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4/24/2015 1 DRAFT TOBACCO RETAILER LICENSE ORDINANCE El Cerrito Planning Commission El Cerrito Planning Commission April 15, 2015 Tobacco Use is an Urgent Health Matter Tobacco use remains the leading cause of preventable death and disease in the USA Tobacco use kills nearly 40,000 Californians annually Most adult smokers started to use tobacco before age 18 Most adult smokers started to use tobacco before age 18 In recent years here has been an increase in e-cigarette and hookah use among youth Annual Deaths Attributable to Cigarette Smoking—United States, 2005–2009 een.smokefree.gov ral’s Report 2012 Infographic from te on Surgeon Gene Tobacco Use at El Cerrito High School Reported in the 2013-14 California Healthy Kids Survey 9th 10th 11th 12th Ever used an E-cigarette or other NND 17% 22% 21% 19% Used an E-cigarette or other 9% 9% 5% 6% NND in last month Ever smoked a whole cigarette 8% 11% 13% 16% Smoked a whole cigarette in last month 5% 2% 4% 3% Ever used Smokeless tobacco 3% 4% 4% 5% Used Smokeless tobacco in last month 1% 1% 2% 1% ---PAGE BREAK--- 4/24/2015 2 Flavored Tobacco Products U.S. Food and Drug Administration and the U.S. Surgeon General have stated that flavored tobacco products are considered to be “starter” products that help establish smoking habits that can lead to long-term addiction Appealing to o th beca se of their sweet fla ors and bright Appealing to youth because of their sweet flavors and bright packaging Low cost compared to a pack of cigarettes Flavored Tobacco Products Federal law enacted in 2009 prohibits candy and fruit- flavored cigarettes, largely because these flavored products were marketed to youth and young adults, and younger smokers were more likely to have tried these products than older smokers However, neither federal nor California laws restrict sales of flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, and electronic smoking devices and the nicotine solutions used in these devices El Cerrito Strategic Plan Goal E: Ensure the Public’s Health and Safety Strategy: Explore innovative and best practices for promoting public health smoking ordinances, nutrition, and obesity prevention) El Cerrito Report Card American Lung Association’s report examines 3 categories: 1. Smokefree Outdoor Air = F to A 2. Smokefree Housing = F to A 3. Reducing Sales of Tobacco Products = currently F 60% of California municipalities received F grades Only 13 CA cities/counties received A grades Including Richmond, Berkeley, Dublin, Union City, Marin County, San Rafael Contra Costa County & Albany = B May 2014: Council Study Session 1. Directed staff to draft a strong, comprehensive Smoke Pollution Protection Ordinance to regulate smoking within the City limits & 2. Establish local Tobacco Retailers License; Use portion of revenue from Tobacco Retailer License to fund enforcement of sales restrictions & 3. Consider raising the purchase age to 21 years ---PAGE BREAK--- 4/24/2015 3 Smoking Pollution Protection Ordinance Passed in 2014 Jan. 2015: Smoke Free Parks, Open Space , Public Places (incl. sidewalks) and Commercial Areas Oct. 2015 Smoke Free Multi-unit Housing & Common Areas Minimum Legal Sale Age (MLSA) The federal nationwide minimum age for legal cigarette and smokeless tobacco sales is 18 years of age. At this time, the City is not considering raising MLSA for the purchase tobacco products and e-cigarettes to 21. Tobacco Retailer License Program Goals Primary goals: 1. Ensure responsible, legal sales of tobacco related products 2. Prevent initiation of tobacco use among youth and young adults adults 3. Fund a local enforcement program for compliance monitoring 4. Close gaps in Federal and State laws that do not yet address electronic cigarettes or electronic nicotine delivery systems and other products marketed to youth Regulating the Sale of Tobacco Limiting where tobacco is sold can curtail youth access to tobacco products and combat social perceptions that tobacco use is normal or acceptable Density of tobacco retailers, particularly near schools, has been associated with the prevalence of students reporting experimental smoking and increased youth smoking rates A 2013 review of 33 California communities with strong tobacco retailer licensing ordinances shows that the youth sales rate declined in 31 of these communities after the ordinances were enacted Current Zoning Regulations ECMC19.20.210 Tobacco sales Retail establishments deriving 50% or more of gross sale receipts from the sale or exchange of tobacco related products shall be located, developed, and operated in compliance with the following standards: A. Location. 1. Minimum distance from a residential district boundary: 500 feet. 2 Mi i di f h T b S l 1 000 f 2. Minimum distance from other Tobacco Sales: 1,000 feet. 3. Minimum distance from educational, religious, or cultural institutions and public parks: 500 feet. B. Maximum Size. The maximum floor area that may be occupied by a Tobacco Sales use is 5,000 square feet. Additional floor area requires approval of a Conditional Use Permit. C. Hours of Operation. 8:00 a.m. to 10:00 p.m., seven days a week. D. Litter. One permanent, non-flammable trash receptacle shall be installed and monitored in a clean and orderly fashion in the parking area adjacent to the entrance/exit. E. Exceptions. Exceptions to this Section shall require a Conditional Use Permit. (Ord. 2008-2 Div. II (part), 2008.) Current Zoning Regulations Zoning Code Table 19.07-A Neighborhood Community Transit- Neighborhood Commercial Community Commercial Oriented Mixed-Use Tobacco Sales CUP AUP AUP ---PAGE BREAK--- 4/24/2015 4 Note: 21 retailers shown on map but both CVS stores and Blue Moon Saloon are included in the count and appear on this map as well as other graphics in this presentation but no longer sell tobacco. Current Tobacco Retailers by Store Type Red: retail shop, food service, convenience store Blue: Gas Station Green: Grocery Store or Drugstore over 10,000’ Yellow: Liquor Store Purple: tobacco shop Light Blue: no longer sells tobacco Orange: Private Club Proposed Retailer License For any retailer who offers tobacco and related products: Require any tobacco retailer to obtain a local retailer license annually Collect annual fee for license to be set by Council at a rate sufficient to cover the cost to administer the license as well as a “youth decoy” enforcement program Propose New Definition of Tobacco Retailer Tobacco Retailer – Any person or business that sells tobacco, tobacco products, electronic smoking devices, smoking paraphernalia, or any combination thereof, including retail or wholesale sales. “tobacco retailing” shall mean the doing of f th thi Thi d fi iti i ith t d t th any of these things. This definition is without regard to the quantity of tobacco, tobacco products or smoking paraphernalia sold, offers for sale, exchanged, or offered for exchange. There are currently 18 tobacco retailers in El Cerrito. Proposed Business Standards As proposed, the Ordinance would require any tobacco retailer to comply with the following standards: Prohibit sale of flavored non-cigarette tobacco products Any tobacco product (other than cigarettes as defined by federal law) that contains a constituent that imparts a characterizing flavor. This includes cigars, little cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, and electronic cigarettes or electronic smoking devices containing nicotine Proposed Business Standards Continued… Prohibit sale of single cigars, small-pack cigars Exception: single cigars priced over $5 each Exception: single cigars priced over $5 each Prohibit self-service displays of tobacco products Prohibit employees younger than the MLSA from selling tobacco products Prohibit distribution of tobacco samples & coupons Proposed Business Standards Continued… Existing tobacco retailers would have 24 months to comply with new business standards New businesses that open after the Ordinance is adopted would need to comply right away ---PAGE BREAK--- 4/24/2015 5 Considerations for Existing Retailers Existing tobacco retailers have 24 months from adoption of this ordinance to comply with: Minimum Age for Persons Selling Tobacco Self-Service Displays Prohibited Flavored Tobacco Products Prohibited Single and Small-Pack Cigars Prohibited Original Labeling and Packaging Existing retailers must comply with all other business standards upon effective date. Considerations for Existing Retailers To encourage compliance in a timely manner…. 50% fee reduction in 2015 for existing retailers in full compliance at the time of initial application for license 25% fee reduction in 2015 for existing retailers in full compliance at the time of initial application for license Prohibited Business Types As proposed, the ordinance will prohibit these business types from opening in El Cerrito: Cigar Lounge, Hookah Lounge, Vape Shop New Significant Tobacco Retailer (STR) Propose New Definition of Significant Tobacco Retailer Significant Tobacco Retailer (STR) - Any tobacco retailer for which the principal or core business is selling tobacco products, Smoking Paraphernalia, or both, as evidenced by any one of the following: Self-disclosure 20% or more of display area is devoted to tobacco products &/or smoking paraphernalia 50% or more of gross sales receipts are derived from tobacco products or smoking paraphernalia Existing Significant Tobacco Retailers Staff estimates there are two apparent Significant Tobacco Retailers in El Cerrito. Existing STL will have to apply for exception to continue to devote the same amount of display area and/or receive up to the same percent of gross sales receipts from tobacco products. Exception can be revoked by the City if: Tobacco retailer license is not obtained in a timely manner Retailer closes for more than 60 consecutive days, or substantially changes the business premises/operation Retailer receive three or more citations for any reason within a five year period New Separation Requirements As proposed, the ordinance will establish new separation requirements (buffer distance) between tobacco retailers and: Schools – 500’ Parks – 500’ (excluding the Ohlone Greenway & “pocket parks”) Other tobacco retailers – 1,000’ Exception: Allow new business to apply for exception to the store-to-store buffer Current retailers will be exempt from the separation requirements. ---PAGE BREAK--- 4/24/2015 6 Current ZO for STR Current ZO for any TR Distance From Proposed for any new TR 500’ - schools 500’ 500’ - residential districts - Summary of Proposed Separation Changes 500’ - parks 500’ 500’ - cultural or religious institution - 1,000’ - other STL - - - any tobacco retailer 1,000’ y Proximity to Schools, Sites (2014) Stores Selling Tobacco by Parks & Youth Sensitive S Proposed Changes to ECMC Repeal Section 19.20.210 (“Tobacco Sales”) Add new Chapter 6.100 (“Tobacco Retailer License Program”) to Title 6 (“Business Permits and Regulations”) Amend Table 19.07-A to reflect changes Remove “tobacco product manufacturing” from the list of allowed land uses in the “Industry, Medium” zoned areas. (Section 19.46.060 of the ECMC) Inter-Departmental Effort to Implement Dept. Role City Manager’s Office Oversee implementation of the program; Public outreach Finance Collect license fee and issue new/renewal C / Tobacco Retailer Licenses Comm. Dev. Transition of existing tobacco retailer to new regulations. Consider use permit applications and issue use permits, conduct periodic inspections of tobacco retailer establishments and respond to municipal code complaints Police Develop decoy program & conduct annual decoy operations Proposed Timeline Summer/Fall 2015: Outreach/education By December 1, 2015: All tobacco retailers required to have tobacco retailer license 50% fee reduction for existing retailers in full compliance Existing STR must apply for exception if intend to maintain existing level of sales/display area By June 30, 2016: Tobacco retailer license renewal due 25% fee reduction for existing retailers in full compliance By December 1, 2017: All tobacco retailers must be in full compliance Public Process to Date Fall 2014: Current retailers surveyed about tobacco sales and notified of Planning Commission meetings Oct. & Nov. 2014: Planning Commission meetings Jan. 2015: City Council study session; provided direction to staff Feb. 2015: Informational presentation to Chamber of Commerce March 2015: Informational presentation to Economic Development Committee meeting On April 9, 2015, staff posted the proposed ordinance online Received numerous written comments for tonight’s hearing ---PAGE BREAK--- 4/24/2015 7 Neighboring Cities: Albany TRL STR (75% or more of gross sales receipts) allowed with a Use Permit in the following Zones: Solano Commercial, San Pablo Commercial, Commercial Mixed Use STR prohibited within 500' of schools, library, pre-schools, community centers or parks; 75' of any residentially zoned community centers or parks; 75 of any residentially zoned parcel; 25' of a any residential entrance, including Multi- family housing. Allows sale of flavored products and single/small pack cigars Requires minimum age for clerks Neighboring Cities: Richmond TRL Only allows tobacco sales auto service stations, convenience store, grocery store or supermarket Prohibits STR: Tobacco sales cannot be more than 10% of sales or product display area; P hibit d t f lli t b d t Prohibits drugstores from selling tobacco products Allows sale of flavored products and single/small pack cigars Requires minimum age for clerks Neighboring Cities: Berkeley TRL CURRENT: Tobacco sales require use permit New tobacco retailers prohibited from locating within 1,400 feet of schools and parks P hibi d f lli b d Prohibits drugstores from selling tobacco products Allows sale of flavored products and single/small pack cigars No minimum age for clerks PROPOSED CHANGES BEING DISCUSSED: Prohibit sale of all tobacco products (including e-cigarettes) within 1,000’ of K-12 schools & public parks within 2 years Exemptions for Current Businesses in Neighboring Cities: Richmond & Berkeley: No exemption for Pharmacies. No license renewal for a pharmacy. (One year grace period) Richmond: Location based exemption for current business; not extended upon the change of business ownership. Berkeley: Proposed ordinance would allow existing retailers within the buffer zone to apply for one-time license or renewal (1 -2 years only) to sell current inventory, adjust their business plans or relocate their businesses. (Not adopted yet) Next Steps Planning Commission Public Hearing Tonight Receive Public Comments Commission make recommendation on Zoning Code Changes City Council Consideration in Spring Hear Public Comments Consider adopting Ordinance (2 readings) Implementation