Agenda packet — Brentwood City Council, April 30, 2024

APRIL 30, 2024, 5:30 PM

SPECIAL CITY COUNCIL AGENDA
CITY COUNCIL CHAMBERS, 150 CITY PARK WAY
*IMPORTANT NOTICE ABOUT PUBLIC COMMENTS AND MEETING PARTICIPATION* City Council Members will be participating from the Council Chamber. Members of the public are invited to attend and participate at: the Council Chambers, 150 City Park Way, Brentwood CA As a courtesy and technology permitting, members of the public may provide remote public comment during public hearings and on business items via the City’s Zoom Platform. However, the City cannot guarantee that the public’s access to teleconferencing technology will be uninterrupted, and technical difficulties may occur from time to time. In those instances, so long as the public may still attend the meeting in person, the meeting will continue. In addition, the Zoom participation option is provided to the public as a courtesy in order to facilitate participation. If Zoom participation is not enabled, the meeting will continue with public attendance in person only. Members of the public desiring to provide comments as a part of the meeting are encouraged to either submit written comments by 3:00 p.m. prior to the meeting or to attend the meeting in person.

HOW PARTICIPATE
The public is invited to participate in the City Council meeting using any of the following methods:

1. IN PERSON:
a. Members of the public can provide in-person comments in the Council Chambers.

Members of the public are encouraged, but not required, to fill out a speaker card. The Council Chambers will have seating available for members of the public to attend in person up to full seating capacity.

2. REMOTE (if enabled): Remarks by members of the public participating via Zoom are limited to speaking on items listed under public hearings; business items; and requests for future agendas items, existing requests. Zoom participation during the general public comment period will not be accepted, except in the event a City Council Member is participating remotely under the provisions of Government Code § 54953 (f). a. Zoom: www.brentwoodca.gov/vcc or Zoom Webinar ID: 760 1397 0037 b. Zoom Phone Numbers. Dial Toll Free: (833) 548-0276 or (833) 548-0282 or (877) 853-5247.
c. During the meeting, each period for public comment will be announced, and participants may use the “Raise Hand” feature on Zoom to request to speak. (If you need instructions on how to use this feature, please contact the City Clerk by noon of the meeting date at [email protected] or 925.516.5182.)

3. E-MAIL
a. Public comments can also be submitted via e-mail to [email protected].

Any public comments received up until 3:00 p.m. of the meeting date will be:

1. distributed to the Council via email before the meeting,

2. posted online for public inspection at www.brentwoodca.gov/meetings and

3. later summarized in the meeting minutes.
b. As e-mails containing public meeting comments are part of the official record, note that personal contact information may be published if it is included with your e-mail.

4. TO WATCH OR LISTEN ONLY:
a. The public may view the meeting via one-way video feed by selecting the video option at the City Council Agendas’ link on the City webpage at www.brentwoodca.gov or via the City’s YouTube Channel: https://www.youtube.com/c/cityofbrentwoodca

CITY COUNCIL SPECIAL MEETING AGENDA
Zoom Webinar ID: 760 1397 0037

April 30, 2024, 5:30 p.m.

City Council Chambers
150 City Park Way
Brentwood, CA 94513
City Council Zoom Link
A. CALL TO ORDER & ROLL CALL
B. PLEDGE OF ALLEGIANCE
C. BUSINESS ITEMS
Public Comment on Agenda Items C.1 and C.2, will be taken following staff's presentation and before direction is provided.

C.1 Discuss Possible New Tobacco Regulations and Provide Direction to Staff Title/Recommendation
Consider information related to possible new tobacco regulations and provide direction to staff on the options provided in the staff report.

C.2 Discussion and direction on the Vineyards at Marsh Creek - Event Center/Amphitheater Phase I, CIP No. 337-37231, and associated funds.

Title/Recommendation
Receive an update on the Vineyards at Marsh Creek - Event Center/Amphitheater Phase I, CIP No. 337-37231, (“Project”), discuss and provide direction regarding the Project, including the use of associated funds.

D. ADJOURNMENT
Any disclosable public records related to an agenda item for the open session of this meeting distributed to all or a majority of the City Council less than 72 hours before this meeting is available for inspection at City Hall, located at 150 City Park Way, during normal business hours.

These writings will also be available for review at the City Council meeting in the public access binder in the entrance of the City Council Chambers.

Public comments received after 3:00 p.m. of the meeting date, but prior to the start of the meeting, will be emailed to the City Council, posted online at www.brentwoodca.gov/councilmeetingonline within one day following the meeting, and will be summarized in the meeting minutes.

The Closed Captioning provided via Zoom is auto generated. It is not the official record and is provided as a convenience.

NOTICE
In compliance with the Americans with Disabilities Act, the meeting room is wheelchair accessible and disabled parking is available at the City Hall parking lot. If you are a person with a disability and you need disability-related modifications or accommodations to participate in this meeting, please contact the City Clerk's Office at (925) 516-5440 or fax (925) 516-5441. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. {28 CFR 35.102-35, 104 ADA Title II}

POSTING STATEMENT
On April 25, 2024, a true and correct copy of this agenda was posted on the City Hall Bulletin Board, outside City Hall, 150 City Park Way, Brentwood, CA 94513 and at our website www.brentwoodca.gov
A complete packet of information is available for public review at City Hall or on our website at www.brentwoodca.gov

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SUBJECT: Discuss Possible New Tobacco Regulations and Provide Direction to Staff
DEPARTMENT: Community Development
STAFF: Alexis Morris, Director of Community Development

TITLE/RECOMMENDATION
Consider information related to possible new tobacco regulations and provide direction to staff on the options provided in the staff report.

FISCAL IMPACT
If a tobacco retailer licensing (TRL) ordinance is approved, the new license fees would be submitted for approval by the City Council at a future meeting. The amount of revenue collected will depend on the fee amount proposed and the number of businesses required to be licensed and is not expected to have a material impact on General Fund revenues.

License fees and any potential revenue generated by administrative citations for enforcement of an ordinance would be deposited into the General Fund. General Fund legal fees to draft a new TRL ordinance are estimated to be between $5,000- $10,000, including approximately $2,000 in legal fees already incurred, and are expected to be expended in FY 2023/2024 and FY 2024/2025. There is sufficient General Fund budget for the expenditure in both fiscal years.

Finally, staff will pursue any available grant funding from the State of California Department of Justice (DOJ) Tobacco Grant Program that may be used to enforce local ordinances, including a TRL ordinance, if approved.

BACKGROUND

TOBACCO URGENCY ORDINANCE AND COUNCIL REQUESTED INFORMATION In 2022, the City Council directed staff to regulate new tobacco smoke shops that sell products for off-site consumption. This use is currently (and has historically been) considered to be a general retail use under the Brentwood Municipal Code, and therefore permitted by right in any zoning district that allows general retail uses. On September 27, 2022, the City Council adopted an interim urgency ordinance

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implementing a moratorium on new tobacco smoke shops, and extended the interim urgency ordinance one final time on August 22, 2023 (staff report attached). The interim urgency ordinance will expire on September 8, 2024.

At the August 22, 2023, City Council meeting, the Council directed staff to provide additional information on the following items related to potential new tobacco regulations:

1. implementing a local tobacco retail license system, including maximum amount that can be charged, and how those fees will be spent;

2. 100% flavor ban on tobacco sales;

3. prohibiting vaping product sales;

4. maximum distance between tobacco retailers and schools allowed by law;

5. minimum sales sizes (e.g., pack/carton);

6. strictest laws for proximity between retailers;

7. all tobacco sales banned at pharmacies;

8. working with law enforcement on decoy purchasers;

9. any means to retroactively revoke licenses (if applicable);

10. minimum prices on tobacco;

11. prohibit coupons/discounts;

12. cap on smoke shops and tobacco retailers in total;

13. DOJ grants to support code enforcement;

14. require CUP for tobacco sales;

15. potential penalties available; and

16. best practices from other cities for Council consideration.

LAND USE AND DEVELOPMENT COMMITTEE (LUD) RECOMMENDATIONS On March 18, 2024, staff presented LUD with information on the above 16 items and requested LUD provide recommendations on each item for City Council to consider.

LUD provided recommendations on each of the 16 items and requested information be provided to City Council on additional items. All of LUD’s recommendations and requests for additional information are summarized in the table attached to the staff report and are included in the staff report discussion below.

PUBLIC HEALTH CONTEXT
Tobacco use is the United States’ leading cause of preventable death. Each year, tobacco-related diseases cause the deaths of approximately 40,000 Californians and

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nearly half a million individuals in the United States.1 Further, Centers for Disease Control and Prevention (CDC) estimates suggest that 441,000 Californians under 18 today will die from tobacco-related diseases.2

REGULATORY CONTEXT
There are multiple state and federal laws that regulate the retail sale of tobacco products and the licensing of tobacco retailers. For example, California Penal Code 308 prohibits the selling, giving, or furnishing of tobacco products and tobacco paraphernalia to most individuals under the age of 21.3 The Stop Tobacco Access to Kids Enforcement Act (“STAKE Act”) also prohibits tobacco sales to most individuals under the age of 21, restricts tobacco self-service displays and vending machine sales, and requires retailers to post signs at the point of sale about illegal underage tobacco sales.4 The Public Health Law Center publishes a digest titled “Tracking Tobacco Laws: A California Digest” that summarizes the major tobacco-related laws and regulations that affect the State of California5.

Business and Professions Code § 22971.3 provides that nothing in the state’s Cigarette and Tobacco Products Licensing Act of 2003 (which sets out the statewide framework for tobacco licensing) “preempts or supersedes” local tobacco control law.

This evidences an intent by the state to allow localities to study and legislate with respect to the tobacco regulations that work best for their own jurisdiction. A 2010 appellate case expressly held that a local regulatory scheme requiring tobacco retailers to obtain a city (in addition to state) license to sell tobacco, and authorizing the suspension or revocation of a tobacco retailer license for violations of the local ordinance, was not preempted by state law. (Prime Gas, Inc. v. City of Sacramento (2010) 184 Cal.App.4th 967.)

EXISTING ENFORCEMENT EFFORTS AND COSTS

1 U.S. Department of Health and Human Services. The Health Consequences of Smoking: 50 Years of Progress. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014. Available at: https://www.surgeongeneral.gov/library/reports/50-years-of-progress/fullreport.pdf. 2 Centers for Disease Control and Prevention. Best Practices for Comprehensive Tobacco Control Programs—2014.

U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014. Available at:
https://www.cdc.gov/tobacco/stateandcommunity/best_practices/pdfs/2014/comprehensive.pdf. 3 Cal. Penal Code § 308(a)(1)(A).
4 Cal. Bus. & Prof. Code §§ 22950-22964.
5 https://www.publichealthlawcenter.org/sites/default/files/resources/CA-Tracking-Tobacco-Laws-Digest.pdf

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Currently, enforcement of tobacco related laws within the City’s jurisdiction is conducted by the Police Department. Enforcement activities are primarily complaintdriven; however, the Police Department occasionally conducts proactive enforcement operations related to underage tobacco stings using persons between 16-20 years of age (i.e., decoy purchasers). The Department also occasionally works with outside agencies on enforcement operations. Enforcement is conducted as part of normal operations and is funded by the Department budget, therefore, it is difficult to determine the exact costs.

POTENTIAL NEW TOBACCO REGULATIONS
The attached table lists 16 possible new tobacco regulations regarding which the City Council requested additional information. Staff worked with outside counsel and Contra Costa Health to research the 16 items and provide analysis for each, including the regulatory context, implementation strategies, areas where Council direction is needed and staff’s recommendation related to that item. This information is provided in the attached table due to the large volume of information requested and in an attempt to keep the staff report to a reasonable length. The discussion below provides additional analysis of specific items on the list that merit more detailed discussion, as well as LUD’s recommendations on each item.

Model Tobacco Retailer Licensing (“TRL”) Ordinance (#1) A TRL ordinance requires a local license (in addition to the mandatory state license) in order for any business to sell tobacco products. Contra Costa Environmental Health supports a TRL as an effective tool to ensure compliance with laws and to reduce youth access to tobacco. According to Contra Costa Health, a 2019 California study found that youth in communities with a strong TRL policy were 33% less likely to have initiated cigarette use and 26% less likely to initiate e-cigarette use compared to youth in cities that had no TRL or insufficient compliance checks.6 Attached to this staff report is a Model Tobacco Retailer Licensing Ordinance (“Model Ordinance”) prepared by the Public Health Law Center and the American Lung Association of California, who are contracted by the California Tobacco Control Program (“CTCP”) to support commercial tobacco control professionals and advocates in their work to end the commercial tobacco epidemic in California.

6 Roee L. Astor, MPH; Robert Urman, PhD; Jessica L. Barrington-Trimis, PhD; et al. Tobacco Retail Licensing and Youth Product Use. Pediatrics (2019) 143 (2): e20173536. https://doi.org/10.1542/peds.2017-3536

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The Model Ordinance requires all businesses that sell tobacco products to obtain a license from the local agency in exchange for the permission to sell these products to consumers. With a TRL, local governments may require licensed retailers to pay an annual fee, which can fund administration and enforcement activities, such as store inspections and compliance checks pertaining to youth purchases. The Model Ordinance also includes: a minimum package size and a minimum price for tobacco products; a prohibition on flavored tobacco sales; a prohibition on tobacco sales in pharmacies; and proximity requirements between “youth-oriented facilities” and other tobacco retailers. The Model Ordinance also contains several blanks where there is opportunity to customize language for the City of Brentwood. Use of this existing vetted template ordinance is strongly recommended to avoid running afoul of any applicable state and/or federal laws. In summary, the attached Model Ordinance would create much stricter regulations related to tobacco sales than currently exist in the City and would address many of the 16 issues regarding which the Council requested information.

Definitions
The attached Model Ordinance defines a tobacco retailer as:
any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange.

According to this definition, any business in the City that sells “tobacco products” would be considered a tobacco retailer in a TRL ordinance, including grocery stores, pharmacies, convenience stores, and liquor stores. Tobacco products are defined as:
(1) any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;
(2) any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or
(3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.

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“Tobacco product” does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.  LUD Recommendation: LUD recommended that the City Council adopt a TRL program using the model ordinance as a basis for a new City ordinance.

Compliance Monitoring
The Model Ordinance contains requirements for regularly monitoring licensees for compliance with requirements and compliance checks for underage sales using decoy purchasers. If a TRL Ordinance were adopted by the City Council, regular monitoring of licenses would be conducted by Community Enrichment staff and decoy operations would be conducted by the Police Department with the assistance of Community Enrichment staff. Due to limited staff resources, staff recommended to LUD conducting monitoring of licensees for compliance with license requirements once a year and conducting separate compliance checks for underage sales once a year. This would result in a licensee being inspected a minimum of twice a year at different times. Separate inspections would occur if a complaint was received and the Police Department could still conduct occasional underage enforcement operations throughout the year, if necessary. As discussed below, the City may charge tobacco retailers an annual fee to help fund the cost of these enforcement/compliance monitoring efforts.
 LUD Recommendation: LUD recommended that the City’s new TRL require three annual compliance checks and one annual decoy operation for each licensee; a total of four annual compliance checks for each licensee.

Penalties (#9, #15)
If a TRL Ordinance is adopted, the City will have stricter and more effective enforcement tools than it currently has. The Model Ordinance includes provisions for the suspension or revocation of a TRL if it is determined that a licensee violated any of the requirements of the ordinance. A license could be suspended for a period of 30-90 days, depending on the number of violations within a five-year period.

Alternatively, a license could be revoked after four or more violations within a five year period. Decisions to suspend or revoke a license would be appealable, which is consistent with the City’s existing procedures for other types of Municipal Code violations. Other potential penalties include civil or administrative fines, ineligibility to apply for a new license for a specified period of time, seizure and forfeiture in some cases of products offered for sale in violation of the law, and/or treatment of violations as a public nuisance, allowing for more types of local enforcement.

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 LUD Recommendation: LUD recommended that the TRL include a maximum limit of three violations after which a TRL license would be revoked, rather than the four violations recommended by the model TRL. LUD also recommended that the new administrative fines established for the TRL program should be as high as possible and, if possible, the administrative fines should be used for providing tobacco education to the community, which is discussed in more detail below.

Drug Paraphernalia
The Model Ordinance does not include a prohibition on the display or sale of drug paraphernalia. If a TRL Ordinance is implemented, staff recommends adding this prohibition along with penalties, such as the revocation of a tobacco retailer license, if it is determined that a retailer sells drug paraphernalia.  LUD Recommendation: LUD recommended that the new TRL include a prohibition on the sale of drug paraphernalia.

Prohibiting Vaping Product Sales (#3)
The Model Ordinance does not prohibit sales of electronic smoking devices (“ecigarettes” or “vapes”) and related products. It does include definitions for electronic smoking devices in the definitions of smoking, tobacco products, etc. If a TRL ordinance is implemented, staff recommends incorporating a prohibition on electronic smoking devices and related products and incorporating a one year “phase-out” period for tobacco retailers to conclude sales.
 LUD Recommendation: LUD recommended that the new TRL include a prohibition of the sale of electronic smoking devices. LUD did not directly address whether to implement a phase out period specifically for electronic smoking devices, but did recommend a one year phase-out period for tobacco retailers that would not be compliant with the new regulations once adopted, as discussed below.

Impacts to Existing Businesses
According to the California Department of Tax and Fee Administration7, there are approximately 42 state-licensed business selling tobacco in some form in the City.

Many of these businesses are permitted by right in their zoning districts – meaning that only a business tax certificate is required to operate. On August 22, 2023, the

7 https://www.cdtfa.ca.gov/taxes-and-fees/cigarette-licensees.htm

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City Council extended an urgency ordinance to stop the establishment of new, standalone smoke shops in the City. This ordinance expires September 8, 2024. The City has received no applications for new smoke shops since the adoption of the urgency ordinance.

According to the definition of a “tobacco retailer” provided above, any business in the City that sells “tobacco products” would be considered a tobacco retailer in a TRL ordinance; including grocery stores, pharmacies, convenience stores, and liquor stores.

Distance Requirements from Sensitive Uses and Other Retailers (#4, 6) A separation requirement from sensitive uses (e.g., youth oriented facilities) and from other tobacco retailers can be implemented as part of a TRL Ordinance. The model ordinance suggests a distance requirement of 1,000 feet from youth oriented facilities and other businesses. The model ordinance defines “Youth Oriented Facility” as a parcel in a city that is occupied by:
(1) a private or public kindergarten, elementary, middle, junior high, or high school;
(2) a library open to the public;
(3) a playground open to the public;
(4) a youth center, defined as a facility where children, ages 6 to 17, inclusive, come together for programs and activities;
(5) a recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes;
(6) a park open to the public or to all the residents of a private community; (7) a licensed child-care facility or preschool [other than a small-family day care home or a large-family day care home, as defined in California Health & Safety Code § 1596.78]
The attached map prepared by Contra Costa Health shows tobacco retailers and their proximity to certain youth sensitive facilities in Brentwood. The map was provided by Contra Costa Health using data from the California Department of Tax and Fee Administration. Also attached for reference is an example of what a 300, 500, and 1,000 foot separation distance from a Youth Oriented Facility would look like, using Liberty High School as an example. The attached “Matrix of Local Ordinances Restricting Tobacco Retailers Near Schools” prepared by the Center for Tobacco Policy and Organizing of the American Lung Association shows that many cities have

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separation requirements between tobacco retailers and youth oriented areas and between other retailers with varying distance requirements. As shown on the matrix, the 1,000 foot separation recommend by the Model Ordinance is common in other cities.
 LUD Recommendation: LUD recommended a 1,000 foot separation requirement between tobacco retailers and between “youth oriented facilities” as defined in the model ordinance.

Cap on Number of Tobacco Retailers and Applying Regulations to Existing Retailers (#12)
A numeric cap on the total number of tobacco retailers can be included in a TRL and the cap can be placed city-wide or it can be placed over particular areas of a city. A separation requirement between tobacco retailers, as discussed above, can also effectively limit the number of retailers in the City, whether or not a numeric cap is in place.

The Model Ordinance suggests limiting tobacco retailer licenses by placing a cap on the total number of licenses allowed based on the population of a city. While that may be an effective way to limit tobacco retailers in larger cities, staff does not recommend this approach for Brentwood. Brentwood has relatively few commercially zoned areas compared to its overall population. Therefore, limiting the number of licenses based on population would not effectively address potential over concentration of retailers in commercial areas of the city. Whatever method is used, implementing a numeric cap on licenses would have implications for existing businesses in the city if the chosen cap is lower than the existing number of tobacco retailers and could become complicated to administer.

If a cap were included in a TRL Ordinance, staff would require Council direction on how the cap should be applied (e.g., whether the cap would be applied city-wide or in a specific area of the City) and whether the cap would be calculated based on the overall population or another method. Staff would also need direction on policies to be established in the event applications for licenses exceeded the numeric cap (e.g., through a competitive process or on first-come first-served basis).  LUD Recommendation: LUD recommended not including a numeric cap in a new TRL, but to limit new tobacco retail licenses to only existing tobacco retailers at the time the ordinance takes effect and not allow any retailers not currently operating in the City to be licensed.

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Applying New Regulations to Existing Retailers
Unfortunately, the Model Ordinance does not contain policies related to existing tobacco retailers that are operating lawfully prior to a new TRL Ordinance being adopted, but which would be out of compliance with some or all of the new regulations. For example, it is possible that existing tobacco retailers that are currently legally operating may not meet new requirements for separation from other tobacco retailers and would, through no fault of their own, be out of compliance with the new ordinance as soon as it is adopted and would not be eligible to apply for a license.

If the City Council directs staff to prepare a TRL Ordinance, staff recommends adding policies addressing how the new regulations apply to existing retailers. There are several approaches that could be implemented as part of a TRL Ordinance, detailed below. Each of these methods is allowed; therefore, staff would need City Council’s direction on which to implement, or if there is another approach Council would prefer.  “Grace Period” for existing retailers: This approach would allow tobacco retailers operating lawfully on the date the ordinance is adopted that would become ineligible to receive or renew a Tobacco Retailer’s license pursuant to the new ordinance to apply for and receive a one-time, non-renewable license for the location. The length of the grace period would be at the City Council’s discretion; although, staff would not recommend a grace period shorter than one year. A one year time frame or longer would allow businesses time to change their operations or seek other locations for their businesses. Retailers would have to cease all tobacco sales once the grace period expired.  “Grandfather” existing retailers: This option would exempt existing retailers from a TRL ordinance’s new requirements, such as the separation requirements, that might otherwise prevent them from qualifying for a license.

This option would create two different types of tobacco retailers in the City (e.g., those subject to the ordinance and those exempt from it) and two sets of regulations to enforce. These disparate regulations would be difficult and time intensive for staff to manage over time. It also would make it difficult to enforce a cap on tobacco retailers because it would rely on staff being able to track when grandfathered retailers go out of business.
 “Cap and winnow” existing retailers: If a cap on licenses were implemented, this option would gradually reduce the number of tobacco retailers by, among other things, prohibiting transfering a tobacco business to another party or reestablishing a tobacco business in the same location as one that has closed.

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Existing retailers could be licensed under the cap and winnow approach, but would eventually be reduced over time through attrition rather than within the specified time frame that is used by the “grace period” approach.  LUD Recommendation: LUD recommended a combination of the above approaches. Specifically, LUD recommended that businesses that are currently operating but would be out of compliance with new regulations once they were adopted be allowed to obtain a TRL for one year only, after which time they would have to cease selling tobacco products. Further, LUD recommended that licenses not be transferrable to other parties after a location has closed. This approach would significantly reduce the number of tobacco retailers in the City after the initial one year period due to the 1,000 foot separation requirements recommended to be included in the new ordinance.

REQUIRING A CONDITIONAL USE PERMIT FOR TOBACCO RETAILERS (#14) The City can require new tobacco retailers to obtain a conditional use permit (CUP), which can set restrictions such as limiting amount of storefront signage or banning sale of single cigars (among other things). However, if the City Council implements a TRL Ordinance, it would include many strict operating standards for tobacco retailers and provisions for suspension and revocation of licenses. Many of these license requirements would be similar to conditions of approval for the same uses under a CUP. However, the process for suspending or revoking a TRL would be quicker and simpler than the process for revoking a CUP. Therefore, staff recommends implementing a TRL program rather than a CUP requirement, as the TRL would create operational and locational requirements with which all tobacco retailers would have to comply. If the Council would like to require a CUP for future tobacco retailers, the City Council should direct staff to prepare an amendment to the Zoning Ordinance (Title 17).
 LUD Recommendation: LUD recommended that a CUP not be required for tobacco retailers and that a TRL be established instead.

REGULATING SIGNAGE AND ADVERTISING (#17)
LUD requested that staff provide additional information and recommendations related to how the City can regulate the content of tobacco retailers’ signs and also comply with various laws related to signage. In general, the City’s sign regulations must be consistent with First Amendment principles of free speech; however, the City does have more leeway to regulate commercial speech, as would be the case for tobacco

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retailer signage. The City could continue to enforce its existing Sign Ordinance (BMC Chapter 17.640) against tobacco retailers, which requires retailers to obtain sign permits or comply with the regulations for exempt signs. There are also various state laws affecting tobacco retailer signage; for instance, under a Master Settlement Agreement between California and the major tobacco companies, signs advertising cigarettes and smokeless tobacco that are displayed outside a retail store or in an outward-facing window may not be more than 14 square feet. The Master Settlement Agreement also prohibits the settling manufacturers from targeting youth with their ads, using cartoons, using brand-name merchandise, sponsoring youth-oriented events, and paying for product placement in the media. Further, state law currently prohibits any person, company, or organization to advertise any tobacco products on an outdoor billboard located within 1,000 feet of schools or public playgrounds, and specifies that cities may adopt local standards that impose a more restrictive or complete ban on tobacco-related billboard advertising. And state law also states that no more than 33% of the square footage of windows and glass doors of alcohol retailers may have advertising signs of any sort, including tobacco.

From the local perspective, as long as the City limits its sign regulations to size, height, number, location, and physical attributes (these being content-neutral considerations), the City has strong legal authority to enforce its own regulations. To go further in regulating tobacco-specific advertisements, the City would first have to analyze the regulations in the context of First Amendment protections for “commercial speech,” meaning the right of corporations to advertise and promote their products and services. Recognizing these limitations, the same organization that developed the model tobacco retailer license ordinance used by staff here has also developed a model ordinance for reducing storefront window signage, in compliance with state and federal law.

To avoid running afoul of First Amendment principles relating to commercial speech, staff recommends that (1) the City continue to enforce its existing Sign Ordinance against all tobacco retailers; (2) the City continue to enforce state laws that control certain elements of tobacco advertising, as discussed herein; and (3) the City Council consider whether it wants to adopt a “storefront window signage” ordinance to supplement and bolster its existing Sign Ordinance. If Council directs staff to adopt a “storefront window signage” ordinance, staff could bring that ordinance to City Council for consideration at the same time as a TRL ordinance.

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STAFF TIME AND COSTS
If a TRL ordinance is approved, the new license fees would be submitted for approval by the City Council at a future meeting. The amount of revenue collected will depend on the fee amount proposed and the number of businesses required to be licensed and is not expected to have a material impact on General Fund revenues. License fees and any revenue generated by administrative citations for enforcement of the proposed ordinance would be deposited in the General Fund.

TRL Fees and Fines
The California Constitution places some limits on how much a jurisdiction can charge in a fee, deeming excessive fees to be taxes that require a vote of the people.

Nonetheless, without a referendum, it is lawful to impose a fee on applicants in an amount sufficient to offset the reasonable regulatory cost of the entire tobacco retailer enforcement program of a locality8.

A successful TRL program depends on vigorous enforcement. The cost of enforcement will depend on the scope of the TRL program, which department administers the TRL program, and the number of annual inspections/compliance checks, etc. A new TRL program would also require extensive outreach to existing businesses initially. The Public Health Law Center created a Tobacco Retail Licensing Calculator that staff can use to help calculate what fee to charge to cover the costs of running the TRL program. For reference, the City of San Pablo and Contra Costa County have TRL programs – San Pablo charges an annual TRL fee of $197 and Contra Costa County charges a $287 annual fee for its TRL. It is unlikely that fees this low would cover the cost of issuing licenses and conducting compliance checks in Brentwood.

A new TRL fee can incorporate the cost of enforcing all tobacco laws related to tobacco retailing because a violation of any tobacco-related law is a basis for suspension of a license. If Council directs staff to prepare a TRL Ordinance, staff would calculate a fee that would cover the costs of tobacco retailer license issuance and renewal, tobacco control inspections, including youth decoy stings, ongoing maintenance of the TRL system, and enforcement, including processing citations and handling hearing requests or cases in court. Staff would also create fines and penalties that could act as financial deterrents to violators. The Council would consider the new fee at a future meeting when considering updates to the City’s Cost Allocation Plan.

8 Sinclair Paint Co. v. Board of Equalization (1997) 15 Cal. 4th 866 (1997); Griffith v. City of Santa Cruz (2012) 207 Cal. App. 4th 982.

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Any revenue generated by administrative citations for enforcement of the proposed ordinances would be deposited in the General Fund. The fee could not be used for purposes other than covering the cost of the enforcement program. Even with a new fee in place, full cost recovery is not likely to be achieved, as it is possible there will be enforcement actions against businesses that never applied for a TRL or paid the fee or there will be some enforcement actions that exceed the time estimates used to develop the fee.
 LUD Recommendation: LUD recommended that new administrative fines established for the TRL program should be as high as possible.

Use of TRL Fines
As discussed above, LUD requested information regarding whether fines related to the TRL could be used for educational purposes. Any fine amounts collected will be deposited into the General Fund, and may thereafter be used by the City to focus on education outreach efforts (or, more generally, to continue to work towards a tobacco-free community in whatever manner the City deems fit). The guiding principle is to ensure any funds earmarked specifically for tobacco education or related purposes bears a “public purpose,” which is a determination specifically left up to the City’s discretion and requires only a “reasonable basis.” Staff requests the City Council provide direction on whether TRL related fines should be used for the “public purpose” of tobacco prevention education. If this is Council’s direction, staff recommends partnering with Contra Costa Health’s Tobacco Prevention Project (TPP).

The TPP’s purpose is to reduce and ultimately eliminate tobacco use and exposure in the entire County. Leveraging Contra Costa Health’s extensive expertise and public education resources related to tobacco prevention would allow tobacco education in Brentwood to happen more frequently and reach a much wider audience than the amount of money received through tobacco fines would.

Staff Resources
Contra Costa County has a dedicated Tobacco Prevention Project (TPP) that reviews TRL applications and the applications are issued by the County’s Business License Tax Division. San Pablo has a tobacco enforcement unit made up of one Police Officer and one Police Services Technician, which operate under the City’s Code Enforcement Unit. San Pablo has received DOJ grants to fund the program in the past. A TRL program in Brentwood would likely be administered by the Community Development Department and Community Enrichment staff with the additional involvement of the Police Department and the Finance Department.

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As discussed above, LUD recommended the new TRL program require three annual compliance checks and one annual decoy operation for each licensee; a total of four annual compliance checks for each licensee. If there are 42 initial licensees in the program, then that would total 168 compliance checks a year, or an average of three compliance checks a week. This volume of compliance checks combined with preparing required documentation and processing possible appeals would take up a significant amount of Community Enrichment staff’s time in the early years of the program. The amount of time would decrease as the number of licensees decreased through attrition. There is currently no capacity to absorb that work with current staffing levels.

The Community Development Department will be requesting one new full-time Community Enrichment Officer at the 2024/25 – 2025/26 Operating Budget Workshop in May of 2024 to assist with the Division’s current and anticipated future workload. If approved, the funding for this position would be from the General Fund.

The estimated annual cost of the additional Community Enrichment Officer would be $156,800, plus one-time vehicle and equipment costs of $43,500. If approved, this position would provide the Community Enrichment division with additional resources to enforce new tobacco regulations, among other things. If a TRL program is created but a new FTE is not funded, then significant adjustments would need to be made to re-prioritize Community Enrichment staff’s current workload in order to absorb the work associated with a new TRL program.

Outside Legal Assistance
Because of limited staff resources, outside legal assistance will be required if the City Council directs staff to draft a new Tobacco Retailer Licensing (TRL) ordinance.

General Fund legal fees to draft the ordinance are estimated to be between $5,000- $10,000, including approximately $2,000 in fees already incurred.

Department of Justice Grants (#13)
Local agencies (including local law enforcement and school districts) are eligible to apply for grants through the State of California Department of Justice (DOJ) Tobacco Grant Program9that may be used to enforce local ordinances and/or state laws relating to sale or marketing of tobacco products, including e-cigarettes. Supported enforcement efforts may include (but are not limited to) retailer compliance checks, public education outreach, and retailer license inspections. According to the DOJ, approximately $170 million in grant funding has been distributed through a competitive process.

9 https://oag.ca.gov/tobaccogrants

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Contra Costa Health provided the attached information on the DOJ grant program that they created specifically for the City of Brentwood. Contra Costa agencies that have received the DOJ grant in the past include Contra Costa County and the cities of Martinez, Pinole, Pittsburg, and San Pablo in various amounts as shown in the attachment.

It is likely that having a TRL in place would make a jurisdiction more competitive in the grant process, although the grant guidelines do not explicitly state that. The DOJ grant must be applied for annually and it is a competitive process, therefore, receipt of funds is not guaranteed. Application and funding information for the upcoming fiscal year has not yet been posted on the program’s website but it is likely information will be posted in April with an application deadline sometime in June.

Staff will stay informed on additional funding opportunities that may arise.

BEST PRACTICES FROM OTHER CITIES (#16)
Many cities in the state have local regulations related to tobacco sales and the laws vary greatly in subject and scope. For example, the attached “Matrix of Local Ordinances Restricting Tobacco Retailers Near Schools” prepared by the Center for Tobacco Policy and Organizing of the American Lung Association shows that many cities have separation requirements between tobacco retailers and youth-oriented areas and between other retailers, but the distance requirements vary.

In Contra Costa County, San Pablo10 and Contra Costa County11 have robust TRL programs that are similar to the Model Ordinance; although San Pablo’s ordinance is not up to date in terms of new flavored tobacco regulations. Contra Costa County also bans the sale of electronic smoking devices and “e-liquids.” Santa Clara County adopted strict tobacco retail requirements in 202212. Recently, the cities of Beverly Hills13 and Manhattan Beach14 adopted ordinances that ban the issuance of any new tobacco retailer licenses in those cities, with a way to apply for a hardship exemption from the ban and timelines to phase-out existing retailers. The Beverly Hills ban may be the first of its kind in the United States. Both of these ordinances are relatively new and have not faced legal challenges.

10 https://www.codepublishing.com/CA/SanPablo/html/SanPablo05/SanPablo0506.html 11https://library.municode.com/ca/contra_costa_county/codes/ordinance_code?nodeId=TIT4HESA_DIV445SESMTO PRCO_CH445-10TORELI
12https://library.municode.com/ca/santa_clara_county/codes/code_of_ordinances?nodeId=TITBRE_DIVB11ENHE_C

HXXIIPERETOPR
13 https://codelibrary.amlegal.com/codes/beverlyhillsca/latest/beverlyhills_ca/0-0-0-3174 14https://library.municode.com/ca/manhattan_beach/codes/code_of_ordinances?nodeId=TIT4PUWEMOCO_CH4.11 8PRRESATOPRELSMDE

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CITY COUNCIL AGENDA ITEM NO. C.1
04/30/2024

SUMMARY OF LUD RECOMMENDATIONS AND COUNCIL DIRECTION NEEDED The table below lists each of the 16 items City Council requested additional information on and lists the Council direction needed for each item along with staff’s and LUD’s recommendations. A TRL ordinance based on the Model Ordinance and incorporating LUD’s recommendations would create much stricter regulations than the City currently has and would result in a significant decrease in the number of businesses selling tobacco in the City. If the City Council directs staff to prepare a TRL ordinance, staff would work with outside legal to draft the Ordinance with the goal of bringing it back to City Council for consideration before the Tobacco urgency ordinance expires September 8.

Table 1: Council Requested Tobacco Items
# Information
Requested by City
Council
Council Direction
Needed
Staff
Recommendation
LUD
Recommendation
1 Implementing a local
tobacco retail license
(TRL) system,
including maximum
amount that can be
charged, and how
those fees will be
spent
Whether to
implement a TRL
Ordinance?
If TRL is
implemented, require
two annual
inspections of
licensees-one
inspection for
compliance and one
decoy operation.

Utilize outside
counsel to draft new
ordinance.

Yes, fee to cover
implementation, 3
compliance checks
and 1 decoy,
revocation after 3
violations.
2 100% flavor ban on
tobacco sales
Whether to
implement TRL
Ordinance?
Alternatively,
whether to
implement a standalone ban on flavored
tobacco?
If TRL is
implemented,
incorporate language
suggested by Model
Ordinance (p. 10)
Yes, include in TRL.
3 Prohibiting vaping
product sales
-Whether to prohibit
ESDs.
-What length of
phase out period?
The Model Ordinance
does not prohibit
sales of ESDs. If
Council would like to
prohibit ESDs, staff
recommends
including the
prohibition in a TRL
ordinance drafted by
outside counsel.

Include a minimum
one year phase out
period.

Yes.

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CITY COUNCIL AGENDA ITEM NO. C.1
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# Information
Requested by City
Council
Council Direction
Needed
Staff
Recommendation
LUD
Recommendation
4 Maximum distance
between tobacco
retailers and schools
that’s allowed by law
Whether to create a
buffer and if so, how
large?
Include a maximum
1,000 ft. buffer in a
new TRL ordinance.

Expand the
separation
requirements to
other "youth-oriented
facility" in addition to
schools per the
suggestions in model
ordinance (p. 12)
which is more
consistent with
Council’s previous
direction related to
alcohol sales.
1,000 ft. separation
and no renewal of
license after one year
if business is noncompliant with new
regulations.
5 Minimum sales sizes
(e.g. pack/carton)
Whether to restrict
pack size and if so, to
what sizes?
Incorporate minimum
pack sizes suggested
by Model Ordinance
(p. 10).

Require minimum
pack size of 20
cigars/cigarettes.
6 Strictest laws for
proximity between
retailers
-Whether to adopt
proximity regulations
and if so, what
distance?
-Whether to
grandfather existing
retailers or phase
them out?
Incorporate
maximum 1,000 ft.
proximity regulations
between retailers and
add policies for
existing retailers, to
be drafted by outside
counsel based on
Council direction.
1,000 ft. separation
and no renewal of
license after one year
if business is noncompliant with new
regulations.
7 All tobacco sales
banned at
pharmacies
Whether tobacco
sales should be
banned at all
pharmacies?
IF TRL is
implemented, include
prohibition of sales at
pharmacies
suggested by Model
TRL Ordinance (p.
11).

Yes, ban tobacco
sales at all
pharmacies.
8 Working with law
enforcement on
decoy purchasers
How often to monitor
licensees for
compliance?
If TRL is
implemented,
recommend 1 annual
inspection for
compliance with
license requirements
and 1 additional
annual compliance
check related to
underage sales.

TRL should include 3
compliance checks
and a minimum of 1
decoy operation per
year.

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# Information
Requested by City
Council
Council Direction
Needed
Staff
Recommendation
LUD
Recommendation
9 Any way to
retroactively revoke
licenses (if
applicable)
See direction need
for #1 above.

Require a minimum
price of $10.00 and
add language to
escalate the price
annually per the CPI.
11 Prohibit
coupons/discounts
Whether to prohibit
discounts/coupons/
promotions as
suggested by Model
TRL Ordinance?
IF TRL is
implemented, include
suggested discount
prohibition in the
Model TRL Ordinance
(p. 10).

Yes, prohibit
coupons/discounts in
TRL Ordinance.
12 Cap on smoke shops
and tobacco retailers
in total
-Whether to create a
cap on tobacco
retailers?
-Whether to
grandfather existing
retailers or phase-out
existing?
IF TRL is
implemented,
implement a cap on
total number of
tobacco retailers/
licenses with
requirements for
existing retailers.

Cap and winnow-no
more than current 42
licenses should be
issued; licenses
should be nontransferrable; include
a 1 year grace period
for non-compliant
businesses.
13 DOJ grants to
support code
enforcement
None. Staff will apply for
future DOJ grants if
the program is
funded. Funds could
be used for
enforcement whether
or not the City has a
TRL.

Yes, staff should
apply for DOJ grants.

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# Information
Requested by City
Council
Council Direction
Needed
Staff
Recommendation
LUD
Recommendation
14 Require CUP for
tobacco sales
Whether to require a
CUP for new tobacco
retailers?
Do not require a CUP,
only a TRL. A TRL has
strict operating
standards and can be
more easily revoked
than a CUP.

No separate CUP
requirement.

Implement TRL
instead.
15 Potential penalties
available
None. Adoption of any new
ordinances as
detailed above would
include language
related to license
suspension, seizure
of products,
penalties, fines etc.
as appropriate.

Fines should be as
high as possible.

Research if it is
possible to repurpose
fines for education or
alternative purposes.
16 Bring other best
practices from other
cities for Council
consideration

SEE DISCUSSION IN STAFF REPORT
ADDITIONAL INFORMATION REQUESTED BY LUD ON 3/18
17 N/A Whether to adopt
additional regulations
restricting tobacco
advertisements and
prohibiting the sale of
drug paraphernalia?
Utilize outside legal
to draft a TRL
ordinance and update
applicable sign
regulations.

Provide
recommendations on
how to regulate sign
content within the
law. Prohibit the sale
of drug paraphernalia
in TRL.

CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.

PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.

DATE OF NOTICE
Not Applicable.

ENVIRONMENTAL DETERMINATION
Not Applicable.

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ALTERNATIVE OPTION(S)
Alternative Options to the Staff Recommendation:

1. Direct staff not to develop new tobacco regulations for the City.

2. Continue the item with direction for staff to return with additional information.

ATTACHMENT(S)

1. Previous Action

2. August 22, 2023, City Council Staff Report

3. Council Requested Tobacco Items LUD March 18, 2024

4. Model TRL Ordinance

5. Brentwood Tobacco Retailers and Youth Sensitive Areas

6. Map of Separation Distances from Liberty HS

7. Matrix of Ordinances Restricting Retailers Near Schools

8. Contra Costa Health DOJ Tobacco Grant Presentation

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Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.

Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.  On June 1, 2022, the City Council unanimously voted to direct staff to spend time and resources on updating zoning regulations to limit or prohibit sales of tobacco.
 On September 27, 2022, the City Council unanimously adopted Interim Urgency Ordinance No. 1046 implementing a moratorium on the issuance of any new permit, license, or entitlement for any new tobacco smoke shop.  On October 25, 2022, the City Council unanimously adopted Interim Urgency Ordinance No. 1050 extending the original interim urgency ordinance for a period of 10 months and 15 days, in accordance with Government Code section 65858(a).
 On August 22, 2023, the City Council unanimously adopted Interim Urgency Ordinance No. 1061 extending the original interim urgency ordinance for a period of 12 months, in accordance with Government Code section 65858(a).  On August 22, 2023, the City Council directed staff to provide additional information on 16 items related to potential new tobacco regulations.

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CITY COUNCIL AGENDA ITEM NO. F.1
08/22/2023
SUBJECT: Discussion regarding smoke shops and an interim urgency ordinance extending a moratorium on any new tobacco smoke shop
DEPARTMENT: Community Development Department
STAFF: Alexis Morris, Director of Community Development Erik Nolthenius, Planning Manager

TITLE/RECOMMENDATION
It is recommended that the City Council adopt an ordinance extending the interim urgency ordinance that implemented a moratorium on new tobacco smoke shops in the city of Brentwood for an additional period of one year, to September 8, 2024 and provide staff with feedback regarding smoke shop rules and enforcement.

This proposed ordinance is intended to preserve the status quo while the City considers further regulations on tobacco sales and distribution. The ordinance will not cause a direct physical change in the environment, nor a reasonably foreseeable indirect physical change in the environment. This action, therefore, does not constitute the approval of a “project” under the California Environmental Quality Act (CEQA), and it is exempt from CEQA. (Public Resources Code § 21065, State CEQA Guidelines §§ 15060(c)(2)-(3), 15061(b)(3), 15064(d)(3), and 15378(a).)

FISCAL IMPACT
Thus far, only minor legal expenses of approximately $1,000 have been incurred. There is no anticipated direct fiscal impact as a result of this proposed moratorium, because there are no pending applications for permits or other land use entitlements for new tobacco smoke shops that will be affected by its adoption.

There may be an indirect fiscal impact in the future, if the City moves forward with permanent bans and/or other regulatory measures regarding tobacco retailers in the city, but those impacts (if any) will be separately analyzed and addressed as appropriate at a later date, including future legal expenses of up to $20,000. Legal expenditures related to the ordinance are funded by the General Fund.

BACKGROUND

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CITY COUNCIL AGENDA ITEM NO. F.1
08/22/2023
This action extends the interim urgency ordinance originally adopted by the City Council on September 27, 2022, which was subsequently extended on October 25, 2022, and is set to expire on September 8, 2023. By the end of the ordinance’s term, the City Council must vote to extend the urgency ordinance again, let it expire, or adopt a regular ordinance to repeal and replace it.

Pursuant to Section 17.505.008, the Brentwood Municipal Code (BMC) presently authorizes tobacco and cigar lounges with smoking on-site in certain areas of the PD55 zone (generally located east of the Sand Creek Road and Brentwood Boulevard intersection), and there only upon issuance of a conditional use permit. The City Council directed staff to regulate new tobacco smoke shops that sell products for offsite consumption. This use is currently (and has historically been) considered to be a general retail use under the Brentwood Municipal Code, and therefore permitted by right in any zoning district that allows general retail uses. There are currently no pending applications for tobacco or cigar smoke shop permits or associated land use entitlements in the city.

California Business and Professions Code Section 22971.3 authorizes cities to implement local tobacco licensing laws. The City Council recognized in its June 1, 2022 meeting that there are significant environmental and health effects to the community associated with tobacco that can only adequately be addressed by suspending approvals of new tobacco smoke shops within City limits. Doing so would provide staff time to study and analyze additional regulatory measures for a longterm solution, such as (but not limited to) measures that may extend up to a full prohibition on all retail tobacco smoke shops.

As used in this staff report and the attached draft ordinance, the term “tobacco smoke shop” is defined as:
a retailer whose main purpose is the sale of smoking and/or tobacco products, including, but not limited to, cigars, pipe tobacco, and smoking accessories for off-premises consumption at a retail establishment that either devotes more than (a) fifteen (15%) percent of its total floor area to smoking, drug, electronic cigarettes, electronic vapor devices, and/or tobacco paraphernalia, or (b) a two foot by four (2' by 4') foot (two (2'0") feet in depth maximum) section of shelf space for display of for-sale tobacco products and the sale of smoking and/or tobacco paraphernalia; provided, however, that any grocery store, supermarket, convenience store, gas station, or similar retail use that only sells conventional cigars, cigarettes or tobacco as an ancillary sale shall

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CITY COUNCIL AGENDA ITEM NO. F.1
08/22/2023
not be defined as a “tobacco smoke shop” and shall not be subject to the restrictions in this chapter.

Currently, there are approximately 10 permitted tobacco smoke shops operating within city limits. In order to properly study, analyze, and make recommendations concerning such permanent regulatory measures and a potential ban on tobacco retailers generally within City limits, the City Council unanimously adopted an interim urgency ordinance on September 27, 2022, to place a moratorium on the issuance of any permits, entitlements, or other approvals of new tobacco smoke shops within the city during the time the moratorium is in effect.

No new permit, license, or entitlement for any new tobacco smoke shop within the city is allowed during the moratorium. Existing tobacco smoke shops are permitted to apply for renewals of existing entitlements during the moratorium, which would be subject to approval or denial under existing standards. The City also reserves the right to suspend or revoke any existing permit, license, or entitlement of tobacco smoke shops under existing standards. The interim urgency ordinance was originally effective for 45 days, but was extended by the City Council on October 25, 2022 for an additional 10 months and 15 days, which is set to expire on September 8, 2023.

This action would extend the urgency ordinance adopted by the City Council for an additional one year, to September 8, 2024. This urgency ordinance will be followed by a regular ordinance sometime in the summer of 2024. The regular ordinance would be subject to review by both the Planning Commission and City Council, as it will be part of the zoning ordinance. The regular ordinance would take effect 30 days after adoption and would repeal and replace the urgency ordinance.

A permeant tobacco regulation will be included as part of the City’s focused zoning code update.

CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.

PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.

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DATE OF NOTICE
The City of Brentwood published a notice of public hearing in the Brentwood Press on August 11, 2023.

ENVIRONMENTAL DETERMINATION
As noted above, the proposed ordinance is intended to preserve the status quo while the City considers further regulations on tobacco sales and distribution. The ordinance will not cause a direct physical change in the environment, nor a reasonably foreseeable indirect physical change in the environment. This action, therefore, does not constitute the approval of a “project” under CEQA, and it is exempt from CEQA. (Public Resources Code § 21065, State CEQA Guidelines §§ 15060(c)(2)-(3), 15061(b)(3), 15064(d)(3), and 15378(a).)

ATTACHMENT(S)

1. Previous Action

2. Proposed Interim Urgency Ordinance

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PREVIOUS ACTION
Previous actions related to this agenda item that were taken by the City Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
 Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
 Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.  On June 1, 2022, the City Council unanimously voted to direct staff to spend time and resources on updating zoning regulations to limit or prohibit sales of tobacco.
 On September 27, 2022, the City Council unanimously adopted Interim Urgency Ordinance No. 1046 implementing a moratorium on the issuance of any new permit, license, or entitlement for any new tobacco smoke shop.  On October 25, 2022, the City Council unanimously adopted Interim Urgency Ordinance No. 1050 extending the original interim urgency ordinance for a period of 10 months and 15 days, in accordance with Government Code section 65858(a).

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ORDINANCE NO.

AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY

OF BRENTWOOD EXTENDING THE INTERIM URGENCY

ORDINANCE IMPLEMENTING A MORATORIUM ON THE ISSUANCE

OF ANY NEW PERMIT, LICENSE, OR ENTITLEMENT FOR ANY NEW

TOBACCO SMOKE SHOP IN THE CITY OF BRENTWOOD, PENDING
COMPLETION OF A COMPREHENSIVE REVIEW OF THE CITY’S

ZONING ORDINANCE, AND FINDING THE ACTION EXEMPT FROM
CEQA
WHEREAS, the City of Brentwood (“City”) presently regulates tobacco smoke shops within the city as a general retail use as governed by various sections of the Brentwood Municipal Code (“BMC”), but the City now wishes to examine the desirability and feasibility of a more robust set of regulations and/or prohibitions concerning the establishment of new tobacco smoke shops within the city; and WHEREAS, the City wishes to allow currently permitted and existing tobacco smoke shops to remain in operation, while also extending this interim urgency moratorium on new entitlements for tobacco smoke shops, in order to balance existing property rights against its consideration of the potential impacts that tobacco smoke shops may have on the public health, safety, and welfare, and evaluation of what City regulations and restrictions, if any, should be imposed on such activities; and
WHEREAS, for purposes of this interim urgency moratorium, the term ‘tobacco smoke shop’ shall be defined as:
“a retailer whose main purpose is the sale of smoking and/or tobacco products, including, but not limited to, cigars, pipe tobacco, and smoking accessories for off-premises consumption at a retail establishment that either devotes more than (a) fifteen (15%) percent of its total floor area to for-sale tobacco products and smoking, drug, electronic cigarettes, electronic vapor devices, and/or tobacco paraphernalia, or (b) a two foot by four (2' by 4') foot (two (2' 0") feet in depth maximum) section of shelf space for display of for-sale tobacco products and the sale of smoking and/or tobacco paraphernalia; provided, however, that any grocery store, supermarket, convenience store, gas station, or similar retail use that only sells conventional cigars, cigarettes, or tobacco as an ancillary sale shall not be defined as a ‘tobacco smoke shop’ and shall not be subject to these restrictions;” and
WHEREAS, this interim urgency moratorium on new tobacco smoke shops in the city will give the City sufficient time to study, analyze, and report on the benefits and detriments of enacting a permanent ban on smoke shops, and to address any necessary modifications to the City’s current tobacco regulations in the BMC as appropriate; and

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WHEREAS, the City Council of the City of Brentwood is authorized, pursuant to Article 11, Section 7 of the California Constitution, to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and
WHEREAS, California Government Code Section 65858 authorizes the City Council to adopt, by a four-fifths vote and without following the procedures otherwise required for the adoption of a zoning ordinance, an interim urgency ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City Council, planning commission, or planning department is considering, or studying, or intending to study within a reasonable time; and
WHEREAS, on September 27, 2022, the City Council adopted an interim ordinance via Urgency Ordinance No. 1046, implementing a 45-day moratorium on the issuance of any new permit, license, or entitlement for any new tobacco smoke shop in the city, pending completion of a comprehensive review of the City’s zoning ordinance; and
WHEREAS, on October 25, 2022, the City Council adopted Urgency Ordinance No. 1050, extending the moratorium for an additional 10 months and 15 days, to September 8, 2023; and
WHEREAS, unless the City Council takes further action, Urgency Ordinance No. 1050 will cease to be in effect as of September 8, 2023; and WHEREAS, City staff is still in the process of studying potential regulatory standards and location requirements for tobacco smoke shops, in order to determine whether and how such standards should be integrated into the Brentwood Municipal Code; and
WHEREAS, the City Council desires to maintain the protections of Urgency Ordinance No. 1050 while staff completes its work.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BRENTWOOD does ordain as follows:

SECTION 1. The recitals set forth above are hereby adopted as the findings of the City Council in connection with the adoption of this ordinance. In support of the recitals stated above, the City Council hereby finds and determines that it is necessary to adopt an interim urgency ordinance to prohibit new tobacco smoke shops, while City staff takes a reasonable time to consider and study further regulation and zoning procedures relating to such activities within the city. In addition, the City Council finds that the recitals and findings in Urgency Ordinance No. 1050 remain true and correct, and are incorporated herein by this reference.

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SECTION 2. This Urgency Ordinance was noticed pursuant to Government Code section 65090 and the City Council conducted a public hearing pursuant to Government Code section 65858, subdivision (a).

SECTION 3. The interim ordinance adopted by Urgency Ordinance No. 1050 is extended by this Urgency Ordinance for a period of one year, or until September 8, 2024.

SECTION 4. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Section 15358 (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Further, the City Council finds that this ordinance is exempt under CEQA pursuant to Section 15061(b)(3) (there exists no possibility that the activity will have a significant adverse effect on the environment) of the CEQA Guidelines because this ordinance will not cause a change in any of the physical conditions within the area affected by the ordinance.

SECTION 5. This Urgency Ordinance is necessary to protect the City and its residents, businesses, and visitors from the potential health and safety impacts of tobacco smoke shops under current City regulations, including concerns with neighborhood safety, effects on minors, location near sensitive uses, and other public health impacts, and to preserve the quality of life, health, safety, and welfare of the community.

SECTION 6. This Urgency Ordinance will be published in accordance with Government Code Section 36933 by either posting or publishing the Urgency Ordinance in accordance with that law.

SECTION 7. This Urgency Ordinance is adopted by a four-fifths vote of the Brentwood City Council. Any future extension of this Urgency Ordinance will require a four-fifths vote of the City Council.

SECTION 8. Ten days prior to the expiration of this Urgency Ordinance or any extension, the City Council will issue a written report describing the measures taken to alleviate the condition which led to the adoption of this Urgency Ordinance, as required under Government Code Section 65858, subdivision (d).

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THIS FOREGOING URGENCY ORDINANCE was adopted at a regular meeting of the Brentwood City Council on the 22nd day of August, 2023 by the following vote:

AYES:

NOES:

ABSENT:

RECUSE:

APPROVED:
______________________________
Joel Bryant, Mayor
ATTEST:
_________________________
Margaret Wimberly, MMC
City Clerk

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COUNCIL REQUESTED TOBACCO ITEMS
# Information Requested by City Council Regulatory Context Implementation Strategies Council Direction Needed Staff Recommendation LUD Recommendation 1 Implementing a local tobacco retail
license (TRL) system, including
maximum amount that can be charged,
and how those fees will be spent
Local tobacco retailer licensing laws are
specifically authorized by state law, in addition to
any required state-level licenses, and City can
also suspend/ revoke local license for any
violation of local or state tobacco control law.
(Cal. Bus. & Prof. Code § 22971.3; Prime Gas, Inc.
v. City of Sacramento (2010) 184 Cal.App.4th
967.)
The City can adopt a comprehensive tobacco
retail licensing ordinance, using nearby
jurisdictions and ChangeLab Solutions/Public
Health Law Center templates as examples of
permissible scope of regulation. License fees can
only cover the cost of administering license
program. New fees would be adopted by Council
either with adoption of a new ordinance or with
other amendments to Cost Allocation Plan.
-Whether to implement a TRL
Ordinance?
If TRL is implemented, require
two annual inspections of
licensees-one inspection for
compliance and one decoy
operation. Utilize outside
counsel to draft new
ordinance.

Yes, fee to cover
implementation, 3 compliance
checks and 1 decoy, revocation
after 3 violations.
2 100% flavor ban on tobacco sales Currently banned by state law. AB 935 (eff. 1/1/24) enacts more stringent penalties, up to
$6,000 per violation. City may impose greater
local tobacco controls than the State Law.

The City could opt to adopt an ordinance
supplementing the State's enforcement efforts,
or opt to let the State enforce the law without
additional City regulations.

Whether to implement TRL
Ordinance? Alternatively,
whether to implement a standalone ban on flavored
tobacco?
If TRL is implemented,
incorporate language
suggested by Model Ordinance
(p. 10)
Yes, include in TRL
3 Prohibiting vaping product sales As of 2016, state law prohibits the use of Electronic Smoking Devices (ESDs) anywhere
cigarette smoking is prohibited; local ordinance
can further prohibit use of ESDs in places not
already covered by state law. City can go further
and ban the sale of ESDs outright (either along
with, or separately from, all "smoking products"
generally).

The City could adopt an ordinance defining "e
cigarettes" and related paraphernalia, and
prohibiting the sale of such products outright
(with a phase-out period/hardship exemption
process).
-Whether to prohibit ESDs.
-What length of phase out
period?
The Model Ordinance does not
prohibit sales of ESDs. If
Council would like to prohibit
ESDs, staff recommends
including the prohibition in a
TRL ordinance drafted by
outside counsel. Include a
minimum one year phase out
period.

Yes
4 Maximum distance between tobacco
retailers and schools that’s allowed by
law
A tobacco retailer ordinance can include "buffer"
distance between retailers and schools (and
other youth-populated areas). No maximum is
defined in law, but 1,000 feet is recommended
for defensibility purposes. This approach (albeit
with a 500 foot rather than 1,000 foot buffer) has
been upheld by a US District Court (Independent
Gas & Service Stations Associations, Inc. v. City of
Chicago (N.D. Ill. 2015) Case No.
1:2014cv07536.) Other jurisdictions have
adopted 1,000 foot buffer requirements since
that case. And, these provisions can still apply to
existing retailers who might be impacted (i.e., are
within the buffer zone) - they can apply for a onetime, non-renewable license to give them time to phase out.

A TRL ordinance can define schools and impose a
separation requirement between schools and
specific types of tobacco retailers. The City could
also go further by expanding this past just
"schools" to also include "youth-oriented
facilities" more broadly, such as libraries, day
care centers, houses of worship that engage in
youth activities, all types of educational facilities.

Whether to create a buffer and
if so, how large?
Include a maximum 1,000 ft.
buffer in a new TRL ordinance.

Expand the separation
requirements to other "youthoriented facility" in addition to schools per the suggestions in
model ordinance (p. 12).
1,000 ft. separation and no
renewal of license after one
year if business is noncompliant with new
regulations.

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COUNCIL REQUESTED TOBACCO ITEMS
# Information Requested by City Council Regulatory Context Implementation Strategies Council Direction Needed Staff Recommendation LUD Recommendation 5 Minimum sales sizes (e.g. pack/carton) A city is not preempted from enacting a local control on the minimum package size for little
cigars or cigars (which might ordinarily be sold as
individual units). (Cigarettes are already required
to come in packs of at least 20 pursuant to
federal law.) This approach has been endorsed by
ChangeLab Solutions, the Public Health Law
Center, and American Lung Association
California.

The City could include this as part of its
comprehensive TRL ordinance. This effort would
be most successful in conjunction with a
minimum pricing strategy (see #10). Because
companies often sell cigars and little cigars at
very low prices as "loss leaders," regulating pack
size and cost through a tobacco retailing
ordinance would help curb youth access to lowpriced tobacco.

Whether to restrict pack size
and if so, to what sizes?
Incorporate minimum pack
sizes suggested by Model
Ordinance (p. 10).

Require minimum pack size of
20 cigars/cigarettes.
6 Strictest laws for proximity between
retailers
A city can enact proximity regulations, such as
"no license may issue and no existing license may
be renewed to authorize a tobacco retailer to
operate within 500 [or more at City's discretion]
feet of a tobacco retailer already licensed
pursuant to this ordinance." Can either
grandfather existing retailers who may violate
this buffer, or can provide phase-out
window/hardship exemption.

The City could adopt a TRL Ordinance including
separation requirements between specific types
of tobacco retailers.
-Whether to adopt proximity
regulations and if so, what
distance?
-Whether to grandfather
existing retailers or phase them
out?
Incorporate maximum 1,000 ft.
proximity regulations between
retailers and add policies for
existing retailers, to be drafted
by outside counsel based on
Council direction.
1,000 ft. separation and no
renewal of license after one
year if business is noncompliant with new
regulations.
7 All tobacco sales banned at pharmacies A city can enact a law banning the sale of tobacco in stores that contain pharmacies as long
as the law does not treat similar stores
containing pharmacies differently from one
another
The City could adopt an ordinance banning sales
of tobacco in stores containing pharmacies, this
could include stand alone pharmacies and any
retail outlet that also contains a pharmacy such
as grocery stores.

Whether tobacco sales should
be banned at all pharmacies?
IF TRL is implemented, include
prohibition of sales at
pharmacies suggested by
Model TRL Ordinance (p. 11).

Yes, ban tobacco sales at all
pharmacies.
8 Working with law enforcement on
decoy purchasers
Decoy law enforcement operations are legal, and
an effective way to reduce impermissible access
to tobacco. Under the "Stop Tobacco Access to
Kids Enforcement" (STAKE) Act, the state
Department of Public Health can conduct these
decoy operations, and local governments are also
permitted to enforce with local police/youth
decoys. Tobacco retailer licensing fees obtained
through a local licensing ordinance can also be
used to specifically support these types of
enforcement efforts.

The Police Department has conducted decoy
operations in the past. A TRL Ordinance should
contain requirements for regularly monitoring
licensees for compliance with requirements.

Compliance checks can include monitoring for
underage sales using decoy purchasers.

How often to monitor
licensees for compliance?
If TRL is implemented,
recommend 1 annual
inspection for compliance with
license requirements and 1
additional annual compliance
check related to underage
sales.

TRL should include 3
compliance checks and a
minimum of 1 decoy operation
per year.

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COUNCIL REQUESTED TOBACCO ITEMS
# Information Requested by City Council Regulatory Context Implementation Strategies Council Direction Needed Staff Recommendation LUD Recommendation 9 Any way to retroactively revoke
licenses (if applicable)
Business & Professions Code § 22971.3 says local
licensing laws can provide for suspension or
revocation of a local license for violation of state
or local tobacco retailing law. (See also Prime
Gas, Inc. v. City of Sacramento (2010) 184
Cal.App.4th 697.)
Once a TRL program is in place, new businesses
will have to abide by all local laws, and existing
businesses may be grandfathered in to some
provisions or there may be a phase-out window,
as mentioned in various places throughout this
report. In all cases, existing and new businesses
will have to prospectively apply with all
regulations from their effective date once
adopted.

See direction need for #1
above.

The City does not currently
have tobacco licenses it can
revoke. If TRL is implemented,
staff recommends revocation
provisions suggested by Model
TRL Ordinance (p. 17)
TRL should include a limit of 3
violations before a license is
revoked.
10 Minimum prices on tobacco City can establish minimum tobacco product prices pursuant to their police power;
government laws regulating a market and setting
a baseline price are generally not preempted,
although the law must be carefully crafted to
ensure it does not facilitate collusion among
tobacco companies. (See Fisher v. City of
Berkeley (1986) 475 U.S. 260, 270; Flying J, Inc.
v. Hollen (7th Cir. 2010) 621 F.3d 658, 662-663.)
City ordinance can include a minimum price floor
for certain tobacco products, such as cigarettes,
e-cigarettes, little cigars, and cigars. Staff can rely on examples from Sonoma County, Windsor, and
San Leandro (among others) for effective
ordinance language. E.g., "No Tobacco Retailer
shall sell to a consumer cigarettes at a price that
is less than $X per package of 20 cigarettes,
including all applicable taxes and fees."
Whether to incorporate
minimum prices as suggested
by Model TRL Ordinance?
Include minimum price
regulations suggested by
Model TRL Ordinance. Staff
recommends working with
Contra Costa Health's Tobacco
Prevention program to
determine a minimum price
that is consistent with others in
the County and escalates by
Consumer Price Index (CPI).

Require a minimum price of
$10.00 and add language to
escalate the price annually per
the CPI.
11 Prohibit coupons/discounts Prohibitions on discounts/coupons/promotions would be valid for the same reason as the
preceding strategy regarding minimum prices.
(See also Nat’l Assn of Tobacco Outlets, Inc. v.

City of Providence et al. (D.R.I. Dec. 10, 2012)
Case No. 12-96-ML; Nat’l Assn of Tobacco
Outlets, Inc. v. City of Providence (1st Cir. 2013)
731 F.3d 71.)
Because the tobacco industry focuses heavily on
coupons and discounts as a marketing strategy,
particularly aimed at youth and underserved
communities, prohibiting the redemption of such
coupons and discounts through ordinance can
have a large impact on the behaviors of
populations particularly affected by price
increases. There is sample language from
ChangeLabs and local jurisdictions that staff can
rely on.

Whether to prohibit
discounts/coupons/promotion
s as suggested by Model TRL
Ordinance?
IF TRL is implemented, include
suggested discount prohibition
in the Model TRL Ordinance (p.
10).

Yes, prohibit
coupons/discounts in TRL
Ordinance.
12 Cap on smoke shops and tobacco
retailers in total
This is permissible under the City's police power,
and is also analogous to state law limiting the
number of retailers licensed to sell alcohol for offsite consumption. Can either grandfather existing retailers who may exceed the cap when it is
enacted, or can provide phase-out
window/hardship exemption.

The City can adopt an ordinance implementing a
cap on certain types of tobacco retailers. The City
can also address overconcentration in certain
areas , not just overall # of stores. E.g., establish
a cap on total number of tobacco retail licenses
for specific "districts" within the City, set out in a
map.
-Whether to create a cap on
tobacco retailers?
-Whether to grandfather
existing retailers or phase-out
existing?
IF TRL is implemented,
implement a cap on total
number of tobacco retailers/
licenses with requirements for
existing retailers.

Cap and winnow-no more than
current 42 licenses should be
issued; licenses should be nontransferrable; include a 1 year grace period for non-compliant
businesses.

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COUNCIL REQUESTED TOBACCO ITEMS
# Information Requested by City Council Regulatory Context Implementation Strategies Council Direction Needed Staff Recommendation LUD Recommendation 13 DOJ grants to support code
enforcement
Cities are eligible to apply for Department of
Justice (DOJ) grants that may be used to enforce
local ordinances and/or state laws relating to sale
or marketing of tobacco products, including ecigarettes. Supported enforcement efforts may include (but are not limited to) retailer
compliance checks, public education outreach,
and retailer license inspections.

The earlier DOJ grant is no longer open for new
applications this fiscal year and it is not clear that
it has been funded for the next fiscal year. Staff
will stay informed on additional funding
opportunities that may arise.

None. Staff will apply for future DOJ
grants if the program is
funded. Funds could be used
for enforcement whether or
not the City has a TRL.

Yes, staff should apply for DOJ
grants.
14 Require CUP for tobacco sales City can require new tobacco retailers to obtain a CUP, which can set restrictions such as limiting
amount of storefront signage or banning sale of
single cigars (among other things). (See California
Constitution art. 20, § 22; Bus. & Prof. Code §
23790; City of Oakland v. Superior Court (1996)
45 Cal.App.4th 740.)
The City could amend the Zoning Ordinance Land
Use Table to require a CUP for any type of
tobacco sales. Or, amend the Zoning Ordinance
to require a CUP for stand-alone "smoke shops"
only.

Whether to require a CUP for
new tobacco retailers?
Do not require a CUP, only a
TRL. A TRL has strict operating
standards and can be more
easily revoked than a CUP.

No separate CUP requirement.

Implement TRL instead.
15 Potential penalties available Penalties can include civil or administrative fines, license suspension and revocation (subject to
due process), ineligibility to apply for a new
retailer license for specified periods of time,
seizure and forfeiture of products offered for sale
in violation of state or local law (subject to due
process), treatment as public nuisance (allowing
enforcement via nuisance abatement in local
code).

City ordinance can include a program for
monitoring compliance, plus establishment of
whichever combination of penalties (listed in the
"regulatory" column) Council deems appropriate.

None. Adoption of any new
ordinances as detailed above
would include language related
to license suspension, seizure
of products, penalties, fines
etc. as appropriate.

Fines should be as high as
possible. Research if it is
possible to repurpose fines for
education or alternative
purposes.
16 Bring other best practices from other
cities for Council consideration
See staff report discussion of other cities' regulations ADDITIONAL INFORMATION REQUESTED BY LUD ON 3/18
17 N/A Whether to adopt additional regulations
restricting tobacco advertisements and
prohibiting the sale of drug paraphernalia?
Utilize outside legal to draft a
TRL ordinance and update
applicable sign regulations.

Provide recommendations on
how to regulate sign content
within the law. Prohibit the
sale of drug paraphernalia in
TRL.

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December 2020
www.publichealthlawcenter.org/caltobacco
Introduction
This Comprehensive Tobacco Retailer
Licensing Ordinance was prepared to assist
California cities and counties interested in
establishing or strengthening a local tobacco
retailer licensing (“TRL”) program and further
regulating the tobacco retail environment.

Communities adopt TRL laws to ensure
compliance with local business standards,
reduce youth access to tobacco products, limit
the negative public health and equity impacts
associated with tobacco use, and enforce
local, state, and federal tobacco control laws.

The Public Health Law Center revised and
updated this 2020 model ordinance, which
was originally developed by ChangeLab
Solutions and released in 2018. The Center
acknowledges the excellent work done by
ChangeLab Solutions in creating the original
ordinance. This revised model ordinance takes
a comprehensive approach to regulating the
sale of tobacco products and the tobacco retail
environment. It builds on core provisions such
as requiring a local tobacco retailer license by
incorporating several innovative policy options.

It also reflects changes to state and federal
tobacco control laws such as Tobacco 21 and the
federal Food and Drug Administration’s (“FDA”)
Deeming Rule that expands the FDA’s regulatory

COMPREHENSIVE TOBACCO

RETAILER LICENSING ORDINANCE

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 2 authority to all tobacco products. The model ordinance offers cities and counties a variety of options to tailor this policy to meet the needs of their communities.* The model ordinance is based on an independent and objective analysis of the relevant law, evidence, and available data. Readers should consider all the evidence and decide for themselves which approach is appropriate for their local jurisdiction.

Customizing the Ordinance
Context boxes are included throughout the ordinance to explain some key provisions. These boxes are not meant to be included in any final ordinance. A city wishing to adopt all or part of this ordinance should keep this in mind and remove the context boxes.

In some instances, blanks (such as [ _____________ ] ) prompt you to customize the language to fit your community’s needs. In other instances, the ordinance offers you a choice of options (such as [ choice one/choice two ]). Some options are followed by a comment that describes the legal provisions in more detail. A degree of customization is always necessary to make sure the ordinance is consistent with a community’s existing laws. Such customization also ensures that communities are using this model ordinance to address local needs and engender health equity.

Tips for Using This Model Ordinance
The best possible world is one without the death and health harms associated with commercial tobacco use.†
Communities differ on their readiness and willingness to adopt certain tobacco control policies that are intended to help make that world a reality. Accordingly, this model ordinance represents a balance between state and federal minimum standards, best public health policy practices, and practicality for city governments in California. This model ordinance contains several policy components that communities may or may not choose to adopt at this time that may go beyond minimum state and federal requirements. * This model ordinance uses “community” as shorthand for a group of people who will be impacted, either directly or indirectly, by a proposed changemaking strategy. People in a community (1) are in a particular geographic area, like a neighborhood or jurisdiction, and/or (2) share a common identity or characteristic. † The Public Health Law Center recognizes that traditional and commercial tobacco are different in the ways they are planted, grown, harvested, and used. Traditional tobacco is and has been used in sacred ways by Indigenous communities and tribes for centuries. Comparatively, commercial tobacco is manufactured with chemical additives for recreational use and profit, resulting in disease and death. For more information, visit: http://www.keepitsacred.itcmi.org.

When the word “tobacco” is used throughout this document, a commercial context is implied and intended.

December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 3 While the Public Health Law Center does not lobby, advocate, or directly represent communities, we can provide assistance through our publications and referrals to experts in the field. Education, stakeholder and community engagement, and a strong advocacy plan are key steps in the adoption of effective tobacco control policies. If a community is unaware of the resources available to it for engaging the community and developing an advocacy plan, or if a city is considering adopting an ordinance and is interested in learning about the range of resources available, please contact the Public Health Law Center. If you have any questions about this ordinance, you can reach us at www.publichealthlawcenter.org.

This publication was prepared by the Public Health Law Center, a nonprofit organization that provides information and legal technical assistance on issues related to public health. The Center does not provide legal representation or advice. The information in this document should not be considered legal advice. This model ordinance was made possible by funds received from Grant Number 19-10229 with the California Department of Public Health, California Tobacco Control Program, and the American Lung Association in California.

December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 4 AN ORDINANCE OF THE [ city/county ] OF
[ insert jurisdiction name ] REGULATING TOBACCO PRODUCT

SALES, REQUIRING THE LICENSURE OF TOBACCO RETAILERS, AND AMENDING THE [ Insert Jurisdiction Name ] MUNICIPAL CODE The [ city council of the city/board of supervisors of the county ] of [ insert jurisdiction name ] does ordain as follows:

Note
This is introductory boilerplate language that should be adapted to the conventional form used in the jurisdiction.

SECTION I. [ See Appendix A: Findings ]
Note
The findings section is part of the ordinance and legislative record, but it usually does not become codified in the municipal code. An ordinance based on this model ordinance should include findings of fact — data, statistics, relevant epidemiological information, for instance — that support the purposes of this ordinance, as well as any legal precedent that directly supports the ordinance.

In addition to serving an educational purpose and building support for the ordinance, the findings can also serve a legal purpose. If the ordinance is challenged in court, the findings are an admissible record of the factual determinations made by the legislative body when considering the ordinance.

Courts will generally defer to legislative determinations of factual issues, which often influence legal conclusions. A list of findings supporting this model ordinance appears in “Appendix A: Findings.” Jurisdictions may select findings from that list to insert here, along with additional findings on local or regional conditions, outcomes, and issues that help make the case for the law.

SECTION II. [ article/section ] of the County/City Code is hereby amended to read as follows:

Sec. [ ____ (*1) ]. DEFINITIONS. The following words and phrases, whenever used in this [ article/chapter ], shall have the meanings defined in this section unless the context clearly requires otherwise:

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 5 (A) “Arm’s Length Transaction” means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. (B) “Cannabis” has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. (C) “Cannabis Product” has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. (D) “Cannabis Retailer” means any retail establishment in which cannabis or cannabis products are sold or offered for sale to persons that do not hold a license to engage in commercial cannabis activity issued by the State of California in accordance with the Business and Professions Code Section 26000 et seq., as that section may be amended from time to time.
(E) “Child-Resistant Packaging” means packaging that meets the definition set forth in Code of Federal Regulations, title 16, section 1700.15(b), as in effect on January 1, 2015, and was tested in accordance with the method described in Code of Federal Regulations, title 16, section 1700.20, as in effect on January 1, 2015.
(F) “Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than 4.5 pounds per thousand. (G) “Cigarette” means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.
(H) “Compliance checks” means systems the department uses to investigate and ensure that tobacco retailers are following and complying with the requirements of this [ article/ chapter ]. Compliance checks may involve the use of persons between the ages of 18 and 20 who purchase or attempt to purchase tobacco products. Compliance checks may also be conducted by the department or other units of government for educational, research, and training purposes or for investigating or enforcing federal, state, or local laws and regulations relating to tobacco products.
(I) “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 6 (J) “Delivery sale” means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a tobacco retail establishment. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up. (K) “Department” means [ insert department name ] and any agency or person designated by the Department to enforce or administer the provisions of this [ article/chapter ]. (L) “Electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. (M) “Flavored Tobacco Product” means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, alcoholic beverage, herb, or spice. (N) “Full Retail Price” means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price. (O) “Little Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than 4.5 pounds per thousand. “Little Cigar” includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.
(P) “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States. (Q) “Moveable place of business” means any form of business that is operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 7 (R) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. (S) “Pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
(T) “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 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 person has or shares ultimate control over the day-to-day operations of a business.
(U) “Recreation Facility” means an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes, and includes but is not limited to a gymnasium, playing court, playing field, and swimming pool.
(V) “Sale” or “Sell” means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever. (W) “Self-Service Display” means the open display or storage of tobacco products 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 face-to-face transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of selfservice display. (X) “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated product containing, made, or derived from nicotine, tobacco, marijuana, or other plant, whether natural or synthetic, that is intended for inhalation. “Smoking” includes using an electronic smoking device. (Y) “Tobacco Product” means:
(1) any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;
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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 8 (2) any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or (3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
“Tobacco product” does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

Note
Both the definition of “electronic smoking device” and “tobacco product” in this model include substances that go into an electronic smoking device regardless of whether they contain nicotine. In a jurisdiction that already regulates the commercial sale of cannabis products, these definitions might result in an overlapping and possibly confusing regulatory regime where certain products are covered by both the tobacco and cannabis laws. The Center can provide additional language to exclude regulated cannabis products under a TRL. (Z) “Tobacco Retailer” means any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange. (AA) “Tobacco Retailing” means engaging in the activities of a tobacco retailer. (AB)“Youth-Oriented Facility” means a parcel in the [ city/county ] that is occupied by:
(1) a private or public kindergarten, elementary, middle, junior high, or high school; (2) a library open to the public;
(3) a playground open to the public;
(4) a youth center, defined as a facility where children, ages 6 to 17, inclusive, come together for programs and activities;
(5) a recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes;
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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 9 (6) a park open to the public or to all the residents of a private community; (7) a licensed child-care facility or preschool [other than a small-family day care home or a large-family day care home [as defined in California Health & Safety Code § 1596.78]];
Sec. [ ____ (*2) ]. GENERAL REQUIREMENTS AND PROHIBITIONS. (A) TOBACCO RETAILER’S LICENSE REQUIRED. It shall be unlawful for any person to engage in tobacco retailing in the [ city/county ] without first obtaining and maintaining a valid tobacco retailer’s license for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer’s license is a nuisance as a matter of law. (B) LAWFUL BUSINESS OPERATION. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this [ article/chapter ] for a licensee, or any of the licensee’s agents or employees, to violate any local, state, or federal law applicable to the sale of tobacco products. (C) SMOKING PROHIBITED. Smoking, including smoking for the purpose of sampling any tobacco product, is prohibited within the indoor area of any retail establishment licensed under this chapter. Smoking also prohibited outdoors within 25 feet of any retail establishment licensed under this [ article/chapter ].
(D) MINIMUM LEGAL SALES AGE. No person engaged in tobacco retailing shall sell a tobacco product to a person under 21 years of age.
(E) DISPLAY OF LICENSE. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
(F) POSITIVE IDENTIFICATION REQUIRED. No person engaged in tobacco retailing shall sell a tobacco product to another person without first verifying by means of governmentissued photographic identification that the recipient is at least 21 years of age. (G) SELF-SERVICE DISPLAYS PROHIBITED. Tobacco retailing by means of a self-service display is prohibited.
(H) ON-SITE SALES. All sales of tobacco products shall be conducted in-person in the licensed location. It shall be a violation of this [ article/chapter ] for any tobacco retailer or any of the tobacco retailer’s agents or employees to engage in the delivery sale of tobacco products or to knowingly or recklessly sell or provide tobacco products to any person that intends to engage in the delivery sale of the tobacco product in the [ city/county ].

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 10 Sec. [ ____ (*3) ]. SALE OF FLAVORED TOBACCO PRODUCTS
PROHIBITED.
(A) FLAVORED TOBACCO PRODUCT SALES PROHIBITED. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.
(B) PRESUMPTIVE FLAVORED TOBACCO PRODUCT. A public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.

Sec. [ ____ (*4) ]. TOBACCO PRODUCT PRICING AND PACKAGING. (A) PACKAGING AND LABELING. No tobacco retailer shall sell any tobacco product to any consumer unless the tobacco product: (1) is sold in the manufacturer’s packaging intended for sale to consumers; (2) conforms to all applicable federal labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements. (B) DISPLAY OF PRICE. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed on the tobacco product or on any related shelving, posting, advertising, or display at the location where the item is sold or offered for sale. (C) DISTRIBUTION OF TOBACCO SAMPLES OR PROMOTIONAL ITEMS. It is unlawful for any person to distribute free or nominally priced tobacco products. (D) PROHIBITION OF TOBACCO COUPONS AND DISCOUNTS. No tobacco retailer shall:
(1) honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price; (2) sell any tobacco product to a consumer through a multiple-package discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or any other item; or (3) provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
(E) MINIMUM PACKAGE SIZE FOR LITTLE CIGARS AND CIGARS. No tobacco retailer shall sell:
(1) any little cigar unless it is sold in a package of at least [ 20 ] little cigars; or December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 11 (2) any cigar unless it is sold in a package of at least at least [ 6 ] cigars ; provided, however, that this subsection shall not apply to a cigar that has a price of at least [ $X.00 ] per cigar, including all applicable taxes and fees. (F) MINIMUM PRICES FOR CIGARETTES, LITTLE CIGARS, AND CIGARS. No tobacco retailer shall sell:
(1) Cigarettes at a price that is less than [ $X.00 ] per package of 20 cigarettes, including all applicable taxes and fees;
(2) Little cigars at a price that is less than [ $X.00 ] per package of little cigars, including all applicable taxes and fees; or
(3) Cigars at a price that is less [ $X.00 ] per cigar, including all applicable taxes and fees.

The minimum prices established in this section shall be adjusted annually by the Department in proportion with the Consumer Price Index, using a system established by the Department.

Note
Indexing minimum prices to inflation is an efficient policy that does not require decisionmakers to amend the TRL annually to keep up with prevailing prices. Jurisdictions in California have pegged the prices to the nearest U.S. Bureau of Labor Statistics statistical area, and the language here is broad enough that a jurisdiction can take that approach or determine another effective way to adjust the prices over time.

Sec. [ ____ (*5) ]. LIMITS ON ELIGIBILITY FOR A TOBACCO RETAILER LICENSE.
(A) MOBILE VENDING. No license may issue to authorize tobacco retailing at other than a fixed location. No tobacco retail license will be issued to a moveable place of business. (B) LICENSED CANNABIS BUSINESSES. No license may issue, and no existing license may be renewed, to authorize tobacco retailing at a location licensed for commercial cannabis activity by the State of California under Business and Professions Code Division 10. (C) PHARMACIES. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 12 (D) PROXIMITY TO YOUTH-ORIENTED FACILITIES. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within [ 1000 ] feet of a youthoriented facility as measured by a straight line from the nearest point of the property line of the parcel on which the youth-oriented facility is located to the nearest point of the property line of the parcel on which the applicant’s business is located. (E) PROXIMITY TO OTHER TOBACCO RETAILERS. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within [ 1000 ] feet of a tobacco retailer location already licensed pursuant to this [ article/chapter ] as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing licensee’s business is located.
(F) PROXIMITY TO CANNABIS RETAILERS. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within [ 1000 ] feet of an existing cannabis retailer as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing cannabis retailer is located.

Note
The three proximity limitations above would prohibit tobacco retailing within a certain distance of relevant businesses and facilities with no grandfathering of existing licensed retailers. As a result, retail licenses for locations that do not meet these proximity limitations would not be renewable after expiring. Issuing a tobacco retail license is a privilege, not a right, and jurisdictions have the authority to grant or deny tobacco retailer licenses.

Accordingly, it would be unlikely for a tobacco retailer to successfully argue that refusing to renew their license is a violation of the constitutional guarantee against taking property without due process. To deal with potential “takings” claims, some jurisdictions have created a hearing process for affected businesses where they can make hardship arguments and ask for additional time to sell prohibited products, allowing for some more flexibility on a caseby-case basis and under extraordinary circumstances. (G) POPULATION AND DENSITY. The issuing of tobacco retailer licenses is limited as follows:
(1) The total number of tobacco retailer licenses within the [ city/county ] shall be limited to one for each [ 2,500 ] inhabitants of the [ city/county ].

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 13 (2) For the purposes of this subsection, the total population of the [ city/county ] shall be determined by the most current published total available from the U.S. Census Bureau or the California State Department of Finance, whichever has been more recently updated, as of the date the license application is filed. (3) No new license may issue to authorize tobacco retailing if the number of tobacco retailer licenses already issued equals or exceeds the total number authorized pursuant to subsection (1).

Sec. [ ____ (*6) ]. APPLICATION PROCEDURE.
(A) An 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. All applications shall be submitted on a form supplied by the Department.
(B) A license issued contrary to this [ article/chapter ], contrary to any other law, or on the basis of false or misleading information shall be revoked pursuant to Section [ ____(*13) (c) ] of this [ article/chapter ]. Nothing in this [ article/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) Applicant submissions 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 location for which a license is sought.
(3) The name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this [ article/chapter ].
(4) Proof that the location for which a tobacco retailer’s license is sought has been issued all necessary state licenses for the sale of tobacco products. (5) Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this [ article/chapter ] or any other local, state, or federal law governing the sale of tobacco products and, if so, the dates and locations of all such violations within the previous five years.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 14 (6) A signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product without a license required by this [ article/chapter ]. (7) Such other information as the Department deems necessary for the administration or enforcement of this [ article/chapter ] as specified on the application form required by this section.
(D) A licensed tobacco retailer shall inform the Department in writing of any change in the information submitted on an application for a tobacco retailer’s license within [ 10 ] business days of a change.

Sec. [ ____ (*7) ]. LICENSE ISSUANCE OR DENIAL.
(A) ISSUANCE OF LICENSE. Upon the receipt of a complete and adequate application for a tobacco retailer’s license and the license fee required by this [ article/chapter ], the Department may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary.
(B) DENIAL OF APPLICATION. The department may deny an application for a tobacco retailer’s license based on any of the following:
(1) The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this [ article/chapter ]; (2) The application seeks authorization for tobacco retailing at a location for which this [ article/chapter ] prohibits a licensed to be issued;
(3) The application seeks authorization for tobacco retailing for a proprietor to whom this [ article/chapter ] prohibits a license to be issued; or (4) The application seeks authorization for tobacco retailing in a manner that is prohibited pursuant to this [ article/chapter ], that is unlawful pursuant to any other [ article/chapter ] of this Code, or that is unlawful pursuant to any other law. (5) Any other any other suitable reason the granting of a license to the applicant is not consistent with the public health and welfare, including the applicant’s history of noncompliance with this [ article/chapter ] and other laws relating to the sale of tobacco products.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 15 Sec. [ ____ (*8) ]. LICENSE RENEWAL AND EXPIRATION.
(A) RENEWAL OF LICENSE. A tobacco retailer’s license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is [ 1 year ]. Each tobacco retailer shall apply for the renewal of their tobacco retailer’s license and submit the license fee no later than [ 30 ] days prior to expiration of the current license. A retailer that fails to timely submit a renewal application and fee is ineligible for license renewal and must submit a new application pursuant to Section [ ____ (*6) ].

Sec. [ ____ (*9) ]. LICENSES NOT TRANSFERABLE, PAST VIOLATIONS AT RETAIL LOCATION.
(A) LICENSES NOT TRANSFERRABLE. 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 proprietors. (B) PAST VIOLATIONS. Notwithstanding any other provision of this [ article/chapter ], prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:
(1) the location has been transferred to new proprietor(s) in an arm’s length transaction; and (2) the new proprietor(s) provide the [ city/county ] with clear and convincing evidence that the new proprietor(s) have acquired the location in an arm’s length transaction.

Sec. [ ____ (*10) ]. LICENSE CONVEYS A LIMITED, CONDITIONAL PRIVILEGE.

Nothing in this [ article/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/County ] identified on the face of the permit. Nothing in this [ article/chapter ] shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law.

Sec. [ ____ (*11) ]. FEE FOR LICENSE.

The fee to issue or to renew a tobacco retailer’s license shall be established from time to time by resolution of the [ city council/board of supervisors ]. The fee shall be calculated so as to recover the total cost of administration and enforcement of this [ article/chapter ], including, but not limited to, issuing a license, administering the license program, retailer education, December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 16 retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this [ article/ chapter ]. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

Note
The California Constitution places some limits on how much a jurisdiction can charge in a fee, deeming excessive fees to be taxes that require a vote of the people. Nonetheless, without a referendum, it is lawful to impose a fee on applicants in an amount sufficient to offset the reasonable regulatory cost of the entire tobacco retailer enforcement program of the locality.

Sinclair Paint Co. v. Board of Equalization, 15 Cal. 4th 866 (1997); Griffith v. City of Santa Cruz, 207 Cal. App. 4th 982 (2012).

The license fee can incorporate the cost of enforcing all tobacco laws related to tobacco retailing because a violation of any tobacco-related law is a basis for suspension of a license. The Public Health Law Center can provide further information on some of the factors to consider when calculating a reasonable license fee.

Sec. [ ____ (*12) ]. COMPLIANCE MONITORING.
(A) Compliance with this [ article/chapter ] shall be monitored by the Department. In addition, the [ City/County ] may designate additional persons to monitor compliance with this [ article/chapter ]. All licensed premises must be open to inspection by [ city/ county ] staff or designated persons during regular business hours. (B) The Department shall inspect each tobacco retailer at least [ 3 ] times per 12 month period to ensure compliance with this [ article/chapter ].

Note
Subsection (b) allows for the inspection of licensed premises to check for any violations of this ordinance or other tobacco control laws. For example, some inspections might focus on pricing or flavored product violations, but preferably inspectors would be able to review compliance with all applicable laws during the inspections. For more information on challenges and case studies in enforcing TRL requirements please contact the Center.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 17 (C) The [ city/county ] will conduct at least [ one ] compliance check per 12-month period that involves the participation of persons between the ages of 18 and 20 to enter licensed premises to attempt to purchase tobacco products.

Note
This underage sales compliance provision requires a minimum of one check per year, but jurisdictions might choose to require more frequent compliance checks to ensure consistent compliance.
(D) Nothing in this section shall create a right of action in any licensee or other person against the [ city/county ] or its agents.

Sec. [ ____ (*13) ]. SUSPENSION OR REVOCATION OF LICENSE. (A) SUSPENSION OR REVOCATION OF LICENSE FOR VIOLATION. In addition to any other penalty authorized by law, a tobacco retailer’s license shall be suspended or revoked if the Department 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, have violated any of the requirements, conditions, or prohibitions of this [ article/chapter ]; such violation is determined by any court of competent jurisdiction; or the licensee has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in Section [ ____(*2) ] above. (1) Upon a finding by the Department of a first violation of this [ article/chapter ] at a location, the license shall be suspended for [ 30 ] days. (2) Upon a finding by the Department of a second violation of this [ article/chapter ] at a location within any [ 5 ]-year period, the license shall be suspended for [ 90 ] days. (3) Upon a finding by the Department of a third violation of this [ article/chapter ] at a location within any [ 5 ] year period, the license shall be suspended for [ 1 ] year. (4) Upon a finding by the Department of four or more violations of this [ article/chapter ] at a location within any [ 5 ] year period, the license shall be revoked. (B) APPEAL OF SUSPENSION OR REVOCATION. A decision of the Department to suspend or revoke a license is appealable to [ the name of appellate agency, panel, or person (for December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 18 example, Board of Supervisors, city manager, or director of the health department) ] and any appeal must be filed in writing with [ the name of the agency, panel, or person to receive the notice (for example, Board of Supervisors) ] within 10 days of mailing of the Department’s decision. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to [ the name of appellate agency, panel, or person ] is not available for a revocation made pursuant to subsection (c) below. (C) REVOCATION OF LICENSE WRONGLY ISSUED. A tobacco retailer’s license shall be revoked if the Department 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 [ ____(*7) ] existed at the time application was made or at any time before the license issued. The decision by the Department shall be the final decision of the [ city/county ].

Sec. [ ____ (*14) ]. TOBACCO RETAILING WITHOUT A VALID LICENSE. (A) INELIGIBLE FOR LICENSE. In addition to any other penalty authorized by law, if the Department finds, or if a court of competent jurisdiction determines, 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 directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer’s license as follows:
(1) After a first violation of this section at a location, 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 [ 30 ] days have passed from the date of the violation.
(2) After a second violation of this section at a location within any [ 5 year ] 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 [ 90 ] 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 [ 5 year ] 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 [ 5 ] years have passed from the date of the violation.

Sec. [ ____ (*15) ]. ADDITIONAL REMEDIES.
(A) The remedies provided by this [ article/chapter ] are cumulative and in addition to any other remedies available at law or in equity.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 19 (B) Whenever evidence of a violation of this [ article/chapter ] is obtained in any part through the participation of a person under the age of 18 years, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this [ article/chapter ] and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. (C) Violations of this [ article/chapter ] are subject to a civil action brought by the [ district attorney ] or the [ county counsel ], punishable by a civil fine not less than [ $250 ] and not exceeding [ $1,000 ] per violation.
(D) Violations of this [ article/chapter ] may, in the discretion of the [ district attorney/county counsel ], be prosecuted as infractions or misdemeanors when the interests of justice so require.
(E) Violations of this [ article/chapter ] are hereby declared to be public nuisances. (F) In addition to other remedies provided by this [ article/chapter ] or by other law, any violation of this [ article/chapter ] may be remedied by a civil action brought by the [ district attorney/county counsel ], including administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief. (G) Tobacco products offered for sale in violation of this [ article/chapter ] are subject to seizure by the Department or its designee and shall be forfeited after the licensee or any other owner of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale in violation of this [ article/chapter ]. The decision by the Department may be appealed pursuant to the procedures set forth in Section [ ____(*13)(b) ]. Forfeited tobacco products shall be destroyed and properly disposed of at the cost of the seller after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final. (H) For the purposes of the civil remedies provided in this [ article/chapter ]:
(1) Each day on which a tobacco product is distributed, sold, or offered for sale in violation of this [ article/chapter ] shall constitute a separate violation of this [ article/chapter ]; and
(2) Each individual tobacco product that is distributed, sold, or offered for sale in violation of this [ article/chapter ] shall constitute a separate violation of this [ article/chapter ].

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 20 (I) All tobacco retailers are responsible for the actions of their employees relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee shall be considered an act of the tobacco retailer.

Sec. [ ____ (*16) ]. EXCEPTIONS.
(A) Nothing in this [ article/chapter ] prevents the provision of tobacco products to any person as part of an indigenous practice or a lawfully recognized religious or spiritual ceremony or practice.
(B) Nothing in this [ article/chapter ] shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.

Sec. [ ____ (*17) ]. CONSTRUCTION & SEVERABILITY. It is the intent of the [ board of supervisors/city council ] of [ county/city ] to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this [ article/chapter ], 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 [ article/chapter ], or its application to any other person or circumstance. The [ board of supervisors/city council ] of [ jurisdiction ] 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.

Sec. [ ____ (*18) ]. PUBLIC RECORDS. All information provided to the Department by a licensee or license applicant pursuant to this [ article/chapter ] shall be subject to disclosure under the California Public Records Act (California Government Code section 6250 et seq.) or any other applicable law.

SECTION III. EFFECTIVE DATE. This Ordinance shall take effect and be in force from and after [ 30 days after date of enactment ]; provided, however, that Section [ ____(*3) ] shall not take effect until [ 6 months after date of enactment ].

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 21 Appendix A: Findings.

The [ city council of the city/board of supervisors of the county ] of [ insert jurisdiction name ] hereby finds and declares as follows:

WHEREAS, the [ city council/board of supervisors ] 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 council/board of supervisors ], to protect the health, safety, and welfare of our residents;
WHEREAS, approximately 480,000 people die in the United States from smoking-related diseases and exposure to secondhand smoke every year, making tobacco use the nation’s leading cause of preventable death;2
WHEREAS, the World Health Organization (WHO) estimates that tobacco kills 8 million people and causes over 1.4 trillion dollars in economic damage each year;136 WHEREAS, 5.6 million of today’s Americans who are younger than 18 years of age are projected to die prematurely from a smoking-related illness;2 WHEREAS, tobacco use is the number one cause of preventable death in California137 and continues to be an urgent public health issue, as evidenced by the following:
{ 40,000 California adults die from their own smoking annually;1 { More than 25% of all adult cancer deaths in California are attributable to smoking;138 { Smoking costs California $13.29 billion in annual health care expenses, $3.58 billion in Medicaid costs caused by smoking, and $10.35 billion in smoking-caused productivity losses;139
{ Tobacco use can cause disease in nearly all of the organs of the body and is responsible for 87% of lung cancer deaths, 32% of coronary heart disease deaths, and 79% of all cases of chronic obstructive pulmonary disease in the United States;2 WHEREAS, tobacco use among priority populations in California contributes to health disparities and creates significant barriers to health equity, as evidenced by the following:
{ African American (20.4%), Asian or Pacific Islander (11.4%), and Hispanic (15.2%) males all report a higher smoking prevalence than the statewide average among all adults (11.0%);9 { American Indian/Alaska Native Californians have the highest smoking prevalence (19.1%) among all reported adult demographic populations;9
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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 22 { Smoking is more prevalent among rural (14.9%) compared to urban (10.6%) Californians;9 { Californians with the highest levels of educational attainment and annual household income have the lowest smoking prevalence;9
{ Adults who identify as lesbian, gay, bisexual, or transgender report smoking at a higher rate (17.4%) than the statewide average (11.0%);9
{ Those who reported experiencing psychological distress in the past month smoke at rates (26.7%) higher than the statewide average (11.0%);9
[ insert local data if available ]
WHEREAS, despite the state’s efforts to limit youth access to tobacco, youth are still able to access tobacco products, as evidenced by the following:
{ In California, research indicates over 67% of current and former adult smokers started by the age of 18 and almost 100% start by age 26;140
{ In California, from 2017 to 2018, approximately 13% of high school students reported using tobacco;9
{ Disparities in tobacco use exist among California high school students, with higher rates found among LGBTQ, American Indian, and Pacific Islander youth;9 { Unless smoking rates decline, an estimated 441,000 of all California youth who are alive today will die prematurely from smoking-related diseases;2 { In 2017, 22.8% of high school students in California had tried cigarette smoking;141 { Between 2014 and 2018, electronic smoking device use among California youth increased from 14.1% to 46.2%;8
[ insert local data if available ]
WHEREAS, the tobacco industry encourages youth and young adult tobacco initiation through predatory targeting,11 as evidenced by the following:
{ Tobacco companies target young adults ages 18 to 24 to increase their frequency of tobacco use and encourage their transition to habitual users;66 { Tobacco industry documents state that if “a man has never smoked by the age of 18, the odds are three-to-one he never will. By age 24, the odds are twenty-to-one”;142 December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 23 { The tobacco industry spends an estimated $496 million annually to market tobacco products to California residents;139
WHEREAS, California retailers continue to sell tobacco to underage consumers, evidenced by the following:
{ 9.3% of high school students in California reported buying their own electronic cigarette from a store;141
{ 19.1% of California tobacco retailers unlawfully sold tobacco products to underage persons in 2018;9
[ insert local data if available ]
WHEREAS, requiring tobacco retailers to obtain a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell tobacco products to adults but will, however, allow the [ city council/board of supervisors ] to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco control and youth tobacco access laws, as evidenced by the following:
{ Tobacco products are the number one seller in U.S. convenience stores, and in 2018, they generated an average of $523,084 in sales per store;143 { Systematic scientific reviews indicate that merchant compliance with youth tobacco sales laws reduces the rate of tobacco use among adolescents;26,27 { Studies found increased retailer compliance and reduced tobacco sales to youth following implementation and active enforcement of youth tobacco sales laws paired with penalties for violations;144,145
{ A review of 41 California communities with strong tobacco retailer licensing ordinances found that youth sales rates declined in 40 of these communities after the ordinances were enacted, with an average 69% decrease in the youth sales rate;25 WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”), enacted in 2009, prohibited candy- and fruit-flavored cigarettes,28 largely because these flavored products are marketed to youth and young adults,26,35,145 and younger smokers were more likely than older smokers to have tried these products;26 WHEREAS, neither federal nor California state laws restrict the sale of menthol cigarettes or flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, electronic smoking devices, and the solutions used in these devices; December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 24 WHEREAS, in 2018, more than 86% of tobacco retailers in California sold flavored noncigarette tobacco products, over 91% of tobacco retailers sold menthol cigarettes,80 and, as of 2016, 8 out of 10 tobacco retailers near schools sold flavored non-cigarette tobacco products;147
WHEREAS, flavored tobacco products are used by the majority of youth and young adult tobacco users (86.4% and 57.7%, respectively) in California;9 WHEREAS, mentholated and flavored products have been shown to be “starter” products for youth who begin using tobacco26,148,149 and that these products help establish tobacco habits that can lead to long-term addiction;26,150,151
WHEREAS, between 2004 and 2014, use of non-menthol cigarettes decreased among all populations, but overall use of menthol cigarettes increased among young adults (ages 18 to 25) and adults (ages 26+);30
WHEREAS, flavored tobacco has significant public health implications for youth and people of color as a result of targeted industry marketing strategies and product manipulation;11,26,152,153 WHEREAS, a review of advertising, promotions, and pack prices near California high schools found that “for each 10 percentage point increase in the proportion of Black students, the proportion of menthol advertising increased by 5.9% … the odds of a Newport [a leading brand of mentholated cigarettes] promotion were 50% higher … and the cost of Newport was 12 cents lower.” There was no such association found for non-mentholated cigarettes;154 WHEREAS, scientific reviews by the FDA and the Tobacco Products Scientific Advisory Committee (“TPSAC”) found marketing of menthol cigarettes likely increases the prevalence of smoking among the entire population, but especially among youth, African Americans,33 and possibly Hispanic and Latino individuals;34 and that menthol cigarettes are associated with increased initiation and progression to regular cigarette smoking, increased dependence on cigarettes, and reduced success in smoking cessation, especially among African American menthol smokers;33
WHEREAS, research indicates that the FDA ban in 2009 on all flavored cigarette products (except menthol) led to a 6% decrease in youth tobacco use and a 17% decrease in the likelihood of a youth becoming a cigarette smoker;155
WHEREAS, studies indicate that laws prohibiting the sale of flavored tobacco products lead to decreases in youth tobacco use, as evidenced by the following:

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 25 { An evaluation of New York City’s law, which prohibits the sale of all flavored tobacco, excluding menthol, indicated that as a result of the law, youth had 37% lower odds of ever trying flavored tobacco products and 28% lower odds of ever using any type of tobacco;156 { An evaluation of a law in Providence, Rhode Island, which prohibits the sale of all flavored tobacco, excluding menthol, indicated that as a result of the law, current use of any tobacco product among high school youth declined from 22% to 12% and e-cigarette use declined from 13.3% to 6.6%, even as statewide e-cigarette use among high school increased to more than 20%;157
WHEREAS, the health effects of non-cigarette tobacco products such as cigars, cigarillos, smokeless tobacco, and shisha are substantial as demonstrated by research that shows that non-cigarette tobacco products have addictive levels of nicotine, harmful toxins, and dangerous carcinogens;158-164
WHEREAS, unlike cigarette use that has steadily declined among youth, the prevalence of the use of non-cigarette tobacco products has increased among California youth;9 WHEREAS, the availability of inexpensive tobacco products leads to increased tobacco use as evidenced by more than 100 academic studies that conclusively show that when tobacco products are made more expensive, fewer people use tobacco, fewer initiate tobacco use, and more people quit tobacco use;2,48-51,53-58
WHEREAS, research has also consistently shown that increases in cigarettes prices will result in less smoking across various sociodemographic populations;165 WHEREAS, a systematic review by the U.S. Community Preventive Services Task Force found that a 20% price increase would reduce demand for cigarettes by approximately 10.4%, the prevalence of adult tobacco use by 3.6%, and initiation of tobacco use by young people by 8.6%;49 WHEREAS, unequal price increases across different types of tobacco products lead to substitution from one product to another;56,58
WHEREAS, youth are particularly responsive to changes in tobacco prices,26,52,54,166 and evidence suggests that tobacco companies deliberately target youth with price reductions;26,51,64-66,167 WHEREAS, evidence also suggests that cigarettes are cheaper in neighborhoods with lower household incomes,118,168 Newport menthol cigarettes cost less in areas with higher proportions of African Americans,118 and underserved communities are targeted with price discounts and coupons;169-171
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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 26 WHEREAS, tobacco companies spend considerably to decrease the price of their products in order to counter state and local tobacco control efforts, appeal to price-sensitive consumers, and increase demand for tobacco products. For example, tobacco companies spent the majority of their cigarette marketing budgets on price discounts, accounting for nearly $6.2 billion of $8.6 billion advertising and promotional expenditures in 2018; 50,51,62 WHEREAS, the tobacco industry’s price discounting strategies, such as coupons and multiplepackage discounts, are popular among consumers, with more than half of adults using some price minimization strategy.70 Coupon receipt and redemption appears more prevalent among white, younger, female, sexual minority, and more nicotine dependent smokers.172 In California, individuals who used price minimization strategies saved an average $1.04 per pack (or 18.6% off the total) in 2010;70
WHEREAS, price-discounted sales account for a substantial proportion of overall tobacco product sales;63
WHEREAS, although federal and state law ban the sale of individual cigarettes,78,173 neither federal nor California state laws restrict the sale of individual little cigars and cigars; WHEREAS, many retailers sell little cigars and cigars individually, making them more affordable and appealing to youth.79 Additionally:
{ 78.3% of California tobacco retailers sell a popular brand of youth-friendly cigars for less than $1.00;79
{ Between 2012 and 2016, annual sales of cigarillos increased by 78% overall and by 155% for “concept-flavored” (e.g., Jazz) cigarillos;174
WHEREAS, a 10% increase in cigar prices has been associated with decreased cigar sales175,176 and may significantly reduce cigar use among youth;177
WHEREAS, neither federal nor California state laws set a minimum price for tobacco products; WHEREAS, minimum price markups and related laws in other states have been shown to be effective at increasing the price of cigarettes but may remain vulnerable to price manipulation by the tobacco industry without attention to coupons and discounts;82 WHEREAS, studies have estimated that if price discounts were prohibited across the United States, the number of people who smoke would decrease by more than 13%;68 the impact of a $10 federal minimum floor price for cigarettes could reduce the number of packs sold in the United States by 5.7billion per year and prompt more than 10million smokers to quit;55 and that a state-level minimum floor price law designed to raise the average price of cigarette December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 27 packs by just under $2.00 could decrease the prevalence of cigarette use and consumption by by more than 4% and reduce income-based smoking disparities in California;86 WHEREAS, by selling tobacco products, pharmacies reinforce positive social perceptions of smoking, convey tacit approval of tobacco use, and send a message that it is not so dangerous to smoke;178,179
WHEREAS, pharmacies sell cigarettes cheaper than other stores118 and advertise tobacco product discounts more than other stores in California;80 WHEREAS, tobacco-free pharmacy sales policies decrease the availability of tobacco products by reducing tobacco retailer density by up to three times compared with communities that do not have such policies,119 and immediately after the nationwide CVS policy change to not sell tobacco products, cigarette purchases declined and smokers who had previously purchased their cigarettes exclusively at CVS were up to twice as likely to stop buying cigarettes entirely;120 WHEREAS, research indicates that the density and proximity of tobacco retailers increase smoking behaviors, including number of cigarettes smoked per day,90 particularly in neighborhoods experiencing poverty;90,180-182
WHEREAS, the density of tobacco retailers near adolescents’ homes has been associated with increased youth smoking rates101 and initiation of noncigarette tobacco product use;183 WHEREAS, adults who smoke are likely to have a harder time quitting when residential proximity to tobacco retailers is closer107 and density is higher;184-186 WHEREAS, tobacco retailers are more prevalent in underserved communities, especially in neighborhoods with a higher proportion of African American or Hispanic residents;93-98 WHEREAS, tobacco retailer density is higher in urban compared to rural areas, except for lowincome communities, which have higher tobacco retailer densities regardless of geography, and Hispanic communities, which are associated with variable retailer densities across geography;97,187 WHEREAS, policies to reduce tobacco retailer density have been shown to be effective103,104,188,189 and can reduce or eliminate inequities in the location and distribution of tobacco retailers;103,104
WHEREAS, six out of 10 tobacco retailers in California sold cigar products using cannabisrelated flavor descriptors and these retailers were more prevalent in school neighborhoods with lower median income;190
WHEREAS, both youth and adult tobacco users are more likely to also use cannabis;191,192 December 2020

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 28 WHEREAS, strict enforcement of policies prohibiting retail sales of cigarettes to youth, sales of cigarettes via vending machines, and other means through which youth gain access to tobacco in the commercial settings can limit their opportunities to obtain these products;26,27 WHEREAS, strong policy enforcement and monitoring of retailer compliance with tobacco control policies (e.g., requiring identification checks) is necessary to achieve reductions in youth tobacco sales;193,194
WHEREAS, the Institute of Medicine recognizes that retailers are not likely to comply with youth tobacco access laws unless such laws are actively enforced through retailer compliance checks paired with meaningful penalties on business owners for violations;195 WHEREAS, state law explicitly permits cities and counties to enact local tobacco retail licensing ordinances, and allows for the suspension or revocation of a local license for a violation of any state tobacco control law (Cal. Bus. & Prof. Code § 22971.3); WHEREAS, California courts have affirmed the power of the [ city council/board of supervisors ] to regulate business activity to discourage violations of law. See, e.g., Cohen v.

Board of Supervisors, 40 Cal. 3d 277 (1985); Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993); Prime Gas, Inc. v. City of Sacramento, 184 Cal. App. 4th 697 (2010); WHEREAS, over 180 cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop youth from using tobacco;9 WHEREAS, the [ city council/board of supervisors ] has a substantial interest in protecting youth and underserved populations from the harms of tobacco use; and WHEREAS, the [ city council/board of supervisors ] 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 [ Insert jurisdiction name ] in order to protect the health, safety, and welfare of our residents;
NOW THEREFORE, it is the intent of the [ city council/board of supervisors ], in enacting this ordinance, to ensure compliance with the business standards and practices of the [ city/ county ] 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 products to youth, 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.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 29 References
1 Centers for Disease Control and Prevention. Best Practices for Comprehensive Tobacco Control Programs — 2014. U.S.

Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014. Available at: https://www.cdc.gov/ tobacco/stateandcommunity/best_practices/pdfs/2014/comprehensive.pdf. 2 U.S. Department of Health and Human Services. The Health Consequences of Smoking: 50 Years of Progress. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014. Available at: https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf. 3 Family Smoking Prevention and Tobacco Control Act § 3(1), Pub. L. No. 111-31, 123 Stat. 1776-1858 (2009). 4 National Academies of Sciences, Engineering, and Medicine. Public Health Consequences of E-Cigarettes. 2018. Washington, DC: The National Academies Press. doi: https://doi.org/10.17226/24952. 5 Fowles J, Barreau T, Wu N. Cancer and Non-Cancer Risk Concerns from Metals in Electronic Cigarette Liquids and Aerosols. Int J Environ Res Public Health. 2020;17(6):2146. doi: 10.3390/ijerph17062146. 6 Romberg AR, Miller Lo EJ, Cuccia AF, et al. Patterns of nicotine concentrations in electronic cigarettes sold in the United States, 2013-2018. Drug Alcohol Depend. 2019:201:1-7. doi: 10.1016/j.drugalcdep.2019.05.029. 7 Wang TW, Coats EM, Gammon DG et al. National and State-Specific Unit Sales and Prices for Electronic Cigarettes, United States, 2012–2016. Prev Chroni Dis. 2018;15:E99. doi: 10.5888/pcd15.170555. 8 Lin C, Baiocchi M, Halpern-Felsher B. Longitudinal trends in e-cigarette devices used by Californian youth, 2014–2018.

Addict Behav. 2020;108:106459. doi: 10.1016/j.addbeh.2020.106459. 9 California Tobacco Control Program. California Tobacco Facts and Figures 2019. Sacramento, CA: California Department of Public Health. 2019. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandEvaluation/FactsandFigures/CATobaccoFactsandFigures2019.pdf. 10 U.S. National Cancer Institute. A Socioecological Approach to Addressing Tobacco-Related Health Disparities. National Cancer Institute Tobacco Control Monograph 22. NIH Publication No. 17-CA-8035A. Bethesda, MD: U.S. Department of Health and Human Services, National Institutes of Health, National Cancer Institute. 2017. 11 United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006), aff’d in part, vacated in part, 566 F.3d 1095 (D.C. Cir. 2009), and order clarified, 778 F. Supp. 2d 8 (D.D.C. 2011). 12 California Tobacco Control Program. California Tobacco Facts and Figures 2018. Sacramento, CA: California Department of Public Health. 2018. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandEvaluation/FactsandFigures/CATobaccoFactsFigures2018.pdf. 13 California Tobacco Education and Research Oversight Committee. New Challenges — New Promise for All: Toward a Tobacco-Free California Master Plan 2018–2020. Sacramento, CA: California Tobacco Education and Research Oversight Committee. 2018. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/TEROC/MasterPlan/TEROCMasterPlan2018-2020.pdf. 14 California Tobacco Control Program. Story of Inequity. 2019; http://tobaccofreeca.com/story-of-inequity. Accessed May 22, 2020.
15 Cal. Bus. & Prof. Code § 22972(a).

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 30 16 Cal. Bus. & Prof. Code § 22970.1 (Finding that state tobacco excise tax revenues “have declined by hundreds of millions of dollars per year due, in part, to unlawful distributions and untaxed sales of cigarettes and tobacco products,” and that “the licensing of … retailers will help stem the tide of untaxed distributions and illegal sales of cigarettes and tobacco products.”).
17 Cal. Rev. & Tax Code § 30111 (providing that state tobacco taxes “are in lieu of all other state, county, municipal, or district taxes on the privilege of distributing cigarettes or tobacco products.”); Cal. Bus. & Prof. Code § 22964 (providing that the Stop Tobacco Access to Kids Act does not “preempt or otherwise prohibit the adoption of a local standard that imposes a more restrictive legal age to purchase or possess tobacco products.”). 18 Cal. Bus. & Prof. Code § 22971.3 (“Nothing in this division preempts or supersedes any local tobacco control law other than those related to the collection of state taxes. Local licensing laws may provide for the suspension or revocation of the local license for any violation of a state tobacco control law.”). 19 Cal. Penal Code § 308(a)(1)(A).
20 Cal. Bus. & Prof. Code §§ 22950-22964.
21 21 C.F.R. §§ 1140.14(a)(4), 1140.16(b).
22 21 C.F.R. § 1140.14(a)(2), (b)(2).
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24 The American Lung Association in California Center for Tobacco Policy and Organizing. Local Tobacco Policies in the Retail Environment. 2017.
25 The American Lung Association in California Center for Tobacco Policy and Organizing. Tobacco Retailer Licensing is Effective. 2018.
26 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2012.

Available at: https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf. 27 DiFranza JR. Which interventions against the sale of tobacco to minors can be expected to reduce smoking? Tob Control. 2012;21:436-442. doi: 10.1136/tobaccocontrol-2011-050145. 28 21 U.S.C. § 387g(a)(1)(A).
29 Villanti AC, Johnson AL, Glasser AM. Association of Flavored Tobacco Use With Tobacco Initiation and Subsequent Use Among US Youth and Adults, 2013-2015. JAMA Netw Open. 2019;2(10):e1913804. doi: 10.1001/jamanetworkopen.2019.13804. 30 Villanti AC, Mowery PD, Delnevo CD, Niaura RS, Abrams DB, Giovino GA. Changes in the prevalence and correlates of menthol cigarette use in the USA, 2004-2014. Tob Control. 2016;25(Suppl 2):ii14-ii20. doi: 10.1136/tobaccocontrol-2016-053329. 31 King BA, Dube SR, Tynan MA. Flavored cigar smoking among U.S. adults: findings from the 2009-2010 National Adult Tobacco Survey. Nicotine Tob Res. 2013;15(2):608-614. doi: 10.1093/ntr/nts178. 32 D’Silva J, Cohn AM, Johnson AL, Villanti AC. Differences in Subjective Experiences to First Use of Menthol and Nonmenthol Cigarettes in a National Sample of Young Adult Cigarette Smokers. Nicotine Tob Res. 2018;20(9):1062-1068. doi: 10.1093/ntr/ntx181.

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www.publichealthlawcenter.org/caltobacco Comprehensive Tobacco Retailer Licensing Ordinance 31 33 Food and Drug Administration. Preliminary Scientific Evaluation of the Possible Public Health Effects of Menthol Versus Nonmenthol Cigarettes. 2013. Available at: http://www.fda.gov/downloads/ScienceResearch/SpecialTopics/PeerReviewofScientificInformationandAssessments/UCM361598.pdf. 34 Tobacco Products Scientific Advisory Committee. Menthol Cigarettes and Public Health: Review of the Scientific Evidence and Recommendations. 2011. Available at: https://wayback.archive-it.org/7993/20170405201731/https://www.fda. gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/TobaccoProductsScientificAdvisoryCommittee/UCM269697.pdf. 35 Villanti AC, Collins LK, Niaura RS, Gagosian SY, Abrams DB. Menthol cigarettes and the public health standard: a systematic review. BMC Public Health. 2017;17(1):983. doi: 10.1186/s12889-017-4987-z. 36 Fallin A, Goodin AJ, King BA. Menthol cigarette smoking among lesbian, gay, bisexual, and transgender adults. Am J Prev Med. 2015;48(1):93-97. doi: 10.1016/j.amepre.2014.07.044. 37 Cohn AM, Johnson AL, Hair E, Rath JM, Villanti AC. Menthol tobacco use is correlated with mental health symptoms in a national sample of young adults: implications for future health risks and policy recommendations. Tob Induc Dis. 2016;14:1. doi: 10.1186/s12971-015-0066-3.
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66 Ling PM, Glantz SA. Why and How the Tobacco Industry Sells Cigarettes to Young Adults: Evidence From Industry Documents. Am J Public Health. 2002;92(6):908-916. doi: 10.2105/ajph.92.6.908. 67 Lempert LK, Glantz SA. Tobacco Industry Promotional Strategies Targeting American Indians/Alaska Natives and Exploiting Tribal Sovereignty. Nicotine Tob Res. 2019;21(7):940-948. doi: 10.1093/ntr/nty048. 68 Slater SJ, Chaloupka FJ, Wakefield M, Johnston LD, O’Malley PM. The impact of retail cigarette marketing practices on youth smoking uptake. Arch Pediatr Adolesc Med. 2007;161(5):440-445. doi: 10.1001/archpedi.161.5.440.

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189 Luke DA, Hammond RA, Combs T, et al. Tobacco Town: Computational Modeling of Policy Options to Reduce Tobacco Retailer Density. Am J Public Health. 2017;107(5):740-746. doi: 10.2105/AJPH.2017.303685.190; Henriksen L, Schleicher NC, Ababseh K, Johnson TO, Fortmann SP. Marijuana as a ‘concept’ flavour for cigar products: availability and price near California schools. Tob Control. 2017. doi: 10.1136/tobaccocontrol-2017-053961. 191 Richter L, Pugh BS, Smith PH, Ball SA. The co-occurrence of nicotine and other substance use and addiction among youth and adults in the United States: implications for research, practice, and policy. Am J Drug Alcohol Abuse. 2017;43(2):132-145. doi: 10.1080/00952990.2016.1193511. 192 Conway KP, Green VR, Kasza KA, et al. Co-occurrence of Tobacco Product Use, Substance Use, and Mental Health Problems Among Youth: Findings From Wave 1 (2013-2014) of the Population Assessment of Tobacco and Health (PATH) Study. Addict Behav. 2018;76:208-217. doi: 10.1016/j.addbeh.2017.08.009. 193 DiFranza JR. Best Practices for Enforcing State Laws Prohibiting the Sale of Tobacco to Minors. J Public Health Manag Pract. 2005;11(6):559-565. doi: 10.1097/00124784-200511000-00014. 194 Macinko J, Silver D. Impact of New York City’s 2014 Increased Minimum Legal Purchase Age on Youth Tobacco Use.

Am J Public Health. 2018;108(5):669-675. doi: 10.2105/AJPH.2018.304340. 195 Institute of Medicine. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products. Washington, DC: National Academies Press. 2015.

December 2020

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The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2016. California Department of Public Health. Funded under contract #14-10013.

CENTER4TOBACCOPOLICY.ORG
LUNG.ORG/CALIFORNIA
Matrix of Local Ordinances Restricting
Tobacco Retailers Near Schools
@ 2013 California Department of Public Health
SEPTEMBER 2016
In order to reduce illegal sales of tobacco products to minors and prevent youth from getting addicted to tobacco products, many cities and counties in California have
restricted the location of tobacco retailers near schools.

Studies have shown that the density of tobacco retailers, particularly in neighborhoods surrounding schools, has
been associated with increased smoking rates and that
one-third of illegal tobacco sales take place within 1,000 feet of schools.

This matrix lists 51 municipalities in California that have adopted an ordinance to restrict the location of tobacco retailers within a certain distance of schools. The cities and counties are listed in reverse chronological order from the most recently passed. To be included on this matrix, the ordinance must require all tobacco retailers or significant tobacco retailers to be located 500 feet or more away from schools. The definition of significant tobacco retailers varies by ordinance, therefore, the strength of each of these 51 ordinances varies. Policy details are included in this matrix help to highlight these differences.

Type of Ordinance
There are four different ways for local governments
to restrict the location of tobacco retailers; the first section of the matrix designates which type of policy
each municipality has adopted. While each of these
policy options can accomplish the goal of restricting
tobacco retailers near schools, using the tobacco retailer licensing ordinance to do this is the best approach for dealing with current tobacco retailers located within the restricted area around a school, it is more efficient to enforce, and therefore it is recommended. For this reason, the tobacco retailer licensing column is highlighted. Full explanations for each of the four policy types, along with the matrix abbreviation and information about how many
municipalities have adopted that type of policy, are
listed below.

1. Tobacco Retailer Licensing Ordinance (TRL) – This type of law requires all tobacco retailers to obtain a license in order to sell tobacco products in the municipality and a requirement can be added to the licensing ordinance that a retailer cannot obtain a license if they are located within a certain distance of schools. Because tobacco retailer licenses are only granted for a set period of time (one year) and must be renewed annually, it is more efficient to implement location restrictions through a licensing
ordinance by simply not renewing licenses for businesses in prohibited locations. Fifteen municipalities use this type of policy to restrict sales near schools.

2. Zoning Ordinances (Zoning) – Zoning regulations
establish what type of uses are allowed for each type of property or district. A zoning ordinance can be used to specifically prohibit a tobacco retailer from operating within a certain distance of schools. Nine municipalities use this policy to restrict sales near schools.

3. Conditional Use Permit (CUP) – The requirement that
a business obtain a Conditional Use Permit (CUP) is a
requirement typically imposed through a community’s
zoning code that allows a city or county to make an
individualized determination about the use of a property in a specific location. If a proposed use, such as tobacco retailing near schools is not “permitted” by the zoning code or “prohibited,” it can be “conditionally permitted” depending on site-specific factors. A retailer would have

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THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 2 of 6
The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2016. California Department of Public Health. Funded under contract #14-10013.

CENTER4TOBACCOPOLICY.ORG
LUNG.ORG/CALIFORNIA
to apply for a CUP in order to open a business in a specific location. A restriction on the issuance of a CUP can be that the tobacco retailer is not located within a certain distance of schools. Twenty-three municipalities have adopted this type of policy.

4. Direct Regulation (Reg) – This type of law is enacted under the general police powers of the municipality to
protect the health, safety, welfare and morals of their citizens. Unlike TRL, zoning, and CUP ordinances, for
this type of law an enforcement mechanism must be
specifically created or incorporated by referencing another part of the municipal code (TRL and zoning ordinances
already include enforcement procedures that apply to
any violation). A regulatory ordinance can be enforced
in many ways, for example through civil suit or criminal prosecution, administrative citations, or as a nuisance through administrative, civil or criminal nuisance abatement proceedings. Four cities has adopted this type of ordinance to restrict tobacco retailers near schools.

Type of Tobacco Retailers that are
Subject to the Ordinance
Another significant distinction for these policies is whether the policy restricts the location of all tobacco retailers or just significant tobacco retailers (those whose sales include a high percentage of tobacco products). The column on
the right side contains the information about which type of retailers are subject to the ordinance. The municipalities that contain an “X” in the column are the strongest type of policy and restrict every retailer that sells tobacco products within a certain distance of schools. Twenty-eight municipalities have adopted this type of ordinance.

Other Important Policy Provisions
In addition, the Matrix also contains information about five other policy provisions relevant to restrictions on the sale of tobacco products near schools. For each of these provisions, the full question is listed below along with information on trends and most common responses from
the 51 ordinances:
• Does the policy prohibits tobacco retailers from being located within what distance of schools? The restrictions range from 500 feet to 1,500 feet, with the majority (29 of 51) restricting sales within 1,000 feet of schools.
• Does the policy apply to existing retailers (no
grandfathering)? A majority of the policies (42 of 51) do not subject existing retailers to the location restrictions but would only apply to new retailers and grandfather
in existing retailers. However, for several of these cities and counties, there were no existing retailers within that restricted distance from schools.
• What other youth-oriented areas do the distance
requirements apply to other than schools? In addition to schools, the majority of these policies (32 of 51) also restrict tobacco retailers within a certain distance of other youth-oriented areas. The most popular other location
is near parks and/or playgrounds, where 29 cities and
counties restrict tobacco retailers.
• Does the policy restrict tobacco retailers from being located within a certain distance of other tobacco retailers? In addition to schools and other youth-oriented areas, some of these ordinances contain a density provision that restricts
tobacco retailers from being located near other tobacco retailers. Twenty-three ordinances contain this provision and the distance restrictions range from 200 to 1,500 feet.

Resources
The Center has additional resources on restricting tobacco retailers near schools and tobacco retailer licensing
ordinances available at http://center4tobaccopolicy.org localpolicies-licensing. ChangeLab Solutions has model
ordinance language available for tobacco retailer licensing ordinances, conditional use permits and zoning ordinances at http://changelabsolutions.org.

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THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 3 of 6
The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2016. California Department of Public Health. Funded under contract #14-10013.

CENTER4TOBACCOPOLICY.ORG
LUNG.ORG/CALIFORNIA
City/County
Date Passed
Type of Policy Distance
(in feet) from
schools?
Apply to existing
retailers (no
grandfathering)?
What other
youth-oriented areas
(other than schools)
are included?
Restricts retailers
within a certain
distance of other
retailers?
Apply to every
retailer who sells
tobacco products? TRL Zoning CUP Reg
Manhattan Beach
December 2015 X 500 Yes None Yes (500 feet) X
Berkeley
September 2015 X 600 No None No X
Costa Mesa
September 2015 X 1,000 No None Yes (1,500 feet) X
El Cerrito
September 2015 X 500 No
Libraries, recreation
areas, and some
public parks
Yes (1,000 feet) X
Rocklin
September 2015 X 1,000 Yes None Yes (1,000 feet) X
Crescent City
April 2015 X None Specified No
Day care centers,
playgrounds, parks,
recreation centers,
libraries, and houses
of worship engaged
in youth-oriented
activities
No
San Francisco
December 2014 X 500 No None Yes (500 feet) X
Gilroy
November 2014 X 1,000 No None No X
Temple City
October 2014 X 1,000 Yes Public parks, large
childcare center Yes (1,000 feet)
Hayward
July 2014 X 500 No Residential, sensitive
receptors Yes (500 feet)
Westminster
July 2014 X 500 No None Yes (1,000 feet)
Goleta
May 2014 X 1,000 No None No X
Covina
April 2014 X 300 No
Day cares, parks,
libraries, recreational
areas, community
centers and houses
of worship engaged
in youth-oriented
activities
Yes (500 feet) X
Santa Cruz
April 2014 X 1,000 No None
Yes (600 feet of
high risk alcohol
outlet)
X
Scotts Valley
April 2014 X 500 Yes None No
El Cajon
March 2014 X 600 Yes
Residential, religious
facility, courthouse,
day nursery, public
playground/park/
recreation area,
vocational/professional institution,
higher education
Yes (1,000 feet)
Capitola
February 2014 X 1,000 No Public library No X

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THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 4 of 6
The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2016. California Department of Public Health. Funded under contract #14-10013.

CENTER4TOBACCOPOLICY.ORG
LUNG.ORG/CALIFORNIA
City/County
Date Passed
Type of Policy Distance
(in feet) from
schools?
Apply to existing
retailers (no
grandfathering)?
What other
youth-oriented areas
(other than schools)
are included?
Restricts retailers
within a certain
distance of other
retailers?
Apply to every
retailer who sells
tobacco products? TRL Zoning CUP Reg
Selma
December 2013 X 1,000 No
Playground, recreation center or
facility,
childcare center
or library
Yes (1,000 feet)
Fairfield
October 2013 X 1,000 No Parks and recreation
centers Yes (1,000 feet)
Anaheim
June 2013 X 1,000 Yes None No X
Carpinteria
May 2013 X 1,000 No None No X
Oroville
March 2013 X 500 No Residences, parks,
and places of worship No X
Dublin
December 2012 X 1,000 No
500 feet from
playgrounds, parks,
libraries, and City
owned and operated
recreational facilities
Yes (1,000 feet) X
Lynwood
October 2012 X 500 No
Youth-populated
areas including parks,
playgrounds, youth
centers, recreational
areas and religious
institutions
Yes (200 feet) X
Sacramento
June 2012 X 1,000
No (but retailers
are allowed
within the
restricted area
if 10% or less
floor space
has tobacco
products)
None No X
Huntington Park
December 2011 X 500 No
Library, playground,
youth center,
recreational facility
open to the public,
arcade open to the
public, parks
Yes (200 feet) X
West Hollywood
March 2011 X 600 No None No
Santa Barbara County
November 2010 X 1,000 No None No X
Santa Clara County
November 2010 X 1,000 No None Yes (500 feet) X
South Pasadena
November 2010 X 500
No (but there
were no retailers
within restricted
area) None No X

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THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 5 of 6
The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2016. California Department of Public Health. Funded under contract #14-10013.

CENTER4TOBACCOPOLICY.ORG
LUNG.ORG/CALIFORNIA
City/County
Date Passed
Type of Policy Distance
(in feet) from
schools?
Apply to existing
retailers (no
grandfathering)?
What other
youth-oriented areas
(other than schools)
are included?
Restricts retailers
within a certain
distance of other
retailers?
Apply to every
retailer who sells
tobacco products? TRL Zoning CUP Reg
Riverbank
July 2010 X 500 Yes Playgrounds No X
Adelanto
May 2010 X 1,000 No
Playground, church,
public library or
childcare facility No X
Calabasas
April 2010 X 500
No (but there
were no retailers
within restricted
area)
None No X
Palmdale
January 2010 X 500 No
Commercial daycare
center, hospitals,
parks, libraries, recreation centers No X
Union City
January 2010 X 1,000 No
Park, playground,
library, recreation
center, religious
institution,
youth-oriented
establishment
Yes (1,000 feet) X
Vallejo
December 2009 X 1,000 No Church, public
recreation area Yes (1,000 feet)
Windsor
November 2009 X 600
No (but there
were no retailers
within restricted
area)
Religious institutions,
libraries and parks No
Saratoga
October 2009 X 1,000 No Parks Yes (500 feet) X
Rohnert Park
April 2009 X 500 No
Religious assembly,
public facility,
multi-unit residential
development
Yes (500 feet)
Albany
February 2009 X 500 Yes
Childcare centers,
public libraries, public
community centers,
parks or playgrounds
No
Oakland
April 2008 X 1,000 No
Residential zone,
library, park,
playground,
recreation center,
licensed daycare
facility
No X
La Mirada
November 2007 X 600 No Church, temple, park Yes (500 feet) Emeryville
March 2007 X 1,000 Yes Parks, greenways, and
playgrounds

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THE CENTER FOR TOBACCO POLICY & ORGANIZING Page 6 of 6
The Center for Tobacco Policy & Organizing | American Lung Association in California 1531 I Street, Suite 201, Sacramento, CA 95814 | Phone: (916) 554.5864 | Fax: (916) 442.8585 ©2016. California Department of Public Health. Funded under contract #14-10013.

CENTER4TOBACCOPOLICY.ORG
LUNG.ORG/CALIFORNIA
City/County
Date Passed
Type of Policy Distance
(in feet) from
schools?
Apply to existing
retailers (no
grandfathering)?
What other
youth-oriented areas
(other than schools)
are included?
Restricts retailers
within a certain
distance of other
retailers?
Apply to every
retailer who sells
tobacco products? TRL Zoning CUP Reg
Mountain View
February 2005 X 1,000
No (if existing
retailers are
caught selling to
minors twice in a
36 month period,
they must apply
for a CUP)
Childcare facility or
preschool other than
family daycare, playground, youth center,
recreational facility
No
Pasadena
February 2004 X 1,000 No
Game arcade,
internet access
studio, library,
licensed childcare
facility other than
family daycare,
park and recreation
facility, theater
No
San Rafael
February 2003 X 1,000 No
Parks, libraries,
arcades, youth/teen
centers, community/
recreation centers,
licensed daycare centers, shopping malls,
houses of worship
with youth programs
No
Marin County
2002 X 1,000 No
Childcare facility
or preschool other
than family daycare,
playground, youth
or teen center,
community or
recreation center,
arcade, park, library,
houses of worship
with youth activities
No
Berkeley
November 2001 X 1,400 No Public Park No
San Leandro
July 2001 X 1,500 No Park, library,
recreational facility Yes (1,500 feet)
Novato
April 2001 X 1,000 No
Parks or other land
use oriented to minors as determined by
zoning administrator No
Vista
June 1997 X 1,000 No None No

Page 84 of 109 ends

California
Department of Justice
Tobacco Grant
Mayra Lopez, MPH
Program Manager
Tobacco Prevention Program
Monica Marquez, MPH, MSBH
Senior Health Education Specialist
Tobacco Prevention Program

Page 85 of 109 ends

cchealth.org
California Department of Justice Tobacco Grant
The DOJ provides annual
funds to local enforcement
agencies over a 2-3 year
period.

A priority for this funding
cycle is retail education and
enforcement.

Any local public agency
within the State of
California that has
authority to enforce
tobacco-related state laws
or local ordinances.
$24.6 Million in Grant
Funding is Available
(2023)!
Application Due Date:

TBD
Who is Eligible?

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cchealth.org
Retailer Compliance Checks
Enfrocement of Flavor Ban Laws and Ordinances
Consumer Protection Enforcement
Public Education Outreach
Retailer Training Programs
Illegal Online Sales and Marketing, including use
of Door-to-Door Delivery Services
DOJ Grant Tobacco Enforcement Efforts
Tobacco Retailer License Inspections
Grant funds may be used to
enforce a local ordinance or
state law related to the illegal
sale and marketing of tobacco
products.

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cchealth.org
Examples of Funded Goals for Law Enforcement Agencies
Investigate Online and
Delivery Services
Enforce CA Flavor
Ban (SB793/Prop
31) and local
tobacco ordinances
Conduct Minor
Decoy and
Shoulder Tap
Operations
Provide Education
Classes or Diversion
Programs for Tobacco
Retailers to Help
Ensure that They
Understand and
Comply with State and
Local Tobacco Laws

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cchealth.org
Personnel
Travel
Training
*Subcontractors
Supplies and Materials
Equipment
Allowable & Restricted Costs
Ammunition
Awards
Award Certificates
Balloons
Briefcases
Calendars (Decorative)
Cleaning supplies
Coffee pots and supplies
Facilities lease/rent
Facilities renovations
Firearms and related accessories (scopes, holsters, racks, etc.) Food, beverages, and any other consumables (including for meetings/conferences) Gift Cards
Hand sanitizers
K9
Kleenex/tissue papers
Luggage
Luggage carriers
Pepper spray
Personalized products used to advertise an agency and/or programs (e.g., pens, magnets) not specific to anti-smoking/anti-tobacco campaigns. Any products in this category require prior approval from the Tobacco Grant Program Picture frames
Plastic eating utensils
Portable fans
Portable heaters
Refrigerators
Ribbons
Uniforms and standard complement items (BDUs, vests, boots, etc.) Vehicles and/or vehicle trailer purchases (vehicle usage, leases, fees, and mileage reimbursement are allowable).

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cchealth.org
2021-2022 Grantees

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cchealth.org
2022-2023 Grantees
https://oag.ca.gov/system/files/media/tobacco-grant-2022-2023-grantees.pdf

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cchealth.org

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cchealth.org
Quaterly Progress Reporting
January 15 April 15 July 15 October 15
*Survey Style - 20mins-30mins

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cchealth.org
Benefits of DOJ Grant Funding
Funding for
Personnel and
Departmental Costs
to carry out
enforcement efforts
Retailer
Engagement and
Education
Further protect the
Health and
Wellbeing of the
Community

Page 94 of 109 ends

cchealth.org
WHAT IS OUR ROLE AS THE PUBLIC HEALTH DEPT?
Inform Brentwood PD of
changes to tobacco laws at
the federal, state, and local
level
Our work is linked, we
must work together.

TEAMWORK!
Assist Brentwood PD
with establishing
connections with other
Enforcement Agencies;
Get connected to
resources
Goal: Annual visits to all
retailers to achieve the
highest rate of compliance
and reduce sales to minors
Provide Technical Assistance to
Brentwood PD: application process,
implementation, inspections and
reporting PD: application process,
implementation, inspections and
reporting

Page 95 of 109 ends

cchealth.org
cchealth.org
Thank You

Page 96 of 109 ends

CITY COUNCIL AGENDA ITEM NO. C.2
04/30/2024
SUBJECT: Discussion and direction on the Vineyards at Marsh Creek - Event Center/Amphitheater Phase I, CIP No. 337-37231, and associated funds.

DEPARTMENT: Parks & Recreation
Engineering
STAFF: Bruce Mulder, Director or Parks & Recreation
Allen Baquilar, Director of Engineering/City Engineer

TITLE/RECOMMENDATION
Receive an update on the Vineyards at Marsh Creek - Event Center/Amphitheater Phase I, CIP No. 337-37231, (“Project”), discuss and provide direction regarding the Project, including the use of associated funds.

FISCAL IMPACT
The Project is included in the adopted 2023/24 – 2027/28 Capital Improvement Program with a total budget of $9,400,000, of which an approximate amount of $8,600,000 in the project budget remains beyond the 30% design costs. Current funding for the Project is comprised of approximately $4,031,000 from the Vineyards Event Center Fund, $350,000 for public art from the Public Art Acquisition Fund, and the remainder of approximately $5,019,000 from the Vineyards Projects Fund.

Future ongoing operations and maintenance costs for the current Project scope are unknown at this time and depend on the design option selected. Funding for these costs would be provided primarily from the General Fund, with a small portion funded from revenue from Landscape and Lighting Assessment District 06-3. The current ten-year General Fund Fiscal Model has a placeholder for the annual estimated operating and maintenance costs of $425,000 beginning in FY 2026/27. This estimated cost would change, depending on the scope of maintenance, programming and other operational considerations, such as the potential of offsetting revenues from ticket sales and reservation fees. Additionally, due to the remote location of the Project, additional operational costs may be incurred for site security and to address potential vandalism.

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CITY COUNCIL AGENDA ITEM NO. C.2
04/30/2024

BACKGROUND
The current Project description includes a 1,000-seat outdoor amphitheater, wedding venue, promenade, parking lot, sculpture garden, adventure themed playground, and future 10,000 square foot event center.

Because of funding constraints, the project as currently envisioned would be constructed in two phases:

Phase I would include construction of a 750-seat amphitheater, 250 vehicle parking lot, traffic signal and shaded promenade. The costs associated with Phase I are anticipated to be approximately $14,400,000. The current project budget is short approximately $5,707,721.

Phase II would add approximately 250 seats to the amphitheater and a 10,000 square-foot event center facility. The costs associated with Phase II are anticipated to be approximately another $5,500,000. The current project budget in total would be short by $11,207,721.

The current cost estimate to complete Phase I of project is $14,400,000. Based on these figures, the remaining available funding in amount of approximately $8,700,000 is insufficient to proceed through the design-build contract.

Project Options
On January 23, 2024, the City Council received an update on the Project and directed staff to examine project scaling and phasing options to reduce costs, proceed with the Subsequent Environmental Impact Report (“SEIR”), process and explore grant opportunities and partnerships.

Staff has since met with DLR Group, the project Architect, to review and discuss scaling and phasing options for the project in consideration of the remaining total budget of approximately $8,700,000.

As a result of those discussions, DLR Group identified the following options for City Council consideration as detailed in Attachment 3 and Table 1 below.

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CITY COUNCIL AGENDA ITEM NO. C.2
04/30/2024
Table 1: Project Options
Option A
Original Project
(Phase I)
Option B
Reduced
Amphitheater
Option C
Trailhead Park
Amphitheater 750 seats 200 seats Future Phase
Event Center Future Phase Future Phase Future Phase
Parking ~250 Stalls 122 62
Amenities Barn + Entry Building,
Mobile Vending Area, Traffic
Signal, Trail Connection,
Lawn Area, Playground
Barn + Entry
Building,
Mobile
Vending Area
Barn + Entry
Building, Mobile
Vending Area
Cost Estimate $14,400,000 (escalating @
6% per year)
~$9,000,000 ~$4,000,000
Estimated Annual
Maintenance &
Operation
$425,000 Unknown, but
much less
Unknown, but
significantly
less
Option A (Original Project, Phase I): Phase I of the project would not move forward until additional funding sources are identified to cover the current estimate of $14,000,000. It should be considered that overall costs to deliver the Project is expected to increase by at least 6% each year.

Option B (Reduced Amphitheater): Utilizing the entirety of the remaining $8,700,000 budget, reduce the project scope to 200-seat amphitheater, 122- vehicle parking lot, shaded promenade, restrooms and a mobile vending area (i.e. food trucks). This design would not be expected to generate substantial activity or significant off-setting revenues.

Option C (Trailhead Park): Utilizing a portion of the remaining budget, design and construct a trail system, 62-vehicle parking lot, shaded promenade, restrooms and mobile vending area. This option would accommodate the potential for the original 750 to 1,000-seat amphitheater to be built at its original envisioned location in the future. This option is anticipated to cost between $3,500,000 - $4,000,000. With City Council direction, remaining Development Impact Fee funds could be repurposed to help fund other City infrastructure needs.

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CITY COUNCIL AGENDA ITEM NO. C.2
04/30/2024
Staff has so far been unsuccessful in identifying potential grant opportunities and partnerships that would help fund the Project. The SEIR process is currently on hold pending the identification of potential alternatives to the original project. In addition, the Budget Ad Hoc Committee has raised the question as to whether Public Art Fees collected under Brentwood Municipal Code Chapter 2.60 (‘Public Art Program’) could be dedicated to any aspect of the construction of an amphitheater. If the City Council would like to consider this option, direction should be provided to staff to pursue this research and report back to the full City Council.

CITY COUNCIL STRATEGIC INITIATIVE
City of Brentwood Strategic Plan FY 2022/23 – 2023/24 Focus Area 5: Community and Neighborhood Services, Goal 3a Continue Development of the Amphitheater.

PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.

DATE OF NOTICE
Not Applicable.

ENVIRONMENTAL DETERMINATION
City is currently in contract with an environmental quality consultant, Raney Planning & Management, Inc., to prepare a Subsequent Environmental Impact Report for the Project.

ALTERNATIVE OPTION(S)
Noted above.

ATTACHMENT(S)

1. Previous Action

2. CIP Sheet

3. Project Options

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PREVIOUS ACTION
Previous actions related to this agenda item that were taken by the Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
 Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
 Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.

On April 13, 2004, the City Council approved the Environmental Impact Report, the Development Agreement, the General Plan Amendment and the Rezone for The Vineyards at Marsh Creek Project.

On January 11, 2011, the City Council adopted Ordinance No. 886, approving the first amendment to the Development Agreement for The Vineyards at Marsh Creek Project.

On December 11, 2012, the City Council adopted Ordinance No. 908, approving the second amendment to the Development Agreement for The Vineyards at Marsh Creek Project.

On November 16 and 17, 2017, the City Council held workshops to discuss, deliberate and direct staff on City Council priorities and the allocation of financial resources for the development of a two-year City of Brentwood Strategic Plan. Direction was provided to initiate the amphitheater feasibility study in Fiscal Year 2017/18.

On January 23, 2018, by Resolution No. 2018-07, the City Council amended the 2017/18 Operating Budget and approved the recommended mid-year budget adjustments, including an amendment of $100,000 for funding of the Vineyards amphitheater feasibility study.

On May 8, 2018, by Resolution No. 2018-47, the City Council approved and authorized the City Manager or designee to execute a Professional Services Agreement with C.H. Johnson Consulting, Inc., to perform an amphitheater feasibility study in an amount not to exceed $99,920.

On August 13, 2019, the City Council accepted an informational report regarding the amphitheater feasibility study and provided initial direction to staff, with further City Council direction regarding possible implementation and prioritization to be provided during the upcoming Strategic Planning Process.

On February 25, 2020, by Resolution No. 2020-24, the City Council approved and authorized the use of the design-build methodology for the bidding process of The Vineyards at Marsh Creek – Event Center / Amphitheater, CIP Project No. 337-37231.

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Page 2 of 2 ends

On February 9, 2021, by Resolution No. 2021-19, the City Council approved and authorized the City Manager to execute an Agreement for Architectural Design Services with DLR Group in the amount of $362,950, plus a 10% contingency of $36,295, for a total not-to-exceed amount of $399,245, for The Vineyards at Marsh Creek – Event Center / Amphitheater, CIP Project No. 337-37231.

On May 25, 2021, by Resolution No. 2021-59, the City Council adopted the City’s 2021/22 – 2025/26 Capital Improvement Program (“CIP”), which included the Vineyards at Marsh Creek – Event Center/Amphitheater, CIP Project No. 337-37231.

On December 14, 2021, by Resolution No. 2021-149, the City Council approved and authorized the City Manager to execute an Agreement for Environmental Services with Raney Planning & Management, Inc. for preparation of a Subsequent Environmental Impact Report in the amount of $169,420, plus a 10% contingency of $16,942, for a total not-to-exceed amount of $186,362, for the Vineyards at Marsh Creek – Event Center/Amphitheater, CIP Project No. 337-37231.

On January 23, 2024, by motion, the City Council directed staff to (1) move forward with Subsequent EIR process with current project description, (2) examine scaling and phasing options to reduce costs and potentially serve as project alternatives, and (3) explore grant opportunities and partnerships.

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117
City of Brentwood 2023/24 – 2027/28 Capital Improvement Program Project Title: * MULTI-YEAR * Project #:

Vineyards at Marsh Creek - Event Center/Amphitheater Phase I 337-37231 Description/Justification:

This project is included in the City’s Strategic Plan for FY 2022/23 - FY 2023/24. The project site is within the Vineyards at Marsh Creek development. Consistent with a development agreement between the City and the developer of the Vineyards at Marsh Creek, the developer has submitted a total of $3.5 million, plus interest, to the City for the design and construction of the project.

Phase I will consist of a 750-seat Amphitheater, box office with amenities and a parking lot. Design of the Amphitheater has commenced to 30% design drawings and a Supplemental Environmental Impact Report (SEIR) is currently underway and is expected to be completed Summer 2023. Upon acceptance of the SEIR and selection of the design-build contractor, design will be completed and construction is anticipated to begin FY 2023/24 and completed in FY 2024/25.

Project Status:

This project is currently in the design phase and construction is planned to begin in FY 2023/24.

Supplemental Information:

City Council authorized Raney Planning & Management to provide California Environmental Quality Act (CEQA) services for the Supplemental Environmental Impact Report (EIR) currently underway. The Architect, DLR Group, completed 30% design and Contract Bridging Documents in FY 2021/22. A market feasibility study was completed in 2019 as well as an initial feasibility study for this project in 2009. This project is funded by $4,000,000 from the Vineyards Event Center Fund, $350,000 from the Public Art Acquisition Fund and the remainder from the Vineyards Projects Fund. The event center will be a future phase of the project that will be funded through the Development Fee Program. Future annual O & M costs are undetermined at this time but shall be funded through a combination of General Fund and Landscape and Lighting Assessment District 06-3.

PROJECT EXPENDITURES Prior 2023/24 2024/25 2025/26 2026/27 2027/28 TOTAL 70239 Legal 15,000 15,000 $ 30,000
90040 Planning and Design 600,000 470,000 $ 1,070,000
90050 Construction 2,000,000 5,900,000 $ 7,900,000
90070 Project Administration 80,000 100,000 220,000 $ 400,000 TOTAL 695,000 $ 2, $ 6, 585,000 $ 120,000 9, $ 400,000
PROJECT FUNDING Prior 2023/24 2024/25 2025/26 2026/27 2027/28 TOTAL Other 9,400,000 $ 9,400,000
TOTAL 9,400,000 $ 9, $ 400,000

PROJECT FINANCING CURRENT PROPOSED
Project Category: Community Facilities Improvements
Location: Subdivision 8796, west of State Route
4, north of Marsh Creek Road, south
of Fairview Avenue
Project Manager: A. Baquilar
Project Priority: 1D - Mandatory
Est. Completion Date: 2024/25
Future Annual
O & M Impact: TBD
Public Art
Requirement: Exempt
General Plan Policy: CSF 1-1

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Option A:

Full Scope
1 - ~250 Parking Spaces
2 - Mobile Vending Area
3 - Barn + Entry Building
4 - Pavilion
5 - Amphitheater
6 - Future Event Center
1 3
2 4
5 1
April 19, 2024
1 - ~250 Parking Spaces
2 - Mobile Vending Area
3 - Barn + Entry Building
4 - Pavilion
5 - Amphitheater
6 - Future Event Center
April 24, 2024

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Option A: Full Scope
1 - ~250 Parking spaces
2 - Mobile Vending Area
3 - Barn + Entry Building
4 - Pavilion
5 - Amphitheater
6 - Future Event Center
3 2
1 4
5 6
April 19, 2024
1 - ~250 Parking Spaces
2 - Mobile Vending Area April 24, 2024
3 - Barn + Entry Building
4 - Pavilion
5 - Amphitheater
6 - Future Event Center

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Option B:

Reduced
Amphitheater +
Pavilion
$8.5-$9m anticipated construction costs
Revised scope area
1 - 122 Parking spaces
2 - Relocate + expand venue to 200 seats
3 - Barn + Entry Building
4 - Sitework
5 - Mobile Vending Area
1 3
4 5
2 MARSH CREEK PARKWAY
0 SCALE 1/40” = 1’-0”
40 120
April 19, 2024
$8.5-$9m anticipated
construction costs
Revised scope area
1 - 122 Parking spaces
2 - Relocate + expand
venue to 200 seats
3 - Barn + Entry Building
4 - Sitework
5 - Mobile Vending Area
April 24, 2024

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1 3
4 2
5 Option B: Reduced Amphitheater + Pavilion
1 - 122 Parking spaces
2 - Venue expansion + relocation
$8.5-$9m anticipated construction costs
Revised scope area
3 - Barn + Entry Building
4 - Sitework
5 - Mobile Vending Area April 19, 2024
$8.5-$9m anticipated
construction costs
Revised scope area April 24, 2024
1 - 122 Parking spaces
2 - Relocate + expand
venue to 200 seats
3 - Barn + Entry Building
4 - Sitework 5 - Mobile Vending Area

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MARSH CREEK PARKWAY
0 SCALE 1/40” = 1’-0”
40 120
Option C:

Trailhead Park
$3.5-$4m anticipated construction costs
Revised scope area
1 - 62 Parking spaces
2 - Maintain building
3 - Naturalized trails to connect to
existing trail / park system
4 - Mobile Vending Area
Trails to tie into the expansion of Round
Valley and Mt. Diablo State Park trail
system.
1 3
24 April 19, 2024
$3.5-$4m anticipated
construction costs
Revised scope area
1 - 62 Parking spaces
2 - Maintain building
3 - Naturalized trails to
connect to
existing trail / park
system
4 - Mobile Vending Area
Trails to tie into the
expansion of Round
Valley and Mt. Diablo
State Park trail
system. April 24, 2024

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Option C: Trailhead Park
1 - 62 Parking spaces
2 - Maintain building
$3.5-$4m anticipated construction costs
Revised scope area
3 - Naturalized trails to connect to existing trail / park system (expansion of Round Valley + Mt. Diablo State Park) 4 - Views to John Marsh house
1 2
3 3
4 April 19, 2024
$3.5-$4m anticipated
construction costs
Revised scope area April 24, 2024
1 - 62 Parking spaces
2 - Maintain building +
Mobile Vending Area
3 - Naturalized trails to connect to existing trail / park system (expansion of Round Valley + Mt. Diablo State Park)
4 - Views to John Marsh house

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Brentwood City CouncilApril 30, 2024

Brentwood City Council
April 30, 2024