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HomeMy WebLinkAbout8.2 Attch 3 CCSR 09-18-2012C~~~ O~F D~~lij. /!/ 19 ~`~ 82 \~~~~~ r'tt~r,`?~~`~ DATE: TO: FROM: STAFF REPORT CITY COUNCIL CITY CLERK File #560-90 September 18, 2012 Honorable Mayor and City Councilmembers Joni Pattillo, Cit Mana er' Y;.,~~._: ~`~'~~~~ Y 9 ~, .. J ..~ SUBJECT: Tobacco Retailers Ordinance Outreach Report Prepared by Roger Bradley, Assistant to the City Manager & Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: A Fiscal Year 2012-2013 City Council initiated work plan goal directs Staff to establish zoning restrictions and a licensing system for new tobacco retailers within the City. As directed by the City Council, Staff met with representatives advocating various positions to solicit their input. Staff is presenting this item to receive additional direction before finalizing the Tobacco Retailer Ordinances. FINANCIAL IMPACT: There would be a financial impact associated with the preparation of an ordinance. The budget includes sufficient funds to cover the necessary legal review of the ordinance. RECOMMENDATION: Staff recommends that the City Council receive the report and provide Staff with feedback and direction on developing a Tobacco Retailers Ordinance. P.~ Submitted By Assistant to the City Manager DESCRIPTION: BACKGROUND A Fiscal Year 2012-2013 City Council initiated work plan goal directs Staff to establish zoning restrictions and a licensing system for new tobacco retailers within the City. The ordinance would establish development standards and regulations for the siting of new tobacco retailers within the City of Dublin. A tobacco retailer is any person or business which sells, offers for sale, exchanges or offers to exchange for any form of consideration tobacco, tobacco products and/or tobacco paraphernalia. Page 1 of 6 ITEM NO. 7.2 rf / , ._ __ ~_ l Reviewed By Assistant City Manager ATTACHMENT 3 The City Council received presentations from Staff on possible ordinance provisions and discussed this topic at both the January 17, 2012 and April 17, 2012 City Council meetings. The Staff Reports are included as Attachment 1 and 2. As directed by the City Council at the April 17, 2012 meeting, Staff has met with interested individuals, groups, and organizations with various positions regarding this issue to solicit input. In particular, Staff has worked with a subcommittee from the Chamber of Commerce to review the ordinance and obtain feedback. Additionally, Staff held two town hall meetings with the tobacco retailers. Staff also met with the American Lung Association and Alameda County Public Health to solicit feedback. The Chamber and Tobacco Retailers proposed several modifications to the original direction received from the City Council at the April 17, 2012 meeting. DIRECTION RECEIVED FROM CITY COUNCIL -APRIL 17, 2012 MEETING Below is a recap of the direction that was received by the City Council at the April 17, 2012 meeting. Zoning Restrictions for Tobacco Retailers: 1. Minimum distance from areas where children are present (schools, libraries, parks, playgrounds, youth-centers, arcades, commercial daycare centers, pre-schools & City-owned facilities): 1,000 feet. 2. Residential zones are not included in the ordinance. 3. Smoke shops shall be prohibited from siting within 1,000 feet of one another. 4. In regard to approval process for new Tobacco Retailers, a zoning clearance will be used for the siting of new tobacco retailers. 5. Existing retailers will be grandfathered within the ordinance. Tobacco Retailers Licensing: 1. The fee to obtain a Tobacco Retailer License shall be established at full cost recovery: Staff estimated that the annual application fee will be approximately $25 and the annual License Fee will be approximately $290. The License Fee of $290 per retailer will fund one sting operations per year. Additional operations will increase the cost of the fee by multiplying the fee by the number of operations desired; e.g., if the Council were to desire to conduct two operations within a given year, then the license fee would increase to $580 ($290 x 2 operations = $580). 2. Licenses shall be revoked for violations. 3. Revocation periods for violations shall be: • 1st violation: license revoked for 30 days; • 2nd violation: license revoked for 90 days; • 3rd violation: license revoked for 180 days; • 4th violation or more: license revoked for 1 year. 4. Administrative Penalty in lieu of Revocation will be: • 1st violation: $1,000; 2nd violation: an agreement to stop acting as a tobacco retailer for 7 days and $5,000. In addition, the City Council also directed Staff to include single item and flavored cigars as part of the ordinance. Premium cigars would be exempted from this requirement. The Council also provided direction to expand the smoking prohibition in City parks to include community parks. Page 2 of 6 PROPOSED MODIFICATIONS TO ORDINANCES BY THE CHAMBER 8 RETAILERS City Staff met with the Chamber of Commerce and with the retailers to discuss the Tobacco Retailer Ordinances. Of the 26 retailers within the City, only 8 attended the informational sessions. Primarily, the Chamber and the retailers indicated that they are against the adoption of the proposed ordinances. Many of the retailers believe that they are taking sufficient measures to prevent the sale of tobacco products to minors. While Staff does not have the data available to verify, many of the retailers that attended the meetings claimed that they had not had more than one violation in 20 years or more, and they worried that businesses that are being proactive and responsible were being punished because of the actions of an irresponsible few. Further, the Cox family, which owns and operates three of the City's Shell stations, presented their employee education program along with the policies and programs they have developed as a model for curtailing the sale of tobacco products to minors, and perhaps as an alternative requirement as opposed to the proposed ordinances (Attachment 3). The Shell stations within Dublin have electronic identification readers that will not allow a sale to occur if the buyer is underage. While the primary position of the Chamber and retailers is to not adopt an ordinance, Staff worked with them to propose ordinance modifications that would alleviate their concerns. The retailers and Chamber indicate they would like to see the City Council establish a taskforce to study the issue in greater detail. The proposed modifications include: Zoning Restrictions for Tobacco Retailers (underline indicates change) 1. Minimum distance from schools: 1,000 feet 2. Minimum distance from all other areas where children are present (libraries, parks, playgrounds youth-centers arcades, pre-schools & City-owned facilities): 500 feet. 3. Remove commercial daycares from definition of areas where children are present. Tobacco Retailers Licensing: 1. The fee to obtain a Tobacco Retailer License shall be established at full recovery: application fee approximately $25 and License Fee approximately $290. The annual fee will only be charged if/when the City does not receive grant funding. 2. Revocation periods for violations shall be: • 1St violation: warnin • 2"d violation: license revoked for 30 days; • 3rd violation: license revoked for 90 days; • 4th violation: license revoked for 180 days; • 5th violation or more: license revoked for 1 year. 3. Fine in lieu of Revocation will be: • 1St violation: warning • 2"d violation: $1,000; • 3rd violation: an agreement to stop acting as a tobacco retailer for 7 days & $5,000. 4. There should NOT be a minimum pack size requirement for flavored cigars. 5. The period during which violations accrue should be 3 years instead of 5 years. MEETING WITH THE AMERICAN LUNG ASSOCIATION & PUBLIC HEALTH DEPARTMENT City Staff also met with a representative from the American Lung Association and a representative from the Alameda County Public Health Tobacco Control Program. At that meeting, Staff discussed the proposed modifications that the Chamber and Tobacco Retailers had requested. The representatives from the American Lung Association and Public Health Page 3 of 6 Department did not support any of the proposed modifications by the retailers. Most notably, it was felt that the minimum distance to keep future tobacco retailers from parks and playgrounds should remain at 1,000 feet and that there should be minimum pack size requirement for the flavored cigars. ANALYSIS: Matrix of Proposed Variances Worksheet American City Lung Assn & Chamber & Retailer Decision Point Council Tobacco Chamber & Retaleer Variance Request Draft Control Prg Proposed Variances Rationale Direction Proposed Variances The minimum distance that The 1,000 foot This change opens up future tobacco retailers can requirement should only undeveloped areas in the locate from youth oriented Yes None apply to schools, and all eastern part of the City, areas is 1,000 feet? other locations should be where gas stations, etc. 500 feet. may locate themselves. Define youth oriented areas as Do not include licensed Prevents possible schools, libraries, parks, childcare facilities/ development conflicts playgrounds, youth-centers, preschools. when retailers and i arcades, licensed childcare Yes None daycares are trying to facilities/ preschools, and City develop nearby sites. owned and operated recreational facilities? Establish a tobacco retailer Do not charge retailers a Curtail hardship when licensing fee at full cost licensing fee in those funding is available. recovery? Yes None years when grant funding for sting operations is available. The revocation period for A. Add a warning for the A. Prevent a rogue ordinance violations is: first violation and employee from 1. 1st violation within a 60 readjust the violation negatively impacting month period: License penalties accordingly. businesses that rarely revoked for 30 days. have violations. 2. 2nd violation within a 60 Yes None B. Decrease the penalty B. Ensure that only the month period: License accrual period from most egregious revoked for 90 days. 60 months to 36 violators are severely 3. 3rd violation within a 60 months. penalized. month period: License revoked for 180 days. 4. 4 or more violations within 60 month period: License revoked for 1 year. Include a fine in lieu of fee for Yes None Add a warning for the first Prevent a rogue employee Page 4 of 6 15 and 2~ violations? violation. from negatively impacting businesses that rarely have violations. Should there be a minimum Maintain the status quo; Maintain a source of pack size for flavored cigars? Yes None i.e., no restrictions placed significant revenue. on these products. Decision Point: Determine the appropriate distance that future tobacco retailers can locate from areas where children are present. A recommendation was made that the minimum distance be 1,000 feet for schools and 500 feet for all other areas where children are present. Reducing the distance to 500 feet from all other areas where children are present would allow for future tobacco retailers, and in particular gas stations, in Eastern Dublin along Dublin Boulevard. Please refer to the attached maps to understand the potential areas in the City where future tobacco retailers could be located if the minimum distance is changed from 1,000 feet to 500 feet from areas where children are present (excluding schools). Attachment 4 shows all areas in the City where children are present with a 1,000 foot buffer and Attachment 5 has a 1,000 foot buffer around schools and a 500 foot buffer around all other areas where children congregate. Should the minimum distance that future tobacco retailers can locate from areas where children are present (excluding schools) be changed from 1,000 feet to 500 feet? ^ Yes ^No Decision Point: Determine whether commercial daycares should be removed from the definition of youth- oriented areas. There was a significant concern from 7-11 representatives that including commercial daycares would inhibit the development process of retailers looking to establish themselves. In particular, it was feared that, in the middle of a tobacco retailers development process, a daycare would site itself within a prohibited footage area from the tobacco retailer, and would finish the approval process before the tobacco retailer could, thereby, rending the tobacco retailers investment in time and money null and void. Additionally, it was felt the children that would leave a commercial daycare would be so young that they would always be with an adult or of an age that there would be no threat of the sale of tobacco products to them. Should commercial daycares be removed from youth-oriented areas? ^ Yes ^No Decision Point: Determine if the Tobacco Retailers Licensing Fee should only be charged during the years that the City does not receive grant funding. This recommendation is a moot point in that the City has learned that it will, in all likelihood, lose grant funding once a Tobacco Retailers License is adopted. Should the annual fee will only be charged if/when the City does not receive funding from the tobacco fund? ^ Yes ^No Decision Point: Page 5 of 6 Determine if it is appropriate to issue a warning for the first time that a retailer violates the ordinance. The tobacco retailers feel that a warning helps safeguard a business from a rogue employee that sells tobacco products to a minor. The American Lung Association and Public Health do not believe that warnings are necessary since retailers have been receiving warnings for years without any repercussions and there is already an in lieu of revocation process included within the ordinance. Should a warning be issued for the first violation? ^ Yes ^No Decision Point: Determine if there should be a minimum pack size for flavored cigars. Currently most of the retailers indicate that they purchase flavored cigars individually wrapped in bulk size (50 per box). Including a requirement for a minimum pack size would require that the retailers develop packaging for the cigars, and raise the cost to purchase them. The Tobacco Retailers feel that a selective restriction on flavored cigars will push sales of the product to other cities and discriminates against people of lower economic means. The American Lung Association and Alameda Public Health feel strongly that there should be a minimum pack size in the ordinance as it would provide an economic disincentive for minors to purchase such products. Staff is unaware of other jurisdictions that have adopted such restrictions, so the City may face legal challenges should the City Council proceed with such provisions. Additionally, the increased penalties (loss of license to sell tobacco products altogether) included within the retailers license may provide enough disincentive to sell such products to minors or at least be a solid first step. Should there be a minimum pack size for flavored cigars? ^ Yes ^No Decision Point: Determine if the time that a violation stays on a retailer's record should be reduced from 5 years to 3 years. The tobacco retailers are in favor of this modification because it reduces the potential for severe penalties if a rogue employee sells tobacco products to a minor. The American Lung Association and Alameda County Public Health prefer that the cycle remain at five years, to avoid having the severe punishments go away as such a provision really only protect the egregious violators and would have little to no impact/benefit to the responsible business owner. Should the time be reduced from 5 years to 3 years? ^ Yes ^No NOTICING REQUIREMENTSIPUBLIC OUTREACH: The Public Meeting Notice was mailed to all existing Tobacco Retailers within the City in addition to other interested parties. ATTACHMENTS: 1. January 17, 2012 Staff Report without Attachments 2. April 17, 2012 Staff Report without Attachments 3. Cox Family Stores Employee Education Program 4. Areas in the City where children congregate with a 1,000 foot buffer 5. Areas in the City where children congregate with a 1,000 foot buffer around schools and 500 foot buffer around all other areas Page 6 of 6