HomeMy WebLinkAbout7.1 New Tobacco Sales Urgent Ord
STAFF REPORT CITY CLERK
File #450-20
CITY COUNCIL
DATE:July 17, 2012
TO:
Honorable Mayor and City Councilmembers
FROM:
Joni Pattillo, City Manager
SUBJECT:
Adoption of an Urgency Ordinance Imposing a Moratorium on
New Tobacco Sales
Prepared by John D. Bakker, City Attorney
EXECUTIVE SUMMARY:
The City Council will consider an Urgency Ordinance that prohibits the establishment of new
uses involving the sale of tobacco products as well as the issuance of business licenses, use
permits, building permits or any other land use entitlement to businesses that intend to engage
in the sale of tobacco products.
FINANCIAL IMPACT:
None.
RECOMMENDATION:
Staff recommends that the City Council: 1) Receive Staff presentation; 2) Deliberate; and 3)
consider the proposed Urgency Ordinance. If the City Council supports the proposed
by a 4/5ths vote
ordinance, the City Council would waive the reading and adopt, ,an Urgency
Ordinance making findings and establishing a citywide moratorium on the establishment of new
uses involving the sale of tobacco products and on the issuance of business licenses, use
permits and building permits to businesses intending to engage in the sale of tobacco products.
Submitted By Reviewed By
City Attorney Assistant City Manager
DESCRIPTION:
At the City Council meeting on April 17, 2012, the City Council directed staff to prepare and
process a draft ordinance amending the Dublin Municipal Code that, among other things,
prohibits tobacco sales within 1000 feet of specified areas where children are often present,
such as schools and parks. The City Council also directed staff to include language in the
ordinance that would permit existing businesses already engaged in the sale of tobacco
products to continue their operations.
ITEM NO. 7.1
Page 1 of 2
At the June 19, 2012 City Council meeting, Mayor Sbranti requested that Staff prepare an
urgency ordinance to enact a moratorium on new tobacco retailers. The City Attorney’s Office
has prepared an Urgency Ordinance to enact a moratorium on the establishment of new uses
involving the sale of tobacco products and on the issuance of business licenses, use permits,
building permits or other land use entitlements to businesses intending to engage in the sale of
tobacco products. This urgency ordinance would help ensure that, between now and the time
that the proposed modifications to the Dublin Municipal Code take effect, no businesses will
begin to sell tobacco and no permits will be issued for any new businesses that intend to sell
tobacco products. This is to help ensure that no new uses or businesses begin operating in
areas where the use or business will be inconsistent with the City Council’s contemplated
requirements of the Dublin Municipal Code.
The adoption of moratoria is authorized by Government Code section 65858. Such moratoria
may be adopted to prohibit uses that may be in conflict with a contemplated general plan,
specific plan, or zoning proposal and where the agency determines that it is necessary to do so
due to protect the public health, safety and welfare. In this situation, the City Council would be
adopting the ordinance in order to protect the public health, safety and welfare, all of which are
impacted by the sale of tobacco products.
The Government Code provides that moratoria may be adopted only by a four-fifths vote of the
City Council, and that they are effective for only 45 days after their adoption unless the adopting
agency conducts a noticed public hearing on the extension of the ordinance for an additional 10
months and 15 days. Moratoria may then be extended for an additional one year period. If the
City Council adopts the attached ordinance, staff will take steps to ensure that a public hearing
on an extension of the ordinance is held within 45 days of this meeting, if necessary to ensure
time for the contemplated amendments to the Dublin Municipal Code to take effect,.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
Public noticing is not required to adopt an Urgency Ordinance.
ATTACHMENTS:
1. Urgency Ordinance Imposing a Moratorium on New Tobacco Sales
Page 2 of 2
ORDINANCE NO.
AN INTERIM ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
ADOPTED AS AN URGENCY MEASURE, MAKING FINDINGS AND ESTABLISHING A CITY-
WIDE MORATORIUM ON THE ESTABLISHMENT OF NEW USES INVOLVING THE SALE OF
TOBACCO PRODUCTS AND ON THE ISSUANCE OF BUSINESS LICENSES, USE
PERMITS, BUILDING PERMITS OR ANY OTHER LAND USE ENTITLEMENT TO
BUSINESSES INTENDING TO ENGAGE IN THE SALE OF TOBACCO PRODUCTS
WHEREAS
, the City of Dublin (“City”) has an overriding interest in planning and
regulating the use of property within the City. Implicit in any plan or regulation is the City’s
interest in maintaining the quality of life and the character of the City. Without stable, well-
planned neighborhoods, sections of the City can quickly deteriorate, with tragic consequences
to social, environmental, and economic values; and
WHEREAS
, the proliferation of establishments that sell tobacco may adversely affect the
City’s ability to attract and retain businesses and shoppers in the City; and
WHEREAS
, permitting the sale of tobacco may adversely affect the City’s economic
vitality, may promote the consumption and purchase of tobacco by children and minors by
increasing their exposure to tobacco, may result in threats to public health, safety and welfare
and may not be compatible with existing and potential uses of similarly zoned businesses; and
WHEREAS
, the City is in the process of developing an amendment to its Zoning
provisions that would restrict the establishment of new businesses that sell tobacco; and
WHEREAS
, the Dublin Municipal Code is silent with regard to the regulation and
location of businesses that sell tobacco; and
WHEREAS
, the City Council finds that the establishment of new uses involving the sale
of tobacco products and the issuance of business licenses, use permits and/or building permits
for businesses that sell tobacco products, would pose a current and immediate threat to the
public health, safety, and welfare, since such uses could potentially create conflicts with
surrounding land uses and could conflict with the City’s long-term planning goals; and
WHEREAS
, the California Constitution, Article XI, section 7, provides cities with the
authority to enact ordinances to protect the health, safety, welfare and morals of their citizens,
and zoning regulations are a permissible exercise of this authority; and
WHEREAS
, it is necessary for the City to study the impact such businesses may have on
the public health, safety and welfare, and the need to potentially revise the City’s Zoning
Ordinance; and
WHEREAS
, to protect the City’s investment in its planning efforts, ensure that the City’s
long-term planning goals and strategies can be achieved in an effective and timely manner, and
to avoid a current and immediate threat to the public health, safety, and welfare, the City
proposes adopting a moratorium on the establishment of new uses involving the sale of
1
tobacco and on the issuance of business licenses, use permits and/or building permits for
businesses intending to engage the sale of tobacco products; and
WHEREAS
, Government Code section 65858 allows the City to immediately protect and
preserve the public peace, health, and welfare by prohibiting any uses that may be in conflict
with a contemplated general plan, specific plan or zoning proposal that the legislative body,
planning commission or planning department is considering; and
WHEREAS
, adoption of this Ordinance does not require review under the California
Environmental Quality Act (Pub. Resources, Code, §§ 21000, et seq., “CEQA”) based on the
following:
(1) This ordinance is not a “project” within the meaning of Section 15378 of the State CEQA
Guidelines, because adoption of a temporary moratorium has no potential for resulting in either
a direct or indirect physical change in the environment.
(2) This Ordinance is categorically exempt from CEQA pursuant to Section 15308 of the
CEQA Guidelines as a regulatory action taken by the City pursuant to its police power and in
accordance with Government Code Section 65858 to assure maintenance and protection of the
environment pending the evaluation and adoption of contemplated local legislation, regulation
and policies.
NOW THEREFORE, THE CITY COUNCIL ORDAINS AS FOLLOWS, ADOPTED AS AN
INTERIM ORDINANCE UNDER THE PROVISIONS OF GOVERNMENT CODE SECTION
65858
:
Incorporation of Recitals.
1. The City Council finds that all Recitals are true and
correct and are incorporated herein by reference.
Moratorium Imposed.
2. In accordance with the authority granted the City of
Dublin under Article XI, Section 7 of the California Constitution and California Government
Code Section 65858, from and after the date of this Ordinance, no business may begin to sell
tobacco products or establish a new use relating to the sale of tobacco products, and no
business licenses, use permits, building permits, or any other land use entitlement shall be
approved or issued for any business intending to engage the sale of tobacco products within
the boundaries of the City.
Authority; Urgency Statement
3. . This Ordinance is an interim ordinance, adopted
as an urgency measure pursuant to Government Code section 65858 and is for the immediate
and long-term preservation of the public peace, health, and welfare. The following facts
constitute an urgency measure: the City has recently begun the process of developing
amendments to the zoning provisions contained in the Dublin Municipal Code that would
restrict the establishment of new businesses that sell tobacco products. However, the Municipal
Code is silent with respect to regulation of businesses that sell tobacco, which are not
specifically prohibited in areas adjacent to schools, public parks, or public libraries. Thus, as
applications for business licenses are submitted to the City, there is no determination as to
2
whether such potential uses are consistent with the purpose and intent of the zoning provisions
of the Municipal Code. Great concern has been expressed about the impact of locating,
without restrictions, establishments that sell tobacco products. Unregulated siting of such
establishments may be in conflict with the purpose and intent of the Municipal Code.
Accordingly, there is a current and immediate threat to the public health, safety, or welfare and
the establishment of uses relating to the sale of tobacco products and new businesses that sell
tobacco products, and the approval of such uses and the approval or issuance of business
licenses, use permits, building permits, or any other land use entitlement for businesses
intending to engage in the sale of tobacco products would result in that threat to public health,
safety, or welfare. In order to maintain comprehensive and sound land use planning, the City
seeks to study possible amendments to the zoning provisions of its Municipal Code, use permit
requirements and other land use entitlement requirements for businesses that sell tobacco
products. Allowing land use entitlements for such businesses before the City has had an
opportunity to update its regulations, could lead to conflicts amongst various land uses and
conflicts with the City’s long-term planning goals.
Establishment of New Uses Involving the Sale of Tobacco Products and
5.
Issuance of Land Use Entitlements to Businesses Intending to Sell Tobacco Products
Declared Public Nuisance.
The sale of tobacco products by a business that is not engaged in
the sale of such products at the time this Ordinance takes effect, the establishment of a new
use involving the sale of tobacco products and the issuance of business licenses, use permits,
building permits, or any other land use entitlement to any business intending to engage in the
sale of tobacco products within the City limits of the City of Dublin, during the duration of this
moratorium or any extension thereof, are declared to be a public nuisance. Violations of this
Ordinance may be enforced by any applicable laws or ordinances, including but not limited to
injunctions, or administrative or criminal penalties under the Dublin Municipal Code.
Compliance with California Environmental Quality Act (CEQA).
6. This
Ordinance is not a “project” within the meaning of section 15378 of the State CEQA Guidelines,
because it has no potential for resulting in a direct or reasonably foreseeable indirect physical
change in the environment. It temporarily prevents certain physical changes in the environment
pending study and potential adoption of zoning amendments or policies regulating businesses
that sell tobacco. Furthermore, this urgency ordinance is categorically exempt from CEQA
under CEQA Guidelines section 15308 because it is a regulatory action taken by the City, in
accordance with Government Code section 65858, to assure maintenance and protection of the
environment pending consideration of amendments to City’s Zoning Ordinance.
Severability.
7. If any provision of this ordinance or the application thereof to any
person or circumstance is held invalid, the remainder of the ordinance, including the application
of such part or provision to other persons or circumstances shall not be affected thereby and
shall continue in full force and effect. To this end, provisions of this ordinance are severable.
The City Council hereby declares that it would have passed each section, subsection,
subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one
or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be
held unconstitutional, invalid, or unenforceable.
3
Effective Date.
8. This Ordinance shall become effective immediately upon
adoption, if adopted by at least four-fifths vote of the City Council, and shall be in effect for
forty-five (45) days from and after the date of adoption, unless extended by the City Council as
provided for in Government Code section 65858.
PASSED, APPROVED and ADOPTED
as an Interim Ordinance of the City of Dublin at a
th
regular meeting of the City Council held the 17 day of July, 2012 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Mayor
_____________________________
City Clerk
785549_1.DOC;114.1001
1930232.3
4
Dublin, CA
Leading Causes of Death in Dublin
attributable
to tobacco
TOTAL 327 100.0%
Cancer 98 30.0% 30%
Diseases of the heart 65 19.9% 30%
Stroke 18 5.5% 11 %
Chronic lower respiratory diseases 16 4.9% 90%
Diabetes Mellitus 13 4.0%
Source: CAPE, with data from Alameda County vital statistics files 2006-2008.
About 443,000 U.S. Deaths Attributable
Each Year to Cigarette Srnoking*
Other Cancers
35F3OO
Stroke
16,900
Other
Diagnose.
44.000
Chronic
Obstructive
Pulmonary
Disease
92,900
Lung Cancer
1281900
IschernIc Heart
Disease
1260000
Average annual number at derma. 00-2004e Includes des
from ondhand smoke,
Source:tifirMWR 2008;57( )e1226-12 8e
1 II
Data compiled by S. Chen, American Lung Association in California, 2012
Actual Causes of Death, United States 2000
Tobacco
Diet/Exercise
Alcohol
Microbial Agents
Toxic Agents
Secondhand Tobacco Smoke
Motor Vehicle Accidents
Firearms
Sexual Behavior
112,000
35,000
75,000
55,)00
53,()00
1.11 43,0 )0
■ 29,00C•
■ 20,000
Illegal Drugs 17,000
IMP
400,000
100,000 200,000 300,000 400,000 500,000
Source: Mokdad AH, Marks JS, Stroup DF, Gerberding JL. Actual causes of death in the United States, 2000. JAMA, 2004;291(10):1238-1246.
Secondhand smoke numbers based on the mid -point estimate of 53,000 for annual deaths (1991 Glantz, Parmley)
Tobacco use is the single most preventable cause of death in
Dublin & the US, and is responsible for one out of every five deaths.
49,830 Deaths Caused by
Secondhand Smoke Exposure
Lung cancer
(7%).N SIDS (1%)
Heart
disease
(92%)
California Environmental Protection Agency: Identification of Environmental Tobacco
Smoke as a Toxic Air Contaminant, 2006
The good news is that thanks to smokefree laws and comprehensive tobacco prevention programs, the
smoking rate in Alameda County reached a low of 10% in 2008, lower than the state average of 11.9%.
Data compiled by S. Chen, American Lung Association in California, 2012