Document elcerrito_gov_doc_d1ebcdaa12

DRAFT AGENDA BILL Agenda Item No. 7(A) Date: January 20, 2015 To: El Cerrito City Council From: Suzanne Iarla, Community Outreach Specialist Margaret Development Services Subject: Tobacco Retail Regulation Study Session ACTION REQUESTED Convene a study session and provide direction to staff regarding the development of a tobacco retailer license program in El Cerrito, particularly regarding the separation requirements for tobacco retailers and the option to provide some exemptions for existing retailers. BACKGROUND Tobacco use continues to be an urgent public health matter. Tobacco use is the number one preventable cause of death and disease in California, killing nearly 40,000 Californians every year. Typically, tobacco use is initiated and established during adolescence and the Centers for Disease Control and Prevention (CDC) reports that each day in the United States, more than 3,200 people younger than 18 years of age smoke their first cigarette. Although cigarette smoking among middle school and high school youth declined between 2000 and 2011, there has been an increase in electronic cigarette use and hookah use among youth in recent years. On October 7, 2014, the City Council approved a comprehensive Smoking Pollution Protection Ordinance (ECMC 2014-05) that requires 100% smoke free public places, commercial areas, and multi-unit residences within the City of El Cerrito. During the Council study session on May 20, 2014 about the Smoking Pollution Protection ordinance, staff was directed to also develop an ordinance to address regulating the sales of tobacco by businesses in El Cerrito and research raising the minimum legal sale age (“MLSA”) for the purchase of tobacco products and electronic cigarettes to 21 years old. Minimum Legal Sale Age (MLSA) The federal nationwide minimum age to purchase cigarette and smokeless tobacco is 18 years of age. In researching the matter, the City Attorney’s office found that cities in California are preempted under State law (Penal Code section 308) from raising the MLSA. California cities may regulate some details about the manner of the sales, and revoke a license if the business sells to a minor, but California cities cannot raise the MLSA. CURRENT CONDITIONS IN EL CERRITO Studies have shown that limiting where tobacco is sold can curtail youth access to tobacco products, target enforcement of the licensing provisions, and combat social perceptions that tobacco use is normal or acceptable. Requiring a local tobacco retailer license generally increases compliance rates of tobacco sales laws and provides revenue to cover administration of license and enforcement efforts. ---PAGE BREAK--- Agenda Item No. 7(A) Page 2 The Contra Costa Tobacco Prevention Coalition (“Coalition”), American Lung Association and the American Cancer Society (“ACS”) have all encouraged the City to establish a tobacco retailer license with an annual licensing fee that is high enough to fund effective enforcement programs that include compliance checks and to cover the actual costs of administering and enforcing the license requirements. Currently, there are 18 tobacco retailers in El Cerrito, including two retailers whose apparent core business is the sale of tobacco products. See attachment 2 for a map of existing tobacco retailers in El Cerrito. The City’s zoning code currently provides some land use regulations and standards regarding the sale of tobacco by some tobacco retailers but does not require a tobacco retailer license (See ECMC 19.20.210). The current restrictions will be discussed in more detail later in this report. The City already requires businesses to obtain a business license annually, and certain business types are required to obtain an additional license or permit, such as a Taxicab permit, Peddler/Solicitors Permit, Firearms Retailer Permit, etc. The City does not currently inquire if a retailer sells tobacco or tobacco products and does not currently require a tobacco retailer license. American Lung Association’s State of Tobacco Control Report The ALA annually issues their “State of Tobacco Control-California” report that includes grades for all 482 cities and 58 counties in California on policies for smokefree outdoor air, smoke free housing, and reducing sales of tobacco products. When grading communities on tobacco sales, the ALA looks at tobacco retailer license policies that include the following provisions: Require tobacco retailers to pay an annual fee that sufficiently covers administration and enforcement efforts, including compliance checks; Requirement that all retailers obtain a license to sell tobacco and renew it annually; Provision that any violation of a local, state or federal tobacco law is considered a violation of the license; Financial deterrent through fines and penalties for violations that includes suspension and revocation of the license. Bonus points are given for policies that: • Prohibit retailers near schools and/or parks • Prohibit sales at some pharmacies • Prohibit sampling or nominal cost distribution of tobacco products El Cerrito has received an grade while the neighboring communities of Berkeley, Alameda, Richmond and unincorporated Contra Costa County (including Kensington) all received an grade in 2014. See attachment 3. ORDINANCE DEVELOPMENT PROCESS TO DATE Over the past few months, staff from the City Manager’s Office, Community Development and the Police Department have met multiple times regarding development of a tobacco retailer license program. Staff has researched best practices in other communities as well as researched ---PAGE BREAK--- Agenda Item No. 7(A) Page 3 the location and business type of current tobacco retailers in El Cerrito, worked with the Coalition and ChangeLab Solutions (a national, nonpartisan nonprofit), solicited comments from the public and received input from the Planning Commission, the ALA, and the ACS. All current tobacco retailers were sent a brief survey. Members of the public who commented on the Smoking Pollution Protection ordinance were informed about the Planning Commission meetings. The Planning Commission held a study session (October 2014) and opened a public hearing (November 2014). The Commission accepted public comment and provided input to staff regarding certain aspects of the level and type of regulations on tobacco sales that would be appropriate for a tobacco retailer license program in El Cerrito. (See attachment Among the Commissioners, there was discussion and general consensus on pursuing a local tobacco retailer license, prohibiting the sale of flavored non-cigarette tobacco products (including e-cigarettes and other electronic nicotine delivery devices, or “eNDDs”), prohibiting vap shops, hookah lounges, and similar business types, establishing some point-of-sale limits to reduce youth access to tobacco, allowing some “grace period” for existing retailers to come into compliance, and establishing a buffer distance around schools to prohibit new retailers from opening in close proximity to schools. The Commission also discussed, but did not come to consensus on a number of factors: • The specific size of the buffer around schools • Density of retailers (number of tobacco retailers in any one area) • Prohibition of new significant tobacco retailers • Length of “grace period” for existing tobacco retailers to come into compliance Many interested members of the public commented to the Planning Commission they were in support of additional restrictions to be put in place to discourage the sale of tobacco to minors. However, one local tobacco retailer questioned if any restrictions put in place by El Cerrito would be effective if Richmond did not also establish the same regulations along San Pablo Avenue. Both staff and the Planning Commission desire more guidance from the City Council before the Commission is asked to consider making a recommendation to the Council about possible zoning code changes related to a tobacco retailer license ordinance. OVERVIEW OF PROPOSED TOBACCO RETAILER LICENSE PROGRAM Based on direction from the City Council, staff has been working on developing a proposed local licensing system for tobacco retailers to achieve the following goals: 1. Ensure responsible, legal sales of tobacco related products; 2. Ensure that minors are not encouraged to use tobacco; 3. Fund a local enforcement program for compliance monitoring; and 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 ---PAGE BREAK--- Agenda Item No. 7(A) Page 4 If the program is established, it is anticipated that multiple City Departments will be involved in carrying out the program: • City Manager’s Office - oversee implementation of the program • Finance Department - collect license fee and issue new/renewal Tobacco Retailer Licenses • Community Development Department - the planning and building division will review development/use applications to ensure compliance with the municipal code; conduct annual inspections of tobacco retailer establishments; and respond to municipal code complaints and violations • Police Department - conduct annual decoy operations to detect tobacco sales to minors. The program would likely be modeled after the youth decoy program used to detect alcohol sales to minors At the Planning Commission, there was general consensus about establishing provisions that may help further reduce the initiation of tobacco use among young people. Currently, staff is drafting an ordinance that will include the following programmatic elements: • Require every tobacco retailer to have a city tobacco retailer license. • License Fee set at an appropriate rate to fund effective programs that include compliance checks, and to cover the actual costs of administering and enforcing the license requirements. • Prohibit the sale of flavored tobacco products1 (other than cigarettes) and single and small-pack cigars, except for single cigars priced over $5 each. • Prohibit tobacco retailing (including e-cigarettes & tobacco paraphernalia) by means of a self-service display. • Prohibit employees younger than the MLSA from selling tobacco products. • Ban mobile sales. • Prohibit the distribution of samples of tobacco and tobacco-related products (including eNDDs) and coupons. • Enforce remedies for violations through the City’s Administrative Penalties procedure • Charge a re-inspection fee in addition to fine or fee for a violation to off-set the additional staff time required to handle non-compliant businesses. • Provide a grace period of 24 months to provide a transition period for existing tobacco retailers to comply with the new business requirements and prohibitions. Newly 1 Flavored tobacco products are especially appealing to children because of their sweet flavors and bright packaging. 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. ---PAGE BREAK--- Agenda Item No. 7(A) Page 5 established businesses opening after the ordinance is adopted would be required to comply right away. STUDY SESSION QUESTIONS At this study session, staff is seeking input from the City Council regarding the restrictions to be included in the proposed tobacco retailer license program. Current Zoning Code: The current zoning code includes restrictions on the location, business size and hours of operation for retail establishments deriving 50 percent or more of gross sale receipts from the sale or exchange of tobacco related products (including but not limited to cigarettes, cigars, chewing tobacco and dipping tobacco, cigarette papers, pipes or any other instrument or paraphernalia for the smoking or ingestion of tobacco and products prepared from tobacco). Generally speaking, stores that meet the current definition are prohibited from being located within 500 feet of a residential district, within 500 feet of an educational, cultural, or religious institution or public park or, within 1,000 feet of each other. They cannot exceed 5,000 square feet of floor area and can only be in operation between the hours of 8:00 a.m. to 10:00 p.m. daily. The current tobacco sales regulations are outdated; they do not include all tobacco retailers, the “test” of percent of gross sale receipts is hard to measure, and they lack many elements of model policies that are intended to protect the public’s health and safety, particularly youth. Separation requirements: What buffer distances does the Council desire between tobacco retailers and schools, parks and other tobacco retailers? Research shows that children are more likely to experiment with tobacco products when tobacco retailers are located near schools. Restricting tobacco sales around schools or other areas frequented by youth can help reduce youth initiation. The Coalition, ALA and the ACS all encouraged the City to restrict where prospective sellers of tobacco may be located near schools, other sellers). The Coalition has encouraged the City to prohibit new tobacco retailers from opening within at least 1000 feet of schools and other youth-sensitive areas such as parks. The 1,000-foot buffer is common in many other communities. One thousand feet is approximately two residential blocks. For El Cerrito, as a built-out community with many schools, and a concentration of commercial activity along San Pablo Avenue, a 1,000-foot buffer presents a possible economic development challenge. Business types such as grocery stores are vital to serve the needs of existing and future residents, and existing city policies (including but not limited to the recently adopted San Pablo Avenue Specific Plan and the Climate Action Plan (adopted in 2013) encourage smart infill development, walkable neighborhoods and community nodes. In an effort to balance the need for economic development and the goals of the proposed program, staff is suggesting to establish a 500-foot buffer around schools and other youth-sensitive areas such as the Community Center and library, as well a 500-foot buffer around parks, excluding the Ohlone Greenway due to its proximity to San Pablo Avenue. Attachment 5 includes maps showing 500- and 1,000-foot buffers around sensitive sites. ---PAGE BREAK--- Agenda Item No. 7(A) Page 6 Another typical separation requirement is limiting proximity of tobacco retailers to one another in order to prevent a concentration of tobacco retailers in an area. A high density of tobacco retailers has been associated with increased smoking rates, particularly among youth. The Coalition encouraged the City to prohibit any new retailers from locating within 500 feet of each other. Staff is suggesting a separation requirement for new tobacco retailers to be at least 1,000’ from any existing tobacco retailer; this is the distance the current zoning code requires between significant tobacco retailers. Since this separation requirement may also pose economic development challenges, staff is proposing to allow retailers to apply for a Conditional Use Permit for relief from the 1,000-foot distance from other tobacco retailers – this would allow a specific situation to be considered on a case-by-case basis. For example, in the Moeser Shopping Center, the gas station is an existing tobacco retailer; if a grocery store were to be developed in the vacant Safeway building, the grocery store operator would need to apply for relief from this requirement as part of their a Conditional Use Permit if they planned to sell tobacco products. Significant Tobacco Retailers: Does the Council desire to see the proposed ordinance distinguish between significant tobacco retailers and other tobacco retailers? “Significant Tobacco Retailers”—which can include head shops, discount cigarette stores, and smoke shops – have a higher rate of illegally selling tobacco to minors than the statewide average. Further, stores whose core business is selling tobacco often sell items that are commonly known to be drug paraphernalia while claiming that such items are intended for tobacco use. Some communities distinguish between “significant tobacco retailers” whose principal or core business is selling tobacco products and/or smoking paraphernalia, and stores like gas stations, grocery stores and convenient stores that sell tobacco along with other products. ChangeLab Solutions, (a national, nonpartisan nonprofit) suggests one way to define and measure a “Significant Tobacco Retailer” is if the principal or core business is selling Tobacco Products, Tobacco Paraphernalia, or both, as evidenced by 20% or more of floor or display area is devoted to Tobacco products, Tobacco Paraphernalia, or both. The City could define “significant tobacco retailer” to include 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 • more than twenty percent (20%) of display area is devoted to tobacco products, smoking paraphernalia, or both. • fifty percent (50%) or more of gross sales receipts are derived from tobacco products, smoking paraphernalia, or both ---PAGE BREAK--- Agenda Item No. 7(A) Page 7 Does the Council desire to include additional location restrictions between significant tobacco retailers and schools, parks and/or other tobacco retailers? For example, the City could establish a buffer around schools and other youth-sensitive areas of 500 feet for tobacco retailers and a different buffer, i.e., 1,000 feet for significant tobacco retailers. Does the Council desire to prohibit any new significant tobacco retailers from establishing in El Cerrito? Allowing new significant tobacco retailers to open in El Cerrito may reinforce positive social perceptions of smoking and convey tacit approval of tobacco use. Prohibit Cigar Lounges, Hookah Lounges, Vapor Lounges: Does the Council desire to prohibit cigar lounges, hookah lounges, or vapor lounges from establishing in El Cerrito? Currently, there are no cigar lounges, hookah lounges, or vapor lounges operating in El Cerrito. Smoking or inhaling such products exposes customers and employees to potentially hazardous chemicals and undermines existing clean indoor air laws. The City could close a loophole in California law that permits smoking in retail tobacco shops and private smokers’ lounges by prohibiting any business from allowing customers to consume any amount of tobacco product, or where customers use an electronic smoking device or other apparatus to deliver an inhaled dose of nicotine or other substance. The recently adopted Smoking Pollution Protection Ordinance (ECMC 2014-05) now requires 100% smoke free places of employment, however, including this specific prohibition in the zoning code would ensure it is clear to business owners and prospective business owners that this type of business is prohibited in El Cerrito. Grandfather clause: Should the proposed ordinance include a “grandfather clause” for any existing tobacco retailer, including significant tobacco retailers who currently operate near a school? Near a park and/or close to another tobacco retailer? The City could exempt existing retailers from the separation requirements. This exception could include a provision to revoke the exception if the retailer lets its license lapse, closes for more than 60 days, changes its business operation significantly, or receives three or more violations within a 24 month period. In providing an exemption, the City could distinguish between significant tobacco retailers and other tobacco retailers, and/or provide an exemption only as to some of the separation requirements. ---PAGE BREAK--- Agenda Item No. 7(A) Other Feedback: Staff is also interested in feedback from the Council on the basic program, including elements such as the basic programmatic structure and point of sale limitations described elsewhere in this report. STRATEGIC PLAN CONSIDERATIONS Development of a tobacco retailer license program would help to fulfill the City of El Cerrito Strategic Plan goal to "Ensure the Public's Health and Safety." FINANCIAL CONSIDERATIONS If adopted, the licensing process, annual inspection of businesses selling tobacco products, and youth decoy operations are estimated to cost in the range of $650-$800 or more per year, per retailer. During the first year, more staff time will likely be required to establish the program, train staff and outreach to retailers, however, in future years, the cost of the program 1s anticipated to be recovered in full through the collection of the tobacco retailer license fee. LEGAL CONSIDERATIONS The City Attorney's Office has been working with staff in developing an ordinance. Scott Hanin City Manager Attachments: 1. Existing tobacco retailers in El Cerrito 2. Summary of ALA State of Tobacco Control grades 3. Written public comments received 4. Maps showing proximity of existing tobacco retails to sensitive sites 5. Tobacco Prevention Coalition of Contra Costa County: "A Tool for Reducing Youth Access To Tobacco: The Tobacco Retailer License" 6. ChangeLab Solutions: "Tobacco Retailer Licensing: An Effective Tool for Public Health" Page 8 ---PAGE BREAK--- [Type text] Agenda Item No. Attachment 1 Current Tobacco Retailers in El Cerrito 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 7 Agenda Item No. 7(A) Attachment 1 ---PAGE BREAK--- Store type Licensed Location school within 500 ' school within 1000' park within 500 ' park within 1000' existing TR within 1000' A retail shop 7022 Stockton Ave no no no no no B retail shop 10963 San Pablo Ave no yes OG OG yes C gas station 10602 San Pablo Ave no no OG OG yes D gas station 6700 Fairmount Ave no yes OG OG yes E gas station 11687 San Pablo Ave no no no no yes F gas station 11319 San Pablo Ave yes yes OG yes yes G gas station 3160 Carlson Blvd no no no yes yes H golf course 7901 Cutting Blvd yes yes no yes no I Large Format Store 11565 San Pablo Ave no no OG OG yes J Large Format Store 1000 El Cerrito Plaza yes yes OG yes yes K Large Format Store 11450 San Pablo Ave no yes OG yes yes L liquor store 11299 San Pablo Ave yes yes OG yes yes M liquor store 10560 San Pablo Ave no no OG OG yes N liquor store 11382 San Pablo Ave no yes OG yes yes O liquor store 10012-14 San Pablo Ave no no no yes yes P retail shop 10374 San Pablo Ave yes yes yes yes yes Q tobacco shop 10382 San Pablo Ave yes yes yes yes yes R tobacco shop 10170 San Pablo Ave no yes no OG yes S NO LONGER SELLS TOBACCO 9937 San Pablo Ave no no yes yes yes T NO LONGER SELLS TOBACCO 10650 San Pablo Ave no no OG OG yes U NO LONGER SELLS TOBACCO 670 El Cerrito Plaza no yes no yes yes W VACANT (former retailer) 10636 San Pablo Ave no no OG no yes ---PAGE BREAK--- ŵĞƌŝĐĂŶ>ƵŶŐƐƐŽĐŝĂƟŽŶŝŶĂůŝĨŽƌŶŝĂͮ^ƚĂƚĞŽĨdŽďĂĐĐŽŽŶƚƌŽůϮϬϭϰʹĂůŝĨŽƌŶŝĂ>ŽĐĂů'ƌĂĚĞƐ29 State of Tobacco Control 2014 – California Local Grades Overall Tobacco Control Grade: A (11-12), B (8-10), C D F determined by grades and points from other three categories – A B C D F Smokefree Outdoor Air Grade: A B (13-17), C (8-12), D F (0-2) Smokefree Housing Grade: A B (8-10), C D F (0-1) Reducing Sales of Tobacco Products Grade: A B C D F CONTRA COSTA COUNTY Overall Tobacco Control Grade F F D C D F F C B F F F C F B A D C B A dŽƚĂůWŽŝŶƚƐ 12 0 0 2 6 2 0 0 7 8 0 0 1 7 0 8 12 4 7 8 11 Smokefree Outdoor Air F F D C D F F A A F F F A F B A F A A A Dining ϰ Ϭ Ϭ Ϭ Ϯ Ϭ Ϭ Ϭ ϰ ϰ Ϭ Ϭ Ϭ ϰ Ϭ Ϯ ϰ Ϭ ϰ ϰ ϰ ŶƚƌLJǁĂLJƐ ϰ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϰ ϰ Ϭ Ϭ Ϭ ϰ Ϭ 3 ϰ Ϭ ϰ ϰ ϰ WƵďůŝĐ ǀĞŶƚƐ ϰ Ϭ Ϭ Ϭ Ϯ Ϭ Ϭ Ϭ ϰ ϰ Ϭ Ϭ Ϭ ϰ Ϭ 3 ϰ Ϭ ϰ Ϭ ϰ ZĞĐƌĞĂƟŽŶƌĞĂƐ ϰ Ϭ Ϭ ϰ Ϯ ϰ Ϭ Ϭ ϰ ϰ Ϭ Ϭ Ϭ ϰ Ϭ ϰ ϰ Ϭ ϰ ϰ ϰ ^ĞƌǀŝĐĞƌĞĂƐ ϰ Ϭ Ϭ Ϭ Ϯ Ϭ Ϭ Ϭ ϰ ϰ Ϭ Ϭ Ϭ ϰ Ϭ ϰ ϰ Ϭ ϰ ϰ ϰ ^ŝĚĞǁĂůŬƐ ϭ Ϭ Ϭ Ϭ ϭ Ϭ Ϭ Ϭ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ tŽƌŬƐŝƚĞƐ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ dŽƚĂůWŽŝŶƚƐ 22 0 0 4 9 4 0 0 21 21 0 0 0 20 0 16 20 0 20 18 20 Smokefree Housing F F F F F F F C B F F F C F A A F D A B EŽŶƐŵŽŬŝŶŐhŶŝƚƐ ϰ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϯ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ 3 ϰ Ϭ Ϭ ϰ ϭ EŽŶƐŵŽŬŝŶŐŽŵŵŽŶƌĞĂƐ ϰ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϰ ϰ Ϭ Ϭ Ϭ ϰ Ϭ ϰ ϰ Ϭ ϰ ϰ ϰ ŝƐĐůŽƐƵƌĞ ϰ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ 3 Ϭ Ϭ Ϭ Ϭ Ϭ 3 ϰ Ϭ Ϭ ϰ 3 Nuisance ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ Ϭ Ϭ ϭ Ϭ ,ŽƵƐŝŶŐƵƚŚŽƌŝƚLJhŶŝƚƐ ϭ n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a Ϭ n/a ϭ n/a n/a n/a Ϭ dŽƚĂůWŽŝŶƚƐ 14 0 0 0 0 0 0 0 6 8 0 0 0 5 0 11 13 0 4 13 8 Reducing Sales of Tobacco Products F F D A D F F D D F F D D F D A A C F A dŽďĂĐĐŽZĞƚĂŝůĞƌ>ŝĐĞŶƐŝŶŐ ϰ Ϭ Ϭ ϭ ϰ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ Ϭ ϰ ϰ ϭ Ϭ ϰ ^ĂůĞƐŶĞĂƌ^ĐŚŽŽůƐĂŶĚWĂƌŬƐ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ^ĂůĞƐŝŶWŚĂƌŵĂĐŝĞƐ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ Ϭ Ϭ Ϭ ^ĂŵƉůŝŶŐŽĨdŽďĂĐĐŽWƌŽĚƵĐƚƐ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ ϭ Ϭ Ϭ ϭ Ϭ Ϭ ϭ ϭ Ϭ ϭ Ϭ ϭ dŽƚĂůWŽŝŶƚƐ 7 0 0 1 4 1 0 0 1 1 0 0 1 1 0 1 6 4 2 0 5 ŶƟŽĐŚ  WŽƐƐŝďůĞWŽŝŶƚƐ Moraga KĂŬůĞLJ  WŝƩƐďƵƌŐ WůĞĂƐĂŶƚ,ŝůů tĂůŶƵƚƌĞĞŬ ŽƵŶƚLJ hŶŝŶĐŽƌƉŽƌĂƚĞĚ Agenda Item No. Attachment 2 Agenda Item No. 7(A) Attachment 2 ---PAGE BREAK--- ŵĞƌŝĐĂŶ>ƵŶŐƐƐŽĐŝĂƟŽŶŝŶĂůŝĨŽƌŶŝĂͮ^ƚĂƚĞŽĨdŽďĂĐĐŽŽŶƚƌŽůϮϬϭϰʹĂůŝĨŽƌŶŝĂ>ŽĐĂů'ƌĂĚĞƐ23 State of Tobacco Control 2014 – California Local Grades Overall Tobacco Control Grade: A (11-12), B (8-10), C D F determined by grades and points from other three categories – A B C D F Smokefree Outdoor Air Grade: A B (13-17), C (8-12), D F (0-2) Smokefree Housing Grade: A B (8-10), C D F (0-1) Reducing Sales of Tobacco Products Grade: A B C D F ALAMEDA COUNTY Overall Tobacco Control Grade B A A A C B C D D B F D C A C dŽƚĂůWŽŝŶƚƐ 12 9 11 12 12 5 8 5 3 4 10 0 4 6 12 5 Smokefree Outdoor Air A A A A B A A D C B F C A A B Dining ϰ Ϯ Ϯ ϰ ϰ ϰ ϰ ϰ Ϯ ϰ ϰ n/a ϰ ϰ ϰ ϰ ŶƚƌLJǁĂLJƐ ϰ ϰ ϰ ϰ ϰ ϰ ϰ ϰ Ϯ ϰ ϰ Ϭ Ϯ ϰ ϰ ϰ WƵďůŝĐ ǀĞŶƚƐ ϰ ϰ ϰ ϰ Ϯ Ϭ ϰ Ϯ Ϭ Ϭ Ϭ Ϭ Ϭ ϰ ϰ Ϭ ZĞĐƌĞĂƟŽŶƌĞĂƐ ϰ ϰ ϰ 3 ϰ ϰ ϰ ϰ Ϯ Ϭ ϰ Ϭ Ϭ ϰ ϰ ϰ ^ĞƌǀŝĐĞƌĞĂƐ ϰ ϰ ϰ ϰ ϰ ϰ ϰ ϰ Ϭ ϰ ϰ Ϭ ϰ ϰ ϰ ϰ ^ŝĚĞǁĂůŬƐ ϭ ϭ ϭ ϭ Ϭ Ϭ ϭ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ tŽƌŬƐŝƚĞƐ ϭ ϭ ϭ ϭ Ϭ ϭ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ ϭ Ϭ dŽƚĂůWŽŝŶƚƐ 22 20 20 21 18 17 22 19 6 12 16 0 10 21 21 16 Smokefree Housing A B A A D B F D D B F D D A D EŽŶƐŵŽŬŝŶŐhŶŝƚƐ ϰ ϰ Ϭ ϰ ϰ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϰ Ϭ EŽŶƐŵŽŬŝŶŐŽŵŵŽŶƌĞĂƐ ϰ ϰ ϰ ϰ ϰ ϰ ϰ Ϭ Ϯ Ϯ ϰ Ϭ Ϯ Ϯ ϰ Ϯ ŝƐĐůŽƐƵƌĞ ϰ ϰ ϰ ϰ 3 Ϭ 3 Ϭ Ϭ Ϭ ϰ Ϭ Ϭ Ϭ 3 Ϭ Nuisance ϭ Ϭ Ϭ Ϭ ϭ Ϭ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ ϭ Ϭ ,ŽƵƐŝŶŐƵƚŚŽƌŝƚLJhŶŝƚƐ ϭ ϭ n/a Ϭ n/a n/a n/a n/a Ϭ n/a n/a n/a ϭ n/a n/a Ϭ dŽƚĂůWŽŝŶƚƐ 14 13 8 12 12 4 8 0 2 2 8 0 3 3 12 2 Reducing Sales of Tobacco Products D A A A D D D D D A F D D A D dŽďĂĐĐŽZĞƚĂŝůĞƌ>ŝĐĞŶƐŝŶŐ ϰ Ϭ ϰ ϰ 3 Ϭ Ϭ Ϭ Ϭ Ϭ ϰ Ϭ Ϭ Ϭ ϰ Ϭ ^ĂůĞƐŶĞĂƌ^ĐŚŽŽůƐĂŶĚWĂƌŬƐ ϭ ϭ ϭ ϭ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ϭ Ϭ Ϭ ϭ ϭ Ϭ ^ĂůĞƐŝŶWŚĂƌŵĂĐŝĞƐ ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ Ϭ ^ĂŵƉůŝŶŐŽĨdŽďĂĐĐŽWƌŽĚƵĐƚƐ ϭ Ϭ Ϭ ϭ ϭ ϭ ϭ ϭ ϭ ϭ ϭ Ϭ ϭ Ϭ ϭ ϭ dŽƚĂůWŽŝŶƚƐ 7 1 5 6 5 1 1 1 1 1 6 0 1 1 6 1 WŽƐƐŝďůĞWŽŝŶƚƐ ŵĞƌLJǀŝůůĞ WůĞĂƐĂŶƚŽŶ ŽƵŶƚLJ hŶŝŶĐŽƌƉŽƌĂƚĞĚ ---PAGE BREAK--- The following information is from the American Lung Association in California’s Center for Tobacco Policy & Organizing report, “Matrix of Strong Local Tobacco Retailer Licensing Ordinances - September 2013” The full report (highlighting 110 ordinances) is online at http://center4tobaccopolicy.org/wp-content/uploads/2013/09/Matrix-of-Strong-Local-Tobacco-Retailer-Licensing-Ordinances-September-2013.pdf Community/Date Passed Fee Enforcement Activities Suspension/Revocation Schedule Additional Provisions City of Richmond June 2009 Population: 105,562 $1,062.44/ Annual (combined alcohol and tobacco retailer fee) Compliance shall be monitored by the Richmond Police Department. Underage sales investigations will be completed annually, while compliance inspections will be completed every two years. 1st violation within 5 years – 10 day revocation 2nd violation within 5 years – 30 day revocation 3rd violation within 5 years – 90 day revocation 4th violation within 5 years – 5 year revocation Bans mobile sales. Requires retailers to check the age of purchasers who appear to be under the age of 27. Requires that clerks are the minimum legal age to purchase tobacco products (currently 18). Requires that all tobacco-related products and paraphernalia must be removed from public view during periods of suspension. Makes it a violation of the license to violate any law related to the sale of drug paraphernalia. Includes the sale of electronic cigarettes. City of Albany February 2009 Population: 18,430 $250/Annual The Police Department is responsible for administration and enforcement. 1st violation within 5 years – 10 day revocation 2nd violation within 5 years – 30 day revocation (and $250 fine if within 1 year of first violation) 3rd violation within 5 years – 90 day revocation (and $500 fine if within 1 year of second violation) 4th violation within 5 years – 5 year revocation and $1,000 fine Bans mobile sales. Requires retailers to check the age of purchasers who appear to be under the age of 27. Requires that clerks are the minimum legal age to purchase tobacco products (currently 18). Requires that all tobacco-related products and advertising must be removed from public view during periods of suspension or revocation. Includes the sale of electronic cigarettes. ---PAGE BREAK--- Community/Date Passed Fee Enforcement Activities Suspension/Revocation Schedule Additional Provisions Contra Costa County January 2003 Population: 163,762 (in unincorporated areas) $287/Annual Health Services Department (tobacco) staff will conduct site visits to the stores on an annual basis to enforce the licensing ordinance and self-service display ban. This activity is paid for through the license fee. The County contracts with the Food and Drug Branch of the California Department of Public Health to conduct sting operations each year using other funding sources. 1st violation – up to 30-day suspension. 2nd violation within 2 years – up to 90-day suspension. 3rd violation and subsequent violations within 2 years – up to one year suspension. Bans mobile sales. Requires that all tobacco-related products must be removed from public view during periods of suspension or revocation. Includes the sale of electronic cigarettes. City of Berkeley December 2002 Population: 115,716 $427/Annual With a 3.5% annual increase for COLA Environmental Health Specialists will conduct three visual site inspections per retailer per year. 0.5 FTE was added to the Environmental Health Department. (Note: Berkeley’s fee does not pay for PC 308 compliance checks. The city’s police department had an ongoing program to conduct bi- annual compliance checks of randomly selected stores. The police department absorbs the related costs of these operations.) 1st violation within 5 years – up to 30 day suspension. 2nd violation within 5 years – up to 90 day suspension. 3rd violation within 5 years – up to one year suspension. 4th violation within 5 years – the license may be revoked Requires that all tobacco products must be removed from public view during periods of suspension or revocation. ---PAGE BREAK--- Agenda Item No. Attachment 3 Agenda Item No. 7(A) Attachment 3 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- From: Bhupinder Dhindsa To: Margaret Cc: Bhupinder Dhindsa Subject: Comments Ref: Hearing Nov 19,2014 Date: Friday, November 14, 2014 3:30:24 PM Dear Margaret I am in support for curbing smoking in city of el cerrito as residence and father of 2 kids. On other hand also I am local small business owner. My only concerned for one idea of raising the minimum age to purchase cigarettes from 18 to 21 in Only city of el cerrito. This because there many business otherside of san pablo ave which are in richmond city limits. It won't help that much as any one just go cross the street buy the ciggarettes if they are between 18-21. I will suport if this will be together with neighouring cities like Albany, Richmond, San Pablo do together with El cerrito. Other city of el cerriot will just hurt thier own local small business with increase in city fees but losing business neighbourhood cities. It will bad idea go for it on its own as city of el cerrito. I along with other local business urge city to reconisder this option of raising age limit in only this city Thanks Bhupinder Dhindsa A business enterprise No virus found in this message. Checked by AVG - www.avg.com Version: 2014.0.4765 / Virus Database: 4189/8571 - Release Date: 11/14/14 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- November 19, 2014 El Cerrito Planning Commission 10890 San Pablo Avenue El Cerrito, CA Dear Chairperson Lucas and Commissioners Hansen, Iswalt, Kuhlman, Motoyama and Pine: The American Lung Association in California has been working with cities all over the state to adopt the comprehensive zoning restrictions on tobacco retailers. Please refer to our correspondence of Oct. 15, 2014 for our earlier comments. The following are comments regarding this most recent staff report. The establishment of zoning restrictions on businesses that sell tobacco products is an essential component when partnered with a comprehensive tobacco retailer license for local jurisdictions to reduce youth access to these deadly products. We would strongly encourage you to require that sellers of any tobacco, whether that are “significant tobacco retailers,” convenience stores, or big box merchants, be required to apply for a conditional use permit should the location of the business be within the footage buffer zones previously established for the “significant tobacco retailers.” Any business wanting to sell tobacco within the protected zones should need to justify the community’s “need” for those products. The City of Oakland which was one of the first adopters of zoning restrictions for “mainly tobacco retailers,” revisited the issue in 2007-08 to change the zoning restrictions to apply to businesses selling any tobacco due to the difficulty by Oakland code enforcement to determine whether a business was in compliance with the criterion. They found that some merchants altered displays to stack tobacco products vertically, brought in large bulky products like luggage and claimed to sell cell phone contracts to avoid being designated a “mainly tobacco store.” Also, merchants were not willing to provide proof by showing their financial records or “gross receipts”. The City of Hayward which tackled these zoning issues last year chose to make the provisions prospective and not to existing businesses under the advice of the city attorney. Cities are finding with proactive enforcement of the tobacco retailer licensing requirements that “bad actors” will come into compliance or decide to stop selling tobacco and focus on other products. Thank you for your efforts to reduce youth access to tobacco in El Cerrito and partnering with us to keep our children healthy and tobacco-free. Sincerely, Serena Chen Advocacy Director ---PAGE BREAK--- ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Albany Middle School Central Park Bruce King Memorial Dog Park Ohlone Greenway Madera Elementary Cameron Elementary Tehiyah Day School Harding Elementary Fairmont Elementary St. John the Baptist Prospect Sierra School El Cerrito Senior High Summit Public School K2 Montessori Family School Prospect Sierra Elementary St. Jerome Catholic Elementary Fred T. Korematsu Middle School Fred T. Korematsu Middle School (January 2016) Library Huber Park Poinsett Park Senior Center Creekside Park Community Center Cerrito Creek Park Cerrito Vista Park Baxter Gateway Park Castro Park & Clubhouse Harding Park & Clubhouse Fairmont Park & Clubhouse Arlington Park & Clubhouse Tassajara Park & Pottery Studio Ohlone San Pablo Arlington Elm Richmond Key I 80 Moeser Potrero Norvell Everett Cutting Ashbury Balra Barrett Central Schmidt Navellier Terrace Manila King Blake Colusa Portola Donal Lincoln Hill Scott B Carmel C Jordan Clayton Seaview Carquinez Albemarle Contra Costa Knott Avis Lynn Carlson Alva Tamalpais Ramona Bonnie Pomona Betty Tulare Shevlin Yuba Lawrence San Carlos Leneve A Brewster Behrens Gatto Ward Vista Fern Mono Rifle Range Kearney Ganges Snowdon Key Route Poinsett Yosemite Mira Vista Bates Harper El Dorado Kent Stockton Plank Wildcat Junction View Rosalind 55th James 56th Belmont Pinehurst Zara Tapscott Oak Liberty Buckingham Tuller Havens Gelston Eureka Glen Mawr Arbor Julian Errol Lassen Wall Wildwood Craft Rivera Ludwig 53rd Walkway Wilson Conlon Kenilworth Park Roger MacDonald Thors Bay Regency Parking Lot Cabrillo Don Carol Devonshire Sonoma Lexington Service Avila Ray Cedar Rockway Leviston Cypress El Cerrito Earl Waldo Kensington Victor Madera Santa Fe Villa Nueva Driveway Burns Clark Bel View Bus Lane Manor Unnamed Street Roberta Walk Hotchkiss Morris Francisco Gayle Janie Ernest Ellerhorst Douglas Duke Willow Madison Susan Baron Edna Ohio Pomona Everett Elm Park Liberty Avila I 80 Central Elm Lexington Seaview Liberty Seaview Eureka Norvell Carlson Eureka Liberty San Pablo Balra Eureka Terrace Liberty Liberty Seaview Contra Costa Stockton Tulare Liberty Terrace Canyon Trail Park & Art Center El Cerrito: Stores Selling Tobacco with 1,000 Ft Buffer Hillside Natural Area ! Store Selling Tobacco 1,000 Ft Buffer Around Store El Cerrito City Limits Source: California Board of Equalization, January 2014. ´ 0 0.3 0.6 0.15 Miles 10.13.14 Contra Costa Public Health, Epidemiology, Planning and Evaluation, October 2014 Two stores at this location Agenda Item No. 7(A) Attachment 4 ---PAGE BREAK--- Albany Middle School Central Park Bruce King Memorial Dog Park Madera Elementary Cameron Elementary Tehiyah Day School Harding Elementary Fairmont Elementary St. John the Baptist Prospect Sierra School El Cerrito Senior High Summit Public School K2 Montessori Family School Prospect Sierra Elementary St. Jerome Catholic Elementary Fred T. Korematsu Middle School Fred T. Korematsu Middle School (January 2016) Library Huber Park Poinsett Park Senior Center Creekside Park Community Center Cerrito Creek Park Cerrito Vista Park Baxter Gateway Park Castro Park & Clubhouse Harding Park & Clubhouse Fairmont Park & Clubhouse Arlington Park & Clubhouse Tassajara Park & Pottery Studio Ohlone San Pablo Arlington Elm Richmond Key I 80 Moeser Potrero Norvell Everett Cutting Ashbury Balra Barrett Central Schmidt Navellier Terrace Manila King Blake Colusa Portola Donal Lincoln Hill Scott B Carmel C Jordan Clayton Seaview Carquinez Albemarle Contra Costa Knott Avis Lynn Carlson Alva Tamalpais Ramona Bonnie Pomona Betty Tulare Shevlin Yuba Lawrence San Carlos Leneve A Brewster Behrens Gatto Ward Vista Fern Mono Rifle Range Kearney Ganges Snowdon Key Route Poinsett Yosemite Mira Vista Bates Harper El Dorado Kent Stockton Plank Wildcat Junction View Rosalind 55th James 56th Belmont Pinehurst Zara Tapscott Oak Liberty Buckingham Tuller Havens Gelston Eureka Glen Mawr Arbor Julian Errol Lassen Wall Wildwood Craft Rivera Ludwig 53rd Walkway Wilson Conlon Kenilworth Park Roger MacDonald Thors Bay Regency Parking Lot Cabrillo Don Carol Devonshire Sonoma Lexington Service Avila Ray Cedar Rockway Leviston Cypress El Cerrito Earl Waldo Kensington Victor Madera Santa Fe Villa Nueva Driveway Burns Clark Bel View Bus Lane Manor Unnamed Street Roberta Walk Hotchkiss Morris Francisco Gayle Janie Ernest Ellerhorst Douglas Duke Willow Madison Susan Baron Edna Ohio Pomona Everett Elm Park Liberty Avila I 80 Central Elm Lexington Seaview Liberty Seaview Eureka Norvell Carlson Eureka Liberty San Pablo Balra Eureka Terrace Liberty Seaview Contra Costa Stockton Tulare Liberty Terrace Canyon Trail Park & Art Center El Cerrito: Stores Selling Tobacco by Proximity to Schools, Parks, and Sensitive Sites*, 2014 Hillside Natural Area ! Store Selling Tobacco 500 Ft Buffer El Cerrito City Limits Source: California Board of Equalization, January 2014. * Sensitive Site: Library, Community Center, Senior Center. Buffer from school, park, and site boundary. Stores geocoded to parcel points. ´ 0 0.3 0.6 0.15 Miles 11.14.14 Contra Costa Public Health, Epidemiology, Planning and Evaluation, November 2014 Two stores at this location ---PAGE BREAK--- ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Albany Middle School Central Park Bruce King Memorial Dog Park Ohlone Greenway Madera Elementary Cameron Elementary Tehiyah Day School Harding Elementary Fairmont Elementary St. John the Baptist Prospect Sierra School El Cerrito Senior High Summit Public School K2 Montessori Family School Prospect Sierra Elementary St. Jerome Catholic Elementary Fred T. Korematsu Middle School Fred T. Korematsu Middle School (January 2016) Library Huber Park Poinsett Park Senior Center Creekside Park Community Center Cerrito Creek Park Cerrito Vista Park Baxter Gateway Park Castro Park & Clubhouse Harding Park & Clubhouse Fairmont Park & Clubhouse Arlington Park & Clubhouse Tassajara Park & Pottery Studio Ohlone San Pablo Arlington Elm Richmond Key I 80 Moeser Potrero Norvell Everett Cutting Ashbury Balra Barrett Central Schmidt Navellier Terrace Manila King Blake Colusa Portola Donal Lincoln Hill Scott B Carmel C Jordan Clayton Seaview Carquinez Albemarle Contra Costa Knott Avis Lynn Carlson Alva Tamalpais Ramona Bonnie Pomona Betty Tulare Shevlin Yuba Lawrence San Carlos Leneve A Brewster Behrens Gatto Ward Vista Fern Mono Rifle Range Kearney Ganges Snowdon Key Route Poinsett Yosemite Mira Vista Bates Harper El Dorado Kent Stockton Plank Wildcat Junction View Rosalind 55th James 56th Belmont Pinehurst Zara Tapscott Oak Liberty Buckingham Tuller Havens Gelston Eureka Glen Mawr Arbor Julian Errol Lassen Wall Wildwood Craft Rivera Ludwig 53rd Walkway Wilson Conlon Kenilworth Park Roger MacDonald Thors Bay Regency Parking Lot Cabrillo Don Carol Devonshire Sonoma Lexington Service Avila Ray Cedar Rockway Leviston Cypress El Cerrito Earl Waldo Kensington Victor Madera Santa Fe Villa Nueva Driveway Burns Clark Bel View Bus Lane Manor Unnamed Street Roberta Walk Hotchkiss Morris Francisco Gayle Janie Ernest Ellerhorst Douglas Duke Willow Madison Susan Baron Edna Ohio Pomona Everett Elm Park Liberty Avila I 80 Central Elm Lexington Seaview Liberty Seaview Eureka Norvell Carlson Eureka Liberty San Pablo Balra Eureka Terrace Liberty Liberty Seaview Contra Costa Stockton Tulare Liberty Terrace Canyon Trail Park & Art Center El Cerrito: Stores Selling Tobacco by Proximity to Schools, Parks, and Sensitive Sites*, 2014 Hillside Natural Area ! Store Selling Tobacco 1,000 Ft Buffer Ohlone Greenway 1,000 Ft Buffer El Cerrito City Limits Source: California Board of Equalization, January 2014. * Sensitive Site: Library, Community Center, Senior Center. ´ 0 0.3 0.6 0.15 Miles 10.13.14 Contra Costa Public Health, Epidemiology, Planning and Evaluation, October 2014 Agenda Item No. Attachment 4 ---PAGE BREAK--- 1 Tobacco Prevention Coalition of Contra Costa County A Tool for Reducing Youth Access To Tobacco: The Tobacco Retailer License With information from the “Model California Ordinance Requiring a Tobacco Retailer License” published by ChangeLab Solutions This paper was originally distributed March, 2005 and has been most recently updated August, 2013 to reflect new findings and policy options. Made possible by funds received from the Tobacco Health Protection Act of 1988-Proposition 99, under Contract Number, 04-07 and, 10-07 with the California Department of Public Health, Tobacco Control Program. Agenda Item No. Attachment 5 Agenda Item No. 7(A) Attachment 5 ---PAGE BREAK--- 2 I. The Problem of Youth Tobacco Use Despite long-standing state laws prohibiting tobacco sales to minors, youth continue to obtain cigarettes and other tobacco products at alarming rates. Each day, nearly 4,000 children under 18 years of age smoke their first cigarette, and almost 1,500 children under 18 years of age begin smoking daily.1 Among middle school students who were current cigarette users in 2004, 70.6% were not asked to show proof of age when they purchased or attempted to purchase cigarettes from a store, and 66.4% were not refused purchase because of their age.2 According to the California Health Department’s Food and Drug Branch, the sales rate to minors in Contra Costa County overall is 20%; it is 27% in cities without a strong licensing ordinance.3 In other words, stores sell tobacco to youth one in every four times they try to buy cigarettes. The Tobacco Prevention Coalition of Contra Costa County (TPC) recommends that cities adopt and enforce strong tobacco retailer licensing ordinances in order to reduce the rate of illegal tobacco sales to minors and to encourage compliance with all local, state and federal tobacco laws. II. Policy Efforts in Contra Costa County Contra Costa policymakers, advocates, youth and government officials have been working to address the problem of youth tobacco use since the mid-1990’s. In 1997, the Mayor’s Conference and Board of Supervisors asked the Contra Costa County Tobacco Prevention Project to recommend an ordinance to reduce youth tobacco use. Between 1998 and 2006, the Tobacco Prevention Coalition, and three youth groups, TIGHT (Tobacco Industry Gets Hammered by Teens), ETA (Empowerment Through Action), and the County Youth Commission, spearheaded successful efforts to encourage the Board of Supervisors and 17 of Contra Costa’s 19 City Councils to adopt Tobacco-Free Youth Ordinances (TFYO) and Tobacco Retailer Licensing Ordinances (TRLO) in order to reduce the demand for tobacco by minors and to decrease youth access to tobacco products. 1 Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Results from the 2004 National Survey on Drug Use and Health: National Findings. 2005. Available at: http://oas.samhsa.gov/NSDUH/2k4nsduh/2k4Results/2k4Results.pdf. 2 US Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report: Tobacco Use, Access & Exposure to Tobacco Among Middle & High School Students, U.S., 2004. 2005, 54: p. 297-301. Available at: 3 California Department of Health Services Food and Drug Branch Compliance Checks, 2010. ---PAGE BREAK--- 3 The TFYO restricted tobacco advertising and promotions and banned self-service displays of tobacco products.4 Self-service displays are typically located on or near the counter and allow the customer to get his or her own cigarettes. The TFYO contained a provision to license tobacco retailers in all but one city.5 A model tobacco retailer licensing ordinance requires that all tobacco retailers purchase a local license before they may sell tobacco in the community. This has proven to be the only effective model of tobacco retailer licensing and has been adopted and implemented by the County. III. Benefits of Tobacco Retailer Licensing A universal licensing ordinance that requires all businesses within a city or county to obtain a license if they plan sell tobacco products is a tool that is proven to reduce illegal tobacco sales to minors and increase compliance with local, state and federal tobacco laws. The illegal sales rate in the unincorporated areas of the County decreased from 37% to 7% once a tobacco retailer’s license ordinance was adopted and enforced. Inherent benefits of licensing include: A. Identification of retailers: A local licensing ordinance can generate an accurate list of tobacco retailers in a community on an annual basis that can be used to educate, monitor and encourage retailers to comply with tobacco laws. The list can be updated when new businesses apply for local licenses, and when businesses renew their licenses. B. Education of retailers: The licensing process can be used to conduct merchant education regarding the rules and regulations surrounding tobacco sales in a community. The licensing authority can send out a letter or other educational materials each year to an accurate list of tobacco retailers. C. Monitoring of retailers: Licensing can establish a fair, methodical, and ongoing process to monitor compliance with tobacco laws. D. Encouragement of compliance: A local tobacco retailer’s license is a powerful tool for encouraging retailers to comply with all existing tobacco-related laws, including state no-sales-to-minors-laws, and local and state laws prohibiting self- service displays of tobacco products. Such an ordinance can provide for the suspension or revocation of the license if the merchant sells tobacco to minors or violates other local, state, or federal laws related to tobacco. In this way, a licensing ordinance creates a greater deterrent than does a small fine to discourage retailers from violating the law. For many merchants, tobacco sales make up a substantial portion of their revenue. Temporarily losing the authority to sell tobacco products costs far more than the state law fine of several hundred 4 The Supreme Court ruled in 2001 that local government cannot restrict tobacco advertising because such restrictions were pre-empted by the Federal Cigarette Labeling and Advertising Act. As a result, the County and the cities stopped enforcing this provision of the TFYO. 5 The Town of Moraga did not adopt a licensing ordinance. ---PAGE BREAK--- 4 dollars—which, in fact, is usually levied against the clerk, and not the store. Put another way, the threat of license suspension or revocation encourages compliance with state and local tobacco laws because licensing makes compliance matter. V. Key Provisions At a minimum, the following provisions should be incorporated into a local licensing ordinance: A. All retailers selling tobacco products (including retailers of Electronic Nicotine Delivery Systems (ENDS) such as electronic cigarettes) must obtain a nontransferable license. B. An annual licensing fee fully covers all program costs, including administration and enforcement. Jurisdictions in California are charging between $30 to over $600 depending upon their unique costs, with the majority of fees between $200 - $350 annually. C. Violating any tobacco law is also a violation of the license—including all state laws regulating tobacco sales to minors and prohibiting self-service displays of tobacco products. D. Each licensing violation results in a temporary revocation of the privilege to sell tobacco. The length of the suspension periods and the time period reviewed for prior violations of the license vary among local ordinances. Most licensing ordinances have a progressive suspension schedule, with the model ordinance recommending the following: 1. First violation: suspension of the license for 30 days. 2. Second violation within 60 months of the first violation: suspension of the license for 90 days. 3. Third violation within 60 months of the first violation: suspension of the license for one year. ---PAGE BREAK--- 5 E. Require a minimum number of annual enforcement operations to be conducted by the designated local enforcement agency or agencies, including site inspections for: the presence of the local and state license, the presence of required point-of- sale warning signs, and the use of self service displays. F. Require a minimal number of undercover compliance checks (youth decoy operations). Jurisdictions in California are conducting between one and six undercover buying operations per store every two years, and between one and two site inspections per year. G. Require removal of tobacco products, advertising and paraphernalia for suspended or revoked licenses for the duration of the suspension period. VI. Other Optional Provisions There are a number of other provisions that a community may want to consider in regulating tobacco retailers. These include: A. Prohibiting licenses for businesses operating with a certain distance of a school or other area youth sensitive areas. B. Reducing the density of tobacco retailers by restricting how close tobacco retailers may be to one another (density relative to other retailers) or capping the total number of licenses issued. C. Requiring retailers to check the age of customers who appear to be under the age of 27. D. Prohibiting new “Significant Tobacco Retailers”, a business that primarily sells tobacco products, from obtaining a tobacco retailer license. The definition of “Significant Tobacco Retailer” can be based on either amount of floor space or percentage of sales devoted to tobacco products. E. Making violations of state laws regarding drug paraphernalia or controlled substances a violation of a tobacco retailer license. F. Prohibiting the sale of flavored tobacco products, such as candy, fruit and spice characterizing flavors in little cigars, hookah tobacco and dissolvable tobacco products. VI. Conditions of the License A tobacco retailer’s license ordinance primarily encourages retailer compliance with all local, state and federal tobacco laws, especially laws that prohibit the sale of tobacco products and ENDS to minors. However, Tobacco Retailer License ordinances also can require retailers to meet certain additional conditions in order to maintain the license. ---PAGE BREAK--- 6 Other possible conditions of the license include:  Violation of local or state storefront signage laws is a license violation.  Violation of non-tobacco age-of-purchase laws is a license violation selling alcohol to a minor).  Prohibiting licenses for a restaurant or a bar.  Prohibiting licenses for a business that allows smoking anywhere on the premises no hookah bars).  Prohibiting licenses for retailers operating a pharmacy.  Clerks must be old enough to purchase tobacco under state law 18 years old) to sell tobacco.  The enforcing agency may seize and destroy tobacco products offered for sale without a license. VII. Enforcement Enforcing the tobacco licensing ordinance is essential to increasing compliance with tobacco sales laws. This point cannot be overstated. In unincorporated Contra Costa County, the illegal sales rate of tobacco to minors decreased from 37% to 7% with the enforcement of the universal licensing ordinance. According to the California Department of Health Services Food and Drug Branch, some cities in Contra Costa County had sales rates of up to 27% in 2010.6 Costs associated with implementing and enforcing a tobacco retailer licensing ordinance include: A. Administration of the license. An entity of the local jurisdiction must develop and implement the application process and the distribution of the licenses themselves. In unincorporated Contra Costa, the Tax Collector’s Office administers the tobacco retailer license in concert with renewal of the annual business license. B. Site inspections to check for posting of the license and compliance with other tobacco sales laws. An entity of the local jurisdiction, such as a health department, building department or finance department, should conduct site inspections to verify that the license is posted and that other laws are being obeyed, including the ban on self service displays of tobacco products and signage laws. Law enforcement does not need to be involved in this aspect of enforcement, but it can be. C. Undercover buying operations to test compliance with no-sales-to-minors laws. In the unincorporated areas of Contra Costa County, the Sheriff’s Department is testing compliance by enforcing and prosecuting PC308(a), the 6 Department of Health Services, FDB, 2010 STAKE operation data for the cities of Concord, Danville, Pinole, Pittsburg, and San Pablo. ---PAGE BREAK--- 7 state law that makes it illegal for businesses to sell tobacco products to minors. Contra Costa Health Services uses the evidence of a PC308(a) citation as a basis for conducting tobacco retailer license suspension hearings. Some jurisdictions outside Contra Costa County are using other legal tools to test compliance no- sales-to-minors laws and linking them with the tobacco retailer license ordinance, such as the Business and Professions Code. Others are forgoing criminal prosecution altogether and moving directly into administrative enforcement of the licensing ordinance using on the same evidence of illegal sales that would otherwise be used to prosecute the clerk criminally. D. Data collection. The entity charged with overseeing the program must be prepared to keep records of the names and locations of tobacco retailers, details about site inspections and undercover buying operations, and the prosecution of violations. Fortunately, the State of California funds a database through cigarette tax funds that can be used by any local jurisdiction enforcing tobacco laws. Overall, the licensing fees themselves can cover the costs of implementing and enforcing a licensing ordinance. California law allows local elected officials to establish fees to cover the costs associated with administering and maintaining compliance with local ordinances. In the unincorporated areas of the County, the licensing fee covers the costs of administering and enforcing the licensing ordinance. VIII. Resources Over 80 cities in California have adopted and are enforcing strong tobacco retailer license ordinances. These are proving to be an effective tool in increasing merchant compliance with tobacco sales laws, notably no-sales-to minors-laws. A model licensing ordinance with annotations, as well as supplementary options for further regulating tobacco retailers, is available on-line at http:// http://changelabsolutions.org/tobacco-control. This model, and its supporting documents, is a good start for discussion about licensing policies. Contra Costa Health Services Tobacco Prevention Project (TPP) staff are also available for consultation on ordinance development and implementation. A model ordinance, draft protocols and merchant education materials are available from the TPP as well. They can be reached at [PHONE REDACTED] or [EMAIL REDACTED]. ---PAGE BREAK--- Tobacco Retailer Licensing An Effective Tool for Public Health Communities are adopting tobacco retailer licensing laws as one way to ensure compliance with tobacco laws and to combat the public health problems associated with tobacco use. In this fact sheet, we explain how tobacco retailer licensing works, why many communities are pursuing this policy, and what goes into creating and implementing a strong tobacco retailer licensing law. What is tobacco retailer licensing? Licensing is a common policy tool that state and local governments use to regulate businesses like alcohol retailers, pharmacists, or restaurants. A local government may want to similarly license tobacco retailers in order to protect public health and safety by ensuring that retailers comply with responsible retailing practices. Under a local tobacco retailer licensing law, the city or county government requires all businesses that sell tobacco products to obtain a license from the government in exchange for the privilege of selling these products to consumers.1 Local governments may require licensed retailers to pay an annual fee, which can fund administration and enforcement activities such as store inspections and youth purchase compliance checks. Increasingly, tobacco retailer licensing is being used to promote other innovative policy solutions as well, including controlling the location and density of tobacco retailers and imposing additional restrictions on the sale and promotion of tobacco products.2 As of June 2012, more than 100 cities and counties in California had adopted a local tobacco retailer licensing law.3 The Center for Tobacco Policy & Organizing (The Center) classifies 94 of these as “strong,”4 meaning the laws have at a minimum: • a requirement that all tobacco retailers obtain a license and renew it annually; • an annual licensing fee high enough to fund sufficient enforcement; • meaningful penalties for violators through fines and penalties, including the suspension and revocation of the license;5 and • a provision stating that any violation of existing local, state or federal tobacco laws constitutes a violation of the local law. changelabsolutions.org/tobacco-control September 2012 ChangeLab Solutions has developed model language for a tobacco retailer licensing law in California cities and counties. The model language offers a variety of policy options that can be tailored to the specific goals and needs of your community. In addition to the core provisions, ChangeLab Solutions has drafted supplementary “plug- in” provisions, which offer additional policy options that can be incorporated into the law. For more information, please see our resources on Tobacco Retailer Licensing at www.changelabsolutions.org/ publications/model-TRL-ordinance. While ChangeLab Solutions’ model language for a tobacco retailer licensing law was designed for California communities, the model can be adapted for use in other states as well. It is important to carefully check the existing law in your state to learn if local tobacco retailer licensing is allowed. Consult with an attorney licensed in your jurisdiction. Agenda Item No. 7(A) Attachment 6 ---PAGE BREAK--- 2 Why adopt a tobacco retailer licensing law? Many communities adopt tobacco retailer licensing laws because they are effective tools for limiting the negative public health consequences of tobacco use. While this tool provides many benefits, there are three main advantages to a tobacco retailer licensing law. First, these laws have been shown to be effective at limiting youth access to tobacco. Second, strong laws with annual fees create self financing programs that allow for regular enforcement. Third, a tobacco retailer licensing law facilitates comprehensive local enforcement of all tobacco related laws. Each of these points is discussed below. Protecting youth Despite state laws prohibiting sales of tobacco to minors, a 2007 survey found that nearly three-quarters of youth access enforcement agencies statewide issued warnings to merchants selling tobacco products to minors during the prior year.6 Fortunately, strong local tobacco retailer licensing laws—that is, laws that meet the criteria above—have proven effective at reducing illegal tobacco sales to minors. The Center has found that local tobacco retailer licensing is extremely effective at reducing illegal sales to underage youth: the organization surveyed 31 municipalities that have implemented and enforced a strong tobacco retailer licensing law and found that the rates of illegal sales to minors decreased, often significantly, in all communities surveyed.7 A self-financing program An important strength of licensing is that the government may impose a licensing fee that is sufficient to cover the costs of enforcement. Because funding enforcement is often the best way to ensure compliance with a policy, ChangeLab Solutions recommends that the fee be calculated to include all enforcement activities. For more information on how to calculate a fee for a local tobacco retailer license, see our tobacco licensing cost worksheet at: www.changelabsolutions.org/publications/tobacco-licensure-costs. A comprehensive enforcement mechanism for local communities A number of federal and California state laws already regulate tobacco sales and establish penalties for illegal sales to minors. But these laws each have separate enforcement mechanisms and penalty structures, making it difficult to enforce them at the local level. A local tobacco retailer licensing law, on the other hand, empowers local law enforcement to impose meaningful penalties for illegal sales to minors and ensure compliance with all existing laws—ensuring that local communities can prioritize enforcement even when state and federal authorities are unable to do so. Meanwhile, some of these state and federal laws fail to address important public health concerns related to tobacco. For example, the federal regulations authorized by the 2009 Tobacco Control Act currently apply only to cigarettes and smokeless tobacco products—they do not apply to little cigars or other tobacco products that are aggressively marketed to youth. A local tobacco retailer licensing law is a tool communities can use to help bridge these gaps and address public health concerns in their communities. What is a tobacco product? When people think of tobacco products, they may think of cigarettes, cigars, and chewing tobacco, but there are other products communities may want to restrict. Our model language defines tobacco products broadly to include all products containing tobacco leaf (including hookah, snuff, snus, and dissolvables) as well as nicotine-only products such as electronic cigarettes. This definition is written to restrict emerging tobacco industry products without interfering with FDA-approved cessation devices—like nicotine patches. An electronic cigarette with charger. ---PAGE BREAK--- Meth pipes for sale at a smoke shop in San Francisco, California. Cigarillos in grape, strawberry and blueberry flavors, sold for under a dollar a piece. 3 What else can a tobacco retailer licensing law do? While a tobacco retailer licensing law may be the best tool to prevent sales to minors, it can also promote other innovative policy solutions, controlling the location and density of tobacco retailers, imposing additional restrictions on the sale of other tobacco products like little cigars, and preventing the sale of drug paraphernalia. Location and density of retailers Local governments can use tobacco retailer licensing to control both the location and density of tobacco retailers in their communities. A licensing law could, for example, prohibit licenses for any businesses operating too close to a school or other area frequented by youth. Because tobacco sales near schools and child-oriented areas have been shown to increase youth smoking8, this policy can be used to keep tobacco retailers out of areas where youth typically congregate. A tobacco retailer licensing law also could cap the total number of licenses issued based on population, controlling the overall density of tobacco retailers in a community. California law limits alcohol licenses based on density, and this policy applies that same rationale to tobacco retailers. Little cigars and cigarillos A tobacco retailer licensing law can also prohibit the sale of individual or small packages of low-priced cigars, including little cigars and cigarillos. Due to their low prices and candy flavoring, these products are particularly appealing to youth, and though they are often similar to cigarettes, they are not subject to the same restrictions against selling the product individually or in small quantities. This policy allows communities to close this loophole and regulate a product that is increasingly used by youth. For more on this policy, see our fact sheet at: www.changelabsolutions.org/publications/limiting-teen-friendly-cigars. Drug paraphernalia Many communities are using tobacco retailer licensing laws to address the sale of drug paraphernalia in their neighborhoods. Through this provision, a retailer found to have violated state laws regarding drug paraphernalia will also be in violation of the local tobacco retailer license, and the penalties of the licensing ordinance will apply. In this way, the tobacco retailer licensing law becomes an additional tool for local law enforcement to combat sales of drug paraphernalia. For more information on this policy option, see our fact sheet on this topic at: www.changelabsolutions.org/publications/drug-paraphernalia. These are just a few examples of cutting-edge policy solutions for tobacco control. These innovative policy solutions—referred to as “plug-in” provisions— can be incorporated into our model language for a tobacco retailer licensing law. For more information about plug-in provisions, including the ones mentioned here, see: www.changelabsolutions.org/publications/policy-provisions-trl. Implementation and enforcement It’s up to individual communities to decide who will implement and enforce a tobacco retailer licensing law. Multiple agencies might be involved: one agency may issue the license (the city manager, for example, or the agency that issues general business licenses), while another agency, such as the environmental health or police department, may monitor compliance. There is no one right way to implement and enforce a local tobacco retailer licensing program. That said, successful programs share some characteristics. changelabsolutions.org Zoning: location and density of retailers Another common way to limit where tobacco retailers can locate is through land use laws, also known as zoning laws. For a comparison between land use laws and licens­ ing laws, see ChangeLab Solutions’ factsheet, Licensing & Zoning: Tools for Public Health, available at: www. changelabsolutions.org/publica­ tions/licensing-zoning. ---PAGE BREAK--- 4 For one thing, they are overseen by a single government agency with dedicated staff members. They also plan early for enforcement that engages all the key players. And they require a license fee that is large enough to cover the full costs of administering and enforcing the program. To assist agencies in coordinating and planning, ChangeLab Solutions created a checklist that includes all the recommended elements of a successful program. The checklist is available at: www.changelabsolutions.org/publications/implementation-checklist-TRL. To help understand the variety of local approaches to tobacco retailer licensing, in 2006 we studied four communities that are effectively enforcing their local tobacco retailer licensing laws: Contra Costa County, Santa Barbara County, the City of Willits, and the City of Los Angeles. We chose these communities because they were among the first in California to suspend the tobacco licenses of retail outlets that violated sales-to-youth or other tobacco control laws. Read our review of these programs (visit: www.changelabsolutions.org/publications/case-studies- local-trl-ords) to see how, despite their differences, they all achieve the goal of holding retailers accountable for violations of tobacco sales laws. Licensing for healthy food retailers Communities can use licensing to improve public health in other ways by ensuring that retailers are not only complying with existing laws but also benefiting the communities they serve. For example, in neighborhoods with limited access to fresh produce and staple foods, a licensing system could require food retailers to carry these items. For more information on healthy food retailer licensing, see our Model Licensing Ordinance for Healthy Food Retailers at: www.changelabsolutions. org/publications/HFR-licensing-ord. For more information For support with model language and legal issues: ChangeLab Solutions www.changelabsolutions.org For support with campaign issues: The Center for Tobacco Policy & Organizing, a project of the American Lung Association in California (The Center) www.Center4TobaccoPolicy.org 1 In California, local tobacco retailer licensing laws are specifically authorized by the state tobacco retailer licensing law, which says that “[l]ocal licensing laws may provide for the suspension or revocation of the local license for any violation of a state tobacco control law.” Cal. Bus. & Prof. Code § 22971.3. 2 See generally McLaughlin I. License to Kill?: Tobacco Retailer Licensing as an Effective Enforcement Tool. Tobacco Control Legal Consortium, 2010. Available at: http:// publichealthlawcenter.org/sites/default/files/ resources/tclc-syn-retailer-2010.pdf 3 American Nonsmokers’ Rights Foundation. California Municipalities with Laws Restricting Youth Access to Tobacco. 2011. Available at: www.changelabsolutions.org/publications/ anrf-list (List includes only those laws which provide for suspension or revocation of a license). 4 The Center. Table of Strong Locaal Tobacco Retailer Licensing Ordinances. 2012. Available at: www.center4tobaccopolicy.org/localpolicies- licensing. 5 The threat of license suspension creates a greater financial deterrent to retailers than a simple fine. For many stores, especially convenience stores, tobacco sales make up a substantial portion of their revenue. Losing the authority to sell tobacco products for a month can cost retailers far more than the largest fines that can be imposed under existing California laws, like Penal Code section 308 or the STAKE Act. See Cal. Penal Code § 308 (violators can be fined $200, $500, or $1000 for first, second, or third violations, respectively); Cal. Bus. & Prof. Code 22958 (violators can be fined $400-600 for a first violation and are subject to harsher penalties for each additional violation in a 5-year period). 6 Rogers T, Feighery EC, Haladjian HH. Current Practices in Enforcement of California Laws Regarding Youth Access to Tobacco Products and Exposure to Secondhand Smoke. Sacramento, CA: California Department of Public Health, 2008. Available at: www.cdph. ca.gov/programs/tobacco/Documents/ CTCPEnforcementReport08-05.pdf. 7 The Center. Tobacco Retailer Licensing Is Effective. 2011. Available at: www. center4tobaccopolicy.org/CTPO/_files/_file/ Tobacco%20Retailer%20Licensing%20is%20 Effective%20March%202011.pdf. 8 Henriksen et al. “Is Adolescent Smoking Related to the Density and Proximity of Tobacco Outlets and Retail Cigarette Advertising Near Schools?” Preventative Medicine, 47(210): 210-214, 2008. Abstract only is available at: www.sciencedirect.com/ science/article/pii/S0091743508002089. Photos: Lydia Daniller (cover, top of page ChangeLab Solutions (bottom of page 2, top of page SFCityAttorney on flickr.com (bottom of page and Flickr Creative Commons DC Central Kitchen (page 4) This material was developed by ChangeLab Solutions with funds received from the California Department of Public Health, under contract #09-11182. ChangeLab Solutions formerly existed under the name Public Health Law & Policy (PHLP), which included the Technical Assistance Legal Center (TALC). The legal information provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. © 2012 ChangeLab Solutions changelabsolutions.org