Item No.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: IRMA HUITRON, DIRECTOR OF COMMUNITY DEVELOPMENT
D ATE: NOVERMBER 12, 2024
SUBJECT: A REQUEST TO AMEND ARTICLE IX OF THE DOWNEY MUNICIPAL CODE
TO REGULATE THE LOCATION OF BUSINESSES THAT SELL TOBACCO
AND TOBACCO PRODUCTS
EXECUTIVE SUMMARY
The City Council will consider adopting a Zone Text Amendment to establish a new land use category titled “Tobacco Retailer”, which would be permitted by-right in the C-1 (Neighborhood Commercial) and C-2 (General Commercial) zones. The Zoning Text Amendment would also require that new Tobacco Retailers be at least 1,000 feet from parks, child day care centers, or schools. On March 12, 2024, the City Council directed staff to study and prepare a code amendment for consideration to create a buffer between tobacco retailers and sensitive uses, including parks, child day care centers, and schools.
Staff recommends that the City Council approve the proposed zoning Text Amendment due to the ability to make all necessary findings.
RECOMMENDATION
That the City Council:
Introduce an Ordinance approving a Zoning Text Amendment (PLN-24-00159) to Sections 9128, 9158, 9160 and 9314.04 of Article IX of the Downey Municipal Code to establish a new use of Tobacco Retailers..
BACKGROUND
On March 12, 2024, the City Council directed staff to initiate a Zoning Text Amendment to regulate the location of businesses whose primary function is to sell tobacco and tobacco related products. The Council’s direction included amending the Downey Municipal Code (DMC) to require a minimum 1,000-foot buffer from retail business that focus on the retail sale of tobacco and tobacco products to parks, child day care centers, and schools. These locations have high foot traffic by children/students, making this population vulnerable to the potential exposure to tobacco products, which can have serious health consequences.
TOBACCO RETAILER USE
NOVEMBER 12, 2024
PAGE 2
The City has recently evaluated the number retail businesses whose primary operations is dedicated to the sale of tobacco and tobacco products (this includes vape and vape related products). Currently, there are 21 such retail shops operating within the City (Table 1).
Table 1
Retail Store Locations Selling Tobacco and Tobacco Products in the City by City Council and Zoning District
Name of Business Address Distri
ct
Zoning
District
1 Smoken Smoke Shop 8636 Imperial Highway 1 C-1
2 OJ Smoke Shop 8847 Imperial Highway, Suite C1 1 C-2
3 Smoken Smoke House, Inc. 13260 Woodruff Avenue 1 C-1
4 Smoke Kingdom LLC 11913 Lakewood Boulevard 1 C-1
5 Imperial Smoke and Vape Shop 9061 Imperial Highway 1 C-2 6 Vape Vault Downey 8718 Imperial Hwy 1 C-2
7 Dr. Tobacconist 8013 Imperial Highway 2 C-2
8 Smart Buy Smoke Shop 11836 Downey Avenue 2 C-1
9 Biohazards Smoke Shop 12121 Paramount Boulevard 2 C-2 10 Cali Clouds 12816 Paramount Blvd 2 C-2
11 King's Smoke Shop 8024 Stewart And Gray Rd 2 C-1
12 RC Smoke and Vape, Inc. 7352 Stewart and Gray Road 2 C-1 13 Downey Vapes 10033 Tecum Road 3 C-2
14 Royal Tobacco 7946 Florence Avenue 3 C-2
15 Upscale Smoke Shop 7433 Florence Ave 3 C-2
16 Sweet Smoke 8530 Paramount Boulevard 3 C-2
17 M Tobacco 11113 Paramount Boulevard, Suite C 3 C-2
18 Smoky Headz 7828 Florence Avenue 3 C-1
19 24 Hour Smoke Shop 9426 Firestone Blvd 4 C-2
20 Beyond Vape 9455 Firestone Boulevard 4 C-1
21 Downey Smoke and Vape Shop 10313 Lakewood Boulevard 4 C-1 Source: City of Downey, November 4, 2024
The City of Downey has enacted laws prohibiting smoking in parks (DMC 10128(a)) and at certain public events (DMC 10128 (b)). However, the City does not have any regulations that explicitly restrict and/or reduce access to 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.
AN ALYSIS
State Legislation
According to the Center for Disease Control (CDC), more than 3,200 children begin smoking each day in the United States. The negative health effects of smoking on minors includes addiction to nicotine, reduced lung function, reduced lung growth, and early
TOBACCO RETAILER USE
NOVEMBER 12, 2024
PAGE 3
cardiovascular damage. “Exposure to nicotine can have lasting effects on adolescent brain development. Cigarette smoking also causes children and teens to be short of breath and to have less stamina, both of which can affect athletic performance and other physically active pursuits.”
The State of California has adopted the following statutes to make smoking less desirable to minors and to prevent minors from beginning to smoke. •SB 7 (Chapter 8, Statutes of 2016), which raised the minimum age to purchase and/or possess tobacco and tobacco related products from 18 to 21. •SB 793 (Chapter 34, Statutes of 2020) which prohibited the sale of flavored tobacco and tobacco related products. SB 793 was subject to a subsequent citizens referendum and placed on the ballot for the November 8, 2022 election as Proposition 31. SB 793 was upheld by the citizens of California with a 63.42% vote to approve. When looking at Los Angeles County, the vote to uphold Prop 31 increased to 66.76% (data is not available at the city level). •AB 935 (Chapter 351, Statues of 2023), which provides additional enforcement and penalties for selling flavored tobacco and tobacco related products.
Proposed Amendment
Businesses that sell tobacco or tobacco related products are currently classified as “Retail sales, new” under the zoning code. Retail sales are permitted by-right uses in the C-1, C- 2, C-3, C-M, and M-U Zones. A new business can be established by obtaining a business license from the City. The proposed Zoning Text Amendment would establish a new use classification titled, “Tobacco Retailer”, which would be defined as:
A retail store utilized primarily for the sale of tobacco, tobacco products and/or tobacco accessories and in which the sale of other products is merely incidental. This shall also include any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public. For purposes of this definition, a retail establishment in which less than 50% of the gross sales does not include tobacco, tobacco products and/or tobacco accessories, shall not be considered a Tobacco Retailer. A Tobacco Retailer operating on or before December 26, 2024 shall not be considered a nonconforming use, building, or structure for purposes of Chapter 4 of this Article.
The proposed definition includes any business whose sales of tobacco, tobacco products and/or tobacco accessories are 50% or more of their gross sales. Staff intends for this to capture businesses that primarily sell tobacco, while not limiting gas stations, liquor stores, convenience markets, grocery stores, etc. The Zoning Text Amendment would
TOBACCO RETAILER USE
NOVEMBER 12, 2024
PAGE 4
update Table 9.3.5. Commercial Zones Use Regulations. Tobacco Retailers would be permitted as a by-right use in the C-1 and C-2 zones, which is consistent with the zones where existing Tobacco Retailers are located, as detailed in Table 1.
Table 9.3.5. Commercial Zones Use Regulations
(P = Permitted NP = Not Permitted C = Conditional Use Permit) Use C-P C-1 C-2 C-3 C-M H-M Notes and Exceptions
General Commercial Uses
Tobacco Retailer NP P P NP NP NP Shall be a minimum of
1,000-feet from any park,
child day care center, or
school, as measured from
the property line of the park,
child day care center, or
school to the proposed
tenant space for the
Tobacco Retailer.
A Tobacco Retailer
operating on or before
December 26, 2024 shall
not be considered a
nonconforming use,
building, or structure for
purposes of Chapter 4 of
this Article.
The proposed Zoning Text Amendment also establishes an exception requiring any new tobacco retailer to be located a minimum of 1,000 feet from the property line of any park, child day care center, or school. As proposed, the distance would be measured from the property line of the park or school to the tenant space of the tobacco retailer. The proposed Zoning Text Amendment would reduce the ability to sell tobacco near locations where minors congregate, thus potentially limiting the use of tobacco products and furthering the interest of public health. The amendment serves to advance the well- documented public health objectives as detailed by the Center for Disease Control and multiple state legislation, such as Senate Bill 7, Senate Bill 793, and Assembly Bill 935.
Staff overlaid a 1,000-foot radius from existing Tobacco Retailers to parks, child day care centers, and schools onto the City’s zoning map (Exhibit B) to ensure that the proposed 1,000-foot buffer zone is large enough to achieve the City’s goal, but not so large that the amendment indirectly prohibits the use. Analysis of the overlaid zoning map shows there would be several properties on Telegraph Road, Firestone Boulevard, Imperial Highway, Paramount Boulevard, and Lakewood Boulevard where future tobacco retailers could be potentially established.
TOBACCO RETAILER USE
NOVEMBER 12, 2024
PAGE 5
Further analysis of the overlaid zoning map shows that 13 of the 21 existing Tobacco Retailer businesses would not conform with the proposed ordinance should the City Council adopt the draft ordinance. On October 16, 2024, through its Planning Commission (PC) deliberation and motion to approve the draft ordinance as recommended by staff, the PC requested that additional language be included in the proposed ordinance to avoid the categorization of existing establishments as “legal non- conforming uses.” The PC indicated during their discussion that some businesses might suffer unintended negative business impacts by becoming “legal non-conforming.” As a result, staff has included in Attachment A, a draft ordinance that defines existing tobacco retailers, in operation on or before December 26, 2024, as ‘Retail Sales, New”, which means that a Tobacco Retailer operating on or before December 26, 2024 shall not be considered a nonconforming use, building, or structure. This designation allows existing establishments the same rights currently afforded to them, such as expanding their size and operations.
Any relocation of existing establishments would be restricted from relocating their business to another property within 1,000-feet of parks, child day care centers, or schools.
In addition, the existing establishment would be permitted to continue operations, provided they are not discontinued for 180 days or more.
California Environmental Quality Act
Staff has reviewed the proposed Zoning Text Amendment for compliance with the California Environmental Quality Act (CEQA). Upon completion of this review, it has been determined that this request is exempt pursuant to CEQA Guidelines Section 15060(c)(2), which states projects that do not result in a direct or reasonably foreseeable indirect physical change in the environment, are not subject to CEQA review. Amending the zoning code to establish a new use and require this use to be a minimum 1,000 feet from parks, child day care centers, and schools, is not a physical change to the environment.
Public Comment
As of the date of the publishing of this report, staff has not received any correspondence regarding this application.
CITY COUNCIL PRIORITIES
Quality of Life, Safety & Infrastructure
BOARD/COMMISSION/SUBCOMMITTEE ACTION:
TOBACCO RETAILER USE
NOVEMBER 12, 2024
PAGE 6
The application was previously heard by the Planning Commission at its regularly scheduled meeting of October 16, 2024. After considering all evidence and testimony provided at the public hearing, and following deliberation, a motion to recommend approval to the City Council passed with a 5-0 vote, with a request for staff to include additional language in the Ordinance forwarded to the City Council that addresses the concerns regarding legal non-conforming locations.
FISCAL IMPACT
There is no fiscal impact.
ATTACHMENTS
Attachment A: Draft Ordinance
Attachment B: Zoning Map with 1,000-foot radius
Attachment C: Planning Commission Staff Report
ATTACHMENT A
ORDINANCE NO. _____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY
APPROVING A ZONING TEXT AMENDMENT (PLN-24-00159) TO
SECTIONS 9128, 9158, 9160 AND 9314.04 OF ARTICLE IX OF THE
DOWNEY MUNICIPAL CODE TO ESTABLISH A NEW USE OF TOBACCO
RETAILERS
WHEREAS, the City of Downey is a Municipal Corporation and Charter City, duly organized under the constitution and laws of the State of California; and WHEREAS, on March 12, 2024, the City Council directed City Staff to initiate a Zoning Text Amendment to regulate the location of businesses whose primary function is to sell tobacco and tobacco related products; and
WHEREAS, the State of California has adopted regulations to reduce the desirability of tobacco and tobacco related products to minors. This includes SB 7 (Chapter 8, Statutes of 2016), which raised the minimum age to purchase and/or possess tobacco and tobacco related products from 18 to 21; SB 793 (Chapter 34, Statutes of 2020), which prohibited the sale of flavored tobacco and tobacco related products; and AB 935 (Chapter 351, Statues of 2023), which provides additional enforcement and penalties for selling flavored tobacco and tobacco related products; and
WHEREAS, it is the City’s desire to further reduce the desirability of tobacco and tobacco related products to minors by limiting the location of businesses whose primary function is to sell tobacco and tobacco related products near parks, child day care centers, and schools; and WHEREAS, California Business and Professions Code Section 22971.3 provides the City the ability to enact local tobacco control laws with the exception of laws related to the collection of state taxes; and
WHEREAS, the Planning Commission held a duly noticed public hearing on October 16, 2024, where after fully considering all oral and written testimony, facts, and opinions offered at the aforesaid public hearing, voted to recommend approval by the City Council of a Zoning Text Amendment to Sections 9128, 9158, 9160 and 9314.04 of Article IX of the Downey Municipal Code to establish a new use of Tobacco Retailers.; and
WHEREAS, on October 31, 2024, a notice of public hearing by the City Council was published in Downey Patriot as a 1/8th page ad in accordance with the requirements of the Downey Municipal Code; and
WHEREAS, the City Council held a duly noticed public hearing on November 12, 2024, to consider this Ordinance approving the proposed Zoning Text Amendment, where all interested persons were given an opportunity to be heard.
Attachment A
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The recitals above are each incorporated by reference and adopted as findings by the City Council.
SECTION 2. The City Council finds and determines that this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the State CEQA Guidelines because it will not result in a direct or reasonably foreseeable indirect physical change in the environment, as there is no possibility it will have a significant effect on the environment, and it is not a “project,” as defined in Section 15378 of the CEQA Guidelines.
SECTION 3. The City Council further finds and determines that:
A.The requested amendment is necessary and desirable for the development of the community and is in the interests or furtherance of the public health, safety, and general welfare. The amendment to the Zoning Code would regulate businesses whose primary function is to sell tobacco and tobacco related products, such that they would not be permitted to locate within 1,000 feet of a park, child day care center, or school. This buffer further reduces the ability to sell tobacco near locations where minors congregate, thus potentially limiting the use of tobacco products and furthering the interest of public health. The ordinance serves to advance the well-documented public health objectives as detailed by the Center for Disease Control and multiple state legislation, such as Senate Bill 7, Senate Bill 793, and Assembly Bill 935.
B.The Ordinance is in general conformance with the General Plan. The amendment to the Zoning Code is consistent with the following goals and policies of the General Plan:
Policy 1.1.4 “Provide an appropriate amount of land area for people to acquire goods and services.” The amendment establishes a new land use titled, “Tobacco Retailer”, which is permitted in the C-1 and C-2 zones. Applying the 1,000-foot buffer to the City’s zoning map demonstrates there is an ample number of properties that would still be permitted for Tobacco Retailers.
Goal 5.9 “Promote the well-being and general health of those that live and work in Downey.” Providing a buffer between Tobacco Retailers and parks/child day care centers/schools would promote the well-being and general health of minors by limiting the availability of tobacco near locations where minors congregate.
SECTION 4. Section 9158 of the Downey Municipal Code is hereby amended to add the following additional definitions:
“School (Private), Elementary, Middle or Junior High, and High School: A private business or nonprofit entity, including but not limited to denominational, sectarian, and boarding schools, that offers or conducts full-time instruction with a full complement of subjects at the elementary, middle, or high school level. Private schools function outside the jurisdiction of the California Department of Education (CDE) and most state education regulations. This definition shall does not include daycare centers as defined in this Attachment A
Chapter.”
SECTION 5. Section 9160 of the Downey Municipal Code is hereby amended to add the following additional definitions:
“Tobacco Retailer: a retail store utilized primarily for the sale of tobacco, tobacco products and/or tobacco accessories and in which the sale of other products is merely incidental.
This shall also include any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public. For purposes of this definition, a retail establishment in which less than 50% of the gross sales does not include tobacco, tobacco products and/or tobacco accessories shall not be considered a Tobacco Retailer. A Tobacco Retailer operating on or before December 26, 2024 shall not be considered a nonconforming use, building, or structure for purposes of Chapter 4 of this Article.
Tobacco Product: shall mean any of the following:
(a)A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff. (b)An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.
(c)Any component, part, or accessory of a tobacco product, whether or not sold separately.
For purposes of this definition, Tobacco Product shall not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.
SECTION 6. The following definition listing in Section 9128 of the Downey Municipal Code is amended to read as follows:
“Day Care Center, Child: An establishment or facility, other than a family daycare facility, that includes infant centers, preschools, extended daycare facilities, and school age child care centers, and also includes child care centers licensed pursuant to Section 1596.951 of the California Health and Safety Code. May also be referred to as a Commercial Day Care in this Article. Day care center does not include public or private schools and Family Day Care Home.”
SECTION 7. The following definitions listing in Section 9158 of the Downey Municipal Code are amended to read as follows:
“School (Public), Elementary, Middle or Junior High, and High School: An institution of learning which offers instruction in the several branches of learning and study required to be taught in the public schools by the Education Code of the State of California.” Public schools shall also include, but is not limited to, charter schools, boarding schools, and military academies.”
Attachment A
SECTION 8. Table 9.3.5. (“Commercial Zones Use Regulations”) within Section 9314.04 of the Downey Municipal Code is hereby amended to add the following new use:
Table 9.3.5. Commercial Zones Use Regulations
(P = Permitted NP = Not Permitted C = Conditional Use Permit) Use C-P C-1 C-2 C-3 C-M H-M Notes and Exceptions
General Commercial Uses
Tobacco Retailer NP P P NP NP NP Shall be a minimum of
1,000-feet from any park,
child day care center, or
school, as measured from
the property line of the park,
child day care center, or
school to the proposed
tenant space for the
Tobacco Retailer.
A Tobacco Retailer
operating on or before
December 26, 2024 shall
not be considered a
nonconforming use,
building, or structure for
purposes of Chapter 4 of
this Article.
SECTION 9. If any section, subsection, paragraph, sentence, clause or phrase of this Ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portion of this Ordinance. The City Council declares that it would have adopted this Ordinance, and each section, subsection, sentence, clause, phrase of portion thereof, irrespective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional.
SECTION 10. The City Council hereby directs staff to prepare, execute, and file with the Los Angeles County Clerk a notice of exemption within five (5) working days of the adoption of this Ordinance.
SECTION 11. The City Clerk shall certify to the adoption of this Ordinance and cause the same to be published in the manner prescribed by law.
APPROVED AND ADOPTED this ___ day of November, 2024
__________________
MARIO TRUJILLO, Mayor
ATTEST:
Attachment A
_____________________
MARIA ALICIA DUARTE, CMC
City Clerk
APPROVED AS TO FORM:
JOHN M. FUNK
City Attorney
I HEREBY CERTIFY that the foregoing Ordinance No. _________ was presented at a public hearing at a regular meeting of the City Council held on the ___ day of _______________, 2024, and adopted at a regular meeting of the City Council of the City of Downey held on the ___ day of _______________, 2024, by the following vote, to wit:
AYES: Council Members:
NOES: Council Member:
ABSENT: Council Member:
ABSTAIN: Council Member:
I FURTHER CERTIFY that a Summary of the foregoing Ordinance No. _________, was published in the Downey Patriot, a newspaper of general circulation in the City of Downey, the ___ day of _______________, 2024 (after adoption, including the vote thereon). It was also posted in the regular posting places in the City of Downey on the same dates. _____________________
MARIA ALICIA DUARTE, CMC
City Clerk
Attachment A
Tobacco Retailers Locations
LEGEND
ZONING
T
e
l
e
g
r
a
p
h
R
d
Old River School RdFlor
e
n
c
e
A
v
e
Lakewood BlvdStewart and Gray Rd
Imperial HwyParamount BlvdAttachment B
STAFF REPORT
PLANNING DIVISION
DATE: OCTOBER 16, 2024
TO: PLANNING COMMISSION
SUBMITTED/
REVIEWED BY: IRMA HUITRON, DIRECTOR OF COMMUNITY DEVELOPMENT PREPARED BY: LINDSAY ORTEGA, AICP, PLANNING CONSULTANT
SUBJECT: PLN-24-00159 (ZONING TEXT AMENDMENT) – A REQUEST TO
AMEND ARTICLE IX OF THE DOWNEY MUNICIPAL CODE TO
REGULATE THE LOCATION OF BUSINESSES THAT SELL
TOBACCO AND TOBACCO PRODUCTS
LOCATION: CITYWIDE
REPORT SUMMARY
The Zoning Text Amendment proposes to establish a new land use category titled “Tobacco Retailer”, which would be permitted by-right in the C-1 (Neighborhood Commercial) and C-2 (General Commercial) zones. The Zoning Text Amendment would also require that new Tobacco Retailers be at least 1,000 feet from parks, child day care centers, or schools.
Based on the analysis contained in this report, staff is recommending the Planning Commission adopt the following titled resolution:
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
DOWNEY RECOMMENDING THE CITY COUNCIL OF THE CITY OF DOWNEY ADOPT A ZONING TEXT AMENDMENT (PLN-24-00159), THEREBY
AMENDING SECTIONS 9128, 9158 AND 9314.04 OF ARTICLE IX OF THE
DOWNEY MUNICIPAL CODE TO ESTABLISH A NEW USE OF TOBACCO
RETAILERS
BACKGROUND
On March 12, 2024, the City Council directed staff to initiate a Zoning Text Amendment to regulate the location of businesses whose primary function is to sell tobacco and tobacco related products. The Council’s direction included amending the Downey Municipal Code (DMC) to require a minimum 1,000-foot buffer from retail business that focus on the retail sale of tobacco and tobacco products to parks, day care centers, and schools.
The City has recently seen an influx of retail businesses whose primary operations is dedicated to the sale of tobacco and tobacco products (this includes vape and vape related products).
Currently, there are 16 such retail shops operating within the City (Table 1).
Attachment C
Zoning Text Amendment -PLN-24-00159
October 16, 2024 - Page 2
Table 1
Retail Store Locations Selling Tobacco and Tobacco Products in the City by City Council and Zoning District
Name of Business Address District Zoning
District
1 Downey Smoke and Vape Shop 10313 Lakewood Boulevard 4 C-1 2 M Tobacco 11113 Paramount Boulevard,
Suite C 3 C-2
3 RC Smoke and Vape, Inc. 7352 Stewart and Gray Road 2 C-1 4 Smoky Headz 7828 Florence Avenue 3 C-1
5 Imperial Smoke and Vape Shop 9061 Imperial Highway 1 C-2 6 Beyond Vape 9455 Firestone Boulevard 4 C-1
7 Downey Vapes 10033 Tecum Road 3 C-2
8 Royal Tobacco 7946 Florence Avenue 3 C-2
9 Dr. Tobacconist 8013 Imperial Highway 2 C-2
10 Sweet Smoke 8530 Paramount Boulevard 4 C-2
11 Smoken Smoke Shop 8636 Imperial Highway 1 C-1
12 OJ Smoke Shop 8847 Imperial Highway, Suite
C1 1 C-2
13 Smoken Smoke House, Inc. 13260 Woodruff Avenue 1 C-1 14 Smart Buy Smoke Shop 11836 Downey Avenue 2 C-1
15 Peak Smoke and Vape Shop 11913 Lakewood Boulevard 1 C-1 16 Biohazards Smoke Shop 12121 Paramount Boulevard 2 C-2 Source: City of Downey, January 9, 2024
According to the Center for Disease Control (CDC), more than 3,200 children begin smoking each day in the United States. The negative health effects of smoking on minors includes addiction to nicotine, reduced lung function, reduced lung growth, and early cardiovascular damage. “Exposure to nicotine can have lasting effects on adolescent brain development.
Cigarette smoking also causes children and teens to be short of breath and to have less stamina, both of which can affect athletic performance and other physically active pursuits.”1 The State of California has adopted the following statutes to make smoking less desirable to minors and to prevent minors from beginning to smoke.
•SB 7 (Chapter 8, Statutes of 2016), which raised the minimum age to purchase and/or possess tobacco and tobacco related products from 18 to 21. •SB 793 (Chapter 34, Statutes of 2020) which prohibited the sale of flavored tobacco and tobacco related products. SB 793 was subject to a subsequent citizens referendum and placed on the ballot for the November 8, 2022 election as Proposition 31. SB 793 was upheld by the citizens of California with a 63.42% vote to approve. When looking at Los Angeles County, the vote to uphold Prop 31 increased to 66.76% (data is not available at the city level).
•AB 935 (Chapter 351, Statues of 2023), which provides additional enforcement and penalties for selling flavored tobacco and tobacco related products. 1 https://www.cdc.gov/tobacco/data_statistics/sgr/50th-anniversary/pdfs/fs_smoking_yout h_508.pdf Attachment C
Zoning Text Amendment -PLN-24-00159
October 16, 2024 - Page 3
The City of Downey has enacted laws prohibiting smoking in parks (DMC 10128(a)) and at certain public events (DMC 10128 (b)). However, the City does not have any regulations that explicitly restrict and/or reduce access to 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.
At its March 12, 2024, City Council meeting, the City Council directed staff to initiate a zoning text amendment to create a 1,000-foot buffer zone around parks, day care centers, and schools, since these locations have high foot traffic by children/students, making this population vulnerable to the potential exposure to tobacco products, which can have serious health consequences.
DISCUSSION
Businesses that sell tobacco or tobacco related products are currently classified as “Retail sales, new” under the zoning code. Retail sales are permitted by-right uses in the C-1, C-2, C-3, C-M, and M-U Zones. A new business can be established by obtaining a business license from the City. The proposed Zoning Text Amendment would establish a new use classification titled , “Tobacco Retailer”, which would be defined as:
A retail store utilized primarily for the sale of tobacco, tobacco products and/or tobacco accessories and in which the sale of other products is merely incidental. This shall also include any vending machine, vehicle, mobile unit, booth, stand, or concession that conducts in-person sales of tobacco products directly to the public. For purposes of this definition, a retail establishment in which less than 50% of the gross sales does not include tobacco, tobacco products and/or tobacco accessories, shall not be considered a Tobacco Retailer.
The proposed definition includes any business whose sales of tobacco, tobacco products and/or tobacco accessories are 50% or more of their gross sales. Staff intends for this to capture businesses that primarily sell tobacco, while not limiting gas stations, liquor stores, convenience markets, grocery stores, etc.
The Zoning Text Amendment would update Table 9.3.5. Commercial Zones Use Regulations.
Tobacco Retailers would be permitted as a by-right use in the C-1 and C-2 zones, which is consistent with the zones where existing Tobacco Retailers are located (Table 1).
Table 9.3.5. Commercial Zones Use Regulations
(P = Permitted NP = Not Permitted C = Conditional Use Permit) Use C-P C-1 C-2 C-3 C-M H-M Notes and Exceptions
General Commercial Uses
Tobacco Retailer NP P P NP NP NP Shall be a minimum of
1,000-feet from any park,
child day care center, or
school, as measured from
the property line of the park,
child day care center, or
school to the proposed
Attachment C
Zoning Text Amendment -PLN-24-00159
October 16, 2024 - Page 4
Table 9.3.5. Commercial Zones Use Regulations
(P = Permitted NP = Not Permitted C = Conditional Use Permit) Use C-P C-1 C-2 C-3 C-M H-M Notes and Exceptions
tenant space for the
Tobacco Retailer.
The proposed Zoning Text Amendment also establishes an exception requiring any new tobacco retailer to be located a minimum of 1,000 feet from the property line of any park , child day care center, or school. As proposed, the distance would be measured from the property line of the park or school to the tenant space of the tobacco retailer. The proposed Zoning Text Amendment would reduce the ability to sell tobacco near locations where minors congregate, thus potentially limiting the use of tobacco products and furthering the interest of public health. The amendment serves to advance the well-documented public health objectives as detailed by the Center for Disease Control and multiple state legislation, such as Senate Bill 7, Senate Bill 793, and Assembly Bill 935.
Staff overlaid a 1,000-foot radius from existing Tobacco Retailers to parks, child day care centers, and schools onto the City’s zoning map (Exhibit B) to ensure that the proposed 1,000- foot buffer zone is large enough to achieve the City’s goal, but not so large that the amendment indirectly prohibits the use. Analysis of the overlaid zoning map shows there would be several properties on Telegraph Road, Firestone Boulevard, Imperial Highway, Paramount Boulevard, and Lakewood Boulevard where future tobacco retailers could be potentially established.
Further analysis of the overlaid zoning map shows that eight of the 16 existing Tobacco Retailer businesses would be classified as non-conforming uses should the City adopt the ordinance as written. As with all nonconforming uses, they would be subject to the provisions of DMC Section 9410, Non-conforming Uses, Buildings, and Structure. Per DMC 9410, Nonconforming uses are not permitted to expand the use, increase the size of the tenant space, or relocate to another tenant space (except if the new location meets the minimum separation requirements). As with all nonconforming uses, they are permitted to continue operations, provided they are not discontinued for 180 days or more.
ENVIRONMENTAL ANALYSIS
Staff has reviewed the proposed Zoning Text Amendment for compliance with the California Environmental Quality Act (CEQA). Upon completion of this review, it has been determined that this request is exempt pursuant to CEQA Guidelines Section 15060(c)(2), which states projects that do not result in a direct or reasonably foreseeable indirect physical change in the environment, are not subject to CEQA review. Amending the zoning code to establish a new use and require this use to be a minimum 1,000 feet from parks, child day care centers, and schools, is not a physical change to the environment.
PUBLIC NOTICE
On October 3, 2024, a notice of the public hearing was advertised in the Downey Patriot as a 1/8th page ad, consistent with DMC Section 9804.06(c)(2). Direct mailing of the notice to property owners is not required since the mailing list exceeds 1,000 owners.
Attachment C
Zoning Text Amendment -PLN-24-00159
October 16, 2024 - Page 5
PUBLIC COMMENTS
As of the date of the publishing of this report, staff has not received any correspondence regarding this application.
CONCLUSION
Based on the analysis contained within this report, staff is concluding that all required findings can be made in a positive manner. As such, staff recommends that the Planning Commission adopt Resolution No. 24-4039 recommending the City Council adopt an Ordinance for the proposed Zone Text Amendment.
EXHIBITS
A.Draft Resolution No. 24-4039
B.Zoning Map with 1,000-foot radius
Attachment C