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4 DATE: September 16, 2024
TO: Mayor and Members of the City Council
VIA: Stefan Chatwin, City Manager
Marlene Subhashini, Assistant City Manager
FROM: Benjamin L. Stock, City Attorney
Denise Bazzano, Assistant City Attorney
DEPARTMENT: City Attorney
SUBJECT: PROPOSED ORDINANCE AMENDING SECTIONS 8.11.010,
8.11.020 AND 8.11.030 OF CHAPTER 8.11, “REGULATION OF
THE SALE OF FLAVORED TOBACCO PRODUCTS AND
ELECTRONIC CIGARETTES” WITHIN TITLE 8, “HEALTH AND
SAFETY” OF THE FOSTER CITY MUNICIPAL CODE TO REPEAL
CERTAIN PROVISIONS RELATING TO RESTAURANTS THAT
SELL HOOKAH OR SHISHA TOBACCO PRODUCTS
RECOMMENDATION
It is recommended that the City Council introduce by title only and waive further reading of amending sections 8.11.010, 8.11.020 and 8.11.030 of Chapter 8.11, “Regulation of the Sale of Flavored Tobacco Products and Electronic Cigarettes” within Title 8, “Health and Safety” of the Foster City Municipal Code to repeal certain provisions relating to restaurants that sell hookah or shisha tobacco products.
EXECUTIVE SUMMARY
On March 4, 2024, Councilmember Froomin requested to agendize repealing of Foster City Municipal Code (FCMC) Section 8.11.020 (E) as it is less restrictive than state law.
Councilmember noted that in 2022, the City passed a ban on flavored tobacco sales with exemption for restaurants with 50% of the outdoor seating area designated as smoking areas and selling shisha tobacco products for hookah. Subsequently, in 2023, a state law went into effect, banning flavored tobacco sales by any tobacco retailer in the State.
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4 Currently, there is only one (1) restaurant in the City that meets this exemption under FCMC. Cities can have rules that are stricter than state law but not less restrictive. In addition, repealing section does not affect the business to comply with state law and FCMC by restricting access to only those 21 years or older and meeting other state law requirements. After deliberation, the majority of the Council supported to agendize repealing FCMC Section 8.11.020(E) to remove the provision relating to restaurants to be more consistent with State law (see Meeting Minutes for March 04, 2024).
Staff has prepared the attached proposed Ordinance which amends FCMC Chapter
8.11 to repeal Section 8.11.020(E) and make other conforming amendments to remove the provisions relating to restaurants (see Attachment).
BACKGROUND/ANALYSIS
On August 28, 2020, Senate Bill 793 (SB 793) (Codified in Health and Safety Code Section 104559.5) was signed into law. Health and Safety Code Section 104559.5(b) provides that a tobacco retailer, or any of the tobacco retailer’s agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer. Health and Safety Code Sections 104559.5(c), (d) and (e) provide certain exemptions to the prohibition in subdivision (b), including the sale of “Shisha tobacco product[s]”, which is a tobacco product smoked or intended to be smoked in a hookah, by certain permitted/licensed retailers as well as the sale of certain specialty cigars and loose leaf tobacco. Health and Safety Code Section 104559.5(g) specifically preempts a local standard that imposed less restrictive standards on the access to tobacco products but did not preempt any local standards that imposed more restrictive standards. SB 793 was subject to a referendum which delayed its implementation until after the elections in November 2022, when it was confirmed by the voters through Proposition 31.
On November 7, 2022, the City Council adopted Ordinance No. 653 to add a new FCMC Chapter 8.11 within Title 8, Health and Safety, to regulate the sale of flavored tobacco products and electronic cigarettes. Ordinance No. 653 substantively mirrored the requirements of SB 793 except that Ordinance No. 653 included in subdivision (E) of FCMC Section 8.11.020 language which specified that restaurants that have 50% of the outdoor seating area designated as smoking areas and sell hookah products for use with a hookah pipe as an approved use as of the effective date of the Ordinance would not be subject to the prohibition for the sale of flavored tobacco by tobacco retailers in subdivision (A) of FCMC Section 8.11.020. Ordinance No. 653 also included Section 8.11.060 that provides that nothing in FCMC Chapter 8.11 should be interpreted or applied to create any requirement, power, or duty that is preempted by state law.
At the March 4, 2024, City Council meeting, Councilmember Froomin presented a request for a future agenda item to consider repealing FCMC Section 8.11.020(E) to 7 1
4 remove the provision relating to restaurants. Councilmember Froomin stated that he believed that subdivision (E) should be repealed because it is less restrictive than State law, as there is no provision in SB 793 to exempt a tobacco retailer simply because they are a restaurant. At the end of the discussion, the majority of the Council supported agendizing the repeal of FCMC Section 8.11.020 (E).
Although Ordinance No. 653 could not be enforced to the extent that the City’s regulations were preempted by State law, the proposed Ordinance would revise the provisions of FCMC Chapter 8.11 to be more consistent with Health and Safety Code Section 104559.5. The proposed Ordinance would repeal subdivision (E) in FCMC Section 8.11.020 to remove the provision relating to restaurants, as well as subdivision (B) in FCMC Section 8.11.030, which has the same language. The proposed Ordinance would also remove the definition of restaurants under FCMC Section 8.11.010.
California Environmental Quality Act
The Ordinance is not a project within the meaning of Section 15378 of CEQA Guidelines because it has no potential for resulting in either a direct or a reasonably foreseeable indirect physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of having a significant effect on the environment.
FISCAL IMPACT
Adoption of this ordinance would not have a significant fiscal impact given that the proposed Ordinance only makes minor changes.
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREA
Public Safety and Social Equity
ATTACHMENTS:
Attachment 1 - Proposed Ordinance