aD CityofDowney AGENDA MEMO
mI 8
APPROVED BY
CITY MANAGER
TO :
FROM:
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
OFFICE OF THE CITY MANAGER h 1,1
BY: IRMA HUITRON, DIRECTOR OF COMMUNITY DEVELOPMENT (m
DATE :
SUBJECT:
MARCH 12, 2024
OPTIONS FOR REGULATION OF THE RETAIL SALE OF TOBACCO AND
TOBACCO PRODUCTS
EXECUTIVE SUMMARY
At its January 9, 2024 City Council meeting, the Council requested that staff provide the current number of tobacco retail stores that are operating within each of the City Council districts, and provide potential options for regulating the establishment of new tobacco retail stores Citywide. The intent of this report is to introduce the topic for discussion and staff is seeking the City Council’s direction on which option(s) to research further and bring back for further discussion.
RECOMMENDATION
That the City Council:
Discuss options to regulate the retail sale of tobacco and tobacco products in the City and provide direction to staff on which option(s) to research further and bring back for consideration.
BACKGROUND
The City of Downey has enacted laws prohibiting smoking in parks and at certain public events. However, it does not have any other policies designed explicitly to restrict and reduce access or use of tobacco products in the City. California Business and Professions Code Section 22971.3 reserves to cities the ability to enact local tobacco control laws, with the exception of laws related to the collection of state taxes. Section 22971.3 also authorizes cities to implement local tobacco licensing laws The federal Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), enacted in 2009, prohibited candy and fruit flavored cigarettes, largely because these flavored products were marketed to youth and young adults, and younger smokers were more likely than older smokers to have tried these products. On November 8, 2022 California voters upheld the Senate Bill 793 (SB 793) after a citizens referendum placed the bill on hold and required it to go before voters. SB 793, prohibits a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale, most flavored tobacco products
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fncluding flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers in retail locations.
On October 7, 2023, Governor Newsom signed into law Assembly Bill 935 (Chapter 1 35, Statues of 2023) strengthening the enforcement of the flavored tobacco retail law and broadening the definition of a retail location. Effective January 1, 2024, the sale of the following flavored tobacco products is prohibited:
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Flavored e-cigarettes or vapes that deliver nicotine or another vaporized liquid, e- juice, pods, or cartridges
Menthol cigarettes
Flavored little cigars and cigarillos
Flavored smokeless tobacco products
Flavored blunt wraps
Flavored loose-leaf roll-your-own tobacco
Flavored tobacco rolling papers
Tobacco product flavor enhancers
Licensed stores must also operate in accordance with all state or local laws relating to the sale of tobacco. Local jurisdictions may have more restrictive laws. It is the retailer’s responsibility to know and comply with all federal, state, and local laws regarding the sale and distribution of tobacco products. The updated State definition for a “retail location” is inclusive of the following:
• a building where tobacco products are sold at retail, • any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public. (Health and Safety Code Section 104559.5 (a)(13))
In addition, retailers in California are prohibited from possessing flavored tobacco products with the intent to sell, even if orders are placed online and picked up in person At the January 9th City Council meeting, the City Council requested that staff provide the current number of tobacco retail stores that are operating within each of the City Council districts, and provide potential options for regulating the establishment of new tobacco retail stores Citywide to augment safeguards for the health, safety, and welfare of the community - especially that of minors, against the dangers of tobacco product use.
ANALYSIS
Number of Tobacco and Tobacco Product Retail Stores Operating in the City There are approximately sixteen (16) retail stores (Table 1) exclusively dedicated to the sale of tobacco and tobacco products operating in the City. Table 1 provides a breakdown of the establishments by City Council District.
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Table I
Retail Stores Selling Tobacco and Tobacco Products in the City City Council District
District 1
District 2
District 3
District 4
TOTAL CITYWIDE
Number in District
5 4
4 3
16 Source: City of Downey, January 9, 2024
Table 2 below summarizes the names, addresses, City Council districts, and zoning districts for each establishment operating in the City.
Table 2
Retail Store Locations Selling- Tobacco and Tobacco Products in the City by City Council and Zoning District
Name of Business Address District Zoning
District
C-11Downey Smoke and Vape Shop 10313 Lakewood Boulevard 11113 Paramount Boulevard,
Suite C
7352 Stewart and Gray Road
7828 Florence Avenue
4 3
2 3
1 4
3 3
2 4
1 1
M Tobacco C-2
C-1
C-1
C-2
C-1
C-2
C-2
C-2
C-2
C-1
3 4
RC Smoke and Vape, Inc.
Smoky Headz
Imperial Smoke and Vape Shop
Beyond Vape
Downey Vapes
9061 Imperial Highway
9455 Firestone Boulevard
10033 Tecum Road
7946 Florence Avenue
8013 Imperial Highway
8530 Paramount Boulevard
8636 Imperial Highway
8847 Imperial Highway, Suite
8 9
10 11
Dr. Tobacconist
Royal Tobacco
Sweet Smoke
Smoken Smoke Shop
OJ Smoke Shop C-2
C-1
C-1
C-1
C-2
13 14
15 Smoken Smoke House,
Smart Buy Smoke Shop
Inc 13260 Woodruff Avenue
11 836 Downey Avenue
1 2
1 2
Peak Smoke and Vape Shop
16 Biohazards Smoke Shop
Source: City of Downey, January 9, 2024
*Primarily Selling; list is under review and is subject to further review and finalization 11913 Lakewood Boulevard
12121 Paramount Boulevard
Options for Regulating the Retail Sales of Tobacco and Tobacco Products in the City:
Staff has prepared various options for City Council’s consideration. The legislative options referenced herein are not mutually exclusive, and the City may exercise multiple options, together or independent of one another.
Option 1 : - Establish an Ordinance Requiring a Tobacco Retailer License Establishing an Ordinance that required a Tobacco Retailer License is an effective method of regulating tobacco retailers by requiring any person who sells or offers for sale tobacco, tobacco products, or tobacco paraphernalia to obtain a regulatory "Tobacco Retailer Permit". Such a permit would entitle the City to impose conditions upon the
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retailer's operation. This process is currently used by the City to regulate other businesses that may community impacts such liquor stores, bars, night clubs, massage establishments, swap meets, and pawn brokers.
If Option 1 is selected , an Ordinance would be drafted requiring a Tobacco Retailer Permit which would set forth procedures for the application process including applicable fees, grounds for denial of a permit, appeal procedures, and penalties for violations, which could include administrative fines, the suspension and/or revocation of the permit, and criminal prosecution. The adoption of an Ordinance requiring Tobacco Retailer Permit would require review and approval by the City Council.
Option 2 – Establish Buffer Zones
Establish an Ordinance to create “Buffer Zones” for the sale of tobacco and tobacco products.
This is an effective method of regulating new tobacco retailers from locating near sensitive uses and to prevent an overconcentration of tobacco retailers in one vicinity. The City’s municipal code does have a separate requirement for live entertainment and adult oriented uses to residential uses, 100-feet and 500-feet respectively. The City could also create "buffer zones", prohibiting tobacco retailers from being within a specified distance of schools, day cares, and other tobacco retailers and also a separation distance from one tobacco retailer to another. The Council could provide direction to staff regarding other sensitive uses such public playgrounds, parks/recreational areas, youth centers, elderly care facilities, residential care facilities, medical uses, places of worship, etc, If this option is selected, City staff will prepare an Ordinance, specifying requirements for tobacco retailers citywide. The Ordinance requires review and a recommendation by the Planning Commission which would be forwarded to the City Council for final consideration .
Option 3 – Establish a Maximum of Establishments
Establish an Ordinance that would create a method for calculating a maximum number of retail establishments that primary sell tobacco and tobacco products within each of the City Council districts. This number could either be static per district or be subject to increase, based on population.
If this option is selected, City staff will prepare an Ordinance, specifying requirements for tobacco retailers citywide. The Ordinance requires review and a recommendation by the Planning Commission which would be forwarded to the City Council for final consideration .
Option 4 – Conditional Use Permit Requirement
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Establish an Ordinance that would require a Conditional Use Permit for retail establishments that primary sell tobacco and tobacco products. This option would allow the City to consider any potential impacts from the operation of each tobacco retail store and adopt conditions of approval to address the impacts through the Conditional Use Permit process.
If this option is selected, City staff will prepare an Ordinance, specifying requirements for tobacco retailers citywide. The Ordinance requires review and a recommendation by the Planning Commission which would be forwarded to the City Council for final consideration
Option 5 - Establish an Ordinance, specifying operation and performance standards Establish an Ordinance, specifying operation and performance standards for establishments that primarily sell Tobacco and Tobacco products.
If the City Council directs staff to pursue this option, City staff can research and provide recommendations for developing “best practices” that provide operational and performance requirements and guidelines in order to streamline the review processes for tobacco retailers. Examples of these topic areas would be: visibility of product from the public right-of-way, hours of operation, limitations on combining with other uses such as entertainment or sales of alcohol.
Option 6 – Modify Zoning Requlations
Explore zoning regulations that would limit the zoning districts in which the sale of Tobacco and Tobacco Products are allowed. Existing tobacco retailers are located within the City’s C-1 and C-2 zones. Presently, the City prohibits smoke, cigar, and hookah lounges from the C-P, C-1, and H-M zoning districts. City staff would research zoning districts and options for limiting the use in one or more zones If this option is selected, City staff will research and prepare its findings to the Planning Commission for review and the Commission’s recommendation will be forwarded to the City Council for final consideration.
Timeline for Options 1 – 6
The research and Ordinance preparation and review process would take approximately three to six months.
Option 7 – No Changes
Tobacco, tobacco products stores would continue to be allowed as a retail business; no CUP required; no separation or buffer zones required, no operation or performance standards required. No changes to the municipal code, no new Ordinances, a tobacco
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retailer permit process is not established , no CUP, no buffer zones, no changes to zoning districts. State law still applies which prohibits the sale of flavored tobacco
CITY COUNCIL PRIORITIES
Quality of Life, Safety & Infrastructure
FISCAL IMPACT
There is no fiscal impact associated with the discussion of this item
ATTACHMENTS
Attachment A – Tobacco Retailers by Council District
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Attachment A - Map of Tobacco Retailers by Council District TOBACCO SHOP LOCATIONS BY COUNCIL DisTRicr
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Firestone Blvd
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Attachment “A“