Item No.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: IRMA HUITRON, DIRECTOR OF COMMUNITY DEVELOPMENT
DATE: DECEMBER 10, 2024
SUBJECT: SECOND READING AND ADOPTION OF AN AMENDMENT TO
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 (ZTA) 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. The ZTA shall also incorporate subsequent definitions to provide added clarity.
RECOMMENDATION
That the City Council:
Adopt Ordinance No. 24-1516 approving a Zoning Text Amendment amending Sections 9128, 9158, 9160 and 9314.04 of Article IX of the Downey Municipal Code to establish a new use of Tobacco Retailer
BACKGROUND
The Ordinance (Attachment A) was introduced for a first reading at the regular City Council meeting on November 12, 2024, where after fully considering all oral and written testimony and facts and opinions offered, the City Council introduced the attached ordinance.
ANALYSIS
The analysis and information provided in the original agenda memo dated November 12, 2024, remains unchanged.
SECOND READING AND ADOPTION OF AN AMENDMENT TO THE DOWNEY MUNICIPAL CODE
FOR SALES OF TOBACCO AND TOBACCO PRODUCTS
DECEMBER 10, 2024
PAGE 2
2 CITY COUNCIL PRIORITIES
Quality of Life, Safety and Infrastructure
FISCAL IMPACT
There is no fiscal impact.
ATTACHMENTS
Attachment A: Ordinance No. 24-1516
ATTACHMENT A
ORDINANCE NO. 24-1516
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.
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
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.
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.
All tobacco retailers, as defined in Section 9160 of this article, in operation on or before December 26, 2024 shall be considered “Retail Sales, New” establishments, as defined in Section 9154 of this Article. Tobacco Retailer establishments in operation on or before December 26, 2024 shall be considered Retail Sales, New establishment until the establishment ceases operations pursuant to Section 9410.06 (b)(c) and (d) of this Article.”
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.”
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.
All tobacco retailers, as
defined in Section 9160 of
this article, in operation on
or before December 26,
2024 shall be consider
“Retail Sales, New”
establishments, as defined
in Section 9154 of this
Article. Tobacco retailer
establishments in operation
on or before December 26,
2024 shall be considered
Retail Sales, New
establishment until the
establishment ceases
operations pursuant to
Section 9410.06 (b)(c) and
(d) 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:
_____________________
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