco retailer shall sell or offer for sale a flavored tobacco product. There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or its agents or employees has made a public statement or claim that the tobacco product has or produces a characterizing flavor including, but not limited to, text, color, or images on the product's labeling or packaging that are used to expressly or impliedly communicate that a tobacco product has a characterizing flavor.

i. Minimum Pack Size for Cigars. Notwithstanding any other provision of this section, it shall be a violation of this section for any licensee or any of the licensee's agents or employees to sell, offer for sale, or exchange for any form of consideration:

1. Any single cigar, whether or not packaged for individual sale;

2. Any number of cigars fewer than the number contained in the manufacturer's original consumer packaging designed for retail sale to a consumer; or

3. Any package of cigars containing fewer than five cigars.

This subsection i. does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds five dollars ($5.00).

j. Pharmacies Cannot Sell Tobacco Products. No license may be issued to authorize tobacco retailing in a pharmacy and no pharmacy shall engage in tobacco retailing at any time.

(Ord. No. 1615, § II, 1-31-2017; Ord. No. 1634, §§ 1, 2, 1-9-2018; Ord. No. 1673, § II, 10-26-2021)

7-8.4 Application Procedure.

a. Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct or conducting retail tobacco sales, and shall be signed by each proprietor or an authorized agent thereof.

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 section, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to subsection 7-8.12 of this section. Nothing in this section 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.

All applications shall be submitted on a form supplied by the department and shall contain the following information:

1. The name, address, and telephone number of each proprietor of the business seeking a license.

2. The business name, address, and telephone number of the single fixed location for which a license is sought.

3. A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized person and address") required by, authorized by, or convenient to the enforcement of this section. If an authorized person and 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.

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.

5. Such other information as the department deems necessary for the administration or enforcement of this section as specified on the application form required by this section.

b. A licensed tobacco retailer shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer's license within ten business days of a change.

c. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law, subject to the laws' exemptions.

d. Tobacco retailers in existence on the enforcement date specified in section 7-8.14 shall apply for a license during the 2019 business license renewal process which will be due on or before January 1, 2019. Existing tobacco retailers will then apply annually during the business license renewal process.

(Ord. No. 1615, § II, 1-31-2017; Ord. No. 1634, § 3, 1-9-2018)

7-8.5 Issuance of License.

a. Bases for Denial. Upon the receipt of a complete application for a tobacco retailer's license and the license fee required by this section, the department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:

1. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this section.

2. The application seeks authorization for tobacco retailing at a location for which this section prohibits issuance of tobacco retailer licenses. However, this subparagraph shall not constitute a basis for denial of a license if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction.

3. The application seeks authorization for tobacco retailing for a proprietor to whom this section prohibits a license to be issued.

4. The application seeks authorization for tobacco retailing at a location, that is unlawful pursuant to this Code, including without limitation, zoning ordinance and building code, or that is unlawful pursuant to any other law.

b. Appeal of Denial. Subject to subsection 7-8.11.c., a decision of the department to deny a license is appealable to the city council and any such appeal must be filed in writing with the city clerk within 15 days of the department's denial of the issuance of the license and the applicable appeal fee must be paid.

(Ord. No. 1615, § II, 1-31-2017)

7-8.6 License Renewal and Expiration.

a. Renewal of License. A tobacco retailer's license is invalid if the appropriate license fee has not been timely paid in full or if the term of the license has expired. the term of a tobacco retailer license is one calendar year. To renew a tobacco retailer's license, a tobacco retailer shall apply for the renewal of their tobacco retailer's license at the same time as application is made for the tobacco retailer's annual business license renewal under Section 8-1 of this Code.

b. Expiration of License. A tobacco retailer's license that is not timely renewed shall expire on December 31 of each year. To renew a license not timely renewed pursuant to subparagraph a., above, the proprietor must:

1. Submit the license fee and the renewal form; and

2. Submit a signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed.

(Ord. No. 1615, § II, 1-31-201; Ord. No. 1634, § 4, 1-9-2018; Ord. No. 1673, § III, 10-26-2021)

7-8.7 Transfer Restrictions.

a. A tobacco retailer's license may not be transferred from one location to another.

b. A new tobacco retailer's license is required whenever a tobacco retailing location has a change in proprietor(s).

c. Notwithstanding any other provision of this section, 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 the new proprietor(s) provide the department with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm's length transaction.

(Ord. No. 1615, § II, 1-31-2017)

7-8.8 License Conveys a Limited, Conditional Privilege. Nothing in this section shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the license. For example, nothing in this section shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code including, without limitation, the zoning ordinance and building codes, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer's license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

(Ord. No. 1615, § II, 1-31-2017)

7-8.9 Fee for License. The fee to issue or to renew a tobacco retailer's license shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover the cost of administration and enforcement of this section, including, for example, issuing a 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 section. Fees are nonrefundable except as may be required by law.

(Ord. No. 1615, § II, 1-31-2017)

7-8.10 Compliance Monitoring.

a. Compliance with this section shall be monitored by the department. In addition, any peace officer may enforce the penal provisions of this section. The department may designate any number of additional persons to monitor compliance with this section.

b. The department will work with Marin County Tobacco Program to inspect each tobacco retailer at least one time per 12-month period. Nothing in this paragraph shall create a right of action in any licensee or other person against the city or its agents.

c. The department shall not enforce any law establishing a minimum age for tobacco purchases or possession against a person who otherwise might be in violation of such law because of the person's age (hereinafter "youth decoy") if the potential violation occurs when:

1. The youth decoy is participating in an inspection supervised by a peace officer, code enforcement official, or the person designated by the city to monitor compliance with this section;

2. The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this section; or

3. The youth decoy is participating in an inspection funded in part, either directly or indirectly through subcontracting, by the County of Marin Department of Health and Human Services or the California Department of Health Services.

(Ord. No. 1615, § II, 1-31-2017)

7-8.11 Suspension or Revocation of License.

a. Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be suspended or revoked if any court of competent jurisdiction determines, or the department finds based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this section or has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in section 7-8.3 above.

1. Upon a finding by the department of a first violation, the tobacco retailer will be issued a warning.

2. Upon a finding by the department of a second violation of this section at a location within any 60-month period, the license shall be suspended for 30 days.

3. Upon a finding by the department of a third violation of this section at a location within any 60-month period, the license shall be suspended for 90 days.

4. Upon a finding by the department of a fourth violation of this section at a location within any 60-month period, the license shall be suspended for one year.

5. Upon a finding by the department of five or more violations of this section at a location within any 60-month period, the license shall be revoked.

b. Appeal of Suspension or Revocation. A decision of the department to suspend or revoke a license is appealable to the city council and any appeal must be filed in writing with the city clerk within 15 days of mailing of the department's decision and the applicable appeal fee must be paid. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to the city council is not available for a revocation made pursuant to subsection c. below.

c. Revocation of License Wrongly Issued. A tobacco retailer's license shall be revoked if the department finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under subsection 7-8.5 existed at the time application was made or at any time before the license issued. The decision by the department shall be the final decision of the city. Such a revocation shall be without prejudice to the filing of a new license application.

d. Judicial Action to Challenge. Any final administrative action to suspend or revoke a tobacco retailer's license under this section shall be subject to judicial review pursuant to California Government Code Section 53069.4, which, among other things, requires such a judicial challenge to be brought within 20 days of service of the final decision.

(Ord. No. 1615, § II, 1-31-2017; Ord. No. 1634, § 5, 1-9-2018)

7-8.12 Tobacco Retailing Without a Valid License.

a. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the city council finds based on a preponderance of evidence, 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 to be issued, a tobacco retailer's license as follows:

1. After a first violation of this section at a location within any 60-month period, no new license may issue for the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 30 days have passed from the date of the violation.

2. After a second violation of this section at a location within any 60-month period, no new license may issue for the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 90 days have passed from the date of the violation.

3. After a third or subsequent violation of this section at a location within any 60-month period, no new license may issue for the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until 60 months have passed from the date of the violation.

b. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the department or any peace officer 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 section. The decision by the department may be appealed pursuant to the procedures set forth in subsection 7-8.11.b. Forfeited tobacco products and tobacco paraphernalia shall be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.

c. For the purposes of the civil remedies provided in this section, each of the following constitutes a separate violation of this section:

1. Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this section; or

2. Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this section.

(Ord. No. 1615, § II, 1-31-2017)

7-8.13 Additional Remedies.

a. The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity.

b. Whenever evidence of a violation of this section is obtained in any part through the participation of a person under the age of 21 years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this section and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

c. Violations of this section are subject to a civil action brought by the city attorney, punishable by a civil fine not less than two hundred fifty dollars ($250.00) and not exceeding one thousand dollars ($1,000.00) per violation.

d. Violations of this section, in the discretion of the city attorney, may be prosecuted as infractions or misdemeanors when the interests of justice so require.

e. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this section shall also constitute a violation of this section.

f. Violations of this section are hereby declared to be public nuisances.

g. In addition to other remedies provided by this section or by other law, any violation of this section 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. 1615, § II, 1-31-2017)

7-8.14 Enforcement. This section shall not be enforced by the city until January 1, 2019 with the exception of subsection 7-8.3.j., which shall be enforced as of the effective date of this ordinance [Ord. No. 1634].

(Ord. No. 1615, § II, 1-31-2017; Ord. No. 1634, § 6, 1-9-2018)

Footnotes:

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Editor's note— Ord. No. 1615, § II, adopted Jan. 31, 2017, added provisions to the Code designated as Section 7-6. Inasmuch as there were already provisions so designated, at the editor's discretion the provisions have been redesignated as Section 7-8.

7-9.1 Definitions.

a. "Aerosol container" means any aerosol or pressure based container which is capable of spraying paint, ink, dye or similar substance.

b. "Etching material" means any etching tool, chemical, paste or similar material which is capable of being used to etch glass, stone, marble, wood or other natural or manmade materials.

c. "Days" means calendar days.

d. "Felt-tip marker" means any marker or similar device with a tip containing ink, dye or similar substance which, when used or applied to a surface, is capable of resulting in a mark.

e. "Graffiti" means any inscription, word, figure, mark or design that is written, marked, etched, scratched, drawn or painted on any real or personal property in the city without the permission of the owner and which is visible from a public right-of-way or any neighboring property.

f. "Gang graffiti" means any inscription, word, figure, mark or design that is written, marked, etched, scratched, drawn or painted on any real or personal property in the city, which is related, attached, referenced, associated, recognized or in any way associated with a criminal gang or organization.

g. "Official notification" means any written notification, including a memo, correspondence, notice of violation posting, and/or any other means used by the City of Novato to inform the property owner, resident, or any other person having physical possession of the real property upon which the graffiti is present, of the contents of the notice.

h. "Property owner" means the person(s) of legal recording showing full or partial ownership or persons with legal interest in real property located within the City of Novato.

i. "Resident" means the person(s) who has physical possession of the real property located within the City of Novato.

j. "Responsible person" means the person, firm, corporation, public or private entity that is the property owner or is in physical possession of the property which is defaced by graffiti.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.2 Declaration of Nuisance. The presence of graffiti on public or private property within the City of Novato is hereby declared to be a public nuisance.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.3 Prohibition of Graffiti. It is a violation of the Municipal Code of the City of Novato, to apply graffiti to any wall, rock, street, bridge, building, fence, gate, tree or other real or personal property within the City of Novato.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.4 Sales of Aerosol Container(s). As outlined in state law, no person(s) or business engaged in a commercial enterprise shall sell, trade or exchange any aerosol containers capable of spraying paint, ink, dye or similar substance(s), to any person under the age of 18. Person(s) or businesses shall at all times comply with the requirements of California Penal Code Section 594.1(c) by posting signs as described therein.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.5 Voluntary Removal of Graffiti by Property Owner or City.

a. A responsible person who owns or is in possession of property that is defaced with non-gang-related graffiti shall be required to have the graffiti removed within ten days after official notification by the city.

b. A responsible person who owns or is in possession of property that is defaced with gang-related graffiti shall be required to have the graffiti removed within 48 hours after official notification by the city. The city recognizes the inherent dangers associated with gang-related graffiti and the urgency of prompt removal.

c. Notice to the responsible person of the graffiti removal required by subsection a. or b. shall be provided in the manner set forth by subsection 7-9.8. Graffiti removal shall be performed in accordance with the standards set forth by subsection 7-9.6.

d. If the responsible person is unable to remove the graffiti themselves, the city may assist the responsible person in achieving removal of graffiti on the property. Assistance may be secured through volunteer services, paint and or paint materials, or city staff intervention. With the consent of property owner or resident, the city staff, volunteers or contractors may enter onto the property and perform graffiti removal pursuant to this subsection. In the event that the city removes the graffiti with the owner's or resident's consent, with city staff or city contractor, the property owner(s) may be responsible for costs of city staff time. If the property owner fails to reimburse the city for the costs of removal, the city may collect such costs through the placement of a lien upon the owner's property under Government Code Section 38773.1 or a special assessment upon the owner's property under Government Code Section 38773.5 for costs of removal, provided that all of the notice and procedural requirements of the applicable section of the Government Code are satisfied.

e. As used in this subsection, "costs of removal" shall refer to all of the following: costs of removal of the graffiti, costs of repair and replacement of defaced property, costs of administering and monitoring voluntary removal of graffiti, attorneys' fees, and court costs.

f. Community education. The city manager or designee may conduct regular programs to provide community education regarding the prevention of graffiti in coordination with local businesses, or other community organizations.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.6 Standards for Graffiti Removal. The most desirable method for covering graffiti is the complete coverage of the graffiti in a manner that renders it inconspicuous. Material(s) used to cover or remove the graffiti should match the original color of the surface. In the event that an alternate color must be used, the new color should be aesthetically compatible with existing colors and architecture. The removal should not leave shadows or allow the graffiti to be visible through the material that has been applied. The best graffiti coverage would not follow the pattern of the graffiti such that letter(s) or similar shapes remain apparent on the surface after graffiti marking(s) have been removed. In the event that the graffiti covers 50 percent or more of the surface, the entire surface should be repainted.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.7 Graffiti removal provisions.

a. Common Utility Colors and Paint Type. Any gas, telephone, water, sewer, cable, telephone and other utilities operating in the city, shall paint their above-surface metal fixtures that are installed after the effective date of this section, with a uniform paint type and neutral color. The city retains the authority to have the city manager or his designee determine the paint color of utilities if issues of aesthetics arise.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.8 Voluntary removal policy and notice to property owner.

a. The city recognizes that graffiti is an act of vandalism perpetrated against the property owner(s) by known and unknown person(s) and as such the property owner(s) are victims of crime. Further, the city recognizes the importance in prompt removal of graffiti and its direct impact on future acts of vandalism. In this respect, property owner(s) bear a responsibility in helping to protect the beauty and integrity of the city.

b. The city shall seek compliance with this section through voluntary graffiti removal in those cases in which it appears to the city that voluntary removal is the most appropriate method to pursue in order to obtain compliance in the most expeditious and cost-effective manner available. In the event that voluntary graffiti removal is not taken, the city may enforce violations pursuant to the administrative citation procedures of this section or through its nuisance abatement procedures or through any other remedy, means, method or procedure available to the city under this code or state law.

c. In the event that the voluntary removal of graffiti through the procedures set forth herein and the administrative citation procedures set forth herein do not result in the timely removal of graffiti, or the city deems the nature, character, or impact of the graffiti requires immediate removal, the city may seek to enforce a violation of this section as a public nuisance under the nuisance abatement procedures set forth by section 1-6 and avail itself of any remedies set forth by that section or as may be otherwise provided by this code or state law.

d. General graffiti notices to be given for the voluntary removal of graffiti shall comply with the following:

1. General Graffiti First Notice: The city shall provide written notice to the responsible person(s) of the presence of general graffiti on the property and that the person shall have ten calendar days from the date of the notice to remove the graffiti. The notice will educate the responsible person(s) with the city's graffiti ordinance and programs and seek voluntary compliance. The notice shall offer the services of any volunteer program that the city has formed or organized for the removal of graffiti if such services are available. All notices under this paragraph shall be made in an official notification.

2. General Graffiti Second Notice: If upon completion of the ten-day removal period, the graffiti has not been removed, then the city may issue an administrative citation in accordance with the provisions of subsection 7-9.9.

e. Gang graffiti notices to be given for the voluntary removal of graffiti shall comply with the following:

1. Gang Graffiti First Notice: The city shall provide written notice to the responsible person(s) of the presence of gang graffiti on the property and that the person shall have two calendar days from the date of the notice to remove the graffiti. The notice will educate the responsible person(s) with the city's graffiti ordinance and programs and seek voluntary compliance. The notice shall offer the services of any volunteer program that the city has formed or organized for the removal of graffiti if such services are available. All notices under this paragraph shall be made in an official notification.

2. Gang Graffiti Second Notice: If upon completion of the two-day removal period, the graffiti has not been removed, then the city may issue an administrative citation in accordance with the provisions of subsection 7-9.9.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.9 Administrative citation penalties for violation.

a. A violation of this section shall be enforceable pursuant to municipal code section 1-6, issuance of an administrative citation, or in accordance with this code or applicable state law.

b. Property owner(s), or responsible person(s) who refuse, ignore, or otherwise fail to comply with written and/or verbal notices or requests from the city to abate violation(s) of graffiti may be subject to punishment in accordance with this subsection.

c. Any responsible person that violates this section 7-9 after notice has been provided in accordance with subsection 7-9.8, may be issued an administrative citation by an enforcement officer.

d. Each and every day a violation of this section exists shall constitute a separate and distinct offense which shall be subject to the fine established by this section per each day that the offense continues.

e. A civil fine shall be assessed by means of an administrative citation issued by the enforcement officer and shall be payable directly to the City of Novato Finance Division.

f. Except in the case of administrative citations issued for any violation of this code that constitutes an imminent danger, fines shall be assessed in the following amounts:

1. A fine not exceeding one hundred ($100.00) dollars for a first violation or any subsequent violation that is not subject to subsection b or c.

2. If the person has been fined for a violation of this section which occurred within the one-year period preceding a second violation of this section, then a fine not exceeding two hundred ($200.00) dollars for a second violation may be imposed.

3. If the person has been fined for two or more violations of this section which occurred within a year and has not removed the graffiti, then a fine not exceeding five hundred ($500.00) dollars may be imposed for each additional violation within one year from the date of the first violation.

g. Service Procedures.

1. An administrative citation on a form approved by the city manager may be issued to the responsible person by an enforcement officer for violations of this section, in the following manner:

(a) Personal Service. In any case where an administrative citation is issued:

(1) The enforcement officer shall attempt to locate and personally serve the responsible person and obtain the signature of the responsible person on the administrative citation.

(2) If the responsible person served refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the administrative citation or of subsequent proceedings.

(b) Service of Citation by Mail. If the enforcement officer is unable to locate the responsible person, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid with a requested return receipt. Simultaneously, the citation may be sent by first-class mail. If the citation is sent by certified mail and returned unsigned, then service shall be deemed effective pursuant to first-class mail, provided the citation sent by first-class mail is not returned.

(c) Service of Citation by Posting Notice. If the enforcement officer does not succeed in personally serving the responsible person, or by certified mail or first-class mail, the enforcement officer shall post the administrative citation on any real property within the city in which the enforcement officer has knowledge that the responsible person has a legal interest and such posting shall be deemed effective service. Each administrative citation shall contain the following information:

(1) Date, approximate time and address or definite description of the location where the violation(s) was observed;

(2) The Code section or conditions violated and a description of the violation(s);

(3) An order to the responsible person to correct the violations within the time specified which shall be a reasonable period of time under the circumstances known by the enforcement officer, and an explanation of the consequences of failure to correct the violation(s) within the specified time;

(4) An explanation of how the fine shall be paid and the time period by which it shall be paid;

(5) The amount of the fine for the violation(s);

(6) Identification of rights of appeal, including the time within which the citation may be contested and the place to obtain a request for hearing form to contest the administrative citation; and

(7) The name and signature of the enforcement officer and if possible the signature of the responsible person.

2. Upon receipt of a citation, the responsible person will be required to do the following:

(a) Pay the fine to the city within ten calendar days from the correction date of the administrative citation, if the violation is not corrected within the time specified on the citation. All fines assessed shall be payable to the City of Novato. Payment of a fine shall not excuse or discharge the failure to correct the violation(s) nor shall it bar further enforcement action by the city.

(b) Remedy the violation(s) if the violation(s) is of such a nature that it can be remedied. If the violation(s) is corrected before the date provided on the citation no fine shall be imposed. If after the responsible person has been cited for a violation, the responsible person fails to correct the violation(s), subsequent administrative citations under this section may be issued for the same violation(s). The amount of the fine for failure to correct the violation shall increase as specified by subsection 7-9.9f.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.10 Hearing and Appeal Request.

a. Any recipient of an administrative citation may contest that there was a violation of the City of Novato Municipal Code section 7-9 or that he or she is the responsible person by completing a request for hearing form and returning it to the City of Novato within ten days from the correction date of the administrative citation, together with an advanced deposit of the fine. A request will be considered timely if it is received by the city within the ten-day period. Any administrative citation fine which has been deposited shall be refunded if it is determined, after a hearing that the person charged in the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation. Any person who is financially unable to pay the advanced deposit may request an advance deposit hardship waiver. The advance deposit hardship waiver procedures set forth by chapter 14-19 shall be applicable to a request made under this section.

b. The Novato City Manager shall designate the hearing officer for the administrative citation hearing. The hearing officer shall not be a City of Novato employee. The employment, performance evaluation, compensation and benefits of the hearing officer, if any, shall not be directly or indirectly conditioned upon the amount of administrative citation fines upheld by the hearing officer.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.11 Appeal Hearing Procedures.

a. No hearing to contest an administrative citation before a hearing officer shall be held unless and until a request for hearing form has been completed and submitted and the fine has been deposited in advance.

b. A hearing before the hearing officer shall be set for a date that is no less than 15 and no more than 60 days from the date that the request for hearing is filed in accordance with the provisions of this section. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten days prior to the date of the hearing.

c. The hearing officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the responsible person has caused or maintained the violation(s) of this section 7-9 on the date(s) specified in the administrative citation.

d. The responsible person contesting the administrative citation shall be given the opportunity to testify and present witnesses and evidence concerning the administrative citation.

e. The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine and a failure to exhaust their administrative remedies.

f. The administrative citation and any additional documents submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents.

g. If the enforcement officer submits an additional written report concerning the administrative citation to the hearing officer for consideration at the hearing, then a copy of this report also shall be served by mail on the person requesting the hearing at least five days prior to the date of the hearing.

h. At least ten days prior to the hearing, the recipient of an administrative citation shall be provided with copies of the citations, reports and other documents submitted or relied upon by the enforcement officer. No other discovery is permitted. Formal rules of evidence shall not apply.

i. The hearing officer may continue the hearing and request additional information from the enforcement officer or the recipient of the administrative citation prior to issuing a written decision.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.12 Appeal Hearing Determination.

a. After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision within ten days of the hearing to uphold or deny the administrative citation and shall list in the decision the reasons for that decision. The decision of the hearing officer shall be final.

b. If the hearing officer determines that the administrative citation shall be upheld, then the fine amount on deposit with the City of Novato shall be retained by the city.

c. If the hearing officer determines that the administrative citation should be canceled and the fine was deposited with the City of Novato, then the city shall promptly refund the amount of the deposited fine.

d. The recipient of the administrative citation shall be served with a copy of the hearing officer's written decision in the manner prescribed by subsection 7-9.11g.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.13 Enforcement and Collection. The civil fine imposed through the administrative citation or the penalty ordered by the hearing officer in the event of an appeal made to the administrative citation shall constitute a debt owed to the city. The failure of any person to pay the civil fine assessed by an administrative citation within the time specified on the citation may be enforced as a personal obligation of the responsible person. The city may impose a lien upon real property owned by the responsible person in the amount of the final administrative fine plus interest, plus costs. In imposing a lien, the city shall proceed in accordance with Government Code Section 38773.1. Alternatively, the city may pursue any other legal remedy to collect the civil fines. The city may also recover its collections costs according to proof, in addition to attorney fees, court costs and staff time.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.14 Judicial Review. Any person aggrieved by an administrative decision of a hearing officer on an administrative citation under this section may obtain review of the administrative decision by filing a petition for review with the Marin County Superior Court pursuant to California Government Code Section 53069.4.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.15 Abatement of Graffiti Perpetrated by Convicted Minors or Convicted Adults.

a. Whenever property is defaced with graffiti by a convicted minor or convicted adult, the graffiti shall be removed pursuant to the time table set forth by subsection 7-9.8d. by the responsible person(s) upon notice being given by the city pursuant to subsection 7-9.8. The graffiti may be removed by the city with the permission of the responsible person(s) in accordance with subsection 7-9.5. Nothing in this subsection 7-9.15 shall relieve the responsible person(s) of the duty to comply with all of the provisions of this section 7-9. Upon a minor or adult being described by Government Code Section 38772(d)(3), the city may recover the cost of abatement of the graffiti from the convicted minor, the convicted minor's parent or guardian having custody and control of the minor, or from the convicted adult. The costs of abatement shall be a lien or special assessment against the property of the minor or other identified person and a personal obligation against the minor or other identified person pursuant to Government Code Section 38773.2 or 38773.6.

b. In the event the minor fails to remit the cost of abatement, the parent or guardian having custody or control of such minor shall be personally, jointly and severally liable with the minor and the costs of abatement of the nuisance shall be a lien or special assessment against the property of such parent or guardian and a personal obligation against same pursuant to Government Code 38773.2 or 38773.6.

c. Notwithstanding any other provision of this code, notices under this subsection shall be provided in accordance with Government Code Section 38773.2 or 38773.6 and no lien or special assessment may be recorded by the city on the minor's or the parent or guardian's property or other identified person's property unless notice has been provided in accordance therewith.

d. "Costs of abatement" as used in this subsection 7-9.15 shall refer to court costs, attorneys' fees, costs of removal of the graffiti, costs of repair and replacement of the defaced property, law enforcement costs incurred by the city in identifying and apprehending the minor or other person, costs of administering and monitoring removal of graffiti by city forces or volunteers.

e. It is the intent of the city council that this ordinance constitute the city's graffiti abatement program within the meaning of Penal Code Section 594(f) and 594.6 and that the county justice system have all remedies available pursuant to those sections and as may be otherwise provided by state law for graffiti offenses committed within the city's jurisdiction. To the extent feasible, the city will also seek the assistance of county in making available a program for minors and adults committing graffiti within the city to perform their community service some or all of their sentence through graffiti removal or abatement within the city.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

7-9.16 Supplementary Enforcement Authority. Nothing in this section shall prevent the city from initiating a civil or administrative action, or any other legal or equitable proceeding, to obtain compliance with the provisions of this chapter. The enforcement procedures described in this chapter are intended to be alternative methods of obtaining compliance and/or discouraging noncompliance with the provisions of this section and are expressly intended to be in addition to any other remedies provided by law.

(Ord. No. 1564, § 1, 9-27-2011; Ord. No. 1622, § 2, 10-10-2017)

Footnotes:

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Editor's note— Ord. No. 1622, § 2, adopted Oct. 10, 2017, renumbered § 1-7 as § 7-9.

7-10.1 Definitions. For purposes of this section, the following definitions shall apply:

a. "Shopping cart" means a basket which is mounted on wheels or a similar device provided by a business establishment for use by a customer for the purpose of transporting goods of any kind, including but not limited to grocery store shopping carts, but excluding a laundry cart used in a coin-operated laundry or dry cleaning retail establishment or a cart for transporting plants at a garden center.

b. "Owner" means any person or entity, who in connection with the conduct of a business, owns, possesses, or makes any shopping cart available to customers or the public. For purposes of this section, owner shall also include the owner's on site or designated agent that provides the carts for use by its customers.

c. "Premises" means the entire area owned and utilized by the business establishment that provides carts for use by customers, including any parking lot or other property provided by the owner for customer parking.

d. "Abandoned shopping cart" means any shopping cart that has been removed from the premises of the business establishment without written permission of the owner or on-duty manager, regardless of whether it has been left on either private or public property. This provision shall not apply to shopping carts that are removed for purposes of repair or maintenance of the carts as authorized by the owner.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-10.2 Required Signs on Shopping Carts. Every shopping cart owned or provided by any business establishment in the City of Novato must have a sign permanently affixed to it that contains the following information:

a. Identifies the owner of the shopping cart or the name of the business establishment, or both;

b. Notifies the public that the unauthorized removal of the cart from the premises or parking area of the business establishment is a violation of state and City of Novato law;

c. Notifies the public of the procedure to be utilized for authorized removal of the cart from the business premises; and

d. Lists a telephone number to contact to report the location of the cart if abandoned and lists an address for returning the cart to the owner or business establishment.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-10.3 Prohibiting Removal or Possession of Abandoned Shopping Cart.

a. It is unlawful to either temporarily or permanently remove a shopping cart from the premises or parking area of a business establishment without the express prior written approval of the owner or on-duty manager of the business establishment. Written permission shall be valid for a period not to exceed 72 hours.

b. It is unlawful to be in possession of a shopping cart that has been removed from the premises or parking area of a business establishment without the written permission described in subsection a. above unless it is in the process of being immediately returned to the owner or business establishment.

c. This section shall not apply to shopping carts that are removed for the purposes of repair or maintenance of the carts as authorized by the owner.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-10.4 Mandatory Plan to Prevent Cart Removal.

a. Prevention Plan. Every owner who maintains more than ten shopping carts for use by customers shall develop and implement a specific plan to prevent customers from removing carts from the business premises. The plan must include the following elements:

1. Notice to Customers. Written notification shall be provided to customers that removal of carts from the premises and parking lots are prohibited and a violation of state and local law. This notice may be provided by signage placed in pertinent places near door exits, near parking lot exits or near shopping cart corrals, in printed handouts or by other effective means.

2. Physical Measures. Specific physical measures which shall be implemented to prevent shopping cart removal from the business premises. These measures may include, but are not limited to, installation and maintenance of geographic disabling devices on all shopping carts, posting of a security guard to deter and stop customers who attempt to remove carts from the business premises, bollards and chains around business premises to prevent cart removal, or security deposits for shopping cart use.

3. Mandatory Cart Retrieval. A plan for patrol and retrieval of abandoned shopping carts by the owner within a radius of one-quarter mile of the business location, or greater if necessary to include locations of frequent cart abandonment, every 24 hours at a minimum, and for retrieval of abandoned shopping carts in any location within 72 hours of notification by a member of the public or a city representative.

4. Contact for Owner for Shopping Cart Retrieval. A contact phone number for notification by the city of the location of an abandoned shopping cart to the owner to initiate the retrieval process.

b. Prevention Plan Approval. The proposed plan for preventing shopping cart removal shall be submitted to the community development director for review and approval within 60 days after adoption of this ordinance or within 60 days of the opening of a new business which provides more than ten shopping carts for use by customers. The director may approve, approve with modifications or deny the proposed plan and notify the owner of such decision within 30 days of receipt. If approved, the abandoned shopping cart prevention plan shall be implemented by the owner no later than 30 days from the date of approval and on a continuous basis thereafter.

c. Prevention Plan Modification. At any time after the director's approval of a prevention plan, the owner may submit to the director a modification of the previously approved plan to address a change in circumstances, address an unanticipated physical or economic impact of the plan or modify an inadequate or ineffective plan. The director may also modify a previously approved plan which has been demonstrated to be ineffective or inadequately implemented. Grounds for director modification include, but are not limited to, a high number of abandoned shopping carts. The director may require the owner to install and maintain electronic or other geographic disabling devices to prevent carts from being removed from the premises. The director shall notify the owner of a proposed modification of a previously approved plan and provide the owner an opportunity to respond within a ten-day period prior to the director's decision.

d. Prevention Plan Appeal. The Director's decision to approve or deny a prevention plan may be appealed for determination by the planning commission in accordance with the provisions of division 19.54.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-10.5 Penalties for Failing to Submit or Implement a Prevention Plan. Any owner that fails to submit a plan or implement the approved plan measures shall be subject to a one thousand ($1,000.00) dollar civil penalty, plus an additional penalty of fifty ($50.00) dollars for each day of noncompliance.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-10.6 Notification for Retrieval of Abandoned Shopping Carts. Pursuant to Business and Professions Code Section 22435.7, the city shall provide written notification of the owner of an abandoned shopping cart by e-mail or facsimile using the contact provided in the prevention plan or by written notice to the owner at the address in the prevention plan.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-10.7 Administrative Costs and Fines. Pursuant to Business and Professions Code Section 22435.7, any owner that fails to retrieve its abandoned shopping cart(s) within 72 hours of receiving notification from the city shall pay the city's actual costs for retrieving the cart(s) and providing notification to the owner, as established from time to time by city council resolution. In addition, any owner who fails to retrieve abandoned carts in accordance with this section in excess of three times during a specified six-month period, shall be subject to a fine of fifty ($50.00) dollars for each occurrence. An occurrence includes all carts owned by the Owner that are impounded by the city in a one-day period.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-10.8 Disposition of Shopping Carts Impounded by City. In accordance with state law, any shopping cart not reclaimed from the city within 30 days after notification to the owner shall be sold or otherwise disposed of by the city.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-10.9 No Conflict with Federal or State Law. Nothing in this section is intended to create any requirement, power or duty that is in conflict with any federal or state law.

(Ord. No. 1622, § 3(Exh. A), 10-10-2017)

7-11.1 Purpose and scope. The purpose of this section to mitigate the threat of fire and other potential causes of destruction and damage to and interference with, critical infrastructure, in order to protect the health, safety, and welfare of the public, by authorizing the removal of persons and their personal property in, on, or near critical infrastructure. The purpose of this section is further to protect the health, safety and welfare of minor children while using facilities specifically designed to serve that population.

(Ord. No. 1669, § II, 6-8-2021)

7-11.2 Regulated Areas. When used in this section, the following words and phrases have the following meanings:

a. Camp has the same meaning as in section 14-20.2 of this Code.

b. Camp facilities has the same meaning as in section 14-20.2 of this Code.

c. Camp paraphernalia has the same meaning as in section 14-20.2 of this Code.

d. Critical infrastructure may be any real property or facility, whether privately or publicly owned, as designated by the city council by resolution, that the city council determines in its discretion is so vital and integral to the operation or functioning of the city that its damage, incapacity, disruption, or destruction would have a debilitating impact on the public health, safety, or welfare.

e. Facility means a building, structure, equipment, system, or asset.

f. Hazardous waste has the same meaning as in California Public Resources Code section 40141.

g. Infectious waste has the same meaning as in California Code of Regulations, title 14, section 17225.36.

h. Wildfire risk area has the same meaning as in California Code of Regulations, title 24, part 9, section 202.

i. Youth-serving facility means child day care facilities, public or private preschool, public or private primary or secondary school, public or private college and/or university, and public or private playgrounds.

(Ord. No. 1669, § II, 6-8-2021 Ord. No. 1691, § 1, 9-13-2022)

7-11.3 Prohibited Activities and Conditions.

a. It is unlawful and a public nuisance for any person to camp, occupy camp facilities, or use camp paraphernalia at the following locations:

1. Critical infrastructure;

2. Within 50 feet of critical infrastructure;

3. Within 50 feet of a vehicular or pedestrian entrance to or exit from critical infrastructure;

4. On those portions of a right-of-way that are required by local, state, or federal law to be free of obstruction to first responders, including but not limited to members of law-enforcement, fire-prevention, or emergency-medical-services agencies; or

5. Wildfire risk area.

6. Youth-serving facilities.

7. Within 50 feet of youth-serving facilities.

b. It is unlawful and a public nuisance for any person to store personal property, including camp paraphernalia and camp facilities, in the following locations without the written consent of the property owner:

1. Critical infrastructure;

2. Within 50 feet of critical infrastructure;

3. Within 50 feet of a vehicular or pedestrian entrance to or exit from of critical infrastructure;

4. On those portions of a right-of-way that are required by local, state, or federal law to be free of obstruction to first responders, including but not limited to members of law-enforcement, fire-prevention, or emergency-medical-services agencies; or

5. Wildfire risk area.

6. Youth-serving facilities.

7. Within 50 feet of youth-serving facilities.

c. This section is not intended to prohibit overnight camping on private residential property by friends or family of the property owner.

d. Nothing in this section is intended to prohibit or make unlawful the activities of an owner of private property or other lawful user of private property that are normally associated with and incidental to the lawful and authorized use of private property for residential or other purposes; and nothing is intended to prohibit or make unlawful the activities of a property owner or other lawful user if such activities are expressly authorized by this Code or other laws, ordinances, and regulations.

(Ord. No. 1669, § II, 6-8-2021; Ord. No. 1719, §§ 2, 3, 1-14-2025; Ord. No. 1720, §§ 2, 3, 12-9-2024)

7-11.4 Abatement.

a. Any violation of sections 7-11 and/or 7-12 may be abated by the city upon 24 hours of prior notice; but a violation of sections 7-11 and/or 7-12 may be abated immediately by the city without prior notice, if the violation poses an imminent threat to public health or safety.

b. Abatement pursuant to subsection a., above, may include, but is not limited to: removal of camp facilities, camp paraphernalia, personal property, garbage, hazardous waste, infectious waste, junk, or debris; and securing the perimeter of the property with fencing, gates, or barricades to prevent further occurrences of the nuisance activity.

c. Regardless of the city's authority to conduct abatement pursuant to this section, every owner, occupant, or lessee of real property, and every holder of any interest in real property, is required to maintain the property in compliance with local, state, and federal law; and is liable for violations thereof.

d. The cost of abatement, including all administrative costs of any action taken hereunder, may be assessed against the subject premises as a lien, made a personal obligation of the owner, or both, in accordance with procedures in section 1-6 of this code.

e. No person shall willfully prevent, delay, resist, obstruct, or otherwise interfere with a city official, employee, contractor or agent in their execution of an abatement pursuant to this section.

(Ord. No. 1669, § II, 6-8-2021)

7-11.5 Violations. Any violation of this section shall be punishable as a misdemeanor in accordance with section 1-5 of this Code and shall be deemed a public nuisance. Nothing in this section shall prevent the city from initiating a civil or administrative action, or any other legal or equitable proceeding, to obtain compliance with the provisions of this section. The remedies provided by this section are intended to be alternative methods of obtaining compliance and/or discouraging noncompliance with the provisions of this section and are expressly intended to be in addition to any other civil, criminal, or administrative remedies provided by law, including, but not limited to, Penal Code sections 602 and 647.

(Ord. No. 1669, § II, 6-8-2021)

7-12.1 Purpose.

a. This section shall govern individual conduct within the stream protection zone, as established and defined in Division 19.35 of this Code, whether occurring on public or private property.

b. The public health, safety, and welfare, as well as the city's ability to comply with its statutory, regulatory and permitting obligations with respect to the protection of its creeks, tributaries, riparian corridors and associated natural resources, require that the city adopt and enforce comprehensive regulations specifically prohibiting deleterious activities within these areas, whether located on public or private property.

c. The purpose of this section is to establish clear and direct requirements for the inspection and maintenance of the areas governed by this section and to authorize city enforcement of violations of the provisions of this section by individuals engaging in prohibited activity and/or prop-erty owners permitting prohibited activities or conditions to occur or be maintained on their properties.

(Ord. No. 1670, § II, 6-8-2021)

7-12.2 Prohibited Activities and Conditions. It shall be unlawful and a violation of this section for any person to engage in or maintain, or for any property owner to allow or maintain, any of the following activities or conditions in the Stream Protection Zone:

a. Collecting, gathering, or disturbance of any natural or cultural resources, except for pruning, removal of materials or any other activities authorized under appropriate permits from state and/or federal agencies or in conjunction with permitted city-sponsored activities.

b. Camping, occupying camp facilities, or using camp paraphernalia.

c. Entering into or remaining within property to which public access is prohibited or restricted.

d. Driving or otherwise operating a vehicle, except as authorized in conjunction with otherwise permitted activity.

e. Using bicycles in areas not expressly designated for bicycle use.

f. Possessing or consuming alcoholic beverages.

g. Disposing of, depositing, throwing, keeping or accumulating trash, litter, rubbish, rubble, garbage, debris or other solid waste, dirt, green waste or animal waste.

h. Traveling outside of designated paths.

i. Posting any sign on a tree, tree-stake or guard, or fastening any wire, cable or rope to any tree, tree-stake or guard unless otherwise authorized by the city.

j. Urinating or defecating.

k. Making any excavation or unauthorized encroachment.

l. Possessing or discharging of weapons, firearms, paintballs, fireworks, or building fires, except a fire lighted and maintained only in an apparatus or receptacle (including a fire pit, stove, barbeque or fire circle) provided by, owned, or maintained within a park by the City of Novato for that particular purpose.

m. Any act in a regulated area constituting a violation of any provision of California Endangered Species Act, Endangered Species Act, the California Public Resources Code, or any regulation of the California Department of Fish and Game, or of any permit or approval issued by any federal, state or local agency having jurisdiction over the regulated area shall also be a violation of this section.

This section is intended to regulate individual conduct within the Stream Protection Zone. Nothing in this section is intended to alter, supplant or overrule the rules and regulations set forth for development and land use within the Stream Protection Zone under Division 19.35 of this Code, or to prohibit any activities lawfully permitted therein.

(Ord. No. 1670, § II, 6-8-2021)

7-12.3 Violation and Abatement. Any violation of this section shall be punishable as a misdemeanor in accordance with section 1-5 of this Code and shall be deemed a public nuisance. Nothing in this section shall prevent the city from initiating a civil or administrative action, or any other legal or equitable proceeding, to obtain compliance with the provisions of this section. The remedies provided by this section are intended to be alternative methods of obtaining compliance and/or discouraging noncompliance with the provisions of this section and are expressly intended to be in addition to any other civil, criminal, or administrative remedies provided by law, including, but not limited to, Penal Code sections 602 and 647.

Any violation of this section may be abated pursuant to the provisions described in section 7-11.4 of this Code.

(Ord. No. 1670, § II, 6-8-2021)

7-12.4 No liability on the city. Nothing in this section shall be deemed to impose any liability upon the city or upon any of its officers or employees, nor to relieve the owner or occupant of any private property from the duty to keep property in a safe condition.

(Ord. No. 1670, § II, 6-8-2021)

7-13.1 Purpose and Intent. The purpose of this section is to reduce greenhouse gas emissions by prohibiting the use of gas-powered leaf blowers within city limits and to minimize the noise impacts of leaf blowers by establishing reasonable hours for their use.

(Ord. No. 1671, § II, 6-22-2021; Ord. No. 1690, § II, 9-13-2022)

7-13.2 Definitions. The following words and phrases, whenever used in this section, shall have the meanings defined herein:

a. "Leaf blower" means a machine, powered by a gasoline engine or electric motor, used to blow, displace, or vacuum leaves, dirt and/or debris.

1. "Gas-powered leaf blower" means any leaf blower directly powered by an internal combustion engine using gasoline.

(Ord. No. 1671, § II, 6-22-2021; Ord. No. 1690, § II, 9-13-2022)

7-13.3 Prohibition on the Use of Gas-Powered Leaf Blowers. It shall be unlawful for any person to operate or authorize the operation of a gas-powered leaf blower to blow leaves, dirt, and other debris off any surface at any time.

(Ord. No. 1671, § II, 6-22-2021; Ord. No. 1690, § II, 9-13-2022)

7-13.4 Restricted Hours for Leaf Blowers. It shall be unlawful for any person to operate a leaf blower except between the hours of 8 a.m. and 6 p.m. Mondays through Saturdays and between the hours of 10 a.m. and 6 p.m. on Sundays and official federal holidays

(Ord. No. 1671, § II, 6-22-2021; Ord. No. 1690, § II, 9-13-2022)

7-13.5 Debris Removal. It shall be unlawful for any person who operates a leaf blower within the city to allow any leaves, dirt, or any other debris to be blown onto adjacent private property, public property, the storm drain system, or the public right-of-way. All leaves, dirt, or any other debris blown on to public property or in the public right-of-way must be picked up, removed, and disposed of properly.

(Ord. No. 1671, § II, 6-22-2021; Ord. No. 1690, § II, 9-13-2022)

7-13.6 Violations a Public Nuisance; Penalties, Nuisance Abatement, and Other Remedies. Any leaf blower operated contrary to the provisions of this section shall be, and the same is hereby declared to be, unlawful and a public nuisance and may be subject to enforcement under this Code in addition to any other enforcement remedies available under law. Notwithstanding the foregoing, for purposes of enforcement under sections 1.5, 1.6, and 1.7 of this Code, the responsible party shall only include a property owner who uses, or permits the use or operation of, a leaf blower in violation of this section.

(Ord. No. 1690, § II, 9-13-2022)

7-13.7 Exemptions. This section shall not apply to public agencies, or any employees, contractors or agents acting on behalf of any of these agencies.

(Ord. No. 1690, § II, 9-13-2022)

7-14.010 Definitions.

a. "BPI certified" means those compostable fiber foodware products that have been certified by the Biodegradable Products Institute (BPI) to safely and readily biodegrade in an industrial composting facility in the typical processing time. As of January 1, 2020, BPI ensures all certified products are fluorinated chemical free.

b. "Compliant nonreusable foodware" means that an item or product intended for disposal after one use and is: (1) accepted by the county through its composting collection program as compostable as identified by the deputy director of environmental health services or their designee; (2) is certified by either BPI certified or other third party product certification recognized by the county through its deputy director of environmental health services or their designee to ensure the item is free of harmful chemicals including but not limited to fluorinated chemicals, that may have been used in foodware manufacture, and is (3) made entirely of natural fiber, as defined that term is below, and including but not limited to paper, wood, or sugarcane fibers.

c. "Compliant foodware accessory" means that an item or material is (1) accepted in Marin County composting collection program as compostable; and is (2) made entirely of natural fiber.

d. "Compost facility" means compost facilities used by the city's current waste haulers for composting organic material.

e. "Compostable" means an item or material (1) will break down, or otherwise become part of usable compost in a safe and timely manner and (2) is natural fiber-based or made from other materials approved by the deputy director of environmental health services or designee.

f. "Compostable plastics or biodegradable plastics" means the disposable products developed from polylactic acid (PLA), which require a specific set of conditions to compost and/or biodegrade that do not exist in the county or the region. These products are considered noncompliant.

g. "City" means the City of Novato.

h. "City facility" means any building or structure owned, leased, or operated by the City of Novato.

i. "Customer" means any person obtaining prepared food from a food vendor.

j. "Director" means the deputy director of environmental health services or their designee.

k. "Disposable (or nonreusable) cup" means a beverage cup designed for single-use to serve beverages such as water, hot and cold drinks, and alcoholic beverages.

l. "Effective date" means June 8, 2023.

m. "EPS" means expanded polystyrene, also known as polystyrene foam.

n. "Fluorinated chemical" means a class of fluorinated organic compounds containing at least one fully fluorinated carbon atom, also known as perfluoroalkyl (PFOA) and polyfluoroalkyl (PFOS) substances, or PFAS chemicals. California Prop 65 lists PFOA and PFOS as reproductive toxicants.

o. "Foodware" means all containers, bowls, plates, food trays, cups, lids, boxes, and other like items that are used for prepared foods, including without limitation, foodware for takeout foods and/or leftovers from partially consumed meals prepared by food vendors.

p. "Foodware accessories" means types of items usually provided alongside prepared food including but not limited to forks, spoons, knives, chopsticks, napkins, cup sleeves, food wrappers, beverage trays, condiment containers, straws, stirrers, splash sticks, cocktail sticks, toothpicks, tray-liners, and plate-liners.

q. "Food vendor" means a food facility as that term is defined in Health and Safety Code section 113789, or its successor, including but not limited to a restaurant, bar, grocery store, delicatessen, bakery, food service establishment (carry out, quick service, full-service), food truck, itinerant restaurant, pushcart, farmers market, caterer, microenterprise home kitchen operation, or cottage food operation, that sells prepared food to be consumed on and/or off the premises located or operating within the city, except that for purposes of this chapter the term "food vendor" shall not include a public or private school cafeteria.

r. "Natural fiber" means a plant-based, nonsynthetic fiber, including but not limited to paper, wood, bamboo, palm leaf, wheat straw, or sugarcane. Natural fiber does not include plastic of any kind.

s. "On request" means that only at the request of a customer shall the compliant product be provided.

t. "Polystyrene foam" means and includes blown polystyrene and expanded and extruded foams (sometimes incorrectly called styrofoam, a Dow Chemical Co. trademarked form of polystyrene foam insulation) which are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene). Polystyrene foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays, coolers, packing peanuts, and egg cartons.

u. "Prepared food" means food or beverages, which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises of the food vendor and includes takeout food. For the purposes of this chapter, prepared food does not include raw, butchered meats, fish and/or poultry, which are sold from a butcher case or similar appliance.

v. "Reusable or durable" means foodware and foodware accessories, including plates, bowls, cups, jars, trays, glasses, straws, stirrers, condiment cups, utensils, etc. that are manufactured of durable materials and specifically designed and manufactured to be washed and sanitized and to be used repeatedly over an extended period of time, and are safe for washing and sanitizing according to applicable regulations.

w. "Takeout food" means food or beverages requiring no further preparation to be consumed and which generally are purchased to be consumed off the premises of the food vendor.

(Ord. No. 1701, § II, 5-9-2023)

7-14.020 Dine-in Foodware Regulations. Food vendors within the incorporated areas of city:

a. Shall sell or provide food and beverages for consumption on the premises using reusable foodware and utensils (forks, spoons, knives, chopsticks) except as otherwise provided in subsection 7-14.030 b.;

b. May provide all other compliant foodware accessories, which are made of natural fibers, including napkins, food wrappers, straws, stirrers, cocktail sticks, toothpicks, tray-liners, and plate-liners;

c. Shall offer condiments in reusable containers or dispensers rather than pre-packaged single-use condiment packets; and

d. Food vendors will have until November 10, 2023, before enforcement of this regulation begins.

(Ord. No. 1701, § II, 5-9-2023)

7-14.030 Takeout Foodware Regulations. Food vendors within the incorporated areas of city selling takeout food for consumption off premises:

a. Shall provide takeout food in reusable foodware, or compostable natural fiber compliant foodware, or items composed entirely of glass or aluminum;

b. Shall provide all other compliant foodware accessories, which are made from natural fibers, including napkins, cup sleeves, beverage trays, condiment containers, straws, stirrers, splash sticks, cocktail sticks, and toothpicks only on request or at self-serve stations;

c. Takeout food bags shall be reusable, paper, or comply with Novato Municipal Code chapter VII, section 7-7 (regulations of single use carry-out bags);

d. Takeout food delivery services shall provide the option for compliant foodware accessories (forks, spoons, knives, chopsticks) and single-use condiments only on request. A food vendor or a takeout food delivery service may include lids, spill plugs, and sleeves without request for nonreusable cups for delivery; and

e. Food vendors shall provide plastic straws only on request, to accommodate any person's access needs.

(Ord. No. 1701, § II, 5-9-2023)

7-14.040 City Facilities and City-sponsored Events. The following regulations apply to city facilities and city-sponsored events:

a. Food vendors shall use reusable foodware and compliant foodware accessories at city facilities and city-sponsored events;

b. The city shall prohibit the use of EPS/polystyrene foam and nonreusable plastic foodware by food vendors at all city facilities. Prohibited products include, but are not limited to, EPS/polystyrene foam and nonreusable plastic food containers, straws, bowls, plates, trays, utensils, clamshells, and cups which are not intended for reuse, on or in which any foods or beverages are placed or packaged;

c. As of the effective date, all city departments that hold contracts, lease agreements, permits, or other agreements that involve food vendors shall incorporate this prohibition into all new and renewed contracts, leases, permits, agreements, etc.;

d. The use or distribution of EPS/polystyrene foam, and nonreusable plastic foodware by food vendors at special events at city facilities that are sponsored or co-sponsored by the city shall be prohibited. This prohibition shall apply to the event organizers, agents of the event organizers, event vendors, and any other party (including nonprofit organizations) who have an agreement with one or more of the co-sponsors of the event to sell goods or beverages at the event or otherwise provide an event-related service; and

e. Written agreements with food vendors, including nonprofit organizations, to sell food or beverages at an event that is sponsored or co-sponsored by the city, shall specifically prohibit the usage and distribution of EPS/polystyrene foam and nonreusable plastic foodware.

(Ord. No. 1701, § II, 5-9-2023)

7-14.050 Nonreusable Cup Charge.

a. All food vendors shall charge customers twenty-five ($0.25) cents at the point of sale for every nonreusable cup provided unless they are exempt under this chapter;

b. Income from the nonreusable cup charge shall be retained by the food vendor;

c. Charges for nonreusable cups shall be identified separately on any post-sale receipt provided and, pre-sale, shall be clearly identified for the customer on media such as menus, ordering platforms, and/or menu boards. Customers placing orders by telephone shall be informed verbally of nonreusable cup charges; and

d. All customers demonstrating, at the point of sale, a payment card or voucher issued by the California Special Supplemental Food Program for Women, Infants, and Children (WIC) pursuant to article 2 (commencing with section 123275) of chapter 1 of part 2 of division 106 of the California Health and Safety Code and as amended, or an electronic benefit transfer card (EBT) issued pursuant to section 10072 of the California Welfare and Institutions Code, and individuals with disabilities shall be exempt from the nonreusable cup charge.

(Ord. No. 1701, § II, 5-9-2023)

7-14.060 Separate Waste Receptacles Required.

a. All food vendors who provide solid waste containers for customer use, must provide separate receptacles for solid waste, recyclables, and organics. Receptacles shall be colored black or grey for garbage, blue for recycling, and green for compost/organics;

b. To the extent possible given space constraints, all receptacles for solid waste, recyclables, and organics should be placed adjacent to one another; and

c. Graphic-rich signage must be posted on or above each receptacle following the waste hauler's guidelines.

(Ord. No. 1701, § II, 5-9-2023)

7-14.070 Exemptions.

a. Entities packaging prepared foods outside Marin County are exempt from the provisions of this chapter; provided, however, such entities are urged to follow the provisions of this chapter;

b. Nonreusable foodware and foodware accessories composed entirely of aluminum is exempt from the provisions of this chapter;

c. Should foodware or foodware accessories made of compliant compostable natural fiber not be commercially available, as determined by director or their designee, the county may approve temporary exemption of specific nonreusable foodware or foodware accessories items until they are made commercially available. The county shall maintain a list, updated annually, with foodware or foodware accessories deemed not available commercially; and

d. For the immediate preservation of the public peace, health, or safety due to an emergency or natural disaster, the city council of the city, or designee, may exempt food vendors, persons operating city facilities and agents, contractors, and vendors doing business with the city, from the provisions of this chapter.

(Ord. No. 1701, § II, 5-9-2023)

7-14.080 Enforcement.

a. Compliance with this chapter is required as of the effective date;

b. Enforcement of this chapter shall be pursuant to City Code subsections 7-14.030 through 7-14.070, inclusive;

c. Enforcement shall include written notice of noncompliance and a reasonable opportunity to correct, prior to issuance of any penalty;

d. It is found and determined to by the city council of the city that the public interest, health, safety, and welfare of the residents of the city require that the Marin County Environmental Health Services Division be designated as the enforcement agency of and within city and as such enforcement agency it is authorized with the enforcement of the provisions of this chapter and the Marin County Environmental Health Services division is vested, for the purposes of enforcing this chapter within the city, with all of the jurisdiction and powers vested in or available to said division by this chapter and said health and safety code; and

e. Enforcement of this chapter will begin on November 10, 2023. Enforcement will be then delegated to the county's environmental health services. Enforcement will progress on the regular inspection schedule of all covered food vendors in the county as described in this chapter.

7-14.090 Violations. On behalf of the city, the county may choose to undertake the following legal actions to correct and/or abate nuisances and violations of this chapter. The director of environmental health services or their designee is authorized to promulgate regulations and take any and all other actions reasonable and necessary to enforce the provisions of this article, including but not limited to, entering the premises of any food provider during regular business hours to verify compliance, and by the issuance of administrative citations. The remedies and penalties provided by this article are cumulative and in addition to any other remedies available at law or in equity.

a. Administrative Citations. Administrative citations may be issued for violations of this chapter at the discretion of the director. The issuance of an administrative citation under this chapter shall not supersede or limit the remedies provided elsewhere in this Code or California law, including other administrative citation remedies. Issuance of an administrative citation may be exercised in place of, but shall not be considered a waiver of, the use of any other available enforcement remedy.

b. Process and Service of Citation.

1. Prior to issuance of citation penalty, the county shall issue a violation warning letter to the facility operator and provide the facility operator 30 days to correct the violation(s).

2. The violation warning letter and/or citation shall be mailed to the food facility operator named in the facility's permit.

3. The failure of any interested person to receive the violation warning letter and/or citation shall not affect the validity of the proceedings.

c. Administrative Citation Penalty Schedule. Following the violation warning letter described in subsection 7-14.090 b.1. above and 30 day cure period, if the violations remains, the county may issue the following administrative penalties:

1. A fine not exceeding one hundred ($100.00) dollars for the first violation;

2. A fine not exceeding two hundred ($200.00) dollars for a second violation of the same Code provision within one year; and

3. A fine not exceeding five hundred ($500.00) dollars for each additional violation in excess of two, of the same Code provision within one year.

d. Response to Citation Penalty. Following receipt of citation penalty, food facility operator shall have 30 days to pay the fine as indicated on the citation, or to request a waiver of payment of the penalty due to unique undue hardship. This waiver may be granted by the director upon demonstration by a food facility operator to the satisfaction of the director that strict application of the requirements would cause undue hardship. An "undue hardship" includes, but is not limited to the following:

1. A situation unique to the food facility where a suitable alternative that conforms with the requirements of this chapter does not exist for a specific application.

2. Imposing the provisions of this chapter would cause significant economic hardship. "Significant economic hardship" may be based on, but not limited to, demonstrating that suitable foodware or foodware accessories made of compliant compostable natural fiber is not available at a commercially reasonable price and the additional cost associated with providing the compliant foodware or foodware is particularly burdensome to the food facility based on the type of operation(s) affected, the overall size of the business/operation, the number, type and location of its facilities, the impact on the overall financial resources of the food facility, and other factors. Reasonable added cost for a suitable item as compared to a similar item that the food facility can no longer use shall not by itself constitute adequate grounds to support an exemption for such item. In determining whether a significant economic hardship has been established, the director or designee shall consider the following information: ability of the food facility to recover the additional expense by increasing its prices; the availability of tax credits and deductions; outside funding; and other options.

e. Nonpayment of Citation for More than One Year Deemed Nuisance. Nonpayment of any assessed violation for longer than one year shall constitute a nuisance and be subject to the nuisance abatement procedures in Marin County Code chapter 1.05, including payment of civil penalties of up to two thousand five hundred ($2,500.00) dollars per violation per day and enforcement and other abatement costs incurred by the county.

(Ord. No. 1701, § II, 5-9-2023)