Agenda packet, second session — Brentwood City Council, September 24, 2024 (part 2 of 3)

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their due diligence on the property and negotiate an Exclusive Negotiating Agreement (ENA) or Purchase and Sales Agreement (PSA) with city staff. Staff will return to Council after the 90 day period with a ENA or PSA. If approved by City Council, the selected business or developer will then be forwarded to the Contra Costa County Oversight Board for review and consideration prior to being forwarded to the State Department of Finance, which will have the ultimate determination and approval of a Purchase & Sales Agreement.

Evaluation and Selection Criteria
The City of Brentwood reserves the right to evaluate and recommend a developer or business that best meets the needs of the City. Respondent qualifications will be evaluated and ranked based on a variety of criteria including, but not limited to:

A. Contents of the Letter of Intent (LOI) including competitive offer price, acceptance of property in as-is condition, due diligence period and any conditions to close.

B. Developer and/or Business Team Qualifications
C. Developer’s and/or Business’s Proposed Project Goals and Development Type D. Results of final selection interviews
The City of Brentwood reserves the right to amend this RFP package, and the incorporated evaluation and selection criteria at its choosing.

E. Business Terms
The City of Brentwood is committed to the success of the sale process and supporting the developer or businesses interest in creating a viable, high quality commercial or industrial project.

Following selection of a Buyer, staff will propose the offer to the full City Council for consideration.

If the City Council acting as the Successor Agency Board approves this agreement, staff will forward the agreement to the County Oversight Board for consideration and then the agreement would be reviewed and finalized by California’s Department of Finance.

The City’s Economic Development Team will provide no-cost liason services throughout the predevelopment and entitlement process.

F. Appendices – Supplemental Property Information

1. Location Map

2. APN Map

3. Zoning - General Plan - Planned Development 12 (PD12)

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CITY COUNCIL AGENDA ITEM NO. I.3
09/24/2024
SUBJECT: Focused Zoning Code Update Direction: Alcohol Sales, Selfstorage facilities, and Drive-through uses DEPARTMENT: Community Development
STAFF: Alexis Morris, Director of Community Development Erik Nolthenius, Planning Manager
Jennifer Hagen, Senior Planner

TITLE/RECOMMENDATION
Provide direction to staff on potential new regulations within the framework of the Focused Zoning Code Update related to the following land uses: Alcohol sales, selfstorage facilities; and, drive-through uses.

FISCAL IMPACT
The cost of the update is included in the Zoning Ordinance Focused Update, CIP Project No. 337-37228, (“Project”) which is included in the adopted and amended 2024/25 – 2028/29 Capital Improvement Program. The majority of the Project is funded by the General Fund, with a minor amount from SB 2 grant funding.

BACKGROUND
On January 24, 2023, the City Council provided direction on reinitiating the City’s Zoning Code Update, including a new focused and phased approach. On May 23, 2023, the project scope was finalized when the City Council approved a Professional Services Agreement with De Novo Planning Group to prepare and complete the Focused Zoning Code Update and Objective Design Standards. The plan approved by the Council includes three main tasks to complete:

Task 1: Objective Design Standards;
Task 2: Zoning Code Updates required by State Law and the Housing Element; Task 3: Focused Zoning Code updates.

This agenda item is related to Task 3: Focused Zoning Code updates. This task includes amendments to various sections of the Zoning Code to better reflect the community's values based on feedback from the community and City Council, including changes to some permitted and conditionally permitted uses throughout the City.

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CITY COUNCIL AGENDA ITEM NO. I.3
09/24/2024
On November 11, 2023, the City Council provided direction on the following uses to be considered as part of the Focused Zoning Code Update efforts and directed staff to present the Land-Use and Development Committee (LUD) with an initial framework for each of the topics prior to moving forward with comprehensive and formal amendments:

1. Automobile service stations/gas stations

2. Carwashes

3. Alcohol sales regulations

4. Self-storage facilities

5. Short-term rental regulations

6. Drive-through uses
On June 17th and July 15th, LUD was presented with and provided direction on the six topics. LUD recommended that staff return to the full City Council for direction related to alcohol sales, self-storage facilities, and drive-thru uses to obtain further direction before drafting amendments for review and approval. Staff received clear recommendations from LUD on amendments related to automobile service stations/gas stations, carwashes, and short-term rental regulations, which will be first presented to the Planning Commission and then returning to City Council for review and approval in the near future. Both the Planning Commission and City Council meetings will be public hearings and will be noticed in the local paper.

DISCUSSION
Staff has prepared the attached individual reports on the topics. Each report has been formatted to provide the following information, if applicable:

1. Background – a discussion of the use and relevant information

2. Analysis
A. General – a discussion on the existing uses in operation throughout the City. Within the alcohol sales report, staff has also included attachments 2A and 2B, that includes a list of all active on-sale and off-sale retail licenses for general background and reference purposes.

B. Existing Regulations – a discussion on whether there are currently any regulations on the subject use, including whether they typically are permitted or conditionally permitted.

C. Locations – a discussion of what zones identify the subject use as permitted or conditionally permitted.

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CITY COUNCIL AGENDA ITEM NO. I.3
09/24/2024
D. Potential Development and Design Standards – a discussion of potential development and design standards related to the identified uses for consideration to be incorporated into a future focused zoning code amendments.

E. Potential Operational Requirements – a discussion of potential operational requirements related to the identified uses for consideration to be incorporated into a future focused zoning code amendments.

Subsequent to the LUD meeting, staff added two new sections to the summaries:
 a “LUD Summary and Further Discussion” section at the end of each report that includes a summary of the LUD conclusions, additional consideration and/or discussion points, and recommended City Council direction; and  a “Potential Economic Impact” section that provides information on the potential impacts new standards or regulations may have on the existing and/or future economic growth and welfare of the City.

Staff is presenting the City Council with recommendations on the final three land uses and the requested direction for each, as summarized below. A full discussion of each land use can be found in each of the attached individual reports (Attachment 2 – Alcohol Sales, Attachment 3 – Self- Storage Facilities, and Attachment 4 – Drivethrough Facilities.) Alcohol Sales
In order to move forward with a focused update related to alcohol sales, staff needs direction on the recommended development standards and operational requirements for alcohol sales throughout the City. Staff has provided recommendations below and is requesting direction on the following:

1. Individualized and General Regulations: Overall, staff recommends that the City Council consider requiring individualized regulations for specific areas such as the Downtown, the Innovation Center, and PD-6 (Streets of Brentwood/Raley’s Center), while potentially creating one set of regulations for the rest of the City that would allow for consistency and more easily understood regulations.

2. Definitions: In addition, staff recommends that new definitions be created within alcohol-regulating provisions for the following:
• Day Care Center, Children

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CITY COUNCIL AGENDA ITEM NO. I.3
09/24/2024
• Private Educational Facilities
• Public School Facilities
• Food and Beverage Stores – Convenience Store
• Food and Beverage Stores – Grocery Store
• Food and Beverage Stores – Liquor Store
• Food and Beverage Stores – Specialty Food & Wine
• Food and Beverage Stores – Neighborhood Market

3. No further restrictions for on-sale license: Staff does not recommend further restricting on-sale licenses within the City unless they are located adjacent to, or within a distance as recommended by City Council, to a Public School Facilities or a Private Educational Facility only.

4. Separation Requirements: Staff does not recommend implementing separation requirements from Child Day Care Centers at this time. Staff also recommends that all that the incidental sale of alcohol at all grocery stores, specialty food and wine stores and neighborhood markers be permitted by-right where the use is allowed in the underlying zone.

5. CUPs: Staff recommends that all convenience stores and liquor stores be conditionally permitted where the use is allowed in the underlying zoning.

City Council Options
The following outlines the options for Council when considering the options for alcohol sales:

1. Support Staff Recommendation. If the City Council supports staff’s recommendations, staff will draft final language to be brought to the Planning Commission for consideration and recommendation before being brought back to the City Council for final approval.

2. Modify Staff Recommendation. If the City Council supports modifying staff’s recommendations, such as recommending additional sensitive uses, or alternative location based zoning suggestions, the City Council would need to provide clear and concise direction on the proposed changes. Staff would then draft final language to be brought to the Planning Commission for consideration and recommendation before being brought back to the City Council for final approval.

Self- Storage Facilities

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CITY COUNCIL AGENDA ITEM NO. I.3
09/24/2024
At this time, staff supports including a clear definition for self-storage in the Zoning Code in order to assist in regulating establishments within the City. However, staff does not recommend expanding or modifying zones where self-storage facilities are currently permitted; therefore, only allowing self-storage facilities in the zones identified in Table 1 in the attached.

City Council Options
The following outlines the direction that staff is requesting from the Council:

1. Support Staff Recommendation. Does the City Council support not expanding or modifying zones where self-storage facilities are permitted and clearly defining self-storage facilities? This would result in retaining the ability for selfstorage facilities in the zones identified in Table 1 to continue, expand or redevelop, and would preclude new self-storage facilities in all other zones that are not identified in the zones listed in Table 1.
 If the City Council supports this option, staff recommends that clear design criteria be established that would regulate the expansion, addition, and renovation of the existing self-storage facilities within the zones in Table 1, as well as new facilities within these zones. Potential regulations would include, but are not limited to, building design, street fronting articulation, massing, setbacks, landscaping, site maintenance, storage of hazardous materials, etc. If the City Council supports staff’s recommendations, staff would draft these design criteria and bring them to the Planning Commission and City Council for consideration in early 2025.

2. Modify Staff Recommendation. Does the City Council support prohibiting all future self-storage facilities or expansions of existing facilities in all zones, including those listed in Table 1? This would cause all existing facilities to become legal non-conforming uses. They would thus be allowed to remain as they are currently constructed, but the facilities would not be able to add on or expand in the future. If the City Council supports modifying staff’s recommendations, such as prohibiting all future facilities, staff would draft language to be included in the Zoning Ordinance that would be brought back to the Planning Commission and City Council for consideration in early 2025.

Drive-through Facilities

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CITY COUNCIL AGENDA ITEM NO. I.3
09/24/2024
In order to move forward with a focused update related to drive-through facilities, staff needs direction on the attached development standards and operational requirements for future drive-through establishments. Overall, staff recommends that the City Council consider requiring a Conditional Use Permit for all future drivethrough establishments. In addition to requiring a CUP, staff recommends that new development standards be drafted and implemented that include the following items:
• Residential Setbacks.
• Queuing Analysis.
• Separate Waiting Lane.
• Vehicle Stacking.
• Pedestrian Access and Circulation.
• Building Design.

Staff does not recommend prohibiting future drive-through uses at this time or modifying zones where drive-throughs are currently conditionally permitted, beyond imposing the standards identified above. Staff believes that with incorporation of the development standards related to the above mentioned items, as well as vetting through the CUP process (including increased public hearing notice requirements of a 1,000 foot radius being brought forward for City Council approval separately) for all future drive-thru facilities, that potential negative impacts of future drive-through uses would be mitigated and adequately addressed during the entitlement process.

City Council Options
The following outlines the options for Council when considering the attached standards:

2. Modify Staff Recommendation. If the City Council supports modifying staff’s recommendations, such as adjusting the required residential setbacks or prohibiting all future drive-throughs, the City Council would need to provide clear and concise direction on the proposed changes. Staff would then draft final language to be brought to the Planning Commission for consideration and recommendation before being brought back to the City Council for final approval.

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CITY COUNCIL AGENDA ITEM NO. I.3
09/24/2024
Conclusion
Staff is recommending that each topic be presented and discussed, as well as receive public comment individually, in order to get clear and concise direction before moving on to the next topic. Once Council has provided final direction on the final three focused zoning code items, staff will begin to draft final ordinances to bring forward for Planning Commission and City Council consideration in early 2025.

CITY COUNCIL STRATEGIC INITIATIVE
City of Brentwood Strategic Plan FY 2022/23 – FY 2023/24 Focus Area 4: Land Use Planning, Goal 1: Implement Zoning Ordinance update to maintain compliance with State law, including developing objective design standards (SB 330 compliance).

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

ATTACHMENTS

1. Previous Action

2. Alcohol Sales
a. Brentwood Off-Sale ABC Licenses
b. Brentwood On-Sale ABC Licenses

3. Self-storage facilities

4. Drive-through uses

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ATTACHMENT 1
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 November 16 and 17, 2017, the City Council held workshops to discuss, deliberate, and direct staff on priorities and the allocation of financial resources for the development of a Strategic Plan initiative. The Council directed staff to initiate a comprehensive zoning ordinance update.

On February 27, 2018, the City Council adopted Resolution No. 2018-21 to approve the FY 2018/19 and FY 2019/20 City of Brentwood Strategic Plan, including Strategic Initiative 4.1.c, preparation of a comprehensive zoning ordinance update which has been continued over the past few years into the current Strategic Plan FY 2022/23 – FY 2023/24 (Focus Area 4: Land Use Planning, Goal 1: Implement Zoning Ordinance update).

On June 9, 2020, by Resolution No. 2020-73, the City Council adopted the City’s 2020/21 – 2024/25 Capital Improvement Program (“CIP”), which includes the Zoning Ordinance Update, CIP Project No. 337-37228.

On January 24, 2023, the City Council provided direction on reinitiating the City’s Zoning Code Update, including a new focused and phased approach that is to be scaled down in size and focused into specific tasks.

On May 23, 2023, the City Council approved a Professional Services Agreement with De Novo Planning Group to prepare and complete the Focused Zoning Ordinance Update and Objective Design Standards.

On November 11, 2023, the City Council provided direction on including automobile service stations/gas stations, carwashes, alcohol sales regulations, self-storage facilities, short-term rental regulations, and drive-through uses as part of the Focused Zoning Code Update efforts and directed staff to present the Land Use and Development Committee (LUD) with an initial framework for each of the topics prior to moving forward with comprehensive and formal amendments.

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Alcohol Sales 1

FOCUSED ZONING CODE UPDATE

1. Alcohol Sales
Background
A. Types of Alcoholic Beverage Licenses in California
To sell beer, wine, or liquor in the State of California, a business must acquire a license through the Department of Alcoholic Beverage Control (ABC). There are two main types of alcoholic beverage licenses: on-sale retail and off-sale retail.

On-sale Alcohol License
On-sale alcohol licenses grant privileges for on-site consumption. There are two main groups of on-sale retail licenses: beer and wine (Type 41 and Type 42) and full on-sale general liquor (Type 47 and Type 48). These two main groups are then narrowed down to the specific type of business. Type 41 and Type 47 are incidental to food service and commonly used for full-service restaurants. The business applying for a Type 41 or Type 47 must have a kitchen and all age groups are welcomed to be on the premises. For Type 42 and Type 48, no food service is required; these licenses are commonly used for bars or taverns. Due to the business nature of a Type 42 or Type 48 license, only adults age 21 and over are allowed on premise.

Off-sale Alcohol License
Conversely, off-sale alcohol licenses grant privileges for customers to purchase the alcohol to consume off-premise. There are only two main alcohol licenses that grant off-sale privileges: Type 20 (beer and wine) and Type 21 (beer, wine, and spirits). These two types of off-sale retail alcohol licenses are commonly used by service stations, convenience stores, grocery stores, etc.

B. Licensing vs. Zoning
Prior to ABC issuing an alcoholic beverage license, the Department requires an applicant to demonstrate that the business location has zoning in place that permits the sale of alcohol. Per Section 23790 of the Business and Professions Code, ABC cannot issue a retail license contrary to a city’s valid zoning ordinance.

The applicant must therefore submit a Zoning Affidavit stating that the city’s zoning permits the intended use, and if a conditional use permit (CUP) is needed, then a copy of the CUP (or its receipt) is to be included.

Depending on the jurisdiction and the type of alcoholic beverage license, the sale of alcohol may be permitted ministerially (i.e., by right) or through a conditional use permit. For example, some cities require a CUP for all alcohol sales while others may allow the ministerial approval of beer and wine sales (Type 41 license)

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Alcohol Sales 2
for bona fide restaurants but require a CUP for bars and taverns and for off-sale retail licenses.

Analysis
A. General – On-sale and Off-sale Alcohol Licenses: As shown in Attachments 2A and 2B, the City of Brentwood has 96 active on-sale retail licenses and 37 active off-sale retail licenses. The on-sale licenses range in use to include fullservice restaurants, fast casual restaurants (e.g., Chipotle), sports bars, Brentwood Golf Club, etc. Note that some businesses have multiple on-sale retail licenses for the same location. Tailgaters Sports Bar & Grill, for example, has a Type 47 (On-Sale General – Eating Place), Type 58 (Caterer’s Permit), Type 68 (Portable Bar License), and Type 77 (Event Permit). Likewise, off-sale licenses include such uses as grocery stores, pharmacies, convenience stores, and gas stations.

B. Existing Regulations: The Brentwood Municipal Code (BMC) does not have citywide development or operational standards regulating alcohol sales establishments. The BMC does, however, specify where alcohol sales establishments are allowed to operate in the City. Overall, the City’s zoning is not consistent on whether on- and off-sale alcohol sales are required to be approved by way of a conditional use permit, which would provide the City with discretionary review ability. For example, in the Downtown, most on- and off-sale alcohol sales (excluding bars) are permitted by right to sell alcohol up to 10:00 p.m. and then requires a Conditional Use Permit for sales after 10:00 p.m. In addition, all bars (Type 42 and Type 48 licenses) within the Downtown would require a Conditional Use Permit. In comparison, PD-6, Subarea RC (which governs properties in and around the Streets of Brentwood), allow for bars and restaurants as permitted uses with no hourly restrictions. Note that the BMC largely uses the term “liquor sales” to mean any business required to obtain an alcoholic beverage license from the Department of Alcoholic Beverage Control for the purpose of selling alcoholic beverages for consumption either on- or off-site.

C. Locations: Alcohol sales establishments are allowed in most commercial zoning districts and in certain Planned Development Zones. Below are two tables, with brief descriptions of the requirements for each zoning district allowing alcohol sales. The first table lists the zoning districts that allow on-sale and off-sale licenses without a Conditional Use Permit as an automatically permitted use. The second table lists the zoning districts that require a Conditional Use Permit for either on-sale or off-sale licenses.

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Table 1 – Permitted by Right
Zoning Requirement
Downtown Specific Plan
(all areas)
Specialty off-sale liquor, including wine shops and
wine tasting, and restaurants serving alcoholic
beverages until 10:00 p.m. are permitted.

Brentwood Boulevard Specific
Plan (COIR, COI, and General
Commercial areas)
Restaurants operating between the hours of 7:00
am and 10:00 pm, including those that sell alcohol
for on-premise consumption, are permitted.

PD-3 (Subarea A) Supermarket, drugstore, restaurant, or similar use PD-3 (Subarea B) Supermarket, drugstore, restaurant, or similar use PD-5 (Subarea B) Supermarket, drugstore, restaurant, or similar use PD-6 (Subarea RC) Bar, tavern, cocktail lounge, and sit-down restaurants
PD-36 (Subarea B) Supermarket, drugstore, restaurant, or similar use PD-38 (Subarea A) Supermarket, drugstore, restaurant, or similar use PD-38 (Subarea F) Supermarket, drugstore, restaurant, or similar use PD-40 Restaurants, cafés, delis, sports bars, less than 10% of an individual building
PD-55 (Commercial Subareas 1
and 2) Supermarket, drugstore, restaurant, or similar use PD-56 (Subarea A) Restaurants and incidental microbrewery PD-56 (Subareas B and C) Microbreweries
PD-67 (Subareas A and D) Supermarket and drugstore
PD-67 (Subareas B and C) Supermarket, drugstores, and microbreweries Table 2 – CUP Required
Zoning Required for which types of sales
C-1 (Neighborhood Commercial) All on- and off-sale licenses C-2 (General Commercial) All on- and off-sale licenses
C-3 (Thoroughfare Commercial) All on- and off-sale licenses CR (Commercial Residential) All on- and off-sale licenses

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Alcohol Sales 4
Zoning Required for which types of sales
COB (Commercial
Office/Business) All on- and off-sale licenses
Downtown Specific Plan
All on-site and off-site alcoholic beverage sales
after 10:00 p.m. in addition to all bars and
nightclubs
Brentwood Boulevard Specific
Plan (COIR, COI, General
Commercial)
All on-site alcoholic beverage sales after 10:00
p.m. in addition to all off-site sales
Innovation Center/PA-1 (ECLI) All on- and off-sale licenses Innovation Center/PA-1 (TV/MU
and RC)
Off-sale liquor and on-sale bars and nightclubs,
and tasting rooms
PD-6 (Subarea RC) Off-sale convenience/liquor stores
PD-10 (Subareas A-C) All on-sale licenses and off-sale liquor stores PD-12 (Subarea A) All on- and off-sale licenses
PD-16 (Subarea A) All on- and off-sale licenses
PD-17 All on- and off-sale licenses
PD-18 All on- and off-sale licenses
PD-20 All on- and off-sale licenses
PD-34 All off-sale licenses and restaurants over 5,000 sq. ft.

PD-35 (Subarea B) All on- and off-sale licenses
PD-36 (Subarea A) All on- and off-sale licenses
PD-36 (Subarea B) Off-sale for liquor stores, and bars and lounges PD-38 (Subareas A and F) All off-sale liquor stores
PD-38 (Subareas B and E) All on- and off-sale licenses
PD-41 (Subareas A-D) All on- and off-sale licenses
PD-42 (Subareas B, C, E, and F) All on-sale licenses
PD-49 (Subareas A and C) All on-sale licenses
PD-55 Off-sale liquor stores, and sports bar, lounge,
nightclub and similar establishments

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Alcohol Sales 5
Zoning Required for which types of sales
PD-67 (Subareas A, B, C and D) On-sale and liquor stores PD-69 All on- and off-sale licenses
D. Potential Development Standards: As indicated above, there are no citywide development or operational standards regulating alcohol sales establishments in the Municipal Code. Only when a CUP is required has the City been able to consider applications on a case-by-case basis through the discretionary review process, but there are no regulations codified that City staff can apply during the review of a CUP or business license for alcohol sales. The development standards described below are some that are commonly employed by other cities.  Separation from Sensitive Uses. Cities will often require a minimum separation distance from sensitive uses, particularly for off-sale alcohol sales establishments like liquor stores. Sensitive uses may include schools (public and private), established churches or other places of worship, hospitals, convalescent homes, public parks, playgrounds, and/or other similar uses. A jurisdiction may adopt a distance separation standard for sensitive uses to make sure drinking establishments are not too close to schools or youth facilities to prevent access to alcoholic beverages by minors.

At the state level, Business and Professions Code § 23789 authorizes, but does not require, ABC to deny issuance of a retail license for premises located within the immediate vicinity of churches and hospitals, and within 600 feet of schools, public playgrounds, and/or nonprofit youth facilities.

One question to consider regarding schools as a sensitive use is if nursery schools and preschools should be treated in the same manner as K-12 schools.

On the one hand, the negative impacts from having a bar or liquor store in close proximity to a preschool or elementary school are the same (e.g., public intoxication, advertisement of alcohol use, etc.), but on the other hand, where K-12 schools are typically limited to residential or institutional zones, nursery schools and preschools are often permitted in a broader area, including the commercial zones where alcohol sales establishments are also allowed.

Furthermore, where K-12 schools are perhaps more fixed in their locations, nursery schools and preschools can spring up with greater frequency, given their ability to open in more areas of a city. With that in mind, should nursery schools and preschools be allowed to locate at a given site if the proposed location is too close to an existing on- or off-sale alcohol sales establishment for risk of making the alcohol sales establishment nonconforming due to proximity?
 Separation from Other Alcohol Sales Establishments. A city may adopt a distance separation standard between businesses that sell alcohol to prevent

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Alcohol Sales 6
an oversaturation of bars or night clubs in a particular area or a concentration of off-sale alcohol sales establishments like liquor stores and convenience stores that sell alcohol. Separation distances vary in other jurisdictions from 300 feet to 1,500 feet, and the separation requirement could be reduced for off-sale establishments like grocery stores where the sale of alcohol is incidental to the primary retail use.
 Hours of Operation. For any retail sales establishment with an ABC license, including restaurants, bars, grocery stores, pharmacies, liquor stores, etc., the sale of alcohol is prohibited from 2:00 a.m. to 6:00 a.m. daily. Specifically, Business and Professions Code § 25631 states that “Any on-sale or off-sale licensee, or agent or employee of that licensee, who sells, gives, or delivers to any persons any alcoholic beverage or any person who knowingly purchases any alcoholic beverage between the hours of 2 o’clock a.m. and 6 o’clock a.m. of the same day, is guilty of a misdemeanor.”
The City may wish to further regulate the operating hours of certain alcohol sales establishments like liquor stores. Alternatively, a provision could be applied whereby the City could restrict a specific off-sale establishment’s hours of operation if the business in deemed to be in violation of any conditions of its CUP or for other reasons determined to be good cause.

E. Survey of Other Cities
City Distance Separation
Requirements Exceptions
Antioch 500 feet from any other onsale or off-sale liquor establishments or any
school, public park,
playground, recreational
center, day care center, or
other similar use
 Retail markets having a
minimum 10,000 square feet
of floor area that devote no
more than 5% of such floor
area to the sale of alcohol
 Restaurants that derive a
minimum of 51% of their
gross receipts from the sale of
meals
 Special event functions such
as neighborhood or
community festivals
Livermore N/A N/A
Martinez Bars shall be an
“appropriate” distance from
religious facilities, schools,
public parks and
playgrounds, and other
similar uses
N/A
Oakley N/A N/A

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Alcohol Sales 7
City Distance Separation
Requirements Exceptions
Pittsburg N/A N/A
Stockton 500 feet from any:
 Public or private academic
school for students in
kindergarten through 12th
grade, nursery school,
preschool, or day-care
facility
 Public park, playground,
recreational area, or
youth facility
 Supermarkets and drug stores
that do not sell alcoholic
beverages as their principal
business
 Full-service restaurants
 Establishments where the onsite consumption of alcohol is an incidental or secondary
use, e.g., membership clubs,
social, veterans, or fraternal
organizations
 Established businesses prior
to effective date of ordinance
Walnut Creek N/A N/A
LUD Summary and Further Discussion
Overall, LUD recommended that staff bring the discussion forward to the entire City Council since the topic was so wide ranging and had the potential to impact a large number of businesses throughout the City. In addition, LUD requested that when the item be presented to the City Council that additional information and considerations be presented including the following:
• Provide suggested definitions that provide separate distinctions between K-12 schools, preschool, and after school care.
o Consistent with the recently approved Innovation Center Specific Plan definitions, staff recommends using the following definitions within alcoholregulating provisions for consistency:
 Day Care Center, Children means a facility (excluding residential childcare facilities) of any capacity that provides care and other services in a group setting during a portion of the day for children and licensed as such by the state of California.
 Private Educational Facilities means any privately owned and operated elementary school, middle school, secondary school, high school, or other institution providing academic instruction for students from kindergarten through twelfth (12th) grade pursuant to the California Education Code.
 Public School Facilities means any publicly owned and operated elementary school, middle school, secondary school, high school, or

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Alcohol Sales 8
other institution providing academic instruction for students from kindergarten through twelfth (12th) grade pursuant to the California Education Code.

These definitions were requested by LUD to assist further discussion related to potential separation from sensitive uses. If the City Council wishes to consider adding separation requirements, then these uses would need to be better defined.
• Provide suggested definitions for markets, convenience stores, liquor stores, specialty markers with off-sale licenses.
o Consistent with the recently approved Innovation Center Specific Plan definitions, staff recommends using the following definitions for consistency:
 Food and Beverage Stores – Convenience Store means easy-access retail stores of 5,000 square feet or less in gross floor area that carry a range of merchandise oriented to convenience and travelers’ shopping needs. These stores may be part of a service station or an independent facility. Also see “Food and Beverage Stores – Neighborhood Market” and “Food and Beverage Stores – Grocery Store” for larger stores or stores oriented toward the daily shopping needs of residents.  Food and Beverage Stores – Grocery Store means a retail business of more than 15,000 square feet in size, where the majority of the floor area open to the public is occupied by food products packaged for preparation and consumption away from the site of the store. These fullservice businesses do not typically have limited hours of operation. See separate but related listings for “Food and Beverage Store – Neighborhood market” and “Food and Beverage – Convenience store.”  Food and Beverage Stores – Liquor Store means a retail establishment that has fifty (50%) percent or more of the shelving or gross floor area devoted to the public display and sale of alcoholic beverages for off-site consumption.
 Food and Beverage Stores – Specialty Food & Wine means a retail store characterized by a limited number of high quality specialty food items and/or beverages typically including premium wine and beer.  Food and Beverage Stores – Neighborhood Market means a pedestrian-oriented grocery/specialty market store offering food products packaged for preparation and consumption away from the site of the store and oriented to the daily shopping needs of surrounding residential areas. Neighborhood markets are more than 5,000 square feet and less than 15,000 square feet in size and operate less than 18 hours per day. For larger stores, see “Food and Beverage Store –

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Grocery Store.” Neighborhood markets may include deli or beverage tasting facilities that are ancillary to the market/grocery portion of the use.

These definitions were requested by LUD in order to make sure proposed amendments do not negatively impact potential economic growth and attraction of large merchants to the City. LUD recommended allowing offsite sales related to larger grocery stores, specialty food and wine stores and neighborhood markets while requiring Conditional Use permits for convenience markets where appropriate.
• Window Signage. For off-site retail establishments, stricter window signage regulations should be considered for advertisements of alcoholic beverages. • Location based Zoning. Consider individualized regulations for specific areas such as the Downtown, the Innovation Center, and PD-6 (Streets of Brentwood/Raley’s Center), while potentially creating one set of regulations for the rest of the City that would allow for consistency and more easily understood regulations.

On-Sale Licenses
Such regulations for the remaining areas of the City could include allowing byright on-sale restaurants to sell alcohol if they are not directly adjacent to sensitive uses. Uses adjacent to sensitive uses could potentially be permitted by-right if they maintain established hours of operation and close by a certain hour. Operations outside of the established hours would require Conditional Use Permit approval.

Off-Sale Licenses
New consistent regulations outside of the specified areas could also provide clarification and constancy related to off-site sales related to larger grocery stores, specialty food and wine stores and neighborhood markets, and convenience markets. Staff would recommend allowing by-right grocery stores, specialty food and wine stores, and neighborhood markets, while requiring a conditional use permit for all convenience stores and liquor stores.

A potential downside to these strategies however would be the potential to place new regulations on businesses and uses within the City in the zones identified in Table 1 that currently do not have operating restrictions, making many of the existing uses throughout the City non-conforming.

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Alcohol Sales 10
Requested Council Direction
In order to move forward with a focused update related to alcohol sales, staff needs direction on the recommended development standards and operational requirements for alcohol sales throughout the City. Staff has provided recommendations below and is requesting direction on the following:

2. Definitions: In addition, staff recommends that new definitions be created within alcohol-regulating provisions for the following:
• Day Care Center, Children
• Private Educational Facilities
• Public School Facilities
• Food and Beverage Stores – Convenience Store
• Food and Beverage Stores – Grocery Store
• Food and Beverage Stores – Liquor Store
• Food and Beverage Stores – Specialty Food & Wine
• Food and Beverage Stores – Neighborhood Market

4. Separation Requirements: Staff does not recommend implementing separation requirements from Child Day Care Centers at this time. Staff also recommends that all that the incidental sale of alcohol at all grocery stores, specialty food and wine stores and neighborhood markers be permitted byright where the use is allowed in the underlying zone.

5. CUPs: Staff recommends that all convenience stores and liquor stores be conditionally permitted where the use is allowed in the underlying zoning.

City Council Options
The following outlines the options for Council when considering the options for alcohol sales:

1. Support Staff Recommendation. If the City Council supports staff’s recommendations, staff will draft final language to be brought to the Planning

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Alcohol Sales 11
Commission for consideration and recommendation before being brought back to the City Council for final approval.

Potential Economic Development Impacts
Maintaining the current guidelines and ability for on-sale and off-sale of alcohol sales by supermarkets, restaurants, wine tasting, bars and night clubs in the Downtown, Innovation Center and PD-6 (Streets of Brentwood/Sand Creek Crossing) is important to the economic vitality of the city and enables such establishments to maximize the ability to be successful in areas that are highly visible and help attract other businesses to the City. Other than the Downtown, the Innovation Center and PD-6 are both located near the Highway 4 Bypass and offer businesses the ability to cater to both locals and visitors alike. In addition, such establishments are partially buffered from existing residential districts due to the proximity of the highway.

Elsewhere in the city, permitting on-sales establishments to sell alcohol unless they are directly adjacent to sensitive uses enables restaurants to sell with meals, maximizing their potential to bring in new customers in an economic market that has shown to be difficult in recent years. In addition, creating consistency across all other zones helps to provide more assurances to new business that may be “on the fence” about opening up a new restaurant under difficult market conditions. In addition, requiring a Conditional Use permit for all convenience markets and liquor stores also helps to minimize the proliferation of such uses across the city. This includes both gas stations and convenience stores, where the sale of alcohol should be based on securing a Conditional Use Permit.

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ATTACHMENT B - ACTIVE OFF-SALE ALCOHOL LICENSES
License Number Status
License Type Business Address Business Name
380602 ACTIVE 21 2400 SAND CREEK RD,BRENTWOOD, CA 94513-7058Census Tract: 3032.09 RALEYS 336391425 ACTIVE 21 1125 2ND ST,BRENTWOOD, CA 94513Census Tract: 3031.07 SAFEWAY STORE #1234397515 ACTIVE 21 3110 BALFOUR RD,BRENTWOOD, CA 94513Census Tract: 3032.10 SAFEWAY INC #2621413431 ACTIVE 21 6700 LONE TREE WY,BRENTWOOD, CA 94513Census Tract: 3032.09 WINCO 52415234 ACTIVE 20 5591 LONE TREE WY,BRENTWOOD, CA 94513Census Tract: 3032.07 CHEVRON 210444431872 ACTIVE 21 5451 LONE TREE WAY, SHOP J-1,BRENTWOOD, CA 94513Census Tract: 3032.07 TRADER JOES438199 ACTIVE 20 2155 ELKINS WAY, # C,BRENTWOOD, CA 94513Census Tract: 3031.06 TAMAYO FAMILY VINEYARDS475109 ACTIVE 21 7351 BRENTWOOD BLVD, STE G,BRENTWOOD, CA 94513-7318Census Tract: 3031.05 J K MARKET INC477690 ACTIVE 21 3171 BALFOUR RD,BRENTWOOD, CA 94513-2962Census Tract: 3032.04 CVS PHARMACY STORE 4283477696 ACTIVE 21 1175 2ND ST,BRENTWOOD, CA 94513-2213Census Tract: 3031.07 CVS PHARMACY STORE 9511485146 ACTIVE 20 8560 BRENTWOOD BLVD,BRENTWOOD, CA 94513-1654Census Tract: 3031.07 LA CHARRITA MARKET503569 ACTIVE 20 6570 LONE TREE WAY,BRENTWOOD, CA 94513-5257Census Tract: 3032.09 WALGREENS 09978522515 ACTIVE 21 2271 BALFOUR RD,BRENTWOOD, CA 94513-4923Census Tract: 3032.06 WALGREENS 9102524099 ACTIVE 21 7820 BRENTWOOD BLVD,BRENTWOOD, CA 94513-1039Census Tract: 3031.06 DOLLAR GENERAL #13586547684 ACTIVE 20 7920 BRENTWOOD BLVD,BRENTWOOD, CA 94513-1004Census Tract: 3031.06 BRENTWOOD PETROLEUM557549 ACTIVE 20 6481 LONE TREE WAY,BRENTWOOD, CA 94513-5367Census Tract: 3032.09 STRAUCH & COMPANY559816 ACTIVE 20 2325 SAND CREEK RD,BRENTWOOD, CA 94513-7173Census Tract: 3032.09 SPROUTS FARMERS MARKET #404564021 ACTIVE 21 8750 BRENTWOOD BLVD,BRENTWOOD, CA 94513Census Tract: 3031.07 #3046 565143 ACTIVE 20 6031 LONE TREE WAY,BRENTWOOD, CA 94513-5382Census Tract: 3032.09 JEFFREY WAL SHELL603825 ACTIVE 20 6970 BRENTWOOD BLVD,BRENTWOOD, CA 94513-2122Census Tract: 3031.06 SUNSET AM PM614586 ACTIVE 21 7610 BRENTWOOD BLVD,BRENTWOOD, CA 94513Census Tract: 3031.06 GROCERY OUTLET 616939 SUREND 20 5931 LONE TREE WAY,BRENTWOOD, CA 94513-5573Census Tract: 3020.09 7 ELEVEN 38737A619199 ACTIVE 21 6700 BRENTWOOD BLVD,BRENTWOOD, CA 94513-5725Census Tract: 3031.06 EXTRAMILE622317 ACTIVE 21 6750 BRENTWOOD BLVD,BRENTWOOD, CA 94513-2120Census Tract: 3031.06 BRENTWOOD GAS & MORE623032 ACTIVE 21 6935 LONE TREE WAY,BRENTWOOD, CA 94513-5403Census Tract: 3032.02 TRI CITY AUTO PLAZA624595 ACTIVE 20 7460 BRENTWOOD BLVD,BRENTWOOD, CA 94513Census Tract: 3031.06 7 ELEVEN 38723A 628352 ACTIVE 21 3940 WALNUT BLVD, STE A,BRENTWOOD, CA 94513-1229Census Tract: 3032.02 QUIK STOP MARKET #550149631658 ACTIVE 21 2250 BALFOUR RD,BRENTWOOD, CA 94513-4926Census Tract: 3040.01 HARBOR PETROLEUM INC634686 ACTIVE 21 336 OAK ST,BRENTWOOD, CA 94513-1363Census Tract: 3031.07 H&S ENERGY PRODUCTS, LLC STORE #3082637498 ACTIVE 20 6860 LONE TREE WAY,BRENTWOOD, CA 94513Census Tract: 3032.09 ROTTEN ROBBIE #68638363 ACTIVE 21 8401 LONE TREE WY,BRENTWOOD, CA 94513-2103Census Tract: 3031.04 NXT LVD, BRENTWOOD LIQUOR, BRENTWOOD FOOD MART642014 ACTIVE 21 2371 BALFOUR RD,BRENTWOOD, CA 94513Census Tract: 3032.06 CHEVRON #1761642602 ACTIVE 21 4461 BALFOUR RD,BRENTWOOD, CA 94513-1557Census Tract: 3032.04 FOOD MAXX #480643257 ACTIVE 20 3940 WALNUT BLVD, STE A,BRENTWOOD, CA 94513-1229Census Tract: 3032.02 QUIK STOP MARKET #149643337 ACTIVE 21 5931 LONE TREE WAY,BRENTWOOD, CA 94513-5573Census Tract: 3020.09 7-ELEVEN #38737654034 ACTIVE 20 190 GRIFFITH LN,BRENTWOOD, CA 94513Census Tract: 3032.11655317 ACTIVE 21 50 SAND CREEK RD, STE 36,BRENTWOOD, CA 94513-2092Census Tract: 3031.05 LOS MEXICANOS FAMILY MARKET INC.

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ATTACHMENT A - ACTIVE ON-SALE ALCOHOL LICENSES
License Number Status
License Type Business Address Business Name
349751 ACTIVE 47 144 OAK ST,BRENTWOOD, CA 94513Census Tract: 3031.07 CAPS OAK ST BAR & GRILL380602 ACTIVE 41 2400 SAND CREEK RD,BRENTWOOD, CA 94513-7058Census Tract: 3032.09 RALEYS 336397515 ACTIVE 86 3110 BALFOUR RD,BRENTWOOD, CA 94513Census Tract: 3032.10 SAFEWAY INC #2621413431 ACTIVE 86 6700 LONE TREE WY,BRENTWOOD, CA 94513Census Tract: 3032.09 WINCO 52426828 ACTIVE 77 8065 BRENTWOOD BLVD, STE 6,BRENTWOOD, CA 94513-1169Census Tract: 3031.05 TAILGATERS SPORTS BAR & GRILL426828 ACTIVE 58 8065 BRENTWOOD BLVD, STE 6,BRENTWOOD, CA 94513-1169Census Tract: 3031.05 TAILGATERS SPORTS BAR & GRILL426828 ACTIVE 47 8065 BRENTWOOD BLVD, STE 6,BRENTWOOD, CA 94513-1169Census Tract: 3031.05 TAILGATERS SPORTS BAR & GRILL426828 ACTIVE 68 8065 BRENTWOOD BLVD, STE 6,BRENTWOOD, CA 94513-1169Census Tract: 3031.05 TAILGATERS SPORTS BAR & GRILL436258 ACTIVE 41 2013 ELKINS WY, STE A1,BRENTWOOD, CA 94513-7380Census Tract: 3031.06 SCOTTIES436339 ACTIVE 41 5401 LONETREE WY, STE 150,BRENTWOOD, CA 94513Census Tract: 3032.07 LONETREE THAI CUISINE438651 ACTIVE 47 801 FOOTHILL DR,BRENTWOOD, CA 94513Census Tract: 3040.01 DEER RIDGE GOLF CLUB454032 ACTIVE 47 6580 LONE TREE WAY,BRENTWOOD, CA 94513-5257Census Tract: 3032.09 MELOS PIZZA & PASTA459565 ACTIVE 47 2270 BALFOUR RD,BRENTWOOD, CA 94513Census Tract: 3040.01 VIC STEWARTS461425 ACTIVE 42 633 1ST ST,BRENTWOOD, CA 94513-1322Census Tract: 3031.07 BRENTWOODS CO CO COUNTY WINE COMPANY470880 ACTIVE 47 2385 SAND CREEK RD,BRENTWOOD, CA 94513-7173Census Tract: 3032.09 RED ROBIN BURGER & SPIRITS EMPORIUMS480954 ACTIVE 41 5411 LONE TREE WAY, # 110,BRENTWOOD, CA 94513-5351Census Tract: 3032.07 KINDERS MEATS DELI BBQ BW481065 ACTIVE 47 1700 TRILOGY PKWY,BRENTWOOD, CA 94513Census Tract: 3551.12 CLUB LOS MEGANOS483435 ACTIVE 41 6680 LONE TREE WAY,BRENTWOOD, CA 94513-5308Census Tract: 3032.09 STRAW HAT PIZZA486304 ACTIVE 41 8383 LONE TREE WAY,BRENTWOOD, CA 94513-2185Census Tract: 3031.04 LONE TREE DRIVE IN511387 ACTIVE 41 5401 LONE TREE WAY , STE 100,BRENTWOOD, CA 94513-5361Census Tract: 3032.07 CHIPOTLE MEXICAN GRILL511501 ACTIVE 41 2540 SAND CREEK RD, STE A-5,BRENTWOOD, CA 94513-7091Census Tract: 3032.07 BEACH HUT DELI511507 ACTIVE 47 2365 SAND CREEK RD,BRENTWOOD, CA 94513-7173Census Tract: 3032.09 BJ'S RESTAURANT518615 ACTIVE 47 6051 LONE TREE WAY,BRENTWOOD, CA 94513-5382Census Tract: 3032.09 BUFFALO WILD WINGS525051 ACTIVE 47 2355 SAND CREEK RD,BRENTWOOD, CA 94513Census Tract: 3032.09 BLACK ANGUS530273 ACTIVE 41 1185 2ND ST, STE M,BRENTWOOD, CA 94513-2299Census Tract: 3031.05 MOUNTAIN MIKES PIZZA532162 ACTIVE 41 3120 BALFOUR RD, STE F,BRENTWOOD, CA 94513-5514Census Tract: 3032.10 EXTREME PIZZA536438 ACTIVE 41 1135 SECOND ST, #A,BRENTWOOD, CA 94513-2291Census Tract: 3031.07 DADS'S CAFE540746 ACTIVE 47 100 SUMMERSET DR,BRENTWOOD, CA 94513-6426Census Tract: 3032.10 GOLF CLUB AT BRENTWOOD THE540746 ACTIVE 68 100 SUMMERSET DR,BRENTWOOD, CA 94513-6426Census Tract: 3032.10 GOLF CLUB AT BRENTWOOD THE540746 ACTIVE 58 100 SUMMERSET DR,BRENTWOOD, CA 94513-6426Census Tract: 3032.10 GOLF CLUB AT BRENTWOOD THE541280 ACTIVE 41 5611 LONE TREE WAY, STE 120,BRENTWOOD, CA 94513-5315Census Tract: 3032.07 CHAMAN KABOB RESTAURANT548216 ACTIVE 58 311 OAK ST,BRENTWOOD, CA 94513-1338Census Tract: 3031.07 311 OAK STREET PUB548216 ACTIVE 47 311 OAK ST,BRENTWOOD, CA 94513-1338Census Tract: 3031.07 311 OAK STREET PUB550462 ACTIVE 47 6611 BRENTWOOD BLVD,BRENTWOOD, CA 94513-2173Census Tract: 3031.04 EL CAMINO RESTAURANT552151 ACTIVE 41 5411 LONE TREE WAY, STE 100,BRENTWOOD, CA 94513-5356Census Tract: 3032.07 MOD PIZZA561500 ACTIVE 48 613 1ST ST, STE 107,BRENTWOOD, CA 94513-1397Census Tract: 3031.07 CROWN & CROW

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561621 ACTIVE 47 2525 SAND CREEK RD,BRENTWOOD, CA 94513-7175Census Tract: 3032.09 AMC BRENTWOOD 14 567978 ACTIVE 47 613 1ST ST, STE 100,BRENTWOOD, CA 94513-1316Census Tract: 3031.07 ZEPHYR GRILL & BAR568605 ACTIVE 47 5601 LONE TREE WAY, STE 150,BRENTWOOD, CA 94513-5378Census Tract: 3032.07 MARISCOS ACUARIO SEAFOOD AND GRILL569243 ACTIVE 41 5401 LONE TREE WAY, STE 130,BRENTWOOD, CA 94513Census Tract: 3032.07 H2O INVESTMENT, INC (BLUEFIN SUSHI)572442 ACTIVE 47 8335 BRENTWOOD BLVD, STE B,BRENTWOOD, CA 94513-1100Census Tract: 3031.07 JALISCO'S RESTAURANT573809 ACTIVE 47 2485 SAND CREEK RD, STE 140,BRENTWOOD, CA 94513-7179Census Tract: 3032.07 ATTRAVERSIAMO573809 ACTIVE 58 2485 SAND CREEK RD, STE 140,BRENTWOOD, CA 94513-7179Census Tract: 3032.07 ATTRAVERSIAMO573915 ACTIVE 47 71 SANDCREEK RD, STE A,BRENTWOOD, CA 94513Census Tract: 3031.05 LA HACIENDA GRILL583374 ACTIVE 41 8610 BRENTWOOD BLVD, STE G,BRENTWOOD, CA 94513-5657Census Tract: 3031.07 CHINA GARDEN RESTAURANT589462 ACTIVE 47 3850 BALFOUR RD, STE Q,BRENTWOOD, CA 94513-1661Census Tract: 3032.11 CHAPALA MEXICAN RESTAURANT590500 ACTIVE 47 642 1ST ST,BRENTWOOD, CA 94513-1309Census Tract: 3031.07 LA FUENTE MEXICAN RESTAURANT & BLUE IGUANA BAR594947 ACTIVE 41 4550 BALFOUR RD, STE E & F,BRENTWOOD, CA 94513-1515Census Tract: 3032.11 AMECI PIZZA KITCHEN BRENTWOOD, INC.600133 ACTIVE 47 3111 BALFOUR RD, STE A,BRENTWOOD, CA 94513-2891Census Tract: 3032.04 CHIANTI'S600596 ACTIVE 47 2505 SAND CREEK RD, # 108,BRENTWOOD, CA 94513-7183Census Tract: 3032.09 CREASIAN WOK AND ROLL601360 ACTIVE 41 234A OAK ST,BRENTWOOD, CA 94513-1337Census Tract: 3031.07 BRENTWOOD CRAFT BEER AND CIDER601936 ACTIVE 41 3101 BALFOUR RD, STE A,BRENTWOOD, CA 94513-2998Census Tract: 3032.04 KYUZOU603858 ACTIVE 41 6660 LONE TREE WAY, STE # 5,BRENTWOOD, CA 94513-5310Census Tract: 3032.09 EL TACO FACTORY604485 ACTIVE 42 2545 SAND CREEK RD , # 136,BRENTWOOD, CA 94513-7189Census Tract: 3032.09607097 ACTIVE 47 380 W COUNTRY CLUB DR, STE J, K, L,BRENTWOOD, CA 94513-4235Census Tract: 303 MISAKA SUSHI-RAMEN-BAR608041 ACTIVE 42 2411 EMPIRE AVE, STE 101 & 102,BRENTWOOD, CA 94513-5301Census Tract: 3020.09HOP ASYLUM 609259 ACTIVE 41 7876 BRENTWOOD BLVD,BRENTWOOD, CA 94513Census Tract: 3031.06 CIELO MAR TIERRA609500 ACTIVE 41 622 1ST ST,BRENTWOOD, CA 94513-1323Census Tract: 3031.07 CHELSEA613951 ACTIVE 41 41 SAND CREEK RD, STE C,BRENTWOOD, CA 94513-7321Census Tract: 3031.05 TAQUERIA EL TARASCO614459 ACTIVE 41 3101 BALFOUR RD, STE F,BRENTWOOD, CA 94513-2998Census Tract: 3032.04 TAQUIZA LIMON614693 ACTIVE 41 380 W COUNTRY CLUB DR, STE A & B,BRENTWOOD, CA 94513-4235Census Tract: 303 MOUNTAIN MIKE'S PIZZA615925 ACTIVE 47 6367 LONE TREE WAY,BRENTWOOD, CA 94513-5313Census Tract: 3032.09 SHIRASONI JAPANESE RESTAURANT616068 SUREND 41 8540 BRENTWOOD BLVD,BRENTWOOD, CA 94513Census Tract: 3031.07 EL GALLITO DRIVE INN617283 ACTIVE 77 2010 ELKINS WAY #120,BRENTWOOD, CA 94513Census Tract: 3031.03 FOUR LEGS BREWING617415 ACTIVE 41 2500 SAND CREEK RD, STE A,BRENTWOOD, CA 94513-7059Census Tract: 3032.07 SUN KITCHEN ASIAN BISTRO625791 SUREND 47 2505 SAND CREEK RD, STE 120,BRENTWOOD, CA 94513Census Tract: 3032.09 FIRE WINGS BRENTWOOD626014 ACTIVE 41 2540 SAND CREEK RD,BRENTWOOD, CA 94513Census Tract: 3032.07 ROUND TABLE PIZZA626108 ACTIVE 40 8300 BRENTWOOD BLVD, # B&C,BRENTWOOD, CA 94513-1172Census Tract: 3031.07 PINE STREET COUNTRY CLUB626777 ACTIVE 41 6670 LONE TREE WAY, STE 5,BRENTWOOD, CA 94513-5391Census Tract: 3032.09 NEKO SUSHI627702 ACTIVE 41 2300 SAND CREEK RD, STE G1,BRENTWOOD, CA 94513-5651Census Tract: 3032.09 YUMMY HOUSE628227 ACTIVE 47 5000 BALFOUR RD,BRENTWOOD, CA 94513Census Tract: 3031.07 HARVEST PARK BOWL628461 ACTIVE 41 7710-7760 BRENTWOOD BLVD, STE 7760-E,BRENTWOOD, CA 94513Census Tract: 303AHZEETU KOREAN BISTRO629317 ACTIVE 41 4441 BALFOUR RD A,BRENTWOOD, CA 94513-1409Census Tract: 3032.02 ENISHI KITCHEN630060 ACTIVE 47 235 OAK ST,BRENTWOOD, CA 94513-1336Census Tract: 3031.07 RUBIANOS634070 ACTIVE 41 729 1ST ST, STE C,BRENTWOOD, CA 94513-1303Census Tract: 3031.07 BOONDOGGIES, LLC634348 ACTIVE 41 2390 FAIRVIEW AVE, STE A,BRENTWOOD, CA 94513-5572Census Tract: 3032.02 TAQUERIA CHAPALA

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634719 ACTIVE 41 2261 BALFOUR RD, STE C,BRENTWOOD, CA 94513-4946Census Tract: 3032.02 MI JALISCOS TAQUERIA 634870 ACTIVE 58 6670 LONE TREE WAY, STE 1 & 2,BRENTWOOD, CA 94513-5391Census Tract: 3032.09 WENCE HOUSE CALIFORNIA CUISINE634870 ACTIVE 47 6670 LONE TREE WAY, STE 1 & 2,BRENTWOOD, CA 94513-5391Census Tract: 3032.09 WENCE HOUSE CALIFORNIA CUISINE635556 ACTIVE 41 609 1ST ST, STE B,BRENTWOOD, CA 94513-1322Census Tract: 3031.07 STICKY CHICKEN & RIBS636500 ACTIVE 47 220 OAK ST,BRENTWOOD, CA 94513-1337Census Tract: 3031.07 LOUNGE ON OAK ST THE637617 ACTIVE 41 741 2ND ST,BRENTWOOD, CA 94513-1352Census Tract: 3031.07 DINO'S SANDWICH SHOP637940 ACTIVE 47 401 W COUNTRY CLUB DR,BRENTWOOD, CA 94513-5058Census Tract: 3032.06638762 ACTIVE 41 5611 LONE TREE WAY, STE 160,BRENTWOOD, CA 94513-5379Census Tract: 3032.07 M&C RESTAURANT639213 ACTIVE 41 335 OAK ST,BRENTWOOD, CA 94513-1331Census Tract: 3031.07 LA COSTA TAQUERIA643060 ACTIVE 47 2475 SAND CREEK RD, UNIT 112,BRENTWOOD, CA 94513-7178Census Tract: 3032.07 VINE AND GRAIN644549 ACTIVE 41 8610 BRENTWOOD BLVD, STE F,BRENTWOOD, CA 94513-5657Census Tract: 3031.07 TORO VIEJO TAQUERIA645418 ACTIVE 41 561 1ST ST,BRENTWOOD, CA 94513-1320Census Tract: 3031.07 EMPORIUM THE645688 ACTIVE 41 655 1ST ST,BRENTWOOD, CA 94513-1322Census Tract: 3031.07 MJ'S DOWNTOWN CAFE646478 ACTIVE 41 2505 SAND CREEK RD, # 112,BRENTWOOD, CA 94513-7183Census Tract: 3032.09 DUMPLING HOURS647785 ACTIVE 41 6700 BRENTWOOD BLVD,BRENTWOOD, CA 94513-5725Census Tract: 3031.06 CHICAGOS PIZZA WITH A TWIST648208 ACTIVE 41 6061 LONE TREE WAY, STE A,BRENTWOOD, CA 94513-5262Census Tract: 3032.09 CHUCK E. CHEESE'S648464 ACTIVE 41 7580 BRENTWOOD BLVD,BRENTWOOD, CA 94513Census Tract: 3031.06 CHIPOTLE MEXICAN GRILL STORE #3928648726 ACTIVE 41 4411 BALFOUR RD, STE A,BRENTWOOD, CA 94513-1526Census Tract: 3032.04 ALADINOS PIZZA650661 ACTIVE 47 301 OAK ST,BRENTWOOD, CA 94513Census Tract: 3031.07 LOCANDA CAPRI656366 ACTIVE 41 7400 BRENTWOOD BLVD,BRENTWOOD, CA 94513Census Tract: 3031.06 DENNY'S

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Self-Storage Facilities 1

FOCUSED ZONING CODE UPDATE

2. Self-Storage Facilities
Background
A. Self-storage Facilities / Mini-storage: Self-storage facilities are uses that rent space on a short-term basis (often month-to-month) to individuals (usually storing household goods) or to businesses (usually storing excess inventory or archived records). Self-storage businesses lease a variety of unit sizes to residential and business customer/tenants. The storage units are typically windowless, walled with concrete cinder blocks or corrugated metal, and lockable by the renter. Each unit is typically accessed by opening a roll-up metal door, which is usually about the same size as a one-car garage door (smaller units may be accessed by a hinged metal door). A controlled access facility may employ security guards, security cameras, individual unit door alarms, and some means of electronic gate access such as a keypad or proximity card. Self-storage facility operators frequently provide 24-hour access, climate-controlled storage, outdoor storage for RVs and boats, and lights or power outlets inside the storage unit as amenities.

The rented spaces are secured by the renters’s own lock and key. Unlike in a warehouse, self-storage facility employees do not have casual access to the contents of the space.

In rural and suburban areas, most facilities contain multiple single-story buildings with mostly drive-up units that have natural ventilation but are not climatecontrolled. These buildings are referred to as “traditional” storage facilities.

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Self-Storage Facilities 2
Climate-controlled interior units are becoming more popular in suburban areas.

In urban areas, many facilities have multi-story buildings using elevators or freight lifts to move the goods to the upper floors. These facilities are often climatecontrolled since they are comprised mostly, if not totally, of interior units.

Warehouses or former grocery stores are sometimes converted into self-storage facilities. Loading docks are sometimes provided on the ground floor. Urban selfstorage facilities might contain only a few floors in a much larger building (i.e., self-storage businesses co-located with manufacturing plants, office tenants, and even public schools).

One in ten U.S. households now rent a self-storage unit.1 The growing demand for self-storage in the U.S. is created by people moving and by various lifestyle transitions, such as marriage, divorce, retirement, a death in the family, etc. Over 54,000 self-storage facilities currently exist in the U.S., ranging from companies with a nationwide presence to companies with regional footprints or even standalone independent facilities.2 Recent surveys of self-storage companies indicate that demand for storage space remains stable.3In many metropolitan cities where competition among storage companies is fierce, better parcels of land near residential and commercial areas are being converted into self-storage. Furthermore, companies are becoming more adept at manufacturing these modular storage units, allowing operators to get up and running quickly.

1 Self Storage Association, 2024. https://www.selfstorage.org/. 2 U.S. Self-Storage Industry Statistics, 2024. https://sparefootblogs.wpenginepowered.com/self-storage/news/1432- self-storage-industry-statistics/.
3 Self Storage Association, 2024. https://www.selfstorage.org/.

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Self-Storage Facilities 3
Analysis
A. General: There are currently six self-storage facilities operating in Brentwood, as outlined in the following table:

Name Address Size
Acorn Self Storage 6900 Lone Tree Way 7.14 acres
Brentwood Self Storage 190 Sand Creek Road 3 acres
Diablo Mini Storage 8265 Brentwood Blvd. 1.45 acres
Diamond Mine MiniStorage175 Guthrie Lane 4 acres
StorQuest Self Storage 325 Guthrie Lane 3.99 acres
TownCentre Self Storage 345 Town Centre Terrace 2.58 acres The facilities vary in size but generally occupy large parcels with multiple singlestory structures. The newer facilities tend to provide greater aesthetic value but can still have a monolithic appearance given the expanse of walls over long, unengaging buildings.

B. Existing Regulations: The Brentwood Municipal Code does not have citywide development standards related to self-storage facilities. And although numerous zones identify self-storage facilities within their use charts, since there is no definition within the Municipal Code for self-storage, it has left the use open to potential consideration as a warehouse classification use as well. Overall, staff has taken the stance that, unless expressly permitted by right under self-storage, then self-storage facilities can be considered in Brentwood through a conditional use permit (CUP), which provides the City with discretionary review ability. This allows staff and the Planning Commission to consider each self-storage facility application on a case-by-case basis and to apply specific conditions to a project to ensure land use compatibility with the surrounding area.

C. Locations: Self-storage facilities are conditionally permitted in the Industrial/Commercial zone and in certain Planned Development zones. In PD-38, Subarea A (Acorn Self Storage), however, self-storage facilities are permitted by right. The table below briefly describes the intended land uses for these zoning districts:

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Self-Storage Facilities 4
Table 1 – Zones That Allow Self-Storage
Zoning Requirement
IC - Industrial/Commercial Allowed with CUP
PD-10 – Subarea B Allowed with CUP (TownCentre Self Storage) PD-12 – Subareas B and C Allowed with CUP (Diamond Mine and StorQuest Self Storage)
PD-38 – Subarea A Permitted by right (Acorn Storage)
PD-42 – Subarea A Allowed with CUP (Brentwood Storage)
PD-55 – Subareas 1 and 2 Allowed with CUP
PD-56 – Subarea C Allowed with CUP
D. Regulate or Prohibit: The City of Brentwood has experienced rapid population growth over the past few decades, and in conjunction, the pace of development has been one of the highest in Contra Costa County. As Brentwood now transitions to infill development and redevelopment of existing areas, there is less available open commercial land to locate any new types of businesses, including selfstorage facilities.

The City’s approximately 65,000 residents are currently served by six existing self-storage facilities. Given the scarcity of remaining vacant commercial parcels, self-storage facilities may not be the highest and best use of the land, and therefore a prohibition on new self-storage facilities may be considered.

Furthermore, as indicated earlier in this report, the market for self-storage facilities is very strong and there will likely be interest in Brentwood for the development of additional facilities.

Although conditionally permitted in the Industrial/Commercial zone, the focus of the IC zone is not primarily self-storage facilities. Self-storage facilities may be considered an important service, but they typically have limited aesthetic appeal, employ very few individuals, are not pedestrian oriented, and do not encourage flexibility of use in building and site design to accommodate a range of uses and business sizes. Self-storage facilities generate limited tax revenue, and thus do not enhance Brentwood’s industrial/commercial areas to attract jobs and expand the City’s tax base. Moreover, once established, such facilities usually remain in place for many years.

The City may, however, wish to continue to allow for the development of selfstorage facilities, but adopt clear definitions in order to only allow them in the zones as identified in the table above or adopt development standards to ensure high-quality design of new or expanded facilities and to mitigate against any

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Self-Storage Facilities 5
negative impacts that could result from new or remodeled self-storage facilities.

In that event, regulations could be prepared to address site and building design, lot size, setbacks, landscaping, site maintenance, storage of hazardous materials, etc.

LUD Summary and Further Discussion
Overall, LUD was supportive of drafting a better definition of a self-storage facility in order to assist in better regulating where in the City they can establish. However, LUD could not come to a consensus on whether to prohibit all new operations within the City or allow existing facilities to have the ability to redevelop or expand, and directed the item be brought before the City Council for discussion. If the City Council recommends that self-storage facilities only be considered (either by right or conditionally) in the zones that currently allow them, then LUD recommended that design regulations should be created to regulate existing facilities in the event that a facility wanted to redevelop or add on to their facilities.

Requested Council Direction
At this time, staff supports including a clear definition for self-storage in order to assist in regulating establishments within the City. However, staff does not recommend expanding or modifying zones where self-storage facilities are currently permitted; therefore, only allowing self-storage facilities in the zones identified in Table 1 in the attached.

City Council Options
The following outlines the direction that staff is requesting from the Council:

1. Support Staff Recommendation. Does the City Council support not expanding or modifying zones where self-storage facilities are permitted and clearly defining self-storage facilities? This would result in retaining the ability for self-storage facilities in the zones identified in Table 1 to continue, expand or redevelop, and would preclude new self-storage facilities in all other zones that are not identified in the zones listed in Table 1.
 If the City Council supports this option, staff recommends that clear design criteria be established that would regulate the expansion, addition, and renovation of the existing self-storage facilities within the zones in Table 1, as well as new facilities within these zones. Potential regulations would include, but are not limited to, building design, street fronting articulation, massing, setbacks, landscaping, site maintenance, storage of hazardous materials, etc. If the City Council supports staff’s recommendations, staff would draft these design criteria and bring them

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Self-Storage Facilities 6
to the Planning Commission and City Council for consideration in early 2025.

Potential Economic Development Impacts
With limited land/space available across the City in non-residential districts to support commercial and industrial uses, the economic benefits of other commercial or industrial uses likely outweigh the economic benefits of allowing additional selfstorage units in most areas of the City. However, a complete ban on self-storage units could be detrimental to the development opportunity for a few sites along Brentwood Boulevard. For example, there are some parcels along Brentwood Boulevard that are oddly shaped, which are not conducive for traditional commercial development due to the narrow street frontage and lack of overall site visibility. Since retailers and office uses tend to seek sites with frontage and views along commercial corridors where visibility is maximized, these sites have been difficult to develop. Based on the lot depth, a single or multi-story self-storage use to the rear of the property with a commercial or office use along the street frontage may be a viable option in the future through a Specific Plan amendment since self-storage is not currently listed as an allowable use in the Specific Plan.

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Drive-through Uses 1

FOCUSED ZONING CODE UPDATE

3. Drive-Through Uses
Background
A. Drive-through Restaurants: Drive-through restaurants first appeared in California in the 1950s. The “eat-in-your-car” model then expanded across the U.S. during the following decades as highways were built, suburbs spread, and new fast-food chains like Jack in the Box, McDonald’s, and Wendy’s popped up.

More recently, drive-throughs became critical for chains during the COVID-19 pandemic, as restaurants shut down indoor seating areas. Drive-through sales reached $133 billion in 2022, an increase of 30% from 2019 pre-pandemic levels, according to Technomic, a restaurant industry consulting firm.

Companies are switching to drive-through models because they are more profitable – smaller than sit-down restaurants, requiring less staff and maintenance. For example, Shake Shack opened its first drive-through locations during the pandemic, while Taco Bell, Chipotle, and other chains opened stores that serve drive-through customers exclusively.

Drive-throughs, however, are often placed along higher-speed arterial roads to capture the greatest amount of vehicle traffic, which means that they can be hot spots for rear-end collisions and “T-bone” accidents from cars turning left out of driveways. Furthermore, if there is a pedestrian or biker on the sidewalk crossing the drive-through entrance, drivers may have less time to brake, increasing the chances of an accident. Drivers moving along arterial roads also typically focus on the road and the cars around them, and are less likely to be on the lookout for pedestrians.

Companies in the fast-food industry are changing their drive-throughs by adding more car lanes to speed up orders and reduce potential problems.

Starbucks is also testing different store models in different areas, such as pickup-only stores, curbside pickup from cars, and drive-throughs. But chains trying to address congestion by adding more lanes may just be encouraging more cars to patronize those establishments.

Drive-through restaurants also do not support neighboring businesses, as people typically simply purchase their food and leave. A better, safer fast-food model may be restaurants with sit-down options that contribute to walkable neighborhoods and that promote pedestrian safety.

B. Other Drive-through Uses: Although less frequent and perhaps with fewer impacts on streets and residential neighborhoods, drive-through uses can also consist of banks, pharmacies, payment windows for utility companies, etc.

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Drive-through Uses 2
Analysis
A. General – Drive-through Uses: The anticipated continued demand for drivethrough sites on major arterials has the potential for negative effects throughout the City. These effects may be particularly acute for drive-throughs located adjacent to single-family residential neighborhoods and along major commercial corridors already impacted by high commuter traffic during peak hours.

Sites with proximity to existing residential neighborhoods on the City’s major commercial corridors could result in extended vehicle queueing lines, spillover traffic, and other neighborhood compatibility issues with any new or replacement businesses with drive-throughs.

Locations for drive-through establishments that may be more appropriate include shopping centers and freeway-adjacent lots. Best practices for drive-through design should be incorporated to ensure projects address quality of life issues, sustainability, site design, and avoid negatively affecting pedestrians, safety, and the welfare of the community. New drive-throughs and expansions of existing drive-through facilities should be designed to ensure compatibility with adjacent uses, enhance the streetscape frontage, provide adequate buffers, ensure safe pedestrian accessibility, and include outdoor amenities to service patrons.

B. Existing Regulations: Drive-through uses are permitted in various commercial zones and Planned Development zones across Brentwood following the approval of a conditional use permit (CUP), which provides the City with discretionary review ability to consider each drive-through use application on a case-by-case basis and to apply specific conditions to a project to ensure land use compatibility with the surrounding area. The CUP process also provides opportunities for public participation and input. In many cases, the Brentwood Municipal Code (BMC) allows a drive-through use with a CUP if it is related to a permitted land use in a specific zone. For example, BMC § 17.220.003(B) reads:
“The following uses are permitted only on the granting of a conditional use permit pursuant to Chapter 17.830:…
B. Restaurant, on-sale or off-sale liquor, laundromat, laundry or dry cleaning facility, drive-in or drive-thru establishment associated with a permitted use in the zone;”
Note that other sections of the BMC expressly prohibit drive-through uses, particularly drive-through restaurants, in certain Planned Development zones.

Nonetheless, what the Municipal Code does not provide are any regulations for drive-through facilities that address development impacts, operational elements, site and built design elements, and/or safety.

C. Locations: Drive-through uses are allowed in six commercial zoning districts and in certain Planned Development zones as further described below:

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Drive-through Uses 3
Zoning Requirement
CO (Administrative/Professional
Commercial Office)
CUP
COB (Commercial Office/Business) CUP
CR (Commercial Residential) CUP
C-1 (Neighborhood Commercial) CUP
C-2 (General Commercial) CUP
C-3 (Thoroughfare Commercial) CUP
Downtown Specific Plan Prohibited in all Downtown Zones Brentwood Boulevard Specific Plan (COIR,
COI, and General Commercial Zones)
CUP
Innovation Center/PA-1 (ECLI, TV/MU,
and RC Zones)
CUP
PD 5 (Subarea B) CUP
PD 6 (RC) CUP
PD-10 (Subareas A-C) CUP
PD-12 (Subarea A) CUP
PD-21 (Subarea B) CUP
PD-36 (Subarea B) CUP
PD-38 (Subareas A and F) CUP
PD-41 (Subarea A-D) CUP
PD-42 (Subarea C) CUP
PD-47 (Subareas B and D) CUP
PD-49 (Subareas A) CUP
PD-55 – Subareas A1 and 2 CUP
PD-67 – Subareas A-D CUP
In evaluating the suitability of the land use districts in which drive-through uses are permitted, an argument can be made that the Neighborhood Commercial (C1) zone may not be the most suitable for allowing drive-through facilities and

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Drive-through Uses 4
perhaps should be reconsidered. Although residential zones abut much of the commercial land in the City, the Neighborhood Commercial zone is intended for smaller scale, less intensive uses that serve the needs of the immediate neighborhood. Given that development pressure will continue throughout the City for land that will become increasingly scarce, preserving the Neighborhood Commercial zone for higher and better uses may be an economically strategic option. Furthermore, removing drive-through facilities as a conditionally permitted use in the Neighborhood Commercial zone will minimize, if not eliminate, any potential conflict between drive-through use operations and sensitive residential receptors. It should be noted that any existing drive-through establishment in this district would be allowed to continue operations as a legal, nonconforming use.

D. Potential Development Standards: The application of development and operational standards for drive-through uses will ensure greater consistency of regulations for new drive-through uses and for the expansion of existing drive-through uses. Of principal concern is the impact of drive-throughs on traffic safety and residential neighborhoods. The development standards identified below will mitigate against the negative impacts that could result from new and remodeled drive-through establishments.
 Conditional Use Permit. A Conditional Use Permit (CUP) shall be required to operate a drive-through establishment. Changes to operations for existing drive-through establishments, including but not limited to hours of operation and expansion of the drive-through facility, shall require an amendment to the CUP.
 Residential Setback. The drive-through use structure and ordering board shall be located a minimum of one hundred (100) feet from the boundary of any residential zone or PD subarea (excluding mixed-use districts), unless separated by a masonry wall.
 Queuing Analysis. An on-site queuing plan shall be provided to the City for review and approval. Traffic circulation shall be designed to ensure efficient circulation on and off the subject site. Furthermore, vehicles shall not queue onto a public street, alley, driveway, or onto adjacent properties/parcels (without a cross access agreement) not associated with the drive-through use.  Separate Waiting Lane. For new drive-throughs, the drive-through lane shall be a separate lane from the circulation routes and aisles necessary for ingress to or egress from the property or access to any off-street parking spaces.  Vehicle Stacking. Drive-through ordering menus should be located to allow a minimum of four cars to queue behind the ordering vehicle to prevent vehicles from stacking in the drive aisle of the parking lot.  Pedestrian Access and Circulation. Pedestrian access shall be provided from each abutting street to the primary entrance with a continuous four (4) foot-wide minimum sidewalk or delineated walkway. Pedestrian walkways

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Drive-through Uses 5
should not intersect the drive-through lane when feasible, but where this cannot be avoided, the walkways shall have clear visibility and shall be delineated by textured and colored paving.

E. Potential Operational Requirements:
 Hours of Operation. The hours of operation for a drive-through are limited to 6:00 am to 10:00 pm, unless otherwise approved as part of a Conditional Use Permit.
 Ordering Board. The ordering board speaker for the drive-through should be oriented and directed to face away from adjacent residential uses.  Noise. Noise levels from speakers shall comply with the City’s noise ordinance outlined in Chapter 9.32 (‘Noise Regulations’) of the Brentwood Municipal Code.

LUD Summary and Further Discussion
Overall, LUD agreed that the Code needed to be updated in order to better address drive-through operations; however, there was not a consensus on how to best address current concerns and whether prohibiting all future drive-throughs was appropriate. LUD directed the item be brought before the entire City Council for further discussion.

Council Direction
In order to move forward with a focused update related to drive-through facilities, staff needs direction on the above recommended development standards and operational requirements for future drive-through establishments. Overall, staff recommends that the City Council consider requiring a Conditional Use Permit for all future drive-through establishments. In addition to requiring a CUP, staff recommends that new development standards be drafted and implemented that include the following items that were previously described:
• Residential Setbacks.
• Queuing Analysis.
• Separate Waiting Lane.
• Vehicle Stacking.
• Pedestrian Access and Circulation.
• Building Design.

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Drive-through Uses 6
all future drive-thru facilities, that potential negative impacts of future drive-through uses would be mitigated and adequately addressed during the entitlement process.

City Council Options
The following outlines the options for Council when considering the options:

Potential Economic Development Impacts
There are very few parcels available in the City that can support infill drive-through establishments. The Brentwood Boulevard Corridor, which historically functioned as a portion of Highway 4 before the bypass was constructed, served as the primary arterial between Pittsburg and the Delta. Despite the bypass coming on line in phases between 1998 and 2009, Brentwood Boulevard continues to serve as a major northsouth arterial between the communities of Antioch, Oakley, Brentwood and beyond.

While many of the infill sites from Downtown to the City’s border just north of Lone Tree Way, have been set aside for residential development, there remain many smaller parcels fronting the roadway which can support commercial development.

However, due to the limited size of such parcels, it is unlikely that a larger integrated commercial center similar to Sciortino Ranch will be developed south of Lone Tree Way. In addition, many of the remaining parcels lack the depth to offer opportunities to support retail centers. However, there are a few parcels near the City’s southern border (next to Dutch Brothers just south of Balfour Avenue) that could lend themselves to support a drive-through restaurant. In addition, parcels located at the three corners of Brentwood Boulevard and Lone Tree Way could support similar uses.

Other than the Brentwood Boulevard Corridor, there remain very few infill parcels available. Potential infill areas remaining include parcels on the north side of Lone Tree Way between O’Hara Street and Fairview Avenue that could take advantage of the high volume of traffic in the area.

If drive-through establishments were to be prohibited, the development potential for smaller parcels of two acres or less would be greatly diminished and would most likely

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Drive-through Uses 7
go undeveloped for the foreseeable future and could potentially become blighted.

Development of these infill parcels would benefit the City, which would gain a mix of property and sales tax revenues as well as employment, both full time and part time, for young adults and residents of the City.

Overall, establishing new development standards and operational restrictions through the Conditional Use Permit process will ensure that design and site layout issues are adequately fulfilled. For example, requiring residential separation requirements for new uses, unless separated by a masonry wall, will help to buffer and reduce potential impacts for adjacent residential uses while allowing direct economic improvements throughout the City. In addition, while the City is always looking for a diverse variety of restaurants or cafe options, allowing additional restaurants to establish second or third such establishment in the city, i.e. Chipotle or Dutch Bros, ultimately serves to reduce vehicle trips across town.

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CITY COUNCIL AGENDA ITEM NO. I.4
09/24/2024
SUBJECT: Consider information related to 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
There is no fiscal impact associated with this request for Council direction. The fiscal impact of the Tobacco Retail License (TRL) Ordinance is discussed in the attached staff report.

BACKGROUND
The City Council discussed possible new tobacco regulations and provided direction to staff at the April 30, 2024, City Council meeting (staff report attached). Among other things, the City Council provided direction to include the following items in the new TRL Ordinance:
 A 500 foot separation between other tobacco retailers and from youth-oriented facilities1, to apply to all retailers, not just new retailers;  A cap of 42 licenses in the City; and
 A prohibition on tobacco sales at all pharmacies.

Council also directed staff to return to the Council with additional information related to possible processes for issuing licenses to address the possibly of the City receiving more applications than the cap would allow, or retailers within 500 feet of each other competing for a license.

Staff has been working with Contra Costa Health (CCH) and outside counsel to draft the new TRL ordinance and it is almost complete. (The draft ordinance is attached with sections staff is requesting direction on highlighted in yellow.) CCH provided the

1 Defined as a private or public elementary, middle, junior high, or high school; a library open to the public; a youth center, defined as a facility where children, ages up to 17, come together for programs and activities; any business establishment likely to be frequented by minors, such as, but not limited to, video game arcades, skating rinks, bowling alleys, etc.

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CITY COUNCIL AGENDA ITEM NO. I.4
09/24/2024
attached chart summarizing the tobacco licensing policies of jurisdictions in Contra Costa County. The direction Council provided on April 30, 2024, would result in an ordinance, if adopted, that would raise Brentwood’s score from zero to between 9-

11. Staff is requesting that Council provide direction on the process for issuing licenses and on tobacco sales at pharmacies in order to finalize the ordinance. Once staff receives Council direction, staff and outside counsel will finalize the ordinance and will bring it back to City Council for adoption as soon as possible, depending on the type of direction received. Staff would also notify all existing tobacco related businesses of the possible new regulations and the upcoming hearing.

PROCESS FOR ISSUING LICENSES
At the April City Council meeting, the Council directed that all of the new tobacco regulations (including the separation requirements between retailers and between youth-oriented facilities) should apply to all tobacco retailers – both existing businesses and new businesses. If the numeric cap and distance requirements apply to all potential applicants for a TRL, then there would be some existing businesses within 500 feet of each other that would be competing for a license. Staff requested Council provide direction on how to apply the new tobacco license policies in this circumstance and in the event that the number of applications for licenses exceeded the numeric cap of 42 licenses. Several options to address these circumstances were discussed, including issuing licenses through a random lottery process, a first come/ first served process, and a competitive “scoring” type process. The Council directed staff to research various methodologies for Council to consider.

Staff worked with CH to find more information about competitive processes to issue tobacco retail licenses, and did not identify any other jurisdiction that utilizes a competitive approach. The jurisdictions in Contra Costa County with tobacco retail licenses have implemented a ministerial process for issuing licenses; e.g. a license is issued if the applicant provides the required materials and meets the objective requirements of the ordinance, similar to a business license process. CCH found that the majority of districts that adopt separation requirements from other uses and other retailers make exceptions for existing retailers – i.e. grandfathering in existing businesses. Some jurisdictions have a set deadline for applications to be submitted every year (e.g. Contra Costa County) and others issue licenses on a first come/first served basis (e.g. Concord).

Outside counsel raised potential legal concerns with a competitive-based process, including potential disputes over the fairness or reasonableness of the selection process, and possible takings claims. Staff is also concerned about possessing the

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CITY COUNCIL AGENDA ITEM NO. I.4
09/24/2024
appropriate technical knowledge to review objectively types of materials that might be required for a competitive scoring process, and that a random lottery process could result in two businesses that are too close to each other both “winning” the lottery. In this circumstance, yet another process would have to be developed to determine which business would be awarded a license and which business would not.

This process would likely be subjective in nature and potentially create legal vulnerability for the City.

Staff’s Recommended Process
In order to avoid a process that would be difficult for staff to implement and to avoid subjectivity that might create legal vulnerability for the City, staff and outside counsel recommend implementing a ministerial process to issue new TRLs, similar to the process for processing business tax certificates. This ministerial process could be implemented on a first come/first served basis, as discussed in more detail below.

This option would be the most objective and fair to tobacco retailers, would be the least time intensive for City staff to implement, and would be the least vulnerable to successful legal challenges.

Proposed TRL Application Process
First Come, First Served Process
In order to implement a first come, first served application process, staff would begin accepting applications on the effective date of the ordinance (30 days after Council adoption or another time frame specified by Council). Staff recommends that existing tobacco retailers in the City be given the opportunity to apply for the TRL before businesses that are not currently operating in the City. In order to do this, the draft TRL ordinance requires all existing businesses to apply for a TRL within 30 days of the effective date of the ordinance. Businesses that are new to the City would be able to apply for licenses any time after that period if the numeric cap has not been reached.

Once the application period begins, staff would stamp all applications with a date and time stamp as they are received (emailed and faxed applications would not be accepted). Staff would review and process applications as they come in and no more licenses would be issued once the numerical cap of 42 is reached. Staff would keep an updated log of all applications and their status so that they are aware of the number of licenses issued relative to the 42 license cap. Staff would conduct the two compliance checks and one decoy operation required by the ordinance on a quarterly basis, similar to the enforcement schedule used for business tax certificates.

Permit for Noncompliant Businesses

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CITY COUNCIL AGENDA ITEM NO. I.4
09/24/2024
Based on Council direction, the TRL Ordinance will require licenses to be issued for 12 month periods. Also based on Council direction, there would be no exceptions from the new requirements for existing businesses. Council directed that existing businesses that cannot comply with the locational requirements of the new ordinance would be issued one 12-month license, which would not be renewed if the business cannot comply with the new regulations. In this circumstance, staff recommends that businesses be issued a non-renewable “permit” rather than the same license that other compliant businesses would be issued. The permit would be good for 12 months as Council directed. Retailers receiving a permit should use this 12-month period as an “amortization period” to sell off all of their prohibited inventory by the permit’s expiration date. Outside counsel also recommends a 12-month amortization period based on court decisions related to similar circumstances.

The below flow chart summarizes the proposed application process:

PHARMACY CLARIFICATION
Ordinance
Effective Date
• 45 days after Council adoption
• Extensive outreach to affected businesses
30 Day
Application
Period
• For existing businesses only
• First come/first served basis
Second
Application
Period
• After initial 30 days
• New businesses only
• Only if 42 license cap has not been exceeded
• First come/first served basis
Licenses
Issued
•Licenses effective for 12 months, eligible for renewal •Permits effective for 12 months, not eligible for renewal •Compliance checks conducted quarterly

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CITY COUNCIL AGENDA ITEM NO. I.4
09/24/2024
At the April City Council meeting, the Council directed that the TRL Ordinance should prohibit tobacco sales at all pharmacies. The draft ordinance will include the following definition of pharmacy:
“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, and whether or not the sale of prescriptions pharmaceuticals is the primary purpose, incidental, or otherwise to the purpose of the retail establishment.

This proposed definition would include grocery stores with pharmacies, drug stores, and convenience stores with pharmacies. Staff is seeking clarification of whether it is Council’s intent to prohibit tobacco sales at grocery stores with pharmacies, or to limit the prohibition to just stand alone pharmacies and convenience/drug stores.

Staff is seeking this clarification in order to finalize the ordinance and determine how many existing businesses the new 500’ separation requirement will impact.

SUMMARY
Staff is requesting that Council provide direction on the following items in order to bring the draft Tobacco Retail License Ordinance to City Council for consideration:

1. Whether to implement a first come, first served application process;

2. Whether to issue a tobacco retail permit for one year only to retailers that are noncompliant with new regulations rather than the tobacco retail license;

3. Whether the definition of pharmacy should include grocery stores with pharmacies, or just stand alone convenience stores, pharmacies and drug stores.

CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.

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

DATE OF NOTICE
Not Applicable.

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CITY COUNCIL AGENDA ITEM NO. I.4
09/24/2024

ENVIRONMENTAL DETERMINATION
Not Applicable.

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

1. Do not approve staff’s recommendation for a first come/first served process and direct staff to develop another process for issuing tobacco retail licenses.

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

ATTACHMENT(S)

1. Previous Action

2. April 30, 2024, City Council Staff Report

3. Draft Tobacco Regulations

4. Tobacco Regulations of Contra Costa County Jurisdictions

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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.

On March 18, 2024, the Land Use and Development (LUD) Committee provided recommendations to the City Council on 16 items related to potential new tobacco regulations.

On April 30, 2024, the City Council provided direction to staff regarding new tobacco regulations and a Tobacco Retail License program.

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

Page 19 of 109 ends

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

Page 20 of 109 ends

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

Page 21 of 109 ends

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

Page 22 of 109 ends

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

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

Page 23 of 109 ends

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.

Page 24 of 109 ends

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

Page 25 of 109 ends

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

Page 26 of 109 ends

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.

Page 27 of 109 ends

CITY COUNCIL AGENDA ITEM NO. F.1
08/22/2023

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

Page 28 of 109 ends

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).

Page 29 of 109 ends

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

Page 30 of 109 ends

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.

Page 31 of 109 ends

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).

Page 32 of 109 ends

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

Page 33 of 109 ends

Page 1 of 4 ends

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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Page 2 of 4 ends

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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Page 3 of 4 ends

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.

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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
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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.

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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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Brentwood City Council
September 24, 2024