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HomeMy WebLinkAboutItem 6.2 Tobacco Retailers Comm Pk Smokingor 19 82 /ii � 111 DATE: TO: FROM: STAFF REPORT CITY COUNCIL November 20, 2012 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' CITY CLERK File #560 -90 SUBJECT: Tobacco Retailers Ordinance and Community Park Smoking Prohibition Prepared by Roger Bradley, Assistant to the City Manager & Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: A Fiscal Year 2012 -2013 City Council Initiative directs Staff to establish zoning restrictions for new tobacco retailers and a licensing system for all tobacco retailers within the City. Additionally, Staff was directed to include an expansion of the present prohibition of smoking within 100 feet of recreational areas within Community Parks, making Community Parks consistent with the total smoking prohibition within Neighborhood Parks and Squares. The City is adding a new Chapter to the Zoning Ordinance relating to the location of tobacco retailers within the City. Additionally, amendments are proposed to: 1) Chapter 8.08 (Definitions) to add a new definition for Tobacco Retailers; 2) Chapter 8.12 (Zoning Districts and Permitted Uses of Land) to add tobacco retailers as a commercial use type; and 3) Chapter 8.116 (Zoning Clearance) to include tobacco retailers as a use that can be approved via the Zoning Clearance process. The City is also adding a new Chapter 4.40 to the Dublin Municipal Code to establish a Tobacco Retailing Licensing System for all tobacco retailers within the City. 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. The tobacco retailers' license includes an annual fee of $287 and application fee of $25. The retailers' license fee is calculated based on the cost to conduct tobacco enforcement operations, which cost the City approximately $7,200 per year. This amount is allocated proportionately to the existing 25 tobacco retailers. RECOMMENDATION: Staff recommends that the City Council: 1) Receive Staff presentation; 2) Open the public hearing; 3) Take testimony from the public; 4) Close the public hearing and deliberate; 5) Waive the reading and introduce an Ordinance adding a new Chapter 4.40 and a new Chapter 8.43 Page 1 of 8 ITEM NO. 6.2 and amending Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land), Chapter 8.30 (Downtown Dublin Zoning District), Chapter 8.116 (Zoning Clearance), and Chapter 5.56 (Smoking Pollution Control) to the Dublin Municipal Code to regulate the location of new tobacco retailers, establish a tobacco retailing licensing system within the City of Dublin, and prohibited smoking within Community Parks; and 6) Direct Staff to amend the City of Dublin Master Fee Schedule to include a tobacco retailers' license fee. Submitted By Assistant to the City Manager DESCRIPTION: Reviewed By Assistant City Manager BACKGROUND A Fiscal Year 2012 -2013 City Council Key Initiative directs Staff to establish zoning restrictions for new tobacco retailers within the City. The proposed Ordinance would create development standards and regulations for the siting of new tobacco retailers within the City. A tobacco retailer is defined as 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. The proposed Ordinance would require that new tobacco retailers maintain a minimum distance from areas where children are present. The goal of the Ordinance is to maintain a buffer zone between tobacco retailers and areas frequented by youth, thereby decreasing the likelihood of youth attempting to purchase tobacco products. ANALYSIS: The City Council provided direction to Staff on the Zoning Ordinance Amendment and Tobacco Retailer Licensing system on January 17, 2012, April 17, 2012 and September 18, 2012 (Attachments 1, 2 and 3). The direction provided to Staff on the Zoning Ordinance Amendment is summarized below. Minimum Distance from Areas Where Children are Present The City Council opined that the appropriate distance to maintain from a tobacco retailer to youth- oriented areas is 1,000 feet from schools and 500 feet from all other areas where children congregate. Which Areas Should be Included in the Ordinance The City Council opined that the areas that should be included in the definition of youth oriented are: • Schools; • Libraries; • Parks; • Playgrounds; • Youth centers; Page 2 of 8 • City owned & operated recreational facilities. Attachment 4 shows all of the areas in the City where children congregate with a 1,000 foot buffer around schools and a 500 foot buffer around the other areas where children congregate. Should residential zones be included in the Ordinance The City Council opined that residential zones should not be included in the Ordinance. Limited Density of Retail Tobacco Shops The City Council opined that retail tobacco shops (retailers that primarily sell tobacco products) shall be prohibited from siting within 1,000 feet of one another. Grocery stores, drug stores and gas stations are not subject to this requirement. Approval Process for New Tobacco Retailers The City Council opined that a provision be included in the proposed ordinance to require that the approval process for new tobacco retailers be through the Zoning Clearance process. Existing Retailers — Grandfather The City Council opined that existing tobacco retailers should be grandfathered within the Ordinance; therefore, the minimum distance requirement applies only to new tobacco retailers. The direction provided to Staff by the City Council has been incorporated into the proposed Ordinance, which, among other things, adds a new Chapter 8.43 to the Zoning Ordinance to regulate the siting of new tobacco retailers within the City of Dublin (Attachment 5). The following amendments, as further discussed in Attachment 5, are proposed to ensure internal consistency within the Zoning Ordinance. Chapter 8.08 (Definitions) In addition to adding a new Chapter to the Zoning Ordinance to regulate the siting of future tobacco retailers in the City, a new definition for tobacco retailers is proposed to be added to Chapter 8.08 (Definitions) as follows: Tobacco Retailer. The term Tobacco Retailer shall mean any person or business that sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco, tobacco products and /or tobacco paraphernalia, and includes, but is not limited to a Retail Tobacco Shop. Chapter 8.12 (Zoning Districts and Permitted Uses of Land) Staff is proposing to amend Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) to note that future tobacco retailers that meet the requirements outlined in Chapter 8.43 are permitted in the C -1 and C -2 Zoning Districts, by means of a Zoning Clearance. The following rows of the "Land Use Matrix" table in Section 8.12.050 are proposed to be amended as follows (the underlined text is new): COMMERCIAL USE TYPE A R -1 R -2 R -M C -O C -N C -1 C -2 M -P M -1 M -2 Tobacco Retailer - - - - - - ZC ZC - - - Page 3 of 8 Chapter 8.30 (Downtown Dublin Zoning District) Staff is proposing to amend Section 8.30.020 to state that Tobacco Retailers are to be regulated in the Downtown Dublin Specific Plan in the same way as the C -1 and C -2 Zoning Districts. Chapter 8.116 (Zoning Clearance) Staff is proposing amendments to this Chapter of the Zoning Ordinance to note that tobacco retailers are now subject to a Zoning Clearance. The direction provided to Staff on the Tobacco Retailing Licensing System is summarized below. Establish a Tobacco Retailer Licensing System The City Council opined that there should be a retailer licensing system for all existing as well as any future tobacco retailers. Establish a Fee to Obtain a Tobacco Retailer License The City Council opined that there should be a licensing fee at full cost recovery. The retailer license would include an annual fee currently proposed at $287 and an application fee of $25 to recover the annual cost to conduct tobacco enforcement operations, estimated at $7,200 per year. The calculated fee and programs cost are included in the table below. In order to establish the licensing fee, the City Council will need to adopt a Resolution amending the City's Master Fee Schedule to include the license fee. Should the City Council decide to proceed with the ordinance introduction, Staff would recommend that the City Council direct Staff to amend the City's Master Fee Schedule for services provided by the City to include the tobacco retailer license fee. Tobacco Licensure Costs Number Hours Person Completing Task of Staff Spent Expense Police Dept. Enforcement Expenses Personnel Costs Recruit/train youth decoys and chaperones Conducting the operation Officers Sergeant Buy Money Food for Participants Misc. Supplies /Expenses Sergeant 1 4 $505. ©8 Deputy 2 15 $3,235.54 Sergeant 1 15 $;1,894:45 Total Enforcement Cost Per Year Number of Tobacco Retailers in City 25 Enforcement Cost Per Retailer Administrative Expenses Revocation Hearing Preparation/Testimony* Page 4 of 8 Conduct Revocation Hearings* 'Based on 2 revocation hearings per year Total Administrative Expenses Per Year Administrative Cost Per Retailer Total Licensure Cost Total Licensure Cost Per Tobacco Retailer Revocation vs. Suspension for Violations The City Council opined that licenses be revoked for violations and that the appropriate revocation period for violations is as follows: • 1St violation within a 36 month period: Warning. • 2nd violation within a 36 month period: License revoked for 30 days. • 3rd violation within a 36 month period: License revoked for 90 days. • 4th violation within a 36 month period: License revoked for 180 days. • 5 or more violations within a 36 month period: License revoked for 1 year. Fine in Lieu of Revocation The City Council opined that a fine in lieu of a revocation is appropriate under the following conditions: • 1St violation within a 36 month period: Warning. • 2nd violation within a 36 month period: an administrative penalty of at least seven hundred fifty dollars ($750). • After a third violation of this chapter at a location within any thirty -six (36) month period: o An agreement to stop acting as a Tobacco Retailer for at least seven (7) days; and • An administrative penalty of at least one thousand dollars ($1,000). The direction provided to Staff on the Community Park Smoking prohibition is summarized below. At the City Council Meeting on September 18, 2012, the City Council directed Staff to prepare an ordinance amendment for augmenting the City's Smoking Pollution Control policies and regulations. As part of this direction, Staff was to include an expansion of the present prohibition of smoking within 100 feet of recreational areas within Community Parks, making Community Parks consistent with the total smoking prohibition within Neighborhood Parks and Squares. Current Law Smoking is prohibited within Neighborhood Parks and Squares. Additionally, Smoking is prohibited within 100 feet of recreational areas within Community Parks, which includes play areas, playgrounds, picnic areas, sports fields and courts, etc. Community Parks include Emerald Glen Park, Fallon Sports Park, Dublin Swim Center, Dublin Heritage Center, Dougherty Hills Dog Park, Dublin Sports Grounds, and Shannon Park. Proposed Law Under the provisions of the proposed ordinance, smoking would be prohibited in totality within all City of Dublin parks. Page 5 of 8 Please refer to Attachment 5 of this Staff Report for proposed amendments to the Dublin Municipal Code. The amendments include modifications to Title 4, Title 5, and Title 8 of the Dublin Municipal Code. Planning Commission Action On October 9, 2012, the Planning Commission held a public hearing to review the proposed Zoning Ordinance amendments relating to the siting of new tobacco retailers. The Planning Commission Staff Report is included as Attachment 6 and the draft minutes of the Planning Commission meeting are included as Attachment 7. The Planning Commission had an extensive discussion about what the appropriate distance is to maintain around parks. The Planning Commission made a recommendation that the City Council reconsider a 1,000 foot buffer from parks. The Planning Commission voted 3 -0 to adopt a Resolution recommending that the City Council adopt an Ordinance adding a new Chapter 8.43 and amend Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land), Chapter 8.30 (Downtown Dublin Zoning District) and Chapter 8.116 (Zoning Clearance) to the Dublin Municipal Code to regulate the location of tobacco retailers within the City of Dublin (Resolution 12 -38 — Attachment 8). Parks & Community Services Commission Action On October 15, 2012, the Parks & Community Services Commission held a public hearing to review the proposed Ordinance amending Chapter 5.56 and prohibiting smoking within all City parks. The Parks & Community Services Commission Staff Report is included as Attachment 9 and the draft minutes of the Parks & Community Services Commission meeting are included as Attachment 10. The Parks & Community Services Commission had an extensive discussion about the proposed ordinance. As shown in the draft minutes, the Parks & Community Services Commission voted 4 -0 to recommend that the City Council approve an ordinance prohibiting smoking with all City parks. RECEIVED CORRESPONDENCE: On October 31, 2012, the City received a letter from the National Association of Tobacco Outlets ( "NATO ") (Attachment 11). Staff has reviewed the NATO letter and believes that the draft ordinance, as modified to reflect City Council input, addresses many of NATO's concerns. The City Council elected to not include flavored cigars as part of the ordinance, which appears to have been NATO's primary concern. In review of the draft ordinance, the in lieu of penalty was reduced to $750 and $1,000 for violations instead of the $1,000 and $5,000 originally indicated. These "in lieu" penalties can be paid instead of having a business's license revoked for a period of time. The concern about revocation expressed in the letter is understandable. However, the City traditionally conducts no more than two and generally only one sting operation each year. A business would have to both be caught almost each and every time Dublin Police Services conducts a sting operation and reject the "in lieu" settlement option in order to lose the right to sell tobacco as a consequence of its violations. Under the in lieu settlement option, a first violation results in a warning, a second results in a $750 fine, and a third in an lieu of fine of $1,000 and the loss of the right to sell tobacco products for one week. Page 6 of 8 Since the City Council reduced the period in which violations accrue to 3 years, only the most egregious violators of the proposed ordinance would be likely to go beyond 3 violations over that time period. There is a significant escalation in the penalty for fourth and subsequent violations, when the in lieu settlement alternative is no longer available. At that point, violations results in a six month loss of the right to sell tobacco products. However, this would only occur where a business sold to the minor decoy every time Police has conducted an operation over the three year period. Thus, Staff believes that the policy choices made by the City Council, which were vetted by the retailers within our community, are unlikely to have the impacts indicated within the letter. NOTICING REQUIREMENTS /PUBLIC OUTREACH: This item was originally noticed for the City Council meeting on November 6, 2012. In accordance with State law, a public notice was published in the Valley Times and posted at several locations throughout the City. A notice of this hearing was mailed to those requesting such notice ten days before the hearing. A public notice was also sent to all tobacco retailers within the City. The hearing date was later changed to November 20, 2012. On Saturday, November 3, 2012, a revised Public Hearing Notice was published in the Valley Times and was mailed to all tobacco retailers within the City. A letter regarding the date change was also sent to other individuals and organizations that have provided comments, attended meetings, or expressed interests in this topic. ENVIRONMENTAL REVIEW: The California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. Pursuant to CEQA, Staff is recommending that the proposed Ordinance be found exempt from CEQA per CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of the proposed Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the construction of any building or structure, but it sets forth the regulations that shall be followed if and when a building or structure is proposed to be constructed or a site is proposed to be developed. This Ordinance of itself, therefore, has no potential for resulting in significant physical change in the environment, directly or ultimately. ATTACHMENTS: 1. City Council Staff Report dated January 17, 2012 (without attachments). 2. City Council Staff Report dated April 17, 2012 (without attachments). 3. City Council Staff Report dated September 18, 2012 (without attachments) 4. Map of the areas in the City where children congregate with a 1,000 foot buffer around schools & 500 foot buffer around all other areas. 5. Ordinance adding a new Chapter 4.40 and a new Chapter 8.43 and amending Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Page 7 of 8 Land), Chapter 8.30 (Downtown Dublin Zoning District), and Chapter 8.116 (Zoning Clearance) to the Dublin Municipal Code to regulate the location of new tobacco retailers and to establish a tobacco retailing licensing system as well as amending Chapter 5.56 (Smoking Pollution Control to prohibit smoking within the City of Dublin Community Parks. 6. Planning Commission Staff Report dated October 9, 2012 (without attachments). 7. Draft minutes from October 9, 2012 Planning Commission hearing. 8. Planning Commission Resolution 12 -38 recommending that the City Council adopt an Ordinance adding a new Chapter 8.43 and amend Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land) and Chapter 8.116 (Zoning Clearance) to the Dublin Municipal Code to regulate the location of tobacco retailers within the City of Dublin. 9. Parks & Community Services Commission Staff Report dated October 15, 2012 (without attachments). 10. Draft minutes from October 15, 2012 Parks & Community Services Commission hearing. 11. Correspondence from the National Association of Tobacco Outlets dated October 31, 2012. Page 8 of 8 or 19 82 /ii � 111 DATE: TO: FROM: SUBJECT STAFF REPORT CITY COUNCIL January 17, 2012 Honorable Mayor and City Councilmembers CITY CLERK File #560 -90 Joni Pattillo, City Manager""' Report on Tobacco Retailers Ordinances Prepared by Martha Aja, Environmental Coordinator and Roger Bradley, Assistant to the City Manager EXECUTIVE SUMMARY: Fiscal Year 2011/2012 City Council initiated work plan goals direct Staff to develop zoning restrictions for new tobacco retailers within the City. FINANCIAL IMPACT: There would be a financial impact associated with the preparation of an ordinance. The Fiscal Year 2011/2012 budget includes sufficient funds to cover the necessary legal review of the ordinance. RECOMMENDATION: Staff is requesting that the City Council: 1) review the Staff report and provide feedback and direction on any preferred option(s) for the development of possible future ordinances affecting Tobacco Retailers and 2) direct Staff, if appropriate, to prepare ordinance proposals with the preferred options. Submitted By Assistant to the City Manager DESCRIPTION: t� Reviewed By Assistant City Manager Background A Fiscal Year 2011/2012 City Council initiated work plan goals directs Staff to develop both a zoning restriction for new tobacco retailers within the City (Health and Welfare, Item F) as well as a licensing system for all tobacco retailers (Health and Welfare, Item E). A tobacco retailer is any person or business which sells, offers for sale, exchanges or offers to exchange any form of consideration tobacco, tobacco products and /or tobacco paraphernalia. Page 1 of 9 ITEM NO. 8.2 The Zoning Ordinance amendment would establish development standards and regulations for the siting of new tobacco retailers within the City. Among other things, the ordinance would establish a minimum distance that tobacco retailers would need to maintain from areas where children are present. Studies have shown that tobacco use among the youth continues to rise with a particular impact upon high school students. Numerous California cities and counties have adopted ordinances to regulate the siting of new tobacco retailers. The Center for Tobacco Policy and Organization created a matrix of local ordinances (Attachment 1) restricting tobacco retailers within a certain distance of schools. The matrix is dated April 2011 and includes 24 California cities and counties, of which five are cities within Alameda County. In addition to a proposed Zoning Ordinance amendment, Staff was directed to present options for a local tobacco retailer licensing system. The purpose of a local licensing program is to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing while discouraging violations of tobacco - related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to minors. In general, any store that would wish to provide tobacco products for sale to the community would have to first obtain a license from the City before so doing. A licensing system is beneficial to the City in at least two ways. First, it provides the City with a strong local enforcement mechanism in penalizing the sale of tobacco products to youth. Violators of such an ordinance could have their licenses revoked for selling tobacco products to underage individuals and /or face significant fines. A second benefit is that a licensing program generally requires a fee to obtain the license, which could be used to cover the cost of enforcement and other tobacco related administrative costs. For many years, the Alameda County Public Health Department has provided the City with grant funding to conduct compliance checks with youth decoys, but in these difficult financial times, such funding may not always be available. ZONING ORDINANCE OPTIONS Current Law • There are currently no local Zoning Ordinance regulations that specifically place restrictions upon tobacco retailers. Under the current regulations within the Zoning Ordinance, tobacco retailers are treated the same as any other retail use. State Law • No applicable laws or standards. Policy Consideration: Minimum Distance from Areas Where Children Are Present To date, five Alameda County cities have adopted ordinances to restrict tobacco retailers from a certain distance of where children are present, which include: 1. Union City — ordinance prohibits the siting of tobacco retailers within 1,000 feet of schools, parks, playgrounds, libraries, recreation centers, religious intuitions or youth - oriented establishments. 2. Albany — ordinance prohibits the siting of tobacco retailers within 500 feet of schools, childcare centers, public libraries, public community centers, parks or playgrounds. 3. Oakland — ordinance prohibits the siting of tobacco retailers within 1,000 feet of schools, residential zones, libraries, parks, playgrounds, recreational centers or licensed daycare facilities. 4. Berkeley — ordinance prohibits the siting of tobacco retailers within 1,400 feet of schools or public parks. Page 2 of 9 5. San Leandro — ordinance prohibits the siting of tobacco retailers within 1,500 feet of schools, parks, libraries or recreational facilities. Of the statewide policies, the restrictions from schools range from 500 feet to 1,500 feet, with the majority (14 of 24) restricting sales of tobacco within 1,000 feet of schools. In addition to schools, the majority of the policies (18 of 24) also restrict tobacco retailers within a certain distance of other youth- oriented areas. The most popular other location is parks and /or playgrounds, which 18 cities and counties restrict tobacco retailers near in addition to schools. Attachment 2 includes the locations in the City where children congregate (schools, existing parks, future parks, library, daycare centers and City owned and operated recreational facilities). There is a 500 foot and a 1,000 foot buffer around each of these parcels. Decision Point: Determine the appropriate distance to maintain from a tobacco retailer to an area where children are present and the youth- oriented areas that should be included. Consequences: The greater the minimum distance required from a tobacco retailer to areas where children are present and the more types of areas included will result in fewer locations where new tobacco retailers will be able to locate. What is the minimum distance that should be maintained from a tobacco retailer to areas where children are present? ❑ 500 feet ❑1,000 feet Which areas should be included in the ordinance? ❑ Schools ❑Libraries ❑ Parks ❑Playgrounds ❑Youth Center ❑Arcades ❑ Licensed child care facility or preschool ❑City owned & operated recreational facilities Policy Consideration: Should Residential Zones be Included in the Ordinance The original City Council initiated Tobacco Retailers work plan goal, which was discussed at the February 24, 2010 Study Session, included establishing a buffer around residential districts in addition to schools and libraries. Of the 24 statewide policies, only one (Oakland) restricts the siting of tobacco retailers within residential zones. Attachment 3 includes all of the existing tobacco retailers in the City. A 1,000 foot buffer from all parcels with a residential land use has been added to this map. Decision Point: Determine if future tobacco retailers should be required to be located a minimum distance from parcels with a residential land use designation. Consequences: If the ordinance requires a minimum distance from a tobacco retailer to parcels with a residential land use designation, then very few new tobacco retailers will be able to locate in the City. As shown in Attachment 3, the majority of parcels designated as commercial are located within 1, 000 feet of a residential land use designation. Should the ordinance include residential? ❑ Yes ❑No Policy Consideration: Limited Density of Tobacco Retailers The Technical Assistance Legal Center (TALC) developed a Model Land Use Ordinance regulating the location and operations of tobacco retailers. The model ordinance includes a Page 3 of 9 requirement that a future tobacco retailer cannot be located within five hundred (500) feet of a site occupied by another tobacco retailer. Studies' have shown that if tobacco retailers concentrate in a particular geographic area, market conditions and competition could lead to a greater impact on community health and safety resulting from tobacco retailers offering special promotions such as sales or discounts. Attachment 4 includes a map of all of the existing tobacco retailers in the City. There is a 500 foot and a 1,000 foot buffer around each existing tobacco retailer. Several of the existing tobacco retailers are located within 500 feet of another tobacco retailer. Of the five Alameda County cities that have adopted a Tobacco Retailers Ordinance, two include a provision that limit the density of tobacco retailers. Union City restricts retailers within 1,000 feet of other retailers and San Leandro restricts retailers within 1,500 feet of other retailers. Of the 24 statewide policies, six ordinances contain a provision to restrict a tobacco retailer from being located within a certain distance of another tobacco retailer. The distance restrictions range from 500 feet to 1,500 feet. Decision Point: Determine if a provision should be included in the ordinance to limit the density of tobacco retailers and if so, what is the preferred distance. Consequences: If the ordinance limits the density of tobacco retailers in the City, then only one tobacco retailer could locate at future commercial centers or at a particular intersection. It isn't uncommon to have gas stations located at multiple corners of an intersection. If this were to occur in Eastern Dublin, then only one of the gas stations would be able to sell tobacco products. Should the ordinance limit the density of tobacco retailers? ❑ Yes ❑No If yes, what distance should be maintained between tobacco retailers? ❑ 500 feet ❑ 1, 000 feet ❑ 1, 500 feet Policy Consideration: Approval Process for New Tobacco Retailers All new tobacco retailers would be required to obtain a permit prior to commencing operations. There are two options for the City Council to consider: a Zoning Clearance or a Conditional Use Permit. A Zoning Clearance is approved ministerially without discretionary review or a public hearing. If a tobacco retailer meets all of the development standards outlined in the ordinance, then they would submit a Zoning Clearance form that shows compliance with the Zoning Ordinance Chapter regulating the location and operation of tobacco retailers. This is a similar approach taken in the Indoor Recreation Zoning Ordinance Chapter. For indoor recreational uses, if a project meets certain parameters (operates during certain hours, there is adequate parking, etc.) then a Zoning Clearance Application is completed and the Applicant is given the Standard Conditions of Approval that they must abide by. A Planner reviews the 1 Novak, Reardon, Raudenbush, et al. "Retail tobacco outlet density and youth cigarette smoking: A propensity modeling approach." American Journal of Public Health 96(4):670 -676 (2006) Page 4 of 9 application and signs off on it. In the case of the Indoor Recreational use, if a project doesn't meet all of the development standards outlined in the Recreational Facilities (Indoor) Zoning Ordinance Chapter, a Minor Use Permit is required, which is a more involved process that requires a Public Hearing. The second option is to require a Conditional Use Permit for all future Tobacco Retailers. A Conditional Use Permit is a discretionary permit which requires a Public Hearing either at a Staff or Planning Commission level. Decision Point: Determine the approval process for new tobacco retailers. Consequences: Reviewing applications for new tobacco retailers via a Conditional Use Permit process would add to the workload of City Staff. Conditional Use Permits typically take 3 -6 months to process. What process should be used to review future tobacco retailers in the city? ❑ Zoning Clearance ❑Conditional Use Permit Policy Consideration: Existing Retailers There are twenty -five tobacco retailers operating within the City of Dublin. Sixteen (16) out of the 24 ((67 %) of the existing tobacco retailers are located within 1,000 feet of areas where children congregate. A majority of the policies similar to this proposal that have been adopted in California (22 out of 24) do not subject existing retailers to the location restrictions but apply only to new retailers and 7 out of 24 (29 %) are within 500 feet. Decision Point. Determine whether the ordinance should apply to existing tobacco retailers or if the existing tobacco retailers should be grandfathered in. Consequences. If the ordinance applies to existing tobacco retailers, then several of the existing retailers would no longer be able to sell tobacco products. Should the ordinance apply to existing tobacco retailers? ❑ Yes ❑No TOBACCO RETAILER LICENSE OPTIONS Current Law • There is currently no local Tobacco Retailer Licensing Ordinance in place. • The City receives grant funding through the Alameda County Sheriff's Office to perform compliance checks each year at Dublin's tobacco retailers to ensure that they are not selling tobacco products to minors. State Law • Tobacco retailers must be licensed by the State Board of Equalization (BOE) for each tobacco retail location. • Each retailer must pay a onetime license fee of $100 for each retail location. The license must be renewed annually at no cost to the retailer. • The current license program assesses penalties and fines for businesses that sell tobacco products to minors. The fourth to seventh convictions in a 12 -month period each Page 5 of 9 result in a 90 day suspension of the license. An eighth conviction in a 24 -month period results in the revocation of the retail license. • Individual penalties may be assessed upon conviction for tobacco sales to minors. Violators are subject to either a criminal action for misdemeanor or a civil action punishable by a fine of $200 for the first offense, $500 for a second offense, and $1,000 for a third. Both the business and the employee may be prosecuted under State law. • The State is only able to take action on license related penalties if 13% or more of youths were able to purchase cigarettes during each year's Statewide survey. • State law states that nothing preempts or supersedes any local tobacco control law other than those related to the collection of state taxes, and that local licensing laws may provide for the suspension or revocation of a local license for any violation of a state tobacco control law (California Business and Professions Code section 22971.3). Policy Consideration: Establish a Tobacco Retailer Licensing System There are many cities throughout California and within the Bay Area that have adopted local tobacco retailer ordinances (Attachment 5). Within Alameda County, four jurisdictions have adopted such an ordinance (Albany, Berkeley, Oakland, and Union City). For the City of Dublin, the adoption of a retailer ordinance would move the City from a grade of "C" to an "A" grade as rated by the American Lung Association (Attachment 6). The grade of "C" does not appear to reflect that the City already has a sampling prohibition in place, which would yield one additional point moving the City to a grade of "B." Staff will work with the American Lung Association to see if an additional point is merited. A retailer licensing ordinance would provide greater local control over the illegal sale of tobacco products and would provide a sustainable funding mechanism for program enforcement and administrative oversight. Decision Point: Determine whether the City should consider a retailer licensing system for all existing as well as any future tobacco retailers. Consequences: Provide greater enforcement and local control of tobacco related infractions. An additional burden would be placed upon local businesses to apply for the license. Also, additional staff time will be required to review, approve, and manage the licensing program as well as to conduct hearings for possible license revocations, however, a licensing fee could be established to offset the additional costs to the City. Should Staff prepare a retailer licensing ordinance proposal? ❑ Yes ❑No Policy Consideration: Establish a Fee to Obtain a Tobacco Retailer License As stated above, the costs of a licensing system can be recovered by the establishment of an appropriate fee. All four of the cities within Alameda County that have adopted a Tobacco Retailer License have also adopted a fee. Among these jurisdictions, fees range from a low of $250 for Albany to $1,500 for Oakland. If the City Council were to choose this option, Staff would work with Police and Finance to determine a recommended annual cost for the license fee, which would be set at a rate that at least recovers some if not all of the program's costs. In particular, the City can only set a fee at a rate that recovers the City's costs for program management. Decision Point: Determine whether a licensing fee should be established. Consequences: A license fee would provide funding to cover the cost of program management and enforcement. A fee would be an additional cost burden for the retailers. In particular, many Page 6 of 9 retailers and consumers believe there are already significant costs and fees placed by government on the sale of tobacco products. If a funding fee is not included, compliance checks, ensuring that tobacco products are not being sold to minors, may need to be suspended should grant funding be unavailable during any given year. Should the retailer license require a fee? ❑ Yes ❑No Should the fee be at full cost recovery? ❑ Yes ❑No If not, what is an appropriate percentage? Policy Consideration: Revocation vs. Suspension for Violations Significant penalties deter infractions with the severity of consequences correlating positively with compliance; i.e., the more severe the consequence, the more likely one is to comply. However, longer periods of revocation will result in lost revenue for the business. The model ordinance prepared by the Technical Assistance Legal Center (TALC) recommends that revocations be used instead of suspensions as they have the benefits as outlined below: 1. The burden is put on the retailer to seek to sell tobacco again. Retailers who have little interest in selling may simply choose to stop and not reapply. With suspension, a retailer "automatically" re- acquires the privilege of selling tobacco. 2. Because the retailer must reapply for a license, a new licensing fee must be paid and the retailer is re- educated regarding the requirements of the license by reading and completing the application. 3. Technical, but legally significant, difficulties arise if a license is allowed to "expire" before a final administrative decision regarding a suspension is made (e.g., a court may question how a license can be suspended if that license no longer exists). 4. Enforcement is more clear -cut: a retailer either has a license or the retailer does not. With suspension, a retailer could also have a suspended license which raises the question of how to treat additional violations during a suspension period. Staff would be concerned that the revocation process would provide a more manageable enforcement mechanism. Decision Point: Determine whether licenses should be revoked or suspended for a violation. Consequences: Businesses will lose revenues from being unable to operate as a tobacco retailer. Reapplication fee would be required to obtain a license after revocation. Deter noncompliance with the ordinance. In the case of a violation, should a license be? ❑ Revoked ❑Suspended Policy Consideration: Determine Appropriate Revocation Period for Violations In addition to the revocation discussion, TALC's model ordinance recommends the following penalties be assessed as a consequence of an ordinance violation; e.g., a retailer has been caught selling tobacco products to a minor. TALC Ordinance Recommendation: • 1 st violation within a 60 month period: License revoked /suspended for 10 days. • 2nd violation within a 60 month period: License revoked /suspended for 30 days. Page 7 of 9 • 3rd violation within a 60 month period: License revoked /suspended for 60 days. • 4 or more violations within a 60 month period: License revoked /suspended for 5 years. In reviewing the TALC recommendation, Staff believes there may be some inconsistencies in the amount of time that licenses could be revoked /suspended. In particular, the timeframe is less punitive on the front end and severely punitive on the backend; i.e., going from 10, 30, 60 days to five years is a big shift. Also, the recommendation seems to imply that there could be more than 4 violations within a 60 month period, but if the fourth violation results in a 60 month revocation /suspension, then more than 4 violations are not possible. As an alternative, Staff is proposing the following example for the City Council's consideration: Staff Alternative: • 1St violation within a 60 month period: License revoked /suspended for 30 days. • 2nd violation within a 60 month period: License revoked /suspended for 90 days. • 3rd violation within a 60 month period: License revoked /suspended for 180 days. • 4 or more violations within 60 month period: License revoked /suspended for 1 year. Decision Point: Determine appropriate revocation /suspension period. Consequences: The more significant the penalties, the more likely a business will be in compliance with ordinance provisions. Additionally, the longer the revocation /suspension period, the more revenues that a business will lose, and the more sales tax the City may forfeit. Management of compliance and reapplication will have a staff impact, which could be offset by licensing fees. Staff should prepare violation penalties in accordance with: ❑ Staff Proposal ❑ Model Ordinance ❑ Other Option: Policy Consideration: Fine In Lieu of Revocation /Suspension Many cities have provided an option for violators to pay a fine in lieu of having their license revoked for a first or second violation. This allows for a penalty to be assessed for violations that have occurred, while giving the retailer an option to keep his /her license. There are times where it may occur that rogue employees go against store policy and will sell tobacco products to minors. In such cases, store management is still culpable for the violation, but taking the license away may be a more serve punishment then required. As such, it may be desired to allow a fine to be paid in lieu of revocation /suspension. Generally, this is only allowed for a 1St or 2nd violation within a 60 month period, as going beyond this would indicate that management is not taking sufficient action to curtail violations of the ordinance. Staff would recommend the flowing fines as part of a proposed ordinance: 1. 1St violation within a 60 month period: an administrative penalty of at least one thousand dollars ($1,000). 2. After a second violation of this chapter at a location within any sixty -month (60) period: i. an agreement to stop acting as a Tobacco Retailer for at least seven (7) days; and ii. an administrative penalty of at least five thousand dollars ($5,000). Decision Point: Determine whether a fine in lieu of a revocation /suspension is appropriate. Page 8 of 9 Consequences: This option would allow a fine to be paid, which would provide additional revenue to the City. This would also provide an option for the business to determine how a penalty is applied; i.e., do they prefer to pay a fine or lose tobacco sales revenue for a period of time as well as go through the reapplication process with its cost and time commitments. May relieve the administrative workload for Staff in review and approval of reapplications for those businesses that have had their licenses revoked. Should an ordinance proposal include a fine in lieu of revocation /suspension? ❑ Yes ❑No Is the Staff proposal adequate? ❑ Yes ❑No NOTICING REQUIREMENTS /PUBLIC OUTREACH: A Public Meeting Notice was published in the Valley Times and posted at several locations throughout the City. Additionally, the Public Meeting Notice was mailed to all existing Tobacco Retailers within the City. ATTACHMENTS: 1. Center for Tobacco Policy and Organization Matrix 2. Map of locations in the City where children congregate with a 500 foot and 1000 foot buffer. 3. Map of existing tobacco retailers in the city with a 1,000 foot buffer around residential land uses. 4. Map of the existing tobacco retailers in the city with a 500 foot & 1,000 foot buffer around the retailers. 5. Table of Strong Local Strong Local Tobacco Retailer Licensing Ordinances. 6. Table of Tobacco Control 2010 — California Local Grades. Page 9 of 9 or 19 82 /ii � 111 DATE: TO: FROM: SUBJECT STAFF REPORT CITY COUNCIL April 17, 2012 Honorable Mayor and City Councilmembers CITY CLERK File #560 -90 Joni Pattillo, City Manager""' Report on Tobacco Retailers Ordinance Prepared by Roger Bradley, Assistant to the City Manager & Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: A Fiscal Year 2011 -2012 City Council initiated work plan goal directs Staff to establish zoning restrictions for new tobacco retailers within the City. As directed by the City Council, Staff is presenting this item to re -cap the discussion from the January 17, 2012 City Council meeting. FINANCIAL IMPACT: There would be a financial impact associated with the preparation of an ordinance. The Fiscal Year 2011 -2012 budget includes sufficient funds to cover the necessary legal review of the ordinance. If an ordinance is adopted that does not grandfather in existing tobacco retailers, it is likely that the City will face legal challenges which have financial implications for the City. RECOMMENDATION: Staff recommends that the City Council provide feedback and direction on developing a Tobacco Retailers Ordinance. Submitted By Assistant to the City Manager DESCRIPTION: BACKGROUND Reviewed By Assistant City Manager A Fiscal Year 2011 -2012 City Council initiated work plan goal directs Staff to establish zoning restrictions 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 7 ITEM NO. 7.4 At the January 17, 2012 City Council meeting, the City Council received a presentation from Staff on possible ordinance provisions and had an initial discussion about this topic. The purpose of this report is to re -cap that discussion, provide relevant additional information on probable impacts, and seek direction from the City Council on how to proceed with an ordinance proposal. The January 17, 2012 Staff Report is included as Attachment 1. During the deliberations on this item, the City Council directed that Staff bring this item back for consideration before any additional work was done by Staff and before any meetings were held with the tobacco retailers. ZONING RECAP Minimum Distance to Maintain from Areas Where Children Are Present Decision Point: The City Council opined that the appropriate distance to maintain from a tobacco retailer to youth- oriented areas is 1,000 feet. The areas that should be included in the definition of youth oriented are schools, libraries, parks, playgrounds, youth- centers, arcades, licensed child care facilities /preschools, and City owned and operated recreational facilities. Consequences: Of the 25 existing tobacco retailers, seven (7) are located within 500 feet of areas where children are present and 16 are located within 1,000 feet of areas where children are present. Please refer to Attachments 2 and 3 for a map of the areas in the City where children congregate. Attachment 2 has a 500 foot buffer around the areas where children congregate and Attachment 3 has a 1,000 foot buffer around these areas. No future tobacco retailers would be allowed to be located within 1,000 feet of these areas. As illustrated in this map, many of the existing tobacco retailers are located within the buffers surrounding the tobacco retailers. Staff Recommendation: Staff would recommend that the minimum distance from youth - oriented areas be 1,000 feet. Should Residential Zones be Included in the Ordinance Decision Point: The City Council opined that tobacco retailers should be required to be located a minimum distance of 1,000 feet from parcels with a residential land use designation. Consequences: If the ordinance requires a minimum distance from a tobacco retailer to parcels with a residential land use designation, then no future tobacco retailers will be able to locate in the City. As shown in Attachment 4, all but one of the undeveloped /vacant parcels is located within 1,000 feet of a residential land use designation. This parcel has a land use designation of Business Park/industrial, which does not allow retail uses. In addition, 24 out of the existing 25 retailers are located within 1,000 feet of a residential land use. Thus, there would be nowhere within the City that a new tobacco retailer could locate, and a conditional use process would be moot as every corner of the City would be prohibited from siting a tobacco retailer. Staff Recommendation: Staff would recommend that the City Council not require retailers to be a minimum distance from residential land -use designations. Limited Density of Tobacco Retailers Page 2 of 7 Decision Point: The City Council opined that a provision should be included in the ordinance to limit the density of tobacco retailers in cases where the retailer is a business that primarily sells tobacco products (i.e. Smoke Shops). For these types of uses, tobacco retailers should be a minimum of 1,000 feet from one another. Direction was provided that grocery stores, drug stores and gas stations are not subject to this requirement. Consequences: If the ordinance limits the density of tobacco retailers in the City that primarily sell tobacco products, then there would be fewer such uses in the City. There are currently three "smoke shops" in Dublin that primarily sell tobacco products. Two of these businesses are located within 1,000 feet of one another. Staff Recommendation: Staff would recommend that smoke shops be prohibited from siting within 1,000 feet of each other. Approval Process for New Tobacco Retailers Decision Point: The City Council opined that a provision be included in the proposed ordinance to require that the approval process be through the Zoning Clearance process. Consequences: The Zoning Clearance process takes much less time than a Conditional Use Permit. If an ordinance is adopted that requires a minimum distance of 1,000 feet from areas where children are present and 1,000 feet from residential, then the review process (either Zoning Clearance or Conditional Use Permit) is a moot point since there will be no areas in the City where a future tobacco retailer could be located. Staff Recommendation: Staff would recommend that a zoning clearance be used for the siting of new tobacco retailers. Existing Retailers — "Grandfathering" Decision Point: The City Council opined that a proposed ordinance should apply to all existing tobacco retailers within the City. Furthermore, any existing retailers that are in violation of the Ordinance shall be phased out within 1, 2, 3, or more years, depending on the legality of the timeframe. The City Attorney's office has preliminarily researched the issue of "grandfathering," and whether the City has the authority to restrict tobacco sales at existing sites. If the City wants to phase out existing tobacco retailers, it must establish an "amortization" process whereby retailers are given a period of time to operate such that they can recoup their investment in the business. In particular, the City is not required to allow existing uses to continue indefinitely. However, to the extent that the City would like to eliminate sales at existing sites, it will be necessary for the City to provide the "amortization" period as mentioned for existing uses. California case law clearly holds that while cities may validly provide for the eventual termination of nonconforming property uses without compensation, they must provide a "reasonable amortization period commensurate with the investment involved." The specific length of the amortization period is not established by law. Rather, the appropriate amortization period must be reasonable and commensurate with the investment involved, so the appropriate period should be determined on a case by case basis with respect to particular properties. Potential factors to be considered in establishing an amortization period might include, but are not limited to the amount of money invested in a leasehold or improvements, the length of time remaining on a lease, or additional evidence of undue financial hardship. It is expected that preparation for Page 3 of 7 and the actual conduct of amortization hearings would require a fair amount of additional legal and administrative work. Consequences: If the ordinance applies to existing tobacco retailers and if a 1,000 foot buffer is required from residential land uses, then all of the existing tobacco retailers (25) would be in violation of the ordinance and would be required to phase out the sale of tobacco products. Of the existing 25 tobacco retailers in the City, three businesses sell only tobacco products and related paraphernalia and /or liquor and therefore adoption of an ordinance that applies to existing tobacco retailers will most likely result in the closing of these businesses. For those businesses where tobacco sales are ancillary to the businesses primary focus, these business would, of course, be able to continue to operate, but would perhaps lose a revenue source. Staff believes that legal challenges are likely, resulting in significant staff time and financial resources. Staff Recommendation: Staff would recommend that existing retailers be grandfathered within the ordinance. Option /Impact Matrix Options Existing Tobacco Retailers Future Tobacco Retailers 500 feet from children Seven tobacco retailers are Future tobacco retailers would located within 500 feet of not be permitted to locate in children and would have to areas within 500 feet of areas phase out the sale of tobacco where children are present. products if the ordinance does not grandfather in existing tobacco retailers. Refer to Attachment 2 1,000 feet from children Sixteen (16) tobacco retailers Future tobacco retailers would are located within 1,000 feet of not be permitted to locate in children and would have to areas within 1,000 feet of areas phase out the sale of tobacco where children are present. products if the ordinance does not grandfather in existing Tobacco Retailers. Refer to Attachment 3 Apply Ordinance to Twenty -four (24) of the twenty- All undeveloped /vacant parcels Residential Land Use five (25) tobacco retailers are that are designated as located within 1,000 feet of a commercial are located within residential land use designation. 1,000 feet of a residential land These businesses would have use designation. Including a to phase out the sale of tobacco 1,000 foot minimum distance products if the ordinance does from residential land uses would not grandfather in existing result in no new businesses tobacco retailers. being able to sell tobacco Refer to Attachment 4 products in the City. Refer to Attachment 4 Apply Ordinance to existing All twenty -five (25) of the Not Applicable Tobacco Retailers existing tobacco retailers would be in violation of the ordinance and would have to phase out the sale of tobacco products. Three of the businesses only sell Tobacco /Alcohol products and would most likely go out of Page 4 of 7 Attachment 7 shows all of the various restrictions. As illustrated in Attachment 5, there are no future areas in the City where tobacco retailers could be sited and all of the existing tobacco retailers (25) would be required to phase out the sale of tobacco products in the specified amount of time, if the ordinance requires that all tobacco retailers be located 1,000 feet from residential land uses. If the City Council were to adopt an ordinance that phases out the sale of tobacco products and retailers, it is likely that lawsuits would be filed challenging the legality of the ordinance, which would have financial implications for the City. Therefore, Staff recommends that the Tobacco Retailers ordinance include a minimum distance of 1,000 feet from future tobacco retailers to areas where children are present, but that it does not require a minimum distance from residential districts. Staff also recommends that existing businesses be grandfathered in and allowed to continue to sell tobacco products. Staff has already received significant interest and concern from local and regional retailers, as well as national organizations, that support tobacco retailing. TOBACCO RETAILER LICENSING RECAP In addition to the Conditional Use Permit, the City Council also discussed the establishment of a licensing provision for the sale of tobacco products. A retailer licensing ordinance would provide greater local control over the illegal sale of tobacco products and would provide a sustainable funding mechanism for program enforcement and administrative oversight. Establish a Tobacco Retailer Licensing System Decision Point: The City Council opined that there should be a retailer licensing system for all existing as well as any future tobacco retailers. Consequences: Provide greater enforcement and local control of tobacco related infractions. An additional burden would be placed upon local businesses to apply for the license. Also, additional staff time will be required to review, approve, and manage the licensing program as well as to conduct hearings for possible license revocations; however, a licensing fee could be established to offset the additional costs to the City. Staff Recommendation: Staff would recommend establishing a Tobacco Retailer Licensing system. Establish a Fee to Obtain a Tobacco Retailer License Decision Point: The City Council opined that there should be a licensing fee should be established at full cost recovery. Page 5 of 7 business. Refer to Attachment 5 & 6 Limit Density of "Smoke There are currently three Any future "smoke shops" that Shops" tobacco retailers in the City that primarily sells tobacco products primarily sell tobacco products. would not be permitted to locate Two of these retailers are within within 1,000 feet of an existing 1,000 feet of one another. tobacco retailer. Attachment 7 shows all of the various restrictions. As illustrated in Attachment 5, there are no future areas in the City where tobacco retailers could be sited and all of the existing tobacco retailers (25) would be required to phase out the sale of tobacco products in the specified amount of time, if the ordinance requires that all tobacco retailers be located 1,000 feet from residential land uses. If the City Council were to adopt an ordinance that phases out the sale of tobacco products and retailers, it is likely that lawsuits would be filed challenging the legality of the ordinance, which would have financial implications for the City. Therefore, Staff recommends that the Tobacco Retailers ordinance include a minimum distance of 1,000 feet from future tobacco retailers to areas where children are present, but that it does not require a minimum distance from residential districts. Staff also recommends that existing businesses be grandfathered in and allowed to continue to sell tobacco products. Staff has already received significant interest and concern from local and regional retailers, as well as national organizations, that support tobacco retailing. TOBACCO RETAILER LICENSING RECAP In addition to the Conditional Use Permit, the City Council also discussed the establishment of a licensing provision for the sale of tobacco products. A retailer licensing ordinance would provide greater local control over the illegal sale of tobacco products and would provide a sustainable funding mechanism for program enforcement and administrative oversight. Establish a Tobacco Retailer Licensing System Decision Point: The City Council opined that there should be a retailer licensing system for all existing as well as any future tobacco retailers. Consequences: Provide greater enforcement and local control of tobacco related infractions. An additional burden would be placed upon local businesses to apply for the license. Also, additional staff time will be required to review, approve, and manage the licensing program as well as to conduct hearings for possible license revocations; however, a licensing fee could be established to offset the additional costs to the City. Staff Recommendation: Staff would recommend establishing a Tobacco Retailer Licensing system. Establish a Fee to Obtain a Tobacco Retailer License Decision Point: The City Council opined that there should be a licensing fee should be established at full cost recovery. Page 5 of 7 Consequences: A license fee would provide funding to cover the cost of program management and enforcement. A fee would be an additional cost burden for the retailers. In particular, many retailers and consumers believe there are already significant costs and fees placed by government on the sale of tobacco products. If a funding fee is not included, compliance checks, ensuring that tobacco products are not being sold to minors, may need to be suspended should grant funding be unavailable during any given year. Staff Recommendation: Staff would recommend that a fee be established at full cost recovery. Revocation vs. Suspension for Violations Decision Point: The City Council opined that licenses should be revoked or suspended for a violation of the ordinance; e.g., selling tobacco products to minors. Consequences: Businesses will lose revenues from being unable to operate as a tobacco retailer. Reapplication fee would be required to obtain a license after revocation. Staff Recommendation: Staff would recommend that licenses be revoked for violations. Determine Appropriate Revocation Period for Violations Decision Point: The City Council opined that the appropriate revocation /suspension period for violating ordinance provisions is: • 1St violation within a 60 month period: License revoked /suspended for 30 days. • 2nd violation within a 60 month period: License revoked /suspended for 90 days. • 3rd violation within a 60 month period: License revoked /suspended for 180 days. • 4 or more violations within 60 month period: License revoked /suspended for 1 year. Consequences: The more significant the penalties, the more likely a business will be in compliance with ordinance provisions. Additionally, the longer the revocation /suspension period, the more revenues that a business will lose, and the more sales tax the City may forfeit. Management of compliance and reapplication will have a staff impact, which could be offset by licensing fees. Staff Recommendation: Staff would recommend that revocations /suspensions be include as outlined. Fine In Lieu of Revocation /Suspension Decision Point: The City Council opined that a fine in lieu of a revocation /suspension is appropriate under the following conditions: 1. 1St violation within a 60 month period: an administrative penalty of at least one thousand dollars ($1,000). 2. After a second violation of this chapter at a location within any sixty -month (60) period: i. an agreement to stop acting as a Tobacco Retailer for at least seven (7) days; and ii. an administrative penalty of at least five thousand dollars ($5,000). Consequences: This option would allow a fine to be paid, which would provide additional revenue to the City. This would also provide an option for the business to determine how a penalty is applied; i.e., do they prefer to pay a fine or lose tobacco sales revenue for a period of Page 6 of 7 time as well as go through the reapplication process with its cost and time commitments. Allowing a fine in lieu of revocation would relieve the administrative workload for Staff in reviewing and approving reapplications for those businesses that would have had otherwise had their licenses revoked. Staff Recommendation: Staff would recommend that this item be included as outlined. NOTICING REQUIREMENTS /PUBLIC 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. Map of locations in the City where children congregate with a 500 foot buffer 3. Map of locations in the City where children congregate with a 1,000 foot buffer 4. Map of existing tobacco retailers in the city with a 1,000 foot buffer around residential land uses 5. Map of the existing tobacco retailers in the city with a 500 foot around the retailers 6. Map of the existing tobacco retailers in the city with a 1,000 foot around the retailers 7. Map that shows all of the restrictions Page 7 of 7 or 19 82 /ii � 111 DATE: TO: FROM: STAFF REPORT CITY COUNCIL September 18, 2012 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' SUBJECT: Tobacco Retailers Ordinance Outreach Report Prepared by Roger Bradley, Assistant to the City Manager & Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: CITY CLERK File #560 -90 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. Submitted By Assistant to the City Manager DESCRIPTION: Reviewed By Assistant City Manager 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 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: • 1 st 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: • 1 st 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 & 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 davcares from definition of areas where children are aresent. 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: warning • 2nd violation: license revoked for 30 days; • 3rd violation: license revoked for 90 days; • 4t" violation: license revoked for 180 days; • 5t" violation or more: license revoked for 1 year. 3. Fine in lieu of Revocation will be: • 1St violation: warning • 2nd violation: $1,000; • 3rd violation: an agreement to stop acting as a tobacco retailer for 7 days & $57000. 4. There should NOT be a minimum pack size requirement for flavored cigars. 5. The aeriod durina which violations accrue should be 3 vears instead of 5 vears. 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 Page 4 of 6 American City Lung Assn & Chamber & Retailer Decision Point Council Tobacco Chamber & Retailer' Variance Request Draft Control Prg Proposed Variances rationale Direction Proposedi 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 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 1S and 2 na 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 REQUIREMENTS /PUBLIC 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 City of Dublin Existing Tobacco Retail Locations with Buffer Restrictions September 2012 I —�1 F-- -- X ♦ 0 \1 0 ; W . 111, a - a . ♦ ❑ . . L-1 1Jdk.0 ❑;Z' ®3E •: 111. ❑O ❑❑111,1 Children Present Buffer Q Tobacco Retailers — Pa,l = Parcels ® Camp Parks RFTA Miles 1111111/ 1 �� Feet _ Sclwols _ Streetr ®Cdy of Dublin 0 025 05 1 1 5 2 111, 5 Feet Q Cdy of Dublin, Sphere of Influence AN ORDINANCE OF THE CITY OF DUBLIN ADDING A NEW CHAPTER 8.43 AND AMENDING CHAPTERS 8.08 (DEFINITIONS), 8.12 (ZONING DISTRICTS AND PERMITTED USES), 8.30 (DOWNTOWN DUBLIN ZONING DISTRICT) AND 8.116 (ZONING CLEARANCE) OF THE DUBLIN MUNICIPAL CODE TO REGULATE THE LOCATION OF TOBACCO RETAILERS WITHIN THE CITY OF DUBLIN, ADDING A NEW CHAPTER 4.40 TO THE DUBLIN MUNICIPAL CODE REQUIRING THE LICENSURE OF TOBACCO RETAILERS, AND AMENDING CHAPTER 5.56 OF THE DUBLIN MUNICIPAL CODE RELATING TO SMOKING POLLUTION CONTROL WHEREAS, studies show that tobacco use among our youth continues to rise with a particular impact among our high school students; and WHEREAS, although it is unlawful to sell tobacco products and /or tobacco paraphernalia to minors, studies have shown that more than 900 million packs of cigarettes are consumed by minors 12 to 17 years of age each year; and WHEREAS, in the City of Dublin over the past 14 year period there has been a 9% sales rate to minors during sting operations; and WHEREAS, the City of Dublin has a substantial interest in discouraging the purchase of tobacco products by minors and protecting children from being lured into illegal activity through the misconduct of adults; and WHEREAS, zoning regulations are necessary to control the location and operation of the sale or exchange of tobacco products and /or tobacco paraphernalia for the protection of public health, safety and welfare; and WHEREAS, it is the intent of City Council to discourage violations of laws forbidding distribution of tobacco products to minors, but not to expand or reduce the degree of which the acts regulated by state or federal laws are criminally proscribed; and WHEREAS, the Planning Commission did hold a properly noticed public hearing on this project on October 9, 2012 and adopted Resolution 12 -38 recommending that the City Council adopt an ordinance adding Chapter 8.43 to the Dublin Municipal Code and amending Chapter 8.08, 8.12, 8.30 AND 8.116 of the Dublin Municipal Code; and WHEREAS, a properly noticed public hearing was held by the City Council on November 6, 2012; and WHEREAS, the City Council did hear and use its independent judgment and considered all said reports, recommendations and testimony hereinabove set forth; and 1 WHEREAS, the City Council finds that the failure of tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents a threat to the public health, safety, and welfare of the residents of the City; and WHEREAS, the City Council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the City, to protect the health, safety, and welfare of our residents; and WHEREAS, research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes; and WHEREAS, the City has a substantial interest in protecting children from being lured into illegal activity through the misconduct of adults; and WHEREAS, it is the intent of the City Council, in enacting this ordinance, to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing and to discourage violations of tobacco - related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein; and WHEREAS, the City Council of the City of Dublin further wishes to preserve and improve the health of it residents by reducing the possibility of exposure to secondhand smoke and its contaminates by increasing the areas in which smoking is prohibited. NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows: Section 1. Compliance with California Environmental Quality Act ( "CEQA "): The City Council declares this Ordinance is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of this Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the construction of any building or structure, but it sets forth the regulations that shall be followed if and when a building or structure is proposed to be constructed or a site is proposed to be developed. This Ordinance of itself, therefore, has no potential for resulting in significant physical change in the environment, directly or ultimately. Section 2. A new Chapter 8.43 is hereby added to the Dublin Municipal Code to read as follows: CHAPTER 8.43 TOBACCO RETAILERS 2 Sections: 8.43.010 Purpose. 8.43.020 1 ntent. 8.43.030 Definitions. 8.43.040 Development Standards and Regulations. 8.43.050 Zoning Clearance. 8.43.010 Purpose The purpose of this Chapter is to establish regulations for the location and operation of tobacco retailers. 8.43.020 Intent. The intent of this Chapter is to: A. Establish a minimum distance that tobacco retailers must maintain from areas where children are present, such as schools, playground, parks, libraries and City owned and operated recreational facilities. B. Prevent Retail Tobacco Shops from concentrating in a particular geographic area of the City. C. Establish development standards and regulations for the siting of new tobacco retailers within the City. 8.43.030 Definitions. A. The terms used in this Chapter have the meaning set forth below: "Department" means the Community Development Department. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Retail Tobacco Shop" means a business establishment, the main purpose of which is the sale of tobacco, tobacco products, or tobacco paraphernalia. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and other items designed for the smoking or ingestion of tobacco products. "Tobacco Products" means any substance containing any tobacco leaf, including but not limited to cigarettes, cigars, bidis, pipe tobacco, snuff, chewing tobacco, and smokeless tobacco. "Tobacco Retailer" shall have the meaning ascribed to it in Chapter 8.08 of the Dublin Municipal Code. 3 "Tobacco retailing" shall mean engaging in the activities of a Tobacco Retailer. 8.43.040 Development Standards and Regulations. A tobacco retailer shall comply with all development standards and regulations for the zoning district in which it is located and any other applicable provisions of the City Code or regulations, including occupancy, accessibility, California Building Code, and Fire Code requirements. A. Permitted in the C -1, C -2, and Certain Planned Development Zoning Districts. A tobacco retailer may be established only in the C -1 and C -2 Zoning Districts. A tobacco retailer may also be established in a comparable Planned Development (PD) Zoning District if not specifically prohibited by the PD regulations and if the project site has an underlying Retail Commercial or General Commercial Land Use designation. Any tobacco retailer in a PD Zoning District shall be subject to the requirements of this Chapter and the requirements of the PD Zoning District. Where a conflict arises between the requirements of this Chapter and the PD regulations, this Chapter shall take precedence. B. No tobacco retailer shall be located within one thousand (1,000) feet, as measured in a straight line from parcel boundary to parcel boundary, of a parcel that, at the time the tobacco retailer is granted a Zoning Clearance, is occupied by public or private elementary, middle, junior high or high school; C. No tobacco retailer shall be located within five hundred (500) feet, as measured in a straight line from parcel boundary to parcel boundary, of a parcel that, at the time the tobacco retailer is granted a Zoning Clearance, is occupied by a- (i) Playground; (ii) Youth center; (iii) City owned and operated recreational facilities; (iv) Park; or (v) Library. D. Limited Density of Retail Tobacco Shops. No Retail Tobacco Shop shall be granted a permit to operate on a site which is within one thousand (1,000) feet of a site occupied by another Retail Tobacco Shop, as measured in a straight line from parcel boundary to parcel boundary. E. New tobacco retailers. Each application for a Zoning Clearance to operate a Tobacco Retail business shall include, in addition to such other information as reasonably required by the Community Development Director, a map demonstrating that the proposed location of the tobacco retailer is consistent with the minimum distance standards established in Sections 8.43.040.B, 8.43.040.0 and 8.43.040.D. F. Tobacco retailers shall apply for, acquire and maintain a current and valid Tobacco Retailer License as required by Chapter 4.40 of the Municipal Code. 12 G. Sections 8.43.040.13, 8.43.040.0 and 8.43.040.D shall not apply to any tobacco retailer legally in existence as of the original effective date of this Chapter. H. Sections 8.43.040.13, 8.43.040.0 and 8.43.040.D shall not apply to any situation in which a tobacco retailer legally in existence as of the original effective date of this Chapter or a tobacco retailer that has been granted a Zoning Clearance expands its existing operations to an adjacent parcel but does not establish a second location at which tobacco retailing will occur. 8.43.050 Zoning Clearance. A. A Zoning Clearance shall document the compliance of a tobacco retailer with the above requirements and shall be kept on file in the Community Development Department for the duration of the operation of the tobacco retailer. Section 3. The following definition is hereby added to Section 8.08.020 (Definitions) of the Dublin Municipal Code to read as follows: Tobacco Retailer. The term Tobacco Retailer shall mean any person or business that sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco, tobacco products and /or tobacco paraphernalia, and includes, but is not limited to a Retail Tobacco Shop. Section 4. Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of the Dublin Municipal Code is hereby amended to add a new row for the "Tobacco Retailer" use type to the "Commercial Use Types" table. (All other rows of the table in Section 8.12.050 shall remain unchanged by this Ordinance): COMMERCIAL USE TYPE A R -1 R -2 R -M C -O C -N C -1 C -2 M -P M -1 M -2 Tobacco Retailer - - - - - - ZC ZC - - - Section 5. Section 8.30.020 of the Dublin Municipal Code is hereby amended to read as follows: 8.30.020 Downtown Dublin Specific Plan. The Downtown Dublin Specific Plan, adopted by the City Council on February 1, 2011 by Resolution 9 -11, and as may be amended thereafter, shall be used to guide the review of site development review applications in the Downtown Dublin Zoning District. The Downtown Dublin Specific Plan contains all information regarding permitted, conditionally permitted, and prohibited uses, development standards, and design guidelines to direct the development and use of properties within the specific plan area, with the exception of the tobacco retail use types. Tobacco retailers are to be regulated 5 in the same way as in the C -1 and C -2 Zoning Districts. All new development in the Downtown Dublin Zoning District shall be reviewed for consistency with the Downtown Dublin Specific Plan. Section 6. Section 8.116.010 of Dublin Municipal Code is hereby amended to read as follows: 8.116.010 Purpose. The purpose of this Chapter is to establish a procedure for certifying conformance of a building permit, sign application, recreational facility (indoor), large family day care home, tobacco retailer or auto - related use in the Scarlett Court Overlay Zoning District application with the requirements of this Title, the General Plan, any applicable Specific Plans, and the terms and conditions of any applicable permits or variances. Section 7. Section 8.116.020.H is hereby added to the Dublin Municipal Code to read as follows: H. Tobacco retailers that meet the standards specified in Chapter 8.43 (Tobacco Retailers). Section 8. Section 8.116.030.G is hereby added to the Dublin Municipal Code to read as follows: G. Tobacco Retailer. If the Zoning Clearance is for a tobacco retailer, the Applicant shall submit a "Zoning Clearance for Tobacco Retailer" form along with such information requested on said form. Section 9. Section 8.116.040.H is hereby added to the Dublin Municipal Code to read as follows: H. Tobacco Retailer. All tobacco retailers shall be reviewed for compliance with Chapter 8.43 (Tobacco Retailers). The zoning clearance approval for a tobacco retailer shall be a completed "Zoning Clearance for Tobacco Retailers" form with the date and signature of the Community Development Director or his /her designee. 9 Section 10. Chapter 4.40 is hereby added to the Dublin Municipal Code to read as follows: CHAPTER 4.40 TOBACCO RETAILERS Sections: 4.40.010 Purpose. 4.40.020 Definitions. 4.40.030 Tobacco Retailer License Required. 4.40.040 Tobacco Retailer License Application Procedure. 4.40.050 Issuance of License. 4.40.060 License Renewal and Expiration. 4.40.070 Licenses Nontransferable. 4.40.080 Compliance Monitoring. 4.40.090 Revocation of License. 4.40.100 Tobacco Retailing without a License. 4.40.110 Enforcement. 4.40.010 Purpose The purpose of this Chapter is to ensure compliance with the business standards and practices of the City and to encourage responsible tobacco retailing and to discourage violations of tobacco - related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein. 4.40.020 Definitions "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 for which a significant purpose is avoiding the effect of the violations of this Chapter is not an Arm's Length Transaction. "Chief of Police" means the Chief of the Dublin Police Department or his or her designee. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "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 (10 %) 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 7 Person can or does have or share ultimate control over the day -to -day operations of a business. "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. "Smoking" means possessing a lighted Tobacco Product, lighted Tobacco Paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a Tobacco Product, Tobacco Paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind). "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of Smoking materials of all types, cigarette rolling machines, and any other item designed for the Smoking, preparation, storing, or consumption of Tobacco Products. "Tobacco Product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. "Tobacco Retailer" means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, Tobacco Products or Tobacco Paraphernalia. "Tobacco Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, Tobacco Products, or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange. 4.40.030 Tobacco Retailer License Required. A. It shall be unlawful for any Person to act as a Tobacco Retailer in the City of Dublin without first obtaining and maintaining a valid Tobacco Retailer's license pursuant to this Chapter 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. Display of License. Each Tobacco Retailer license shall be prominently displayed in a publicly visible location at the licensed location. C. Positive Identification Required. No Person engaged in Tobacco Retailing shall sell or transfer a Tobacco Product or Tobacco Paraphernalia to another Person who appears to be under the age of twenty -seven (27) years without first examining the identification 0 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. D. False and Misleading Advertising Prohibited. A Tobacco Retailer or Proprietor without a valid Tobacco Retailer license, including, for example, a person whose license has been revoked: 1. Shall keep all Tobacco Products and Tobacco Paraphernalia out of public view. The public display of Tobacco Products or Tobacco Paraphernalia in violation of this provision shall constitute Tobacco Retailing without a license under Section 4.40.100; and 2. Shall not display any advertisement relating to Tobacco Products or Tobacco Paraphernalia 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. E. License may be issued only to a business that will engage in Tobacco Retail activities at a fixed location. F. License Conveys a Limited, Conditional Privilege. Nothing in this Chapter 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 permit. For example, nothing in this Chapter 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, building codes, and business license tax ordinance, 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 license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5. G. Fee for License. The fee for the issuance and renewal of a Tobacco Retailer's license shall be established from time to time by resolution of the City Council, and shall be due and payable at the time a license application is submitted to the City. The fee shall be calculated so as to include, but not exceed, the cost of administration and enforcement of this Chapter, including the administration of the license program, retailer inspection and compliance checks. 1. In any year where grant funding has been obtained to recover the cost of administration and enforcement of this Chapter, or a portion thereof, the amount of the license fee charged for the twelve months following receipt of the grant funding shall be reduced based on the amount of grant funding received and on the total number of Tobacco Retailers operating in the City 9 4.40.040 Tobacco Retailer License Application Procedure A. Application for a Tobacco Retailer's license shall be submitted in the name of each Proprietor proposing to conduct retail tobacco sales and shall be signed by each Proprietor or an authorized agent thereof. B. It is the responsibility of each Proprietor to be informed regarding all laws applicable to Tobacco Retailing, including those laws affecting the issuance of a Tobacco Retailer's license. No Proprietor may rely on the issuance of a license as a determination by the City that the Proprietor has complied with all laws applicable to Tobacco Retailing. A license issued contrary to this Chapter, contrary to any other law, or on the basis of false or misleading information supplied by a Proprietor shall be revoked pursuant to Section 4.40.090.E of this Chapter. Nothing in this Chapter 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. C. All applications shall be submitted on a form supplied by the Chief of Police 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 Address ") required by, authorized by, or convenient to the enforcement of this Chapter. If an Authorized Address is not supplied, each Proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above. 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. Whether or not any Proprietor or any agent of the Proprietor has admitted violating, or has been found to have violated, this Chapter and, if so, the dates and locations of all such violations within the previous five years. 6. Such other information as the Chief of Police deems necessary for the administration or enforcement of this Chapter as specified on the application form required by this section. D. A licensed Tobacco Retailer shall inform the Chief of Police in writing of any change in the information submitted on an application for a Tobacco Retailer's license within ten (10) business days of a change. E. The intentional provision of inaccurate or false information shall be a violation of this Chapter. 10 F. 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. 4.40.050 Issuance of License A. Upon the receipt of a complete application for a Tobacco Retailer's license and the application fee required by this Chapter, the Chief of Police 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 Chapter. 2. The application seeks authorization for Tobacco Retailing at a location where Tobacco Retailing is prohibited pursuant to Chapter 8.43 of the Dublin Municipal Code. 3. The application seeks a license for the conduct of sales at a location that, at the time the application is submitted, is ineligible for a new permit pursuant to Section 4.40.090. F. B. A denial of a license application shall be in writing, citing the reasons for such denial and shall be appealable to the City Manager, or his or her designee, per the appeal provisions set forth in Section 4.40.090.D. C. A Tobacco Retail license shall be valid for one year from the date of issuance. 4.40.060 License Renewal and Expiration A. Each Tobacco Retailer shall submit a Tobacco Retailer's license renewal application and the license fee on or before the end of the license term. B. Expiration of License. A Tobacco Retailer's license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to Section 4.40.060.A, the Proprietor must: 1. Submit the license fee and application renewal form; and 2. Submit a signed affidavit affirming that the Proprietor either- (i) has not sold and will not sell any Tobacco Product or Tobacco Paraphernalia after the license expiration date and before the license is renewed; or (ii) has waited the appropriate ineligibility period established for Tobacco Retailing without a license, as set forth in Section 4.40.100.A of this Chapter, before seeking renewal of the license. 11 4.40.070 Licenses Nontransferable A. A Tobacco Retailer's license may not be transferred from one Person to another or from one location to another. A new Tobacco Retailer's license is required whenever a Tobacco Retailing location has a change in Proprietor(s). 4.40.080 Compliance Monitoring A. Compliance with this Chapter shall be monitored by the Chief of Police. In addition, any peace officer may enforce the penal provisions of this chapter. The City may designate any number of additional Persons to monitor compliance with this Chapter. B. The City 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 a compliance check supervised by a peace officer or a code enforcement official of the City; 2. The Youth Decoy is acting as an agent of a Person designated by the City to monitor compliance with this Chapter; or 3. The Youth Decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Alameda County Public Health Department or the California Department of Health Services. 4.40.090 Denial or Revocation of License A. Revocation of License. In addition to any other penalty authorized by law or this Chapter, a Tobacco Retailer's license shall be revoked if any court of competent jurisdiction determines, or the Chief of Police 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 Chapter or has pleaded guilty, "no contest" or its equivalent, or violated any law designated in Section 4.40.030 above. 1. The penalty for a first violation of this Chapter at a location within any thirty -six (36) month period shall constitute a warning, and the Tobacco Retailer cited for such violation shall stipulate that the violation will be considered in determining the penalty for any future violation. B. Administrative Hearing. An investigation, inquiry, or hearing may be undertaken or held by the City Manager or his or her designee or assignee. The person to whom a matter is assigned shall be deemed a "Hearing Officer." In any matter so assigned to the Hearing Officer conducting the investigation, inquiry, or hearing, the Hearing Officer shall report within thirty (30) days his or her order, findings, decision, or award based on 12 the record of the case. 1. In such hearings, investigations, and inquiries by the Hearing Officer, he or she shall not be bound in the conduct thereof by the common law or statutory rules of evidence and procedure but inquiry shall be made in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the public parties and carry out justly the spirit and provisions of this Chapter. 2. No formality in any proceeding or the manner of taking testimony shall invalidate any other decision, award, or rule made as specified in this Chapter. No order, decision, award, or rule shall be invalidated because of the admission into the record and the use as any proof of fact in dispute or any evidence not admissible under the common law or statutory rules of evidence and procedure. C. Settlement In Lieu of Hearing. For a second or third alleged violation of this Chapter within any thirty -six (36) month period, the City Manager, or his or her designee, may engage in settlement negotiations and may enter into a settlement agreement with a Tobacco Retailer alleged to have violated this Chapter, without approval of the City Council, to stipulate the penalties provided in this section in lieu of the penalties that would otherwise apply under this Chapter and to forego a hearing on the allegations. Notice of any settlement shall be provided to the Chief of Police and no hearing shall be held. Settlements shall not be confidential and shall contain the following minimum terms: 1. Upon a second alleged violation of this Chapter at a location within any thirty -six (36) month period- i. an administrative penalty of seven hundred fifty dollars ($750); and ii. an admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violation. 2. Upon a third alleged violation of this Chapter at a location within any thirty -six (36) month period- i. an agreement to stop acting as a Tobacco Retailer for at least seven (7) days; ii. an administrative penalty of one thousand dollars ($1,000); and iii. an admission that the violation occurred and a stipulation that the violation will be considered in determining the penalty for any future violations. D. Appeal of Denial or Revocation. A decision of the Chief of Police or Hearing Officer to deny or revoke a license is appealable to the City Manager, or his or her designee, and must be filed with the City Clerk within ten days of mailing of the Chief of Police or Hearing Officer's decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager is not available for a revocation made pursuant to subsection (E) below. 13 E. Revocation of License Wrongly Issued. A Tobacco Retailer's license shall be revoked if the Chief of Police or Hearing Officer 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 Section 4.40.050 existed at the time application was made or at any time before the license issued. The decision by the Chief of Police or Hearing Officer shall be the final decision of the City. Such a revocation shall be without prejudice to the filing of a new license application. F. New License after Revocation: 1. Notwithstanding any other provision of this Chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to said location unless: a. The business at the location has been transferred to a new Proprietor or Proprietors; and b. The new Proprietor(s) provide the City with evidence that the new Proprietor(s) has acquired or is acquiring the location in an Arm's Length Transaction. 2. Issuance of a new license for a location at which a violation of this Chapter has occurred shall not be issued except as follows: a) After revocation for a second violation of this Chapter at a location within any thirty -six (36) month period, no new license may issue for the location until thirty (30) days have passed from the date of revocation. b) After revocation for a third violation of this Chapter at a location within any thirty -six (36) month period, no new license may issue for the location until ninety (90) days have passed from the date of revocation. c) After revocation for a fourth violation of this Chapter at a location within any thirty -six (36) month period, no new license may issue for the location until one - hundred eighty (180) days have passed from the date of revocation. d) After revocation for five or more violations of this Chapter at a location within any thirty -six (36) month period, no new license may issue for the location until one (1) year has passed from the date of revocation. 4.40.100 Tobacco Retailing without a License A. In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Chief of Police or a Hearing Officer 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 14 directly or through the Person's agents or employees, the Person shall be ineligible to apply for, or to be issued, a Tobacco Retailing license as follows: 1. After a first violation of this section at a location within any sixty -month (60) period, no new license may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until sixty (60) days have passed from the date of the violation. 2. After a second violation of this section at a location within any sixty -month (60) period, no new license may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until one - hundred eighty (180) days have passed from the date of the violation. 3. After of a third or subsequent violation of this section at a location within any sixty -month (60) period, no new license may issue for the Person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until two (2) years have passed from the date of the violation. 4.40.110 Enforcement A. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. B. Whenever evidence of a violation of this Chapter is obtained in any part through the participation of a Youth Decoy under the age of eighteen (18) years old, such a Person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this Chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. C Violations of this Chapter may, in the discretion of the District Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require. D. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall also constitute a violation of this Chapter. E. Violations of this Chapter are hereby declared to be public nuisances. F. In addition to other remedies provided by this Chapter or by other law, any violation of this Chapter may be remedied by a civil action brought by the City, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. Section 11. The definitions for "community park" and "park recreation area" are hereby deleted from Section 5.56.040 of the Dublin Municipal Code. Section 12. Section 5.56.050.0 of the Dublin Municipal Code is hereby amended to read as follows: 15 C. Smoking shall be prohibited in the following unenclosed places- 1 . Dining areas that are part of a restaurant, business, nonprofit entity, place of employment, or located in any public place; 2. Any City park; 3. Any place where people are using or waiting for a service, entry, or a transaction whether or not such service includes the exchange of money including, but not limited to, ATMs, bank teller windows, telephones, ticket lines, bus stops and cab stands; 4. Any City- sponsored event, except in any area designated by the city as a smoking area. City- sponsored events may have one (1) but not more than three (3) designated smoking areas of an appropriate size, provided the area is prominently marked with signs and is located the greatest distance practicable from all areas of high pedestrian traffic, any parking lots, and any area in which smoking is prohibited by this code, state law, or federal law. In no case shall a designated smoking area be placed less than twenty -five (25) feet from such areas; 5. Smoking is prohibited in all multi -unit residence common areas, except that a landlord may designate a portion of the outdoor area of premises as a smoking area as provided in subsection (C)(6)(a) of this section. a. A designated smoking area: Must be located a reasonable distance from any area where smoking is prohibited; and ii. Must be no more than twenty -five percent (25 %) of the total outdoor area of the premises for which it is designated; and iii. Must have a clearly marked perimeter; and iv. Must be identified by one conspicuous sign at the designated smoking area, and one conspicuous sign elsewhere on the premises; and v. Must not overlap with any area in which smoking is otherwise prohibited by this Chapter or other provisions of this code, state law, or federal law. b. If a suitable area cannot be determined, an exemption from the requirements of this section may be granted at the discretion of the City Manager, or his or her designee; provided, that the smoking area does not 16 overlap with any area otherwise prohibited by other provisions of this code, state law, or federal law. c. Nothing shall prevent a multi -unit residence from designating all outdoor areas of the premises as nonsmoking; 6. The unenclosed spaces of any parcel on which a private single - family residence licensed as a family day care home exists. Section 13. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of Dublin hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. Section 14. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 15. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this day of , 2012. AYES: NOES: ABSENT: ABSTAIN: 17 Tim Sbranti, Mayor ATTEST: Caroline Soto, City Clerk im OF DU�lr2 a� STAFF REPORT 114 az PLANNING COMMISSION O�LIFOR��� DATE: October 9, 2012 TO: Planning Commission SUBJECT: PUBLIC HEARING — Tobacco Retailers Zoning Ordinance Amendment (Legislative) Report prepared by Martha Ada, Environmental Coordinator EXECUTIVE SUMMARY: A Fiscal Year 2012/2013 City Council Key Initiative directs Staff to establish zoning restrictions for new tobacco retailers within the City. The proposed ordinance establishes minimum distances that new tobacco retailers must be from areas where children congregate, including schools, playgrounds, youth centers, City owned and operated recreational facilities, parks, libraries and other tobacco retailer shops. The City is adding a new Chapter to the Zoning Ordinance relating to the location of tobacco retailers within the City. Additionally, amendments are proposed to: 1) Chapter 8.08 (Definitions) to add a new definition for Tobacco Retailers; 2) Chapter 8.12 (Zoning Districts and Permitted Uses of Land) to add tobacco retailers as a commercial use type; and 3) Chapter 8.116 (Zoning Clearance) to include tobacco retailers as a use that can be approved via the Zoning Clearance process. The Planning Commission will review the proposed Zoning Ordinance Amendments and make a recommendation to the City Council. RECOMMENDATION: Staff recommends that the Planning Commission: 1) Receive Staff presentation; 2) Open the public hearing; 3) Take testimony from the public; 4) Close the public hearing and deliberate; and 5) Adopt a Resolution recommending that the City Council adopt an Ordinance adding a new Chapter 8.43 and amend Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land) and Chapter 8.116 (Zoning Clearance) to the Dublin Municipal Code to regulate the location of tobacco retailers within the City of Dublin. Su mitted By 0 Rev'iew&6 By Assistant to the City Manager Assistant Community Development Director COPIES TO: File ITEM NO.: Page 1 of 4 GAAgendas120121Tobacco Retailers OrdlPlanning Commission\PC Staff Report 10.9.12.12.doc DESCRIPTION: A Fiscal Year 2012/2013 City Council Key Initiative directs Staff to establish zoning restrictions for new tobacco retailers within the City. The proposed Ordinance would create development standards and regulations for the siting of new tobacco retailers within the City. A tobacco retailer is defined to mean 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. The proposed Ordinance would require that new tobacco retailers maintain a minimum distance from areas where children are present. The goal of the Ordinance is to maintain a buffer zone between tobacco retailers and areas frequented by youth, thereby decreasing the likelihood of youth attempting to purchase tobacco products. ANALYSIS: The City Council provided direction to Staff on the Zoning Ordinance Amendment on January 17, 2012, April 17, 2012 and September 18, 2012. Additionally, Staff received direction to prepare a Tobacco Retailer Licensing system which will be presented to the City Council at a later date. Please refer to the attached City Council Staff Reports for additional Information (Attachment 1, 2 and 3). The minutes and video recordings of these meetings are available on the City of Dublin website. The direction provided to Staff on the Zoning Ordinance Amendment is summarized below. Minimum Distance from Areas Where Children are Present The City Council opined that the appropriate distance to maintain from a tobacco retailer to youth- oriented areas is 1,000 feet from schools and 500 feet from all other areas where children congregate. Which Areas Should be Included in the Ordinance The City Council opined that the areas that should be included in the definition of youth oriented are: • Schools; • Libraries; • Parks, • Playgrounds; • Youth centers; • City owned & operated recreational facilities. Attachment 4 shows all of the areas in the City where children congregate with a 1,000 foot buffer around schools and a 500 foot buffer around the other areas where children congregate. Should residential zones be included in the Ordinance The City Council opined that residential zones should not be included in the Ordinance. Limited Density of Retail Tobacco Shops The City Council opined that retail tobacco shops (retailers that primarily sell tobacco products) shall be prohibited from siting within 1,000 feet of one another. Grocery stores, drug stores and gas stations are not subject to this requirement. Aaproval Process for New Tobacco Retailers The City Council opined that a provision be included in the proposed ordinance to require that the a roAl process for new tobacco retailers be through the Zoning Clearance process. 2 of 4 Existing Retailers — Grandfather The City Council opined that existing tobacco retailers should be grandfathered within the Ordinance; therefore, the minimum distance requirement applies only to new tobacco retailers. The direction provided to Staff by the City Council has been incorporated into the Draft Ordinance, which, among other things, adds a new Chapter 8.43 to the Zoning Ordinance to regulate the siting of new tobacco retailers within the City of Dublin (Attachment 5). The following amendments, as further discussed in Attachment 5, are proposed to ensure internal consistency within the Zoning Ordinance. Chapter 8.08 (Definitions) In addition to adding a new Chapter to the Zoning Ordinance to regulate the siting of future tobacco retailers in the City, a new definition for tobacco retailers is proposed to be added to Chapter 8.08 (Definitions) as follows: Tobacco Retailer. The term Tobacco Retailer shall mean any person or business that sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco, tobacco products and /or tobacco paraphernalia, and includes, but is not limited to a Retail Tobacco Shop. Chapter 8.12 (Zoning Districts and Permitted Uses of Land) Staff is proposing to amend Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) to note that future tobacco retailers that meet the requirements outlined in Chapter 8.43 are permitted in the C -1 and C -2 Zoning Districts, by means of a Zoning Clearance. The following rows of the "Land Use Matrix" table in Section 8.12.050 are proposed to be amended as follows (the underlined text is new): COMMERCIAL USE TYPE A R -1 R -2 R -M C -O C -N C -1 C -2 M -P M -1 M -2 Tobacco Retailer - - I - - - - ZC I ZC - I - - Chapter 8.30 (Downtown Dublin Zoning District) Staff is proposing to amend Section 8.30.020 to state that Tobacco Retailers are to be regulated in the Downtown Dublin Specific Plan in the same way as the C -1 and C -2 Zoning Districts. Chapter 8.116 (Zoning Clearance) Staff is proposing amendments to this Chapter of the Zoning Ordinance to note that tobacco retailers are now subject to a Zoning Clearance. Please refer to Exhibit A to Attachment 5 of this Staff Report for proposed amendments to the Zoning Ordinance. CONSISTENCY WITH THE GENERAL PLAN, SPECIFIC PLAN AND ZONING ORDINANCE: The proposed Zoning Ordinance Amendments are consistent with the Dublin General Plan and all applicable Specific Plans in that the General Plan and applicable Specific Plans include policies aimed at protecting the health and safety of its citizens. 3 of 4 NOTICING REQUIREMENTS /PUBLIC OUTREACH: At the April 17, 2012 meeting, the City Council provided direction to Staff to meet with the tobacco retailers. Staff met with representatives from the Chamber of Commerce on several occasions. Additionally, Staff held two public outreach meetings with the tobacco retailers on August 15, 2012. Staff also met with the American Lung Association and Alameda County Public Health. A Public Notice was mailed to the existing tobacco retails and interested parties and also published in the Valley Times and posted at several locations throughout the City and e- mailed to the development community. ENVIRONMENTAL REVIEW: The California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. Pursuant to CEQA, Staff is recommending that the proposed Ordinance be found exempt from CEQA per CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of the proposed Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the construction of any building or structure, but it sets forth the regulations that shall be followed if and when a building or structure is proposed to be constructed or a site is proposed to be developed. This Ordinance of itself, therefore, has no potential for resulting in significant physical change in the environment, directly or ultimately. ATTACHMENTS: 1. City Council Staff Report dated January 17, 2012 (without attachments). 2. City Council Staff Report dated April 17, 2012 (without attachments). 3. City Council Staff Report dated September 18, 2012 (without attachments) 4. Map of the areas in the City where children congregate with a 1,000 foot buffer around schools & 500 foot buffer around all other areas. 5. Resolution recommending that the City Council adopt an ordinance adding a new Chapter 8.43 and amending Chapter 8.08 (Definitions), Chapter 8.12 (Zoning Districts and Permitted Uses of Land) and Chapter 8.116 (Zoning Clearance) to the Dublin Municipal Code to regulate the location of tobacco retailers, with the draft Ordinance attached as Exhibit A. 4 of 4 DRAFT DRAFT Planning Commission Minutes Tuesday, October 9, 2012 CALL TO ORDER /ROLL CALL A regular meeting of the City of Dublin Planning Commission was held on Tuesday, October 9, 2012, in the City Council Chambers located at 100 Civic Plaza. Chair Wehrenberg called the meeting to order at 6:59:12 PM Present: Chair Wehrenberg; Commissioners Brown, and Bhuthimethee; Jeff Baker, Assistant Community Development Director; Stephen Muzio, Assistant City Attorney; Kristi Bascom, Principal Planner; Martha Aja, Environmental Coordinator; Roger Bradley, Assistant to the City Manager; and Debra LeClair, Recording Secretary. Absent: Vice Chair O'Keefe, Cm. Schaub ADDITIONS OR REVISIONS TO THE AGENDA — NONE MINUTES OF PREVIOUS MEETINGS — On a motion by Cm. Brown and seconded by Cm. Bhuthimethee, on a vote of 3 -0, with Vice Chair O'Keefe and Cm. Schaub being absent, the Planning Commission approved the minutes of the September 25, 2012 meeting, with minor revisions. ORAL COMMUNICATIONS — NONE CONSENT CALENDAR.— NONE WRITTEN COMMUNICATIONS — NONE PUBLIC HEARINGS — 8.2 Tobacco Retailers Zoning Ordinance Amendment Martha Aja, Environmental Coordinator, presented the project as outlined in the Staff Report. Cm. Bhuthimethee asked if day care centers are included in the Ordinance. Ms. Aja answered that originally day care centers were to be included, but various retailers were concerned that they would lose the money and time invested in the project if a business was going through an entitlement process and then a day care was sited before they could be approved. They requested that day care centers be removed and the City Council directed Staff to remove them from the Ordinance. She added that children at that age are generally accompanied by their parents and are not of smoking age. Cm. Bhuthimethee asked if the Ordinance would exclude gas stations. 41tanning Commission Oclor)e-r 9, 2012 (kgjukaw `JOleelillif 136 DRAFT DRAFT Ms. Aja answered that the Ordinance includes all new gas stations; however, gas stations are not included as a business that primarily sells tobacco products, therefore, two gas stations could be located within 1,000 feet of one another, but they must still maintain the required distances from schools and the other areas. Cm. Bhuthimethee asked if the 1,000 foot separation requirement is for businesses where tobacco sales are their primary business. Ms. Aja answered yes. Cm. Bhuthimethee asked if the City currently has a permit process for new tobacco retailers. Ms. Aja answered that the City does not have a permit process. Tobacco retailers are currently regulated as a retail use and therefore, if retail is permitted then it is a permitted use with no separate permit process. Cm. Bhuthimethee referred to the Policy Considerations for Approval Process — there are two options; in the 2nd option a public hearing would be required by either Staff or the Planning Commission. She asked how that is determined. Ms. Aja responded that the City Council directed that new tobacco retailers be permitted by a Zoning Clearance so that it would take less processing time. She stated that the options Cm. Bhuthimethee referenced were part of an earlier discussion with the City Council on the preferred approval process for new tobacco retailers. Jeff Baker, Assistant Community Development Director, felt there was some confusion regarding the attachments to the Planning Commission Staff Report. The attachments are previous City Council Staff Reports. He stated there were several iterations of the proposed Ordinance as Staff worked with the community, and received direction from City Council. He continued that the direction received from the City Council has been incorporated into the current Staff Report and Ordinance in the Planning Commission packet. Cm. Bhuthimethee asked if, in the "Violations" section, the City Council voted to revoke or suspend a permit. Ms. Aja answered that will be part of the Title 4 licensing system, but the recommendation was for revocation. Cm. Brown referred to Page 2 of 4 of the Staff Report that mentions the areas that should be included in the Ordinance. He asked why theaters and family oriented recreation weren't mentioned in that section such as Rock -N -Jump. Ms. Aja stated that Rock -N -Jump is categorized as an Indoor Recreational Use; it was felt by the City Council that it was best to keep a smaller list to make it easier to regulate and monitor. Chair Wehrenberg felt that would also limit the types of businesses if they needed to have the 1,000 foot separation. Ms. Aja responded that, if there was an existing tobacco retailer, an Indoor Recreational Use could locate within 500 or 1,000 feet of them; however, if the Indoor Recreational Use was (kgjukaw `JOleelillif 137 DRAFT DRAFT included, new tobacco retailers could not site within the minimum separation distance from an existing Indoor Recreational Use. The City Council requested that Indoor Recreational Uses not be included as one of the use types. Cm. Brown referred to Page 3 of 4 of the Staff Report regarding existing retailers that will be grandfathered. He asked if a grandfathered retailer wanted to move, would they be categorized as a "new" retailer. Stephen Muzio, Assistant City Attorney, responded that if an existing retailer was to move to another address then it would be considered a new retailer. He stated there is language in the Ordinance that states if an existing retailer purchased an adjacent parcel and expands the retail structure, then that would be considered an existing use. He continued that, if they moved to a separate location, they would be considered a new retailer. Chair Wehrenberg asked if the Zoning Clearance is reviewed and approved at Staff level. Ms. Aja answered yes. Chair Wehrenberg asked if there are any vacant parcels that would be affected by this Ordinance because of its proximity to a school or park. She mentioned a parcel that was rezoned recently to commercial in the eastern part of Dublin. Mr. Baker stated that a new tobacco retailer would need to meet the separation requirements which could hinder their ability to locate on a parcel. Chair Wehrenberg stated she was looking out for residents who were looking forward to having some retail /commercial in their area and felt this Ordinance could potentially prohibit it. Mr. Baker responded that the proposed Ordinance would not prohibit the retail business from opening, but it could impact their ability to sell tobacco products. Chair Wehrenberg asked if the future 7 -11 at Dublin Blvd and Regional Street will be grandfathered. Mr. Baker answered the 7 -11 would not be subject to this Ordinance and would be grandfathered. Chair Wehrenberg opened the public hearing. Janice Louie, Alameda County Public Health Dept., spoke in favor of the project. She commended the City of Dublin for proposing the Ordinance. She stated that the Public Health Department does not want new tobacco retailers to be within 1,000 feet of schools and parks and would like to see all youth oriented areas included in the 1,000 foot minimum separation requirement, but especially parks. She presented statistics about youth smoking and the easy availability of tobacco to young people. She spoke regarding small, flavored cigars and presented pictures to the Planning Commission. She urged the Planning Commission to change the definition of tobacco retailer to include all nicotine products. Tiffany Wong, tobacco decoy for various law enforcement agencies in Alameda County, spoke in favor of the project. She felt the availability and the ease of obtaining tobacco and especially 41tanning Commission Oclor)e-r 9, 2012 (kgjukaw `JOleelillif 138 DRAFT DRAFT the flavored cigars contributes to student smoking. She urged the Planning Commission to propose a 1,000 foot buffer zone at child and youth sensitive areas for new retailers to deter underage tobacco sales. Karishma Khatri, tobacco decoy for various law enforcement agencies in Alameda County, spoke in favor of the project. She stated that as a tobacco decoy she was shocked to discover that so many retailers sell to minors. She stated she has seen an increase in tobacco problems with sales to minors, not only in small stores but in larger grocery stores also. She also mentioned flavored cigars and the easy availability of tobacco in Dublin and felt that distance plays a big part in whether the young person uses tobacco or not. She understood the Commission's concerns regarding business but felt that having a 1,000 foot buffer zone around all areas where children congregate outweighs the cost. She urged the Planning Commission to act on the Ordinance. Traci Cross, Community and Youth Advocate, spoke in favor of the project. She stated she works with the teens that are in attendance. She stated that research shows that the lower prices and increased density is associated with higher populations of smokers. She felt that increasing the distance to a 1,000 foot buffer from schools and parks will decrease access that teens have to the locations, will decrease the places where teens can purchase tobacco products and decrease the amount of retailers that will sell to minors. She stated that as a past tobacco counselor she found that the more exposure teens have to the tobacco environment, the more likely they are to try cigarettes. She asked the Planning Commission to consider adopting the 1,000 foot buffer between schools, parks and other youth oriented locations to help protect teens. Chair Wehrenberg asked how she counsels teens about tobacco use. Ms. Cross answered she focused on cessation. She also received information from them regarding where they were buying the cigarettes. She works with local public health departments to identify those retailers selling to minors. She mentioned an example of a bond between a tobacco retailer and a teen and the teen knew they could get the cigarettes from that retailer. Cm. Brown asked how the 1,000 foot buffer will discourage tobacco use by teens. Ms. Cross answered it will reduce the number of retail outlets, and the fewer outlets there are the less access teens have. Cm. Brown felt it was strictly limiting the number of retailers. Ms. Cross agreed. Sonia Chen, tobacco decoy with Alameda County law enforcement agencies and Valley Christian student, spoke in favor of the project. She relayed her personal experience with her close friends who experimented with tobacco products that led them into marijuana and alcohol use. She felt that the availability and commonality of using tobacco products in teens causes many problems. She felt that establishing the 1,000 foot buffer would discourage teens from experimenting with tobacco because it would eliminate the source. 41tanning Commission Oclor)e-r 9, 2012 (kgjukaw `JOleelillif 139 DRAFT DRAFT Chair Wehrenberg asked if Valley Christian High School offers programs for smoking cessation or prevention. Ms. Chen answered from a Christian school perspective she felt there is a lack of education. She felt it is not mandated by the state that schools teach smoking prevention, even in health classes there is not very much mandated information. She felt that the Christian school board believes that most of the students are not involved in these activities. But she felt it is a problem and is directly related to the availability of tobacco products. Felicianna Marquez, Staff Member in a drug prevention program, stated she will soon be a tobacco decoy and has learned about how tobacco affects teens, and how tobacco is advertised towards teens. She mentioned the flavored cigars that are used by teens and felt that with a price point at $0.69, the fruity flavors, and the stores within walking distance from high school exacerbate the problem. She felt that more tobacco retailers in the community leads to increased teen usage. She strongly encouraged the Planning Commission to adopt a 1,000 foot buffer from schools and parks for future tobacco outlets in the proposed Ordinance. Zeeshan Raja, Graduate student of Public Health, Alameda County Public Health Department, spoke in favor of the project. He shared the findings from a survey he completed regarding the types of tobacco products that are being sold in Dublin. He asked that the Planning Commission take into consideration the 1,000 foot buffer while reviewing the Ordinance. Serena Chen, from the American Lung Association, spoke in favor of the project. She spoke regarding what types of tobacco products being sold at convenience stores. She felt that convenience stores are partnering with the tobacco industry to market to youth. She stated that the smoking rate in Dublin has been reduced because of the smoke -free laws passed by the City. She felt that those laws protect non - smokers and help smokers quit or cut down and let the youth in the city know that they care, which sends a powerful message. She stated that smoking is the #1 preventable cause of death among Dublin residents. She felt that if the retailers never sold tobacco to anyone under 23 then no one would smoke. She stated that smoking is considered a pediatric disease because if it is not caught before the age of 18 you don't catch it. She felt it is easier for someone who started smoking at an older age to quit. She spoke about the exposure of young children to tobacco and tobacco products, such as the flavored cigars. She mentioned a survey of Dublin High School students that indicated how easy it is to obtain tobacco products. She urged the Planning Commission to adopt a 1,000 foot buffer from schools and parks for future tobacco outlets in the proposed Ordinance. Chair Wehrenberg stated that when Ms. Chen attended a City Council meeting she mentioned that the American Lung Association had given Dublin a grade and asked her to share that information. Ms. Chen responded that the American Lung Association looks at the municipal codes of the cities in California and gives them a grade based on 3 categories: smoke -free outdoor areas, smoke -free housing, and controlled access to tobacco. She stated that Dublin has a "B" in outdoor area, (should be an "A" when the City Council makes all parks in Dublin smoke - free), smoke -free housing is an "A" and restricting access to tobacco is a "D." She stated that when Dublin adopts the retail license system then Dublin that will get straight A's. She felt the license fee assessed is used for enforcement. She added the grades allow cities to compare themselves with other cities. 41tanning Commission Oclor)e-r 9, 2012 (kgjukaw `JOleelillif 140 DRAFT DRAFT Clay Cox, Cox Family Stores owner, spoke in favor of the project. He stressed that his company feels strongly about not selling to minors. He stated that in approximately 100 stings they have only had one failure. He added that part of his employee training process is to check for valid ID stressing that it is not worth the sale. He added they give their employees an incentive of $100 if they pass a sting, and he can access and review video of all employees at any time from his cell phone. He stated that his company takes selling tobacco to minors very seriously. Cm. Brown commended Cox Family Stores for their stand and enforcement and for encouraging their employees. Chair Wehrenberg agreed. She asked if he felt the Ordinance is an impediment to business. Mr. Cox answered no. He agrees with the way the Ordinance is written and that grandfathering was the most important thing for his company because of his investment in his company and stated that if they were unable to sell tobacco they would not be able to stay in business. He felt the Ordinance is reasonable and fair. Chair Wehrenberg closed the public hearing. Chair Wehrenberg thanked the speakers and stated she appreciated their passion for the very serious matter of the health of Dublin citizens. Cm. Brown suggested that, in concert with the City Council's direction to make parks smoke - free, he recommended that the Ordinance include parks in the 1,000 foot buffer for new retailers. Chair Wehrenberg stated she thought that there had been some discussion by the City Council regarding this subject and wanted more information from Staff. Ms. Aja answered that the original discussions with the City Council included a 1,000 foot buffer around all areas where youth were present. She stated that this changed after their meetings with representatives of the Chamber of Commerce and other retailers. The changes included leaving the schools at 1,000 feet but change all other youth areas to 500 feet. The main reason was at 1,000 feet there are many parks in the eastern part of Dublin which would make the buffer extend past Dublin Blvd and negate any future uses such as gas stations who could sell tobacco products. She added that at the last City Council meeting in September the Ordinance was proposed to be modified to 500 feet from parks and other areas to allow for future tobacco retailers in eastern Dublin. Cm. Brown stated that he lives in east Dublin and personally felt there are plenty of opportunities for smokers to buy the product. He did not agree with the argument that a 1,000 foot buffer from parks because it would limit future retailers. Cm. Bhuthimethee stated that she is in support of the Ordinance and felt it discourages smoking. She felt the Ordinance sends a good message to youth and the community and she did not have an issue with the 500 foot buffer versus 1,000 foot buffer for parks. 41tanning Commission Oclor)e-r 9, 2012 (kgjukaw `JOleelillif 141 DRAFT DRAFT Cm. Wehrenberg agreed with Cm. Brown's concern, but felt the City Council had discussed the situation and she would defer to their decision as she did not want to impede any future retail in eastern Dublin. Cm. Bhuthimethee stated, regarding the approval process for new tobacco retailer, that she felt a CUP is more appropriate than a Zoning Clearance, because there are different types of tobacco retailers. She felt that with a Zoning Clearance, as long as the retailer meets the requirements, the Planning Commission does not review the project. Mr. Baker responded that the way the Ordinance is proposed there are clear standards. If a business meets the standards then they would be granted a Zoning Clearance; if they don't meet the standards then they would not be approved. He added, with a CUP process, that would be different in that conditions could be placed on the business and it changes from a yes or no to a "maybe we can make it fit" situation. The City Council preferred the yes or no route. Cm. Bhuthimethee stated she is in favor of a CUP rather than a Zoning Clearance for new tobacco retailers. Chair Wehrenberg stated that she was not in support of the Ordinance when she first learned of it. But since reviewing the information, she is now in support the Ordinance. She felt the Ordinance is not limiting or preventing new businesses but it provides guidelines. She encouraged Dublin schools to include tobacco use in their health education programs. Cm. Bhuthimethee agreed. Chair Wehrenberg stated she is in support of the Ordinance. She asked how the Ordinance would affect events at the parks. Ms. Aja answered that, if the Ordinance is adopted, smoking will not be permitted at any City parks, regardless if there is an event going on or not. On a motion by Cm. Bhuthimethee and seconded by Chair Wehrenberg, the Planning Commission voted 2 -1, with Cm. Brown opposed, in support of recommending City Council approval of the Ordinance. Mr. Baker explained that the Planning Commission is making a recommendation to the City Council and a recommendation requires 3 votes for the recommendation whether that recommendation is for or against approval, with or without modifications. He stated there are only 2 votes in favor of the recommendation. Chair Wehrenberg felt that Cm. Brown is in favor of the Ordinance but wants to extend the buffer to 1,000 feet for parks. Mr. Baker stated that was not the vote that was taken. He stated that there would need to be 3 votes either recommending that the City Council adopt or deny the Ordinance. He added that Cm. Brown would need to vote in favor of the Resolution and might include a recommendation for the 1,000 foot buffer. The other option is the Planning Commission could adopt Resolution recommending that the City Council review the minutes since they were not able to come to a 3 vote recommendation on the Ordinance. 41tanning Commission Oclor)e-r 9, 2012 (kgjukaw `JOleelillif 142 DRAFT DRAFT Chair Wehrenberg asked Cm. Brown if he is against Section 8.12, Zoning District and Permitted Uses of Land, and he would like to see it extended to 1,000 foot buffer. Cm. Brown suggested including the 1,000 foot buffer only in eastern Dublin because he felt it would be hard to limit it to 1,000 feet in the western part of Dublin. He suggested east of Hacienda Drive as the area to extend the 1,000 foot buffer. Cm. Bhuthimethee felt that some of the available spaces for new retailers would be along the south side of Dublin Blvd. Even with the 1,000 foot buffer it wouldn't extend past Dublin Blvd. She felt that whether it was 500 or 1,000 foot buffer new retailers would be able to open there. Cm. Brown felt that there will be other parks built in that area and that some of the housing areas yet to be developed will include parks. Ms. Aja showed a map that shows a 1,000 foot buffer around all areas where children are present. She stated that a 1,000 foot minimum buffer around parks would result in fewer opportunities for a gas station. This would impact the DiManto property on Tassajara Road and the Fallon Gateway property on Fallon Road. Gas stations at those locations would not be able to sell tobacco products if there was a 1,000 foot buffer around parks. She stated that is the reason the Ordinance was changed to 500 foot buffer. Mr. Baker asked Ms. Aja to point out on the map where the DiManto property is located. He also pointed out that the map shows the location of all future parks and school sites in eastern Dublin, except one park location which is tentative. Cm. Brown asked where future gas stations could be located. Mr. Baker answered both the DiManto property and the corner of Fallon Road and Dublin Blvd are commercially designated areas where a gas station or other commercial uses could be located. Chair Wehrenberg asked if those businesses could not be located there if the buffer is extended to 1,000 feet. Mr. Baker answered yes, tobacco retailers would be restricted. Ms. Aja stated that the way the Ordinance is written, if any part of the parcel is affected then none of the parcel would be available for retail, since the measurement is to the property line. Cm. Brown understood and asked if the Planning Commission can recommend an exception of the 1,000 foot buffer for gas stations only. Mr. Baker responded that the Planning Commission could recommend that to the City Council. He added that there are other tobacco retailers that might be excluded though. Cm. Brown asked Chair Wehrenberg for her recommendation. Chair Wehrenberg felt that the Planning Commission should recommend the Ordinance as written. She felt it was studied as to the impacts and the 500 foot buffer was sufficient. 41tanning Commission Oclor)e-r 9, 2012 (kgjukaw `JOleelillif 143 DRAFT DRAFT Cm. Bhuthimethee felt that the City Council also shared Cm. Brown's concerns because it was originally written at 1,000 feet but was changed to 500 feet after discussions. She stated she is comfortable with what is recommended. Cm. Brown asked if the map showed existing parks as well as future parks. Ms. Aja responded yes. Cm. Brown pointed out one large park and a smaller area on Fallon Road and asked how far they are from the intersection of Fallon Road and Dublin Blvd. Mr. Baker showed the map of the 500 foot buffer that shows that the buffer barely touches Dublin Blvd and Fallon Road but on the map with the 1,000 foot buffer the intersection is within the buffer area. Cm. Brown asked if a project would be able to go in at the Fallon Road /Dublin Blvd intersection. Mr. Baker answered, if the 500 foot buffer was in place then yes but, if the 1,000 foot buffer was in place they would not be allowed to locate there. He also mentioned the park that Cm. Brown pointed out on the map will be a community park that will be set up against a steep hillside and would not have direct pedestrian access to the commercial areas at the Fallon Road /Dublin Blvd intersection. Cm. Brown stated his preference is still a 1,000 foot buffer from parks, but the minutes will show his comments. He asked Chair Wehrenberg if the Commission could take another vote. Chair Wehrenberg asked to make a recommendation that the City Council reconsider a 1,000 foot buffer from parks. On a motion by Cm. Bhuthimethee and seconded by Chair Wehrenberg, on a vote of 3 -0, the Planning Commission adopted: RESOLUTION 12 -38 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE ADDING A NEW CHAPTER 8.43 AND AMENDING CHAPTERS 8.08 (DEFINITIONS), 8.12 (ZONING DISTRICTS AND PERMITTED USES) 8.30 (DOWNTOWN DUBLIN ZONING DISTRICT) AND 8.116 (ZONING CLEARANCE) TO THE DUBLIN MUNICIPAL CODE TO REGULATE THE LOCATION OF TOBACCO RETAILERS WITHIN THE CITY OF DUBLIN CITY -WIDE NEW OR UNFINISHED BUSINESS — NONE OTHER BUSINESS - NONE 41tanning Commission Oclor)e-r 9, 2012 (kgjukaw `JOleelillif 144 DRAFT DRAFT 10.1 Brief INFORMATION ONLY reports from the Planning Commission and /or Staff, including Committee Reports and Reports by the Planning Commission related to meetings attended at City Expense (AB 1234). 10.2 Mr. Baker reminded the Commission that there will be a Study Session at 6:00 pm on October 30, 2012 regarding Design Guidelines in the Commercial and Industrial areas outside of specific plan boundaries. ADJOURNMENT — The meeting was adjourned at 8:36:13 PM Respectfully submitted, Doreen Wehrenberg Planning Commission Chair ATTEST: Jeff Baker Assistant Community Development Director G:IMINUTESI201ZPLANNING COMMISSIOM10.09.12 DRAFT PC MINUTES. docx 41 tanning inn Coaaaaaaissio n Odor) 9, 01 (kgjukaw `Alle lilllif 145 RESOLUTION 12 -38 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE ADDING A NEW CHAPTER 8.43 AND AMENDING CHAPTERS 8.08 (DEFINITIONS), 8.12 (ZONING DISTRICTS AND PERMITTED USES OF LAND), 8.30 (DOWNTOWN DUBLIN ZONING DISTRICT) AND 8.116 (ZONING CLEARANCE) TO THE DUBLIN MUNICIPAL CODE TO REGULATE THE LOCATION OF TOBACCO RETAILERS WITHIN THE CITY OF DUBLIN CITY -WIDE WHEREAS, studies show that tobacco use among our youth continues to rise with a particular impact among our high school students; and WHEREAS, although it is unlawful to sell tobacco products and /or tobacco paraphernalia to minors, studies have shown that more than 900 million packs of cigarettes are consumed by minors 12 to 17 years of age each year; and WHEREAS, in the City of Dublin over the past 14 year period there has been a 9% sales rate to minors during sting operations; and WHEREAS, the City of Dublin has a substantial interest in discouraging the purchase of tobacco products by minors, and protecting children from being lured into illegal activity through the misconduct of adults; and WHEREAS, the California Constitution, Article XI, section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, and welfare of their citizens; and WHEREAS, zoning regulations are necessary to control the location and operation of the sale or exchange of tobacco products and /or tobacco paraphernalia for the protection of public health, safety and welfare; and WHEREAS, the California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared; and WHEREAS, pursuant to the CEQA, Staff is recommending that the proposed Ordinance be found exempt from CEQA per CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of the proposed Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the construction of any building or structure, but it sets forth the regulations that shall be followed if and when a building or structure is proposed to be constructed or a site is proposed to be developed. This Ordinance of itself, therefore, has no potential for resulting in significant physical change in the environment, directly or ultimately; and 1 WHEREAS, a Staff Report was submitted to the City of Dublin Planning Commission recommending City Council approval of the proposed Zoning Ordinance Amendments; and WHEREAS, the Planning Commission held a public hearing on said application on October 9, 2012; and WHEREAS, proper notice of said hearing was given in all respects as required by law; and WHEREAS, the Planning Commission did hear and consider all said reports, recommendations and testimony herein above set forth and used its independent judgment to evaluate the project. NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council adopt the Ordinance attached hereto as Exhibit A. PASSED, APPROVED AND ADOPTED this 9t" day of October 2012 by the following vote: AYES: Wehrenberg, Brown, Bhuthimethee NOES: ABSENT: Schaub, O'Keefe ABSTAIN: Planning Commission Chair ATTEST: Assistant Community Development Director 2 AGENDA STATEMENT PARKS AND COMMUNITY SERVICES COMMISSION MEETING DATE: October 15, 2012 SUBJECT: Expansion of Smoking Prohibition tmCommunity Parks Report Prepared by Roger Bradley, Assistant bo the City Manager ATTACHMENTS: Draft Ordinance amending Dublin Municipal Code Chapter 5.56 — Smoking Pollution Control RECOMMENDATION: Provide recommendations to the City Council regarding the proposed smoking prohibition within Community Parks. FINANCIAL STATEMENT: None DESCRIPTION: At the City Council Meeting on September 18, 2012, the City Council directed Staff to prepare an ordinance amendment for augmenting the City's Smoking Pollution Control pD|iCi8S and n2gU|8tiDnS. AS part of this direction, Staff was to include an expansion of the present prohibition of smoking within 100 feet of r8Cn28tiDn8| 8n28S within Community Parks, making Community Parks consistent with the total smoking prohibition within Neighborhood Parks and SqU8n2S. Current Law Smoking is prohibited within Neighborhood Parks and SqU8n2S. Additionally, smoking is prohibited within 100 feet of n2Cn28tiDn8| 8n28S within Community Parks, which inC|Ud8S play 8r88S, playgrounds, picnic areas, sports fields and courts, etc. Community Parks include Emerald Glen Park Fallon Sports Park, Dublin Swim Center, Dublin Heritage Center, Dougherty Hills Dog Park, Dublin Sports Grounds, and Shannon Park. Proposed Law Under the provisions of the draft Ordinance, SrnDNng vvDU|d be prohibited in totality within all City of Dublin parks. RECOMMENDATION: Staff recommends that the Parks and Cornrnunhv Services Commission provide n2CDmomo8nd8tiDnS to the City Council regarding the pn}pDS8d smoking prohibition within Community Parks. COPIES TO: ITEM NO': 8'1 G:\PARKS COMM ISSION\AGNDSTMT\2012\1 0-15 Item 8.1 Park Smoking Ban.doc PARKS AND COMMUNITY SERVICES COMMISSION REGULAR MEETING Draft Minutes CITY OF DUBLIN October 15, 2012 The October 15, 2012 Regular Meeting of the Parks & Community Services Commission was called to order at 6:59 PM at the Dublin Civic Center, Dublin, California, by Chair A.Elias. PLEDGE OF ALLEGIANCE Chair A.Elias led the Pledge of Allegiance. ROLL CALL Commissioners (Cm.) Present Commissioner Absent: ORAL COMMUNICATIONS T.Elias, Jones, Mack, A.Elias Boboc, Totaro 3.1 BRIEF INFORMATIONAL ONLY REPORTS FROM SENIOR CENTER AND YOUTH ADVISORY COMMITTEES Senior Center Advisory Committee Cm. Mack reported that the Senior Center is accepting donations of coffee cups and tea pots for the Senior Center's complimentary coffee and tea program. She further reported that daily drop in fee for the Tri- Valley Trail Trekkers activity can now be purchased as pre -paid tickets. She informed the Commission of upcoming Senior Center events. Youth Advisory Committee Cm. T.Elias reported that he was not in attendance at the last meeting; however, the Advisory Committee is in the process of setting up subcommittees for participation in the various City events throughout the year. 3.2 PUBLIC COMMENTS Mr. Frank Abajian, President of San Ramon Raptor Lacrosse Club, discussed his interest in partnering with the City to start a Lacrosse program in Dublin. Mr. McCreary stated that Staff would contact him to further discuss the idea. APPROVAL OF MINUTES 4.1 September 17, 2012 On a motion by Cm. Mack seconded by Cm. Jones, and with a vote of 4 -2 -0 with Vice Chair Totaro and Cm. Boboc absent, the Commission voted to approve the minutes of September 17, 2012 as presented. WRITTEN COMMUNICATIONS— None PUBLIC HEARING — None P &CSC Meeting Minutes Draft — October 15, 2012 — Page 2 of 3 UNFINISHED BUSINESS— None NEW BUSINESS 8.1 Expansion of Smoking Prohibition to Community Parks Mr. Roger Bradley, Assistant to the City Manger, presented the specifics of the item as outlined in the Staff Report. Chair A.Elias asked about enforcement of the ordinance. Mr. Bradley stated that it is expected that peer - pressure, supported by adequate signage, would assist in enforcement of the ordinance. The Commissioners responded favorably and had no further questions. On a motion by Cm. Jones, seconded by Cm. T.Elias, and by a vote of 4 -2 -0 with Vice Chair Totaro and Cm. Boboc absent, the Commission voted to recommend to the City Council approval of the proposed smoking prohibition within Community Parks as presented. 8.2 Shannon Park Water Play Area — Public Design Workshop Ms. Rosemary Alex, Parks and Facilities Development Coordinator, presented the specifics of the item as outlined in the Staff Report. Mr. Brian Fletcher and Mr. Dave Rubin, with Callander Associates Landscape Architecture, presented further details of item. Cm. Mack asked about the capacity of the water play area. Mr. Fletcher stated that capacity is generally met when it reaches about 20 children. Chair A.Elias asked about the size of the water play area in comparison to the water play area at Emerald Glen Park. Mr. Paul McCreary, Parks and Community Services Director, stated that the water play area at Shannon Park is about 1,000 - 1,500 square feet and the water play area at Emerald Glen Park is between 3,000 - 4,000 square feet. Cm. Jones stated that he is in favor of Preliminary Design Alternative — Concept 2. Chair A.Elias asked about the floor surface of the water play area. Mr. Rubin stated that the surface area would be decorative, non -slip concrete. He explained that rubber surfaces are not recommended as they do not hold up well over time. Chair A.Elias asked about the water system for the play area. Mr. Rubin explained that the recommended water system is re- circulated chlorine- treated water with a holding tank. Chair A.Elias asked about the long term effects of Dublin's mineral -rich water combined with the chlorine on the water play area equipment. Mr. Rubin stated that interchangeable nozzles could be installed which provide for replacements should build -up occur. P &CSC Meeting Minutes Draft — October 15, 2012 — Page 3 of 3 Cm. Mack asked about maintenance costs for the park. Mr. McCreary stated that it is anticipated future maintenance costs would be comparable to the current maintenance costs. Cm. T.Elias stated that he prefers Preliminary Design Alternative — Concept 2. Cm. Mack stated that she likes Preliminary Design Alternative — Concept 2; however, she would like to see some elements of Concept 3 combined with Concept 2. Cm. Jones reiterated that he is in favor of Preliminary Design Alternative — Concept 2. Chair A.Elias stated that he prefers Preliminary Design Alternative — Concept 2. On a motion from Cm. Jones, seconded by Cm. Mack, and by a vote of 4 -2 -0 with Vice Chair Totaro and Cm. Boboc absent, the Commission voted to recommend to the City Council approval of Preliminary Design Alternative — Concept 2. OTHER BUSINESS 9.1 BRIEF INFORMATION ONLY REPORTS FROM PARKS & COMMUNITY SERVICES COMMISSIONERS AND /OR STAFF Cm. Jones reported that he attended the "splatter" Festival. He stated that he would not be able to attend the Tri- Valley Commissioners' and Board Members' Dinner. Cm. Mack reported that she attended the "splatter" Festival. She informed the Commission of the Hometown Heroes event at the Senior Center on November 3, 2012. Cm. T.Elias reported that he participated in the Dublin High School Homecoming events. Chair A.Elias reported that he attended the "splatter" Festival. Mr. McCreary provided program and project updates. ADJOURNMENT Being no further business, the meeting adjourned at7:46 PM. Respectfully submitted, Rhonda Franklin Administrative Aide APPROVED: Chairperson October 31, 2012 Caroline Soto Dublin City Cleric 100 Civic Plaza Dublin, CA 94568 RE: Tobacco Regulations Dear Cleric Soto: I am submitting this letter as the legal counsel for the National Association of Tobacco Outlets, Inc. (NATO), a national retail tobacco trade association, regarding possible tobacco regulations that are scheduled to be considered by the Dublin City Council on Tuesday, November 6th. The proposed ordinance provisions contain restrictions and requirements that will have a direct, negative impact on NATO retail members that operate stores in Dublin as well as all other retailers that sell tobacco products. My purpose in writing is to request that the Dublin City Council consider the consequences that such tobacco restrictions will have on retail stores in the city and either choose not to adopt the restrictions or postpone adoption of those provisions. Business Environment The City of Dublin's website makes statements about the business - friendly environment which exists within the city's borders. These statements include the following: "Since the City's incorporation in 1982, the City's population has progressively increased as both residents and businesses found the benefits of calling Dublin home." "The City of Dublin has made economic development a top priority. To that end, the City has developed a number of incentives to assist in the attraction of new business." While an actual tobacco ordinance draft has not been released by the City of Dublin, the city staff have compiled outlines of two alternative tobacco ordinances both of which contain provisions that will create a very negative business environment for retailers that sell legal tobacco products and be contrary to the public statements on the city's website. Distance Restrictions Both ordinance alternatives as outlined by city staff have provisions that would require retail stores selling tobacco products to be located either 500 feet or 1,000 feet from areas where children are present and tobacco -only stores would need to be a located a minimum of 1,000 feet from another tobacco -only store. A brief review of the color maps prepared by city staff with concentric circle shaded areas where retail stores would be prohibited shows that very few, if any, new stores could be opened in the future in Dublin. That would create an anti - retail environment, especially for those retailers currently located in Dublin that may want to consider opening another location within the city. Fine and Revocation Penalties The two ordinance alternatives provide for (1) tobacco license revocation penalties with increasing revocation time periods on each successive violation beginning with a 30 day revocation and increasing to a one year revocation period, (2) a warning on the first violation followed by increasing revocation penalties on each successive violation, or (3) a warning followed by fines starting at $1,000 for the second violation and quintupling to $5,000 and a seven day license revocation on a third violation. To understand the impact of these alternative penalties on retailers, it is important to know that about 40% of in -store sales at convenience stores come from the sale of tobacco products and virtually all sales at tobacco -only stores involve tobacco products. This means that a revocation for any length of time will have a severe negative impact on store sales. A second or third violation would jeopardize the ability of a convenience store retailer to stay in business given a potential 40% loss in sales while literally forcing a tobacco store retailer to close its doors and go out of business immediately. To protect the ability of retailers to remain in business, I ask that the city council consider providing a warning on the first violation while also reducing license revocation periods and /or fines to more reasonable levels on subsequent violations. As written, a store clerk who makes an honest mistake and violates the ordinance may inadvertently cause a retailer to go out of business. The purpose of a licensing ordinance should not be to penalize retail businesses to the point of being forced to close, but rather foster efforts to comply with the law. I ask the city council to give careful consideration to revising the penalty provisions of the alternative ordinance proposals. Ban on Flavored Cigars Earlier this year, the Providence, Rhode Island city council adopted an ordinance banning the sale of flavored tobacco products. In response, NATO, the Cigar Association of America, and seven tobacco manufacturers have filed a lawsuit in federal district court against the City of Providence because the ban violates constitutional protections afforded to legal products. Since it contains similar language banning the sale of legal flavored cigars, the Dublin ordinance alternatives are legally actionable as demonstrated by the pending federal lawsuit that the City of Providence is now defending. For your reference and the reference of the city council members, I am sending with this letter a copy of the Providence lawsuit complaint filed in Federal District Court in Rhode Island. Are the council members who may support this prohibition -style ordinance ready to defend a similar lawsuit? Moreover, it is important to remember that California law already makes it illegal for retailers to sell any kind of tobacco product, including flavored cigars, to an individual under the age of 18. Retailers are not in the business of selling tobacco products to minors and they take the responsibility of preventing the sale of tobacco products to underage youth very seriously. For this reason, there is no need to single out flavored cigars for a ban and make these products unavailable to adult customers. Such a ban will only cause adults to travel to nearby cities and towns to purchase their preferred flavored cigars. In addition, these customers would then purchase gasoline, snacks and other items at the same time magnifying the loss of business by Dublin retailers. FDA Tobacco Regulations Make Ordinance Premature When Congress passed a law in 2009 giving the Food and Drug Administration the authority to regulate tobacco products, the sale of flavored cigarettes was banned. In addition, this federal law gave the FDA the authority to regulate other tobacco products, including cigars and pipe tobacco. With the FDA recently announcing that the agency will be issuing regulations in the near future covering other tobacco products, the Dublin ordinance proposal is premature and the city council members should allow the FDA to complete its regulatory process before enforcing a total ban on the sale of flavored cigars that may be superseded by, or conflict with, soon to be released federal regulations. With the potential for an anti - retail business environment, the inability for few, if any, new retail stores selling tobacco to be opened, the likelihood of convenience stores and tobacco stores going out of business because of excessive license revocation periods and high fines, the possibility of litigation if a ban on the sale of flavored cigars is adopted, and the soon to be announced FDA tobacco product regulations, I ask that the Dublin City Council seriously consider either not adopting or postponing the adoption of a tobacco regulatory ordinance until the federal litigation regarding the Providence ordinance comes to a final resolution and the FDA issues its proposed tobacco regulations. I would appreciate a reply from the city council or perhaps the city attorney regarding the issues I raise in this correspondence. I look forward to your response. Sincerely, Thomas A. Briant Executive Director and Legal Counsel Copy To: Mayor and City Council Members City Manager Joni Pattilo