Agenda — Pacifica City Council, February 28, 2022 (part 2 of 3)

Job Number:

Job: M21_0209_Fairmont Park - 5-12 Replacement Decks
& Tensile Toughs
Quote Name: Quote--M21_0209_Fairmont Park - 5-12
Replacements_002
Quote Number: Q-00089
Prepared by:

JeanTyan
[email protected]
Terms: Net 30
Remit to: Miracle Playsystems, Inc.
1276 S Main St., Salinas, CA 93901
Sub Total: $47,738.85
Freight: $2,500.00
Estimated Tax: $3,728.18
Total: $53,967.03
Miracle Recreation
Product Code Description Qty Rate Total Estimated
Tax ( if
applicable)
MREC PARTS 912298P-Miracle- Bar
Sockets - Color: TBD, Wt:
1 LB.
1 $53.00 $53.00 $4.97
MREC PARTS 984134-Miracle- Parts
Carton - Wt: 5lbs.
1 $44.00 $44.00 $4.13
MREC PARTS 987195P - Miracle - Stair,
5' DK Typhoon - Color:

TBD, Wt: 60lbs.
1 $597.00 $597.00 $55.97
MREC PARTS 989361P-Miracle- RH
Step enclosure - Color
TBD - Wt: 30lbs.
1 $484.00 $484.00 $45.38
MREC PARTS 989362P-Miracle- LH
Step enclosure - Color
TBD-Wt: 30lbs.
1 $486.00 $486.00 $45.57

6.a
Packet Pg. 115 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure 2/7/2022
M21_0209_Fairmont Park - 5-12 Replacement Decks & Tensile Toughs MIRACLE PLAYSYTEMS, INC. – PO BOX 263, ALAMO, CA 94507 – (800) 879-7730 – (510) 893-2163 (FAX) CSL: 981433 (Exp Date 03/23) – DIR: 1000015853

Page 3 of 6 ends

Product Code Description Qty Rate Total Estimated
Tax ( if
applicable)
MREC EQUIP Miracle Play
Equipment per
plan_21_0209_Fairmont
Park-5-12-
Replacements_002_BOM.
1 $38,103.00 $38,103.00 $3,572.16
Installation
Product Code Description Qty Rate Total Estimated
Tax ( if
applicable)
B15 Replace owner provided
'Marble Races' and 'Sight-NSound' replacement panels
only outlined in drawing
M21_0209_Fairmont_002(p.5)
dated 1/26/2022. Location of
new replacement panels on
existing play structure TBD.

Manufacturer to provide all
parts and hardware.
1 $6,400.00 $6,400.00 $0.00
Performance Bond
Product Code Description Qty Rate Total Estimated
Tax ( if
applicable)
B24 Performance Bond 1 $1,571.85 $1,571.85 $0.00
Company:

Signature:

Name:

Date:

Sub Total:
$47,738.85
Total Freight:
$2,500.00
Total Estimated Tax:
$3,728.18
Grand Total: $53,967.03

6.a
Packet Pg. 116 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure 2/7/2022
M21_0209_Fairmont Park - 5-12 Replacement Decks & Tensile Toughs MIRACLE PLAYSYTEMS, INC. – PO BOX 263, ALAMO, CA 94507 – (800) 879-7730 – (510) 893-2163 (FAX) CSL: 981433 (Exp Date 03/23) – DIR: 1000015853

Page 5 of 6 ends

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End User Company: Bill To Email:
ŝƚǇŽĨWĂĐŝĮĐĂ
End User Contact: Bill To:

End User Email: ,
155 Milagro (Public Works),
Delivery Contact: Pacifica, Pacifica,
Delivery Email: 94044
Delivery Phone:

Delivery Address: Customer Reference #:

Site Address:
649 Parkview Circle
Pacifica

INDEMNITY
Client/Owner shall defend, indemnify and hold harmless Miracle Playsystems, Inc., its ŽĸĐĞƌƐ͕ directors, board of trustees, agents, or employees and each of them, from any and all claims, demands, causes of action in law or in equity, damages, penalties, costs, expenses, reasonable attorneys’ fees, reasonable experts’ fees, reasonable consultants’ fees, judgments, losses or liabilities, of every kind and nature whatsoever arising out of or in any way connected with or incidental to, the performance of the services under this Agreement or any of the obligations contained in this Agreement (“Claims”). Without limitation, “damages” include personal injury, including, but not limited to bodily injury, emotional injury, sickness or disease, or death to persons, including, but not limited to, any employees or agents of Miracle Playsystems, Inc., or any other person; or other damages of any kind to anyone including, without limitation, economic loss, property damage and loss of use thereof. It is ĞǆƉƌĞƐƐůǇĂĐŬŶŽǁůĞĚŐĞĚĂŶĚĂŐƌĞĞĚƚŚĂƚĞĂĐŚŽĨƚŚĞĨŽƌĞŐŽŝŶŐŝŶĚĞŵŶŝƚŝĞƐŝƐŝŶĚĞƉĞŶĚĞŶƚ͕ƚŚĂƚĞĂĐŚƐŚĂůůďĞŐŝǀĞŶĞīĞĐƚ͕ĂŶĚthat each shall apply despite any acts or omissions, misconduct or negligent conduct, whether active or passive, on the part of, or other contractor(s); provided, however, Miracle Playsystems, Inc. duty to indemnify shall be limited to the percentage or the degree Miracle Playsystems, Inc. comparative negligence caused any damages.

STANDARD NOTES
• Price quotation is good for 30 days. Accurate color selections must be made in writing prior to equipment going into production. ŽůŽƌƐƚŽďĞĐŽŶĮƌŵĞĚǁŝƚŚǇŽƵƌůŽĐĂůƐĂůĞƐ representative. • PLEASE MAKE PURCHASE ORDER TO MIRACLE PLAYSYSTEMS, INC at PO Box 263 Alamo, CA 94507 • PLEASE REMIT CHECKS TO: MIRACLE PLAYSYSTEMS INC., 1276 S MAIN ST, SALINAS, CA 93901 • Please email/fax quotation with your signature to accept this quote and place order. Fax 510-893-2163 or email [email protected]
• Unless otherwise ƐƉĞĐŝĮĞĚ͕ Miracle Playsystems, Inc DOES NOT include the following in this proposal:
• Engineered drawings
• Installation of equipment or other site amenities
• Specialty trades, equipment, power supply required to install equipment

6.a
Packet Pg. 117 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure 2/7/2022
M21_0209_Fairmont Park - 5-12 Replacement Decks & Tensile Toughs MIRACLE PLAYSYTEMS, INC. – PO BOX 263, ALAMO, CA 94507 – (800) 879-7730 – (510) 893-2163 (FAX) CSL: 981433 (Exp Date 03/23) – DIR: 1000015853

Page 6 of 6 ends

• ŶǇŝŶƐƵƌĂŶĐĞƌĞƋƵŝƌŝŶŐŝŶĞǆĐĞƐƐŽĨΨϭDͬΨϮDƉĞƌŽĐĐƵƌƌĞŶĐĞ͕ƐƉĞĐŝĂůŝŶƐƵƌĂŶĐĞĐŽǀĞƌĂŐĞŽƌǁŽƌĚŝŶŐ͕WƌĞǀĂŝůŝŶŐͬĞƌƚŝĮĞĚwage rates, local permitting, bid/performance bonds, temp fencing, geo tech surveys, playground safety inspection, equipment ŽŋŽĂĚ͕ and testing services.
• Inspect equipment upon delivery. Color discrepancy must be reported at time of delivery. Installation constitutes acceptance of colors.
• Warranty does not cover labor for reinstallation.

TERMS & CONDITIONS
• Purchase contract terms & conditions of sale: The client/customer’s acceptance and understanding of these terms & conditions and all other supporting documentation provided as part of this package is evidenced by signing of this estimate/quote. • Payment terms: Standard terms (on approved credit), unless otherwise noted are 50% with order and balance to ship equipment (no retention). Should any changes be required to the products after order is placed, ŵŽĚŝĮĐĂƚŝŽŶƐ or changes will be at client/ customers expense. Miracle Playsystems, Inc maintains a no return policy and asks all clients to determine feature, layout and color selection prior to ordering. Should any order be cancelled after production has started a 30% restocking fee will be charged to client. Credit card convenience fee is 3.5% which will be added to all credit card charges • Lead times: Estimated lead times for the time the order is released into production until it is delivered will vary. • Lead times may currently be extended due to reasons such as supply chain issues, shipping delays, UDZ material shortages, and other COVID-19 related LPSDFWV
• Custom play feature lead times are determined on a case by case basis.

CONSTRUCTION SERVICES (if applicable)
Unless otherwise noted, we exclude responsibility for material delivery & ŽŋŽĂĚŝŶŐ equipment, removal & disposal of packaging accumulated by equipment packaging, project security, landscape & hardscape repair based on access route to site, delays or returns due to lĂǇŽƵƚĐŽŶŇŝĐƚƐŽƌ delay of other trades, removal of spoils from job site, locating underground: utilities, pipes, obstructions in work area, conditions unforeseen and/ or not disclosed at time of estimate, permits, engineering, material testing, soil samples, CPSI. Conditions: Grades; stable, compacted & workable with 95% compaction and less than 1% grade, adequate access to site for labor, materials, tools and equipment. Estimate good for 90 days from ƋƵŽƚĞŽƌĞĐ͘ϯϭŽĨĐƵƌƌĞŶƚĐĂůĞŶĚĂƌǇĞĂƌ͕ǁŚŝĐŚĞǀĞƌĐŽŵĞƐĮƌƐƚ͘Terms: Upon completion.

GENERAL TERMS
• THIS QUOTE IS LIMITED TO AND GOVERNED BY THE TERMS CONTAINED HEREIN: Miracle Playsystems, Inc. objects to any other terms proposed by client, in writing or otherwise, as material alterations, and all such proposed terms shall be void. Client authorizes Miracle Playsystems, Inc. to ship equipment and agrees to pay the total ƐƉĞĐŝĮĞĚ͘ Shipping terms are FOB the place of shipment via common carrier.
• Client and owner/operator agree to indemnify and hold Miracle Playsystems, Inc. harmless from and against all liabilities, losses, penalties, damages and expenses, including costs and attorney fees, resulting from any and all claims, liens, damages, actions, suits, judgments or settlements, injuries arising or alleged to arise out of their failure, or failure of architect, contractors, subcontractors, installers, employees, agents and assigns to assemble, install, inspect and/or maintain the play equipment and impact absorbing surfacing in full compliance with each manufacturers installation instructions and safety requirements and their misuse and/or alteration of the play equipment.

Company:

Signature:

Name:

Date:

6.a
Packet Pg. 118 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 119 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 120 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

7:69C00),20=$0.9</=::<08>4.0=)89C&B?:53D9CCE2:53DD?3?=@<91>35=?>9D?B9>71>45>6?B35=5>D 2ID855@1BD=5>D?6>4ECDB91<'5<1D9?>C ?>DB13D?BC81<<

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6.a
Packet Pg. 121 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 122 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

::08/4B>998=><?.>498%0<@4.0=2<00708>

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6.a
Packet Pg. 123 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.

INSURER(S) AFFORDING COVERAGE
INSURER F :

INSURER E :

INSURER D :

INSURER C :

INSURER B :

INSURER A :

NAIC #
NAME:

CONTACT
(A/C, No):

FAX
E-MAIL
ADDRESS:

PRODUCER
(A/C, No, Ext):

PHONE

INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:

IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.

If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).

THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.

OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD

THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS

CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)

COMBINED SINGLE LIMIT

AUTOS ONLY

AUTOS ONLY AUTOS

NON-OWNED

OWNED SCHEDULED

ANY AUTO

AUTOMOBILE LIABILITY
Y / N

WORKERS COMPENSATION

AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under

ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER

OTH- STATUTEPER
(MM/DD/YYYY) LIMITS POLICY EXP (MM/DD/YYYY)

POLICY EFF LTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)

EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $
AGGREGATE $
$
OCCUR

CLAIMS-MADE
DED RETENTION $
PRODUCTS - COMP/OP AGG $
GENERAL AGGREGATE $
PERSONAL & ADV INJURY $
MED EXP (Any one person) $
EACH OCCURRENCE $

DAMAGE TO RENTED
PREMISES (Ea occurrence) $

COMMERCIAL GENERAL LIABILITY

CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:

POLICY PROJECT LOC

CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)

CANCELLATION

AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.

CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED

AUTOS ONLY
// //
/ / //
/ // /
// / /
// / /
// /
/
/ / $
$
$

ACORD CORPORATI
Worldwide Business Insurance Services
2238 E. Nyon Avenue
Anaheim, CA 92806 CA Lic #0C09678
Miracle Construction Company, Inc. DBA: Miracle Playsystems PO Box 263
Alamo, CA 94507
Sherri Kia
714-595-3813
James River Insurance Company
Allstate Insurance Company
02/08/22
A
B
00075117-5
648916472
1000000
50000
1000
1000000
2000000
2000000
1000000
Additional Insured: City of Pacifica
Project: Not specified, Written contract required for additiona insured status.

Endorsements: CG2010, AACW201011
City of Pacifica
151 Milagra Dr.

Pacifica, CA 94044
✔
✔
✔
✔
✔
✔
✔
✔
✔
12/12/21 12/12/22
12/12/21 12/12/22

6.a
Packet Pg. 124 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

6.a
Packet Pg. 125 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

6.a
Packet Pg. 126 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

6.a
Packet Pg. 127 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

6.a
Packet Pg. 128 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 129 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 130 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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Packet Pg. 131 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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Packet Pg. 132 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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Packet Pg. 133 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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Packet Pg. 134 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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Packet Pg. 135 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 136 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 137 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 138 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

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6.a
Packet Pg. 139 Attachment: Attachment "A" - Construction Services Agreement with Miracle Playsystems, Inc. (4889 : Fairmont Park Play Structure

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
2/28/2022
1 SUBJECT:

Consideration of a resolution adopting interim guidance, rules and regulations to implement Senate Bill 9 (SB 9) and directing the preparation of an SB 9 implementing ordinance.

RECOMMENDED ACTION:

Move to approve the attached resolution adopting the interim guidance, rules, and regulations to implement SB 9 and directing the preparation of an SB 9 implementing ordinance.

STAFF CONTACT:

Christian Murdock, AICP, Deputy Director of Planning
(650) 738-7341
[email protected]
BACKGROUND/DISCUSSION:

Senate Bill 9 (SB 9)
1 , approved by Governor Newsom on September 16, 2021, amends Section 66452.6 and adds Sections 65852.21 and 66411.7, to the California Government Code relating to local agency approval of certain land use applications. Specifically, SB 9 requires local agencies including the City of Pacifica (“City”) to grant approval for two types of land use applications through a ministerial review process: 1) a proposed housing development containing no more than two residential units on a single parcel within a single-family residential zone; and, 2) a parcel map for an urban lot split to create two parcels from one existing parcel within a single-family residential zone. A ministerial review process is one that evaluates a project for compliance with adopted standards, involves no discretion on the part of the reviewer, and that is not subject to a public hearing. SB 9 became effective on January 1, 2022.

SB 9 is applicable within the Coastal Zone and provides that the City may still require a coastal development permit (a discretionary permit) for approval of applications pursuant to SB 9. The coastal development review process for an SB 9 project must provide the public noticing required by the City’s Local Coastal Program, but the Planning Director must consider the coastal development permit application without a public hearing.

Implementation of SB 9 requires the City to identify single-family residential zones. Pursuant to the zoning regulations in Pacifica Municipal Code (PMC) Title 9, Chapter 4, single-family residential is a permitted use in the R-1 (Single-Family Residential), R-1-H (Single-Family Residential Hillside), and R-2 (Two-Family Residential) zoning districts.2 The R-1-H zoning district requires approval of a site development permit (a discretionary permit) following a public hearing prior to issuance of a building permit for any new structure, and prior to issuance of a grading, encroachment, or building permit to improve any unimproved, platted new street. PMC Secs. 9-4.953 and 9-4.954. There are no permitted uses in a P-D (Planned Development) zoning district as all allowable uses must be approved by the City Council with a development plan. A P-D zoning district may be considered a single-family residential zone for purposes of SB 9 if an approved development plan identifies single-family residential as a permitted use. SB 9 would not apply to P-D zoning districts for which the City does not have an approved 1 The full text of SB 9 is available on the California Legislature’s website. 2 The City’s Zoning Map is available on the Planning Department website. 7 Packet Pg. 140
Pacifica City Council 2
February 28, 2022
development plan on file.

Two Residential Unit Projects
SB 9 mandates the City to allow up to two residential units to be constructed in the R-1, R-1-H, and R-2 zoning districts upon issuance of a building permit, provided the projects meet the requirements of SB 9, because single-family residential use is a permitted use in these zoning districts. The requirement for approval of a site development permit in the R-1-H zoning district would no longer apply. Prior to SB 9, two residential unit developments would otherwise only be allowed under the City’s zoning regulations within the R-2 (Two-Family Residential), R-3 (Multiple-Family Residential), and other high density zoning districts that mirror the allowable uses within the R-3 zoning district. The two residential unit projects constructed under SB 9 may be attached or detached.

Urban Lot Splits
SB 9 also mandates the City to allow urban lot splits of existing legal lots located in single-family residential zones. As outlined above, these include the R-1, R-1-H, and R-2 zoning districts.

Pursuant to the subdivision regulations in PMC Title 10, Chapter 1, subdivisions of up to four parcels may be approved by the City Engineer with a parcel map following a public hearing. SB 9 requires the City to allow an urban lot split to subdivide one existing, legal lot into two lots in a single-family residential zoning district without a public hearing, provided the urban lot split meets the requirements of SB 9.

Existing Applications
The City has received four applications pursuant to SB 9 since the law took effect.

Preparation of an Ordinance
Due to a high workload, other identified City Council priority work plan items, and the short time between adoption and effectiveness of SB 9, staff has not yet prepared a draft ordinance implementing SB 9. Staff estimates preparation and adoption of an SB 9 ordinance would take at least two to three months once staff resources are available to undertake the work.

Additional time, estimated at several months, would be required to obtain certification of a Local Coastal Program (LCP) amendment by the California Coastal Commission to enable the adopted ordinance to take effect in the Coastal Zone.

1. Standards Contained in SB 9
SB 9 includes various qualifying criteria for a site to be eligible for approval of a two residential unit project or an urban lot split. It also includes various maximum standards that a local agency may apply to its reviews. Of note, a local agency may only impose objective zoning standards, objective subdivision standards, and objective design review standards that do not conflict with the statute. A conflict may arise in different ways, but in particular, any standards imposed by a local agency must not physically preclude either of the residential units in a two residential unit project from being at least 800 square feet in floor area. The standards also must not physically preclude subdivision of an existing legal parcel to create no more than two new parcels of approximately equal lot area provided that one parcel shall not be smaller than 40 percent of the lot area of the original parcel proposed for subdivision, and both newly created parcels are no smaller than 1,200 square feet.

2. Proposed Interim Guidance, Rules, and Regulations
In addition to the mandatory provisions of SB 9, staff recommends that the City Council mandate the interim guidance, rules, and regulations outlined below:

A. All SB 9 Applications
7 Packet Pg. 141
Pacifica City Council 3
February 28, 2022
• Require compliance with objective zoning standards in PMC Title 9, Chapter 4 except where in conflict with SB 9.
• Require submission of technical studies and other information to determine eligibility of a project site under SB 9.
• Require recorded deed restrictions to implement certain requirements of SB 9, including but not limited to restrictions prohibiting short-term rentals and requiring residential use of the property.
• Require one off-street parking space within a garage per unit except in locations where a parking requirement is prohibited by SB 9.
• Prohibit an accessory dwelling unit (ADU) or junior ADU on parcels that use both the authority of Gov. Code § 65852.21 (SB 9 two residential unit developments) and § 66411.7 (SB 9 urban lot splits).
• Require submission of a deposit for processing costs and payment of all processing fees in accordance with City Administrative Policy No. 2.

B. Two Residential Unit Projects
• Require a four-foot side and rear setback except where an existing legal structure is present or a structure is reconstructed in the same location and dimensions of an existing legal structure.
• Require proof of application submittal to a homeowners association (HOA) for their review and comment prior to issuance of a building permit for parcels within a qualifying P-D zoning district.

C. Urban Lot Splits
• Require compliance with objective subdivision standards in PMC Title 10, Chapter 1 except where in conflict with SB 9.
• Require each lot created by an SB 9 urban lot split to adjoin the public right-of-way, or provide access to the public right-of-way, by way of a recorded access easement in favor of the parcel requiring such access.
• Require easements for the provision of public services and facilities.

Adoption of the interim guidance, rules, and regulations in the attached resolution would improve clarity for applicants and staff in relation to filing and processing SB 9 applications until the City Council adopts an ordinance to implement SB 9.

ALTERNATIVE ACTION:

Decline to adopt the attached resolution. A decision not to adopt the attached resolution would result in less clarity for applicants and staff in relation to filing and processing SB 9 applications until the City Council adopts an ordinance to implement SB 9.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:

The proposed resolution is not directly associated with an item on the City Council’s Work Plan.

FISCAL IMPACT:

No direct fiscal impact. Preparation of interim guidance, rules, and regulations would be accomplished within existing Planning Department staffing and budget allocations. 7 Packet Pg. 142
Pacifica City Council 4
February 28, 2022
ORIGINATED BY:

Planning Department
ATTACHMENT LIST:

Draft Resolution and Interim Guidance, Rules, and Regulations for SB 9 Projects (DOCX) 7 Packet Pg. 143
RESOLUTION NO.____________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA ADOPTING INTERIM GUIDANCE, RULES, AND REGULATIONS TO IMPLEMENT SB 9; AND DIRECTING THE PREPARATION OF AN SB 9 IMPLEMENTING ORDINANCE
WHEREAS, Senate Bill 9 (Atkins) (“SB 9”), entitled the California HOME Act, was signed into law by the Governor on September 19, 2021 and became effective on January 1, 2022; and
WHEREAS, SB 9 amends Government Code Section 66452.6, and adds two new Government Code Sections 65852.1 and 66411.7; and
WHEREAS, SB 9 requires cities and counties, including charter cities, to provide for the ministerial (“by right”) approval of a housing development containing two (2) residential units of at least 800 square feet in floor area (“duplex”) and a parcel map dividing one (1) existing lot into two (2) parts (“lot split”) within a single-family residential zone for residential use; and WHEREAS, SB 9 eliminates discretionary review and public oversight of proposed subdivisions of one (1) lot into two (2) parcels by removing public notice and hearings by the City Engineer or Planning Commission, by requiring administrative review of the project, and by providing ministerial approval of a lot split; and
WHEREAS, SB 9 continues to allow cities and counties, including charter cities, to require approval of a coastal development permit (“CDP”) for SB 9 duplex and lot split projects located in the Coastal Zone to ensure compliance with the California Coastal Act, except that such CDP applications shall be considered administratively without a public hearing and with full public notice and appeal provisions as provided in the City of Pacifica’s (“City’s”) certified Local Coastal Program; and
WHEREAS, SB 9 exempts projects authorized thereunder from environmental review pursuant to the California Environmental Quality Act (CEQA), by establishing a ministerial review process without discretionary review or a public hearing; and WHEREAS, SB 9 further stipulates that a city or county cannot require a SB 9 duplex project to comply with any standard that would prevent two (2) units of at least 800 square feet each from being built on each resultant lot, and prohibits a local agency from imposing regulations that require dedications of rights-of way or the construction of offsite and onsite improvements for parcels created through a SB 9 lot split; and WHEREAS, in addition to various constraints on SB 9 developments as set forth therein, SB 9 also authorizes cities and counties to enact local SB 9 implementation ordinances and guidelines that are objective and that are not inconsistent with its mandatory provisions.

Accordingly, all such existing objective City standards shall apply to SB 9 projects; and WHEREAS, SB 9 allows two (2) units per lot, and one (1) lot split, for a total of four (4) units and a total of two (2) lots. The City is not required and shall not allow any additional units or structures (such as ADUs), nor any further lot splits; and

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Packet Pg. 144 Attachment: Draft Resolution and Interim Guidance, Rules, and Regulations for SB 9 Projects (4893 : Interim Guidance for Implementation of 2 WHEREAS, due to SB 9’s effective date of January 1, 2022, it is recommended that the City adopt interim guidance, rules, and regulations to guide City Departments to implement SB 9 until such time as an implementation ordinance and objective standards may be developed, publicly reviewed, considered by the Planning Commission and recommended to the City Council for adoption; and
WHEREAS, adoption of this Resolution and implementation of SB 9 Interim Guidance, Rules, and Regulations are not considered projects under the California Environmental Quality Act pursuant to Government Code sections 65852.21(j) and 66411.7(n).

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pacifica:

Section 1. The City Council finds and declares that duplex and lot split projects authorized under SB 9 are a form of state mandated housing that allows for expanded housing options.

Section 2. The City Council hereby approves the SB 9 Interim Guidance, Rules, and Regulations, attached hereto and hereinafter incorporated by reference as Exhibit A, for City staff to reference and apply to any applications submitted pursuant to SB 9 until such time as the City Council adopts an SB 9 implementation ordinance and, directs staff to prepare an SB 9 implementation ordinance for consideration and adoption by the City Council.

Section 3. Any development applications filed with the City of Pacifica pursuant to SB 9 shall be pay a deposit of $11,500.00 at the time of application, and shall pay all fees and other costs associated with the processing of such applications in accordance with the City’s Administrative Policy No. 2.

Section 4. Severability. If any term, provision, or portion of this Resolution or its application to a particular situation is held by a court to be invalid, void or unenforceable, the remaining provisions of this Resolution shall continue in full force and effect unless amended or modified by the City.

Section 5. Taking Effect. The Interim Guidance, Rules, and Regulations will take immediate effect upon adoption of this Resolution.

PASSED AND ADOPTED as a resolution of the City Council of the City of Pacifica at the regular meeting held on the 28
th day of February 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

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Packet Pg. 145 Attachment: Draft Resolution and Interim Guidance, Rules, and Regulations for SB 9 Projects (4893 : Interim Guidance for Implementation of 3 Mary Bier, Mayor
ATTEST: APPROVED AS TO FORM:
___________________________________
Sarah Coffey, City Clerk Michelle Marchetta Kenyon, City Attorney

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EXHIBIT A
Interim Guidance, Rules, and Regulations for SB 9 Projects SB 9 went into effect on January 1, 2022. SB 9 requires ministerial (“by-right”) approval of:
- Two (2) residential units per lot (Two-Unit Developments) - Parcel maps for an urban lot split (Urban Lot Splits) The following summary and tables provide interim guidance, rules, and regulations while staff develops a permanent Ordinance and Objective Standards to implement SB

9. Starting January 1, 2022, property owners interested in adding a residential unit(s) or conducting a lot split under SB 9 can apply for a ministerial permit with the City subject to the criteria below.

Qualifying Criteria for All SB 9 Applications

1. SB 9 application eligibility shall only apply in areas that meet all criteria provided in Government Code § 65913.4(a)(6), subparagraphs (B) to (K), inclusive. City staff may need to request additional information from an applicant to determine that SB 9 housing developments meet the qualifying criteria, such as a title report or technical studies prepared by an expert.

2. Zoning:
a. The property is zoned single-family residential which in the City of Pacifica shall mean a zoning district where single-family residential use is a permitted use. This would not include a zoning district where single-family residential use is a conditional use, or where it is a lawful nonconforming use. Based on the City’s current zoning, the R-1 (Single-Family Residential), R-1-H (Single-Family Residential Hillside), and R-2 (Two-Family Residential) zoning districts would each be considered a “single-family residential zone” for purposes of SB 9.
b. A P-D (Planned Development) zoning district may be considered a single-family residential zone for purposes of SB 9, as outlined below.
i. P-D Zoning District. P-D zoning districts shall be
considered a “single-family residential zone” for purposes of SB 9 when the development plan for the respective P-D zoning district authorizes single-family residential use as a permitted use. This would not include a development plan where a single-family residential use is a conditional use, or where it is a lawful nonconforming use.
ii. P-D zoning districts for which the City does not
possess an approved development plan authorizing single-family residential use as a permitted use shall not be a single-family residential zone for purposes of SB 9.

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3. Existing Rental Housing: The proposed project cannot demolish or alter housing that:
a. Restricts rents to persons of moderate, low, or very-low income (deed-restricted housing).
b. Housing that is subject to rent or price control.
c. The project site cannot have been withdrawn from the rent controlled rental market within the past fifteen (15) years (subject to the Ellis Act).
d. Rental Occupancy: The project site cannot contain a housing unit that has been occupied by a tenant within the last three (3) years.

4. Exterior Demolition: The project does not require the demolition of more than 25 percent of the existing exterior walls of a structure.

5. Short Term Rental Restrictions: Rental of any unit created under SB 9, including a unit constructed on a lot resulting from an urban lot split, must be for a term longer than 30 days. The applicant shall record a deed restriction prior to issuance of a building permit (two residential unit project) or parcel map recordation (urban lot split) to establish this limitation. The restriction shall only apply to a residential unit constructed after the date of approval of a two residential unit project or an urban lot split, and shall not apply to any housing unit that existed prior to approval of two residential unit project or an urban lot split.

6. Historic Resources: The project does not involve a site that is located within a historic district or property included on the State Historic Resources Inventory, as defined in § 5020.1 of the Public Resources Code, or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance.

Additional Criteria for Two-Unit Developments
Existing City Objective Zoning and Development Standards, and statutory objective development standards will be enforced, such that:

1. All SB 9 housing developments shall meet the requirements mandated by SB 9 law – Gov. Code §§ 65852.21(a), (b)(2), (e), (g) and (h).

2. Objective standards do not preclude the construction of up to two (2) units of at least 800 square feet each in floor area.

3. Setbacks:
a. As provided in Gov. Code § 65852.21(b)(2)(B)(ii). No setbacks are required for existing legal structures or structures constructed in the same location and dimensions of an existing legal structure. b. A minimum 4-foot setback from the rear and side property lines shall be imposed for structures that do not meet the above criteria.

4. One (1) off-street parking space within a garage per unit is required pursuant to PMC § 9-4.2818(a)(1) except no off-street parking is required for projects located:

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a. Within a one-half mile walking distance of either a high-quality transit corridor, as defined in subdivision (b) of § 21155 of the Public Resources Code, or a major transit stop, as defined in § 21064.3 of the Public Resources Code – Gov. Code §
65852.21(c)(1); or
b. Within one block of a car share.

5. The City shall deny an SB 9 housing development application if the Building Official makes a specific written finding that the development project would have an adverse impact as defined and determined in paragraph (2) of subdivision (d) of Gov. Code § 65589.5, upon public health and safety or the physical environment and for which there is on public health, safety or the environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. – Gov. Code § 65852.21(d).

6. The City shall not permit any accessory dwelling unit (ADU) or junior ADU on parcels that use both the authority of Gov. Code § 65852.21 (SB 9 two residential unit developments) and § 66411.7 (SB 9 urban lot splits.)

7. Individual units may be attached or detached, provided that the structure(s) meet California Building Code safety requirements and are sufficient to allow separate conveyance.

8. For parcels within a qualifying P-D zoning district, the City’s procedure to require proof of application submittal to a homeowners association (HOA) for their review and comment prior to issuance of a building permit as set forth in PMC § 9-

4.2213 shall apply to an application for a two residential unit project.

9. For projects in the Hillside Preservation District, the objective coverage limitations that result from application of the HPD coverage controls in PMC Title 9, Chapter 4, Article 22.5 for project sites located within the HPD overlay district may be imposed to the extent they do not preclude construction of up to two units, each with at least 800 square feet in floor area (“Minimum Allowable Project”). No variance may be required to obtain the minimum HPD coverage necessary to construct a Minimum Allowable Project but staff may require the project to be modified to include more than one story in height, subject to the applicable zoning district height limit, in order to minimize the amount of HPD coverage needed for the project. Due to the ministerial approval requirements of SB 9, the discretionary review process that includes rezoning to the P-D (Planned Development) zoning district and approval of a development plan and specific plan in the HPD, shall not be imposed.

10.Coastal Development Permit: No public hearing shall be held for a coastal development permit (CDP) application for a two residential unit development. As such, the procedures for processing an administrative CDP contained in PMC § 9-4.4306(m) shall be followed when processing a two residential unit application within the Coastal Zone, except, however, that only the findings for approval of a CDP identified in PMC § 9-4.4304(k) shall be applicable. The development must also be found to be consistent with the LCP and Coastal Act as proposed, or can be made consistent with design modifications, adaptive strategies, or other conditions. Development of new residential units in areas projected to be impacted by sea level rise may be inconsistent with the Coastal Act or LCPs if

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adaptive strategies cannot minimize the risk of hazards and protect coastal resources. (See Coastal Commission SB 9 Memo dated January 21, 2022). All notice requirements and appeal procedures applicable to CDP applications, as well as the requirement to submit a development permit application and associated deposit, shall apply.

Additional Criteria for Urban Lot Splits
Existing City Objective Subdivision Standards, and statutory objective development standards, including but not limited to those objective standards in PMC Title 10, will be enforced, such that:

1. All SB 9 Urban Lot Splits shall meet the requirements mandated by SB 9 law – Government Code §§ 66411.7(a), (b), (c)(2), (f), (g), (h), (k) and (l)

2. Objective standards do not preclude the construction of up to two (2) units per lot of at least 800 square feet each in floor area.

3. Each new parcel must:
a. be at least 1,200 square feet in size (i.e., parcel being split must be at least 2,400 square-feet in size).
b. be no smaller than 40 percent of the original parcel’s size. c. be limited to residential use.

4. Setbacks:
a. As provided in Gov. Code § 66411.7(c)(3).
b. No setbacks are required for existing legal structures or structures constructed in the same location and dimensions of an existing legal structure.
c. A minimum 4-foot setback from the rear and side property lines shall be imposed for structures that do not meet the above criteria.

5. The City shall deny an SB 9 housing development application if the Building Official makes a specific written finding that the development project would have an adverse impact as defined and determined in paragraph (2) of subdivision (d) of Gov. Code § 65589.5, upon public health and safety or the physical environment and for which there is no method to mitigate or avoid the specific, adverse impacts – Gov. Code § 66411.7 (d).

6. Each lot created by an SB 9 urban lot split must adjoin the public right-of-way (ROW), or provide access to the public right-of-way, by way of a recorded access easement in favor of the parcel requiring ROW access – Gov. Code § 66411.7(e)(2).

7. One (1) off-street parking space within a garage per unit is required pursuant to PMC § 9-4.2818(a)(1) except no off-street parking is required for projects located:
a. Within a one-half mile walking distance of either a high-quality transit corridor, as defined in subdivision (b) of § 21155 of the Public Resources Code, or a major transit stop, as defined in § 21064.3 of the Public Resources Code; or
b. Within one block of a car share – Gov. Code § 66411.7(e)(3).

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c. Tandem parking shall be prohibited pursuant to PMC § 9-4.2813(a).

8. The City shall not permit more than two units of housing, including primary dwelling units, SB 9 housing development units, ADUs, and/or JADUs, on lots created pursuant to the authority of Gov. Code § 66411.7 (SB 9 urban lot splits) (Gov. Code § 66411.7(j).)

9. The correction of existing legal nonconformities shall not be imposed as a condition of approval for any lot split under SB 9.

10.Sequential splitting of a parcel established through a prior SB 9 split is prohibited.

Nor can there be a lot split if the owner of the parcel being subdivided (or someone working in concert with that owner) has subdivided an adjacent parcel pursuant to SB 9.

11.Owners must sign an affidavit that they intend to occupy one of the housing units as their principal residence for a minimum of three (3) years from the date of the lot split approval.

12.A subdivision map may be extended for up to four (4) years with a 24-month extension period.

13.The City shall require, as a condition of an urban lot split approval, easements for the provision of public services and facilities.
a. The City shall not require dedications of rights-of-way or the construction of off-site improvements as a condition of urban lot split approval, even if such required dedications may otherwise be considered objective standards.

14.The uses allowed on a lot created with an urban lot split shall be limited to residential uses. This requirement would apply to both lots resulting from an urban lot split. The applicant shall record a deed restriction concurrent with the parcel map to reflect this restriction on use.

15.Coastal Development Permit: No public hearing shall be held for a CDP application for an urban lot split. As such, the procedures for processing an administrative CDP contained in PMC § 9-4.4306(m) shall be followed when processing an urban lot split application within the Coastal Zone, except, however, that only the findings for approval of a CDP identified in PMC § 9-

4.4304(k) shall be applicable. The development must also be found to be consistent with the LCP and Coastal Act as proposed, or can be made consistent with design modifications, adaptive strategies, or other conditions. Development of new residential units in areas projected to be impacted by sea level rise may be inconsistent with the Coastal Act or LCPs if adaptive strategies cannot minimize the risk of hazards and protect coastal resources. (See Coastal Commission SB 9 Memo dated January 21, 2022). All notice requirements and appeal procedures applicable to CDP applications, as well as the requirement to submit a development permit application and associated deposit, shall apply.

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CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
2/28/2022
1 SUBJECT:

Adoption of an Ordinance of the City Council of the City of Pacifica adding Chapter 32, “Sale or Distribution of Electronic Cigarettes” and Chapter 33, “Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited” and amending Section 5-31.03, “Limits on Tobacco Retailer Licenses” within Chapter 31 of Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code to Ban the Sale and Distribution of Flavored Tobacco Products, the Sale and Distribution of Electronic Cigarettes and to Prohibit the Sale of Tobacco Products at Pharmacies in the City of Pacifica
RECOMMENDED ACTION:

Move to adopt the ordinance of the City Council of the City of Pacifica adding Chapter 32, “Sale or Distribution of Electronic Cigarettes” and Chapter 33, “Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited” and amending Section 5-31.03, “Limits on Tobacco Retailer Licenses” within Chapter 31 of Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code to Ban the Sale and Distribution of Flavored Tobacco Products, the Sale and Distribution of Electronic Cigarettes and to Prohibit the Sale of Tobacco Products at Pharmacies in the City of Pacifica.

STAFF CONTACT:

Daniel Steidle, Chief of Police
650-738-7314
[email protected]
BACKGROUND/DISCUSSION:

This ordinance was introduced at the regular meeting of the City Council held on February 14, 2022 and is now in order for adoption.

At the City Council meeting held on January 24, 2022, staff presented to Council an ordinance for consideration related to the sale and distribution of flavored tobacco products, electronic cigarettes, and the sales of tobacco products at pharmacies. The staff report was presented to Council and the Council was in the process of hearing public comments on this item when the Mayor adjourned the meeting early due to a technical issue with the live stream broadcast.

This item was continued at the February 14, 2022 City Council meeting at which public comments and further discussion and deliberation were resumed and completed.

Attached to this report for reference is the staff report from September 27, 2021 (Attachment A) which requested Council direction on this potential ordinance, the staff report from January 24, 2022 (Attachment B) and the staff report from February 14, 2022 (Attachment C), which was presented to Council as the introduction of the ordinance.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
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Consideration of a prohibition on the sale of flavored tobacco products and E-cigarettes in Pacifica resonates with the City Council Goal of “A Healthy and Compassionate Community.” FISCAL IMPACT:

The City Attorney costs for bringing this ordinance to adoption is $6,000 - $10,000.

Personnel costs relating to enforcement of this ordinance are expected to be minimal.

ORIGINATED BY:

City Clerk
Police
ATTACHMENT LIST:

Attachment A- 09-27-21 Staff Report(PDF)
Attachment B-01-24-22 Staff Report (PDF)
Attachment C: 02-14-22 Staff Report(PDF)
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ORDINANCE NO. (ID # 4898)
ORDINANCE NO. XXXX

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PACIFICA ADDING CHAPTER 32, “SALE OR DISTRIBUTION OF ELECTRONIC CIGARETTES” AND CHAPTER 33, “SALES OF FLAVORED TOBACCO PRODUCTS AND PHARMACY SALES OF TOBACCO PRODUCTS PROHIBITED” AND AMENDING SECTION 5-31.03, “LIMITS ON TOBACCO RETAILER LICENSES” WITHIN CHAPTER 31 OF TITLE 5 “PUBLIC WELFARE, MORALS, AND CONDUCT” OF THE PACIFICA MUNICIPAL

CODE TO BAN THE SALE AND DISTRIBUTION OF FLAVORED TOBACCO

PRODUCTS, THE SALE AND DISTRIBUTION OF ELECTRONIC CIGARETTES AND TO

PROHIBIT THE SALE OF TOBACCO PRODUCTS AT PHARMACIES IN THE CITY OF

PACIFICA
WHEREAS, tobacco use remains the leading cause of preventable death in the United Sates, killing more than 480,000 people each year.1 It causes or contributes to many forms of cancer, as well as heart and respiratory diseases, among other heath disorders. Tobacco use remains a public health crisis of the first order, in terms of the human suffering and loss of life it causes, the financial costs it imposes on society and the burdens it places on our health care system; and
WHEREAS, according to the Federal Food and Drug Administration (“FDA”), nearly 80% of youth ages 12-17 and nearly 75% of young adults ages 18-25 who were currently tobacco users in 2014 reported that the first tobacco product they ever used was flavored;2 and
WHEREAS, each day, about 2,500 children in the United States try their first cigarette; and another 400 children under 18 years of age become new regular, daily smokers. 81% of youth who have ever used a tobacco product report that the first tobacco product they used was flavored.3 Flavored tobacco products promote youth initiation of tobacco use and help young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco products. As tobacco companies well know, menthol, in particular, cools and numbs the throat to reduce throat irritation and make the smoke feel smoother, making menthol cigarettes an appealing option for youth who are initiating tobacco use. Tobacco companies have used flavorings such as mint and wintergreen in smokeless tobacco products as part of a "graduation strategy" to encourage new users to start with tobacco products with lower levels of nicotine and progress to products with higher levels of nicotine.

It is therefore unsurprising that young people are much more likely to use menthol-, candyand fruit-flavored tobacco products than adults, including not just cigarettes but also cigars 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: 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.
2 Villanti, A. C., Johnson, A. L., Ambrose, B. K., Cummings, K. M., Stanton, C. A., Rose, S. W., ... Hyland, A. (2017). Flavored Tobacco Product Use in Youth and Adults: Findings From the First Wave of the PATH Study (2013-2014). American Journal of Preventive Medicine.
3 Ibid.
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and cigarillos. Data from the National Youth Tobacco Survey indicate that more than twofifths of U.S. middle school and high school smokers report using flavored little cigars or flavored cigarettes. Further the Centers for Disease Control and Prevention has reported a more than 800% increase in electronic cigarette use among middle school and high school students between 2011 and 2015. Nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes are sold in thousands of flavors that appeal to youth, such as cotton candy and bubble gum; and
WHEREAS, According to Tobacco Free Kids, a non-profit organization that works to reduce youth access to tobacco and reduce tobacco related deaths:
• Tobacco industry documents show that the tobacco companies have a long history of developing and marketing flavored tobacco products as “starter” products that attract kids.
• Flavors improve the taste and reduce the harshness of tobacco products, making them more appealing and easier for beginners to try the product and ultimately become addicted.
• Menthol cools and numbs the throat, reducing the harshness of cigarette smoke, thereby making menthol cigarettes more appealing to youth who are initiating tobacco use.
• According to the Federal Food and Drug Administration’s (FDA) Tobacco Product Scientific Advisory Committee (TPSAC), menthol cigarettes increase the number of children who experiment with cigarettes and the number of children who become regular smokers, increasing overall youth smoking.
• Flavors can create the false impression that a tobacco product is less harmful than it really is; and
WHEREAS, Tobacco-Free Kids conducted a 2019 survey of middle and high school students and determined the following based on those survey results:
• 81% of youth who have ever used tobacco products initiated with a flavored product.
• 72.3% of youth tobacco users have used a flavored tobacco product in the month preceding the survey.
• At least two-thirds of youth tobacco users report using tobacco products “because they come in flavors I like”; and
WHEREAS, research also shows that use of menthol cigarettes has perpetuated disparities among other groups. According to the 2018 National Survey of Drug Use and Health (NSDUH): 85% of African American smokers, 50% of Hispanic smokers and 47% of Asian American smokers use menthol cigarettes, compared to 29% of White smokers; 51% of lesbian/gay and 46% of bisexual smokers use menthol cigarettes, compared to 39% of heterosexual smokers; 45% of smokers with severe psychological distress use menthol cigarettes compared to 39% of smokers with no past month serious psychological distress; 47% of smokers living in poverty use menthol cigarettes, compared to 36% of smokers with an income exceeding twice the Federal Poverty Threshold; and 60% of pregnant smokers use menthol cigarettes4; and
4 Delnevo, CD, et al., “Banning Menthol Cigarettes: A Social Justice Issue Long Overdue,” Nicotine & Tobacco Research, 22(10): 1673-1675, 2020.
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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 dangerous to smoke; and
WHEREAS, the Tobacco and Education Research Oversight Committee for California, as well as the American Pharmacists Association, the California Pharmacists Association, and the California Medical Association have called for the adoption of state and local prohibitions of tobacco sales in drug stores and pharmacies; and WHEREAS, electronic smoking device (or electronic cigarette (E-cigarette), vape, vape pen, e-hookah, etc.) usage by youth has been rising. Usage by high school students increased 78% between 2017-2018 with 1 in 5 high school students currently using and 1 in 20 middle school students currently using the products.5 The devices were available in the U.S. marketplace in the mid-2000s6 and by 2014, the products were the most commonly used tobacco product among middle school and high school students;7 and WHEREAS, The Centers for Disease Control and Prevention also has reported a more than 800% increase in E-cigarette use among middle school and high school students between 2011 and 2015; and
WHEREAS, according to a 2021 FDA survey, more than 2 million U.S. youth currently use E-cigarettes (11.3% of high school students and 2.8% of middle school students).8 Among those youth, about 2 in 5 of them use E-cigarettes frequently while about 1 in 4 use E-cigarettes daily. These survey results show high rates of frequent and daily use which suggests many teens have a strong dependence on nicotine. Of those youth that indicated E-cigarette use in survey, nearly 85% of them used flavored Ecigarettes; and WHEREAS, in 2016, it was estimated that 20.5 million (4 in 5) middle and high school students in the U.S. were exposed to advertisements for E-cigarettes from at least one source. This was a significant increase compared to 2014 and 2015 data. Furthermore, almost 17.7 million (7 in 10) youths were exposed to advertisements for E-cigarettes in retail stores in 2016, while about 2 in 5 had exposure on the Internet or on television, and almost 1 in 4 had exposure through magazines and newspapers. E-cigarette advertising has an association with e-cigarette use among youths. The advertising themes and strategies used are similar to traditional cigarette advertising tactics that have been found to appeal to youths;9 and
WHEREAS, a 2018 National Academy of Sciences, Engineering, and Medicine report found moderate evidence that e-cigarette use increases the frequency and intensity 5 Cullen KA, Ambrose BK, Gentzke AS, Apelberg BJ, Jamal A, King BA. Notes from the Field: Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students – United States, 2011-2018. 6 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016. 7 Arrazola RA, Singh T, Corey CG, et al. Tobacco use among middle and high school students—United States, 2011–2014.
8 FDA and Centers for Disease Control and Prevention (CDC) released findings from the 2021 National Youth Tobacco Survey (NYTS)
9 Marynak K, Gentzke A, Wang TW, Neff L, King BA. Exposure to Electronic Cigarette Advertising Among Middle and High School Students – United States, 2014-2016. MMWR Morb Mortal Wkly Rep 2018. 8 Packet Pg. 156
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of smoking cigarettes in the future.10 According to a report by the Surgeon General, any use of E-cigarettes among young people is not safe even if the young people do not move on to future cigarette smoking;11 and
WHEREAS, on January 13, 2020 and September 27, 2021 staff presented to City Council reports on the consideration of development of an ordinance prohibiting the sales of flavored tobacco products and E-cigarettes; and
WHEREAS, with the delay and potential repeal of SB793, City Council listed as one of 17 priorities adopted on April 17, 2021 to “Present an ordinance to City Council for consideration regulating the sale of flavored tobacco in Pacifica”; and WHEREAS, a local prohibition against the sale and distribution of all electronic smoking devices and flavored tobacco is an effective means to reduce the availability of these products to youth, thereby protecting the public health and safety by discouraging tobacco initiation and continued use.

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PACIFICA DOES ORDAIN AS FOLLOWS:

Section 1. Recitals. The City Council of the City of Pacifica does hereby find the above referenced recitals are true and correct and material to the adoption of this Ordinance.

Section 2. Added. Chapter 5.32, “Sale and Distribution of Electronic Cigarettes” is hereby added to Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code as follows:
“Sec. 5-32.01 – Definitions
For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:
a) "Distribute" or "Distribution" means the transfer by any Person other than a common carrier, at any point from the place of manufacture or thereafter to a Person who sells or offers to sell the electronic cigarette or other electronic smoking device.
b) "Electronic Cigarette" has the meaning set forth in Section 30121 of the California Revenue and Taxation Code, as may be amended from time to time.
c) "Person" means any individual, partnership, cooperative association, private corporation, or any other legal entity.
d) "Tobacco Retailer" is defined as set forth in subsection (i) of Section 5-

31.01 of this Code.
10 Moritz, T. (2019, March 18). Vaping: It’s All Smoke and Mirrors. 11 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016. 8 Packet Pg. 157
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e) “Tobacco Retailer License” “shall mean a Tobacco Retailer that has been issued a License pursuant to
Section 5-31.02 of this Code.
f) "Sell", "Sale" or "to Sell" mean any transaction where, for any consideration, ownership is transferred from one (1) Person or entity to another including, but not limited to any transfer of title or possession for consideration, exchange or barter, in any manner or by any means Sec. 5-32.02 – Sale or Distribution of Electronic Cigarettes Prohibited. a) No Person, Tobacco Retailer, or other legal entity shall Sell or offer for Sale nor Distribute any Electronic Cigarette to a Person within the geographic boundaries of the City.
b) For Tobacco Retailers that have a valid Tobacco Retailer License, the provisions of Section 5-32.02(a) shall take effect upon expiration of the Tobacco Retailer License in effect as of the effective date of this Ordinance.

Sec. 5-32.03 – Enforcement.
a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
b) Violations of this chapter are subject to a civil action brought by the City Attorney, punishable by a civil fine payable to the city not less than One Hundred ($100) Dollars and not exceeding One Thousand and no/100ths ($1,000.00) Dollars per violation.
c) Violations of this chapter may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.
d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. e) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

Sec. 5-32.04 – Public Nuisance.

Any violation of this chapter is hereby declared a public nuisance.” Section 3. Added. Chapter 5.33, “Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited” is hereby added to Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code as follows:
“Sec. 5-33.01 – Definitions
8 Packet Pg. 158
Pacifica City Council 8
February 28, 2022
For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:
a) “Adult” shall mean any individual 21 years of age or older. b) “Adult-only retailer” shall mean any retailer or businesses that allows entry only by adults onto the entire premises of the business or retailer, or that require minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. The definition of an “adult-only retailer” does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that are marked or otherwise restricted as adult only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult.
c) "Characterizing flavor" shall mean a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product.

Characterizing flavors include, but are not limited to, tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition that constitutes a characterizing flavor.
d) "Constituent" shall mean any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product. e) "Distinguishable" shall mean perceivable by either the sense of smell or taste.
f) "Distribute" or "Distribution" means the transfer by any Person other than a common carrier, at any point from the place of manufacture or thereafter to a Person who sells or offers to sell the electronic cigarette or other electronic smoking device.
g) "Flavored tobacco product" shall mean any tobacco product that contains a constituent that imparts a characterizing flavor. h) “Hookah Pipe” shall mean a type of water pipe used to smoke flavored tobacco products, with a long flexible tube for drawing aerosol through water.
i) “Hookah Products” shall mean any component of a hookah pipe including, but not limited to, heads, stems, bowls, vases and hoses. 8 Packet Pg. 159
Pacifica City Council 9
February 28, 2022
j) "Labeling" shall mean written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.
k) "Packaging" shall mean a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold, or offered for sale, to a consumer. l) "Person" means any individual, partnership, cooperative association, private corporation, or any other legal entity.
m) "Pharmacy" shall mean 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.
n) "Sell", "Sale" or "to Sell" shall mean any transaction where, for any consideration, ownership is transferred from one (1) Person or entity to another including, but not limited to any transfer of title or possession for consideration, exchange or barter, in any manner or by any means. o) "Tobacco Product" shall have the same definition as set forth in subsection (h) of Section 5-31.01 of this Code.
p) "Tobacco Retailer" shall have the same definition as set forth in subsection (i) of Section 5-31.01 of this Code.
q) “Tobacco Retailer License” shall mean a Tobacco Retailer that has been issued a License pursuant to Section 5-31.02 of this Code.

Sec. 5-33.02 – Sale or Offer for Sale of Flavored Tobacco Products Prohibited. a) No Person, Tobacco Retailer, or other legal entity shall Sell, or offer for Sale nor Distribute, any Flavored Tobacco Product, except as provided in Section 5-33.02(c).
b) There shall be a rebuttable presumption that a Tobacco Product is a Flavored Tobacco Product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the Tobacco Product has or produces a Characterizing Flavor including, but not limited to, text, color, and/or images on the product's Labeling or Packaging that are used to explicitly or implicitly communicate that the Tobacco Product has a Characterizing Flavor.
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Pacifica City Council 10 February 28, 2022
c) Tobacco Retailers that are Adult-Only Retailers that sell Flavored Tobacco Products for use with a Hookah Pipe or Hookah Products shall be exempt from the requirements of section 5-33.02(a). d) For Tobacco Retailers that have a valid Tobacco Retailer License, the provisions of Section 5-33.02(a) shall take effect upon expiration of the Tobacco Retailer License in effect as of the effective date of this Ordinance.

Sec. 5-33.03 – Sale or Offer for Sale of Tobacco Products by a Pharmacy Prohibited.
a) No Pharmacy or Pharmacy employee or agent shall sell or offer for sale any Tobacco Product.
b) No new Tobacco Retailer License may be issued to a Pharmacy after the effective date of this Ordinance.
c) No Tobacco Retailer License may be renewed by a Pharmacy after the effective date of this Ordinance.
d) The provisions of Section 5-33.03(a) shall take effect upon the expiration of the Pharmacy’s Tobacco Retailer License in effect as of the effective date of this Ordinance.

Sec. 5-33.04 – Enforcement.
a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
b) Violations of this chapter are subject to a civil action brought by the City Attorney, punishable by a civil fine payable to the City not less than One Hundred ($100) Dollars and not exceeding One Thousand and no/100ths ($1,000.00) Dollars per violation.
c) Violations of this chapter may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors.
d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. e) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

Sec. 5-33.05 – Public Nuisance.

Any violation of this ordinance is hereby declared a public nuisance. 8 Packet Pg. 161
Pacifica City Council 11 February 28, 2022
Sec. 5-33.06 – No Conflict with Federal or State Law.

Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law.” Section 4. Amended. Section 5-31.03, “Limits on tobacco retailer licenses” of Chapter 31 “Tobacco Retailing” within Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code is hereby amended by repealing and replacing Section 5-31.03 in its entirety to read as follows:
“Sec. 5-31.03. - Limits on tobacco retailer licenses.
a) No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.
b) No license may issue to authorize tobacco retailing at any location that is licensed under State law to serve alcoholic beverages for consumption on the premises (e.g., an "on-sale" license issued by the California Department of Alcoholic Beverage Control) and no license may issue to authorize tobacco retailing at any location offering food or alcoholic beverages for sale for consumption by guests or patrons on the premises. For example, tobacco retailing in bars and restaurants is prohibited. Restaurants that allow on-site consumption of alcoholic beverages that were brought to the premises by patrons shall also not be entitled to a license to engage in tobacco retailing. c) No license may issue to authorize tobacco retailing at a Pharmacy, as that term is defined in Section 5-33.01 of this Code.”
Section 5. Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it should have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentence, clauses or phrases be declared unconstitutional.

Section 6. Publication. The City Clerk is hereby ordered and directed to certify to the passage of this Ordinance by the City Council od the City of Pacifica, California, and cause the same to be published in accordance with State Law.

Section 7. Effective Date. This Ordinance shall be in full force and effect thirty (30) days after its adoption and shall be published and posted as required by law.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the ______ day of _______ 2022, by the following vote:

AYES, Councilmembers:

NOES, Councilmembers:

ABSENT, Councilmembers:

ABSTAIN, Councilmembers:

CITY OF PACIFICA
8 Packet Pg. 162
Pacifica City Council 12 February 28, 2022
By:

Mary Bier, Mayor
ATTEST:

Sarah Coffey, City Clerk
APPROVED AS TO FORM:

Michelle M. Kenyon, City Attorney
8 Packet Pg. 163
Pacifica City Council 13 February 28, 2022
* * * * *
(ID # 4898) at 2/28/2022 6:00 PM City Council Regular Meeting 8 Packet Pg. 164

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
9/27/2021
1 SUBJECT:

Consideration of Development of an Ordinance Prohibiting the Sale of Flavored Tobacco Products and Electronic Cigarettes (“E-Cigarettes”).

RECOMMENDED ACTION:

Accept the report and provide direction to the City Manager regarding developing an ordinance prohibiting the sale of flavored tobacco products.

STAFF CONTACT:

Daniel Steidle, Chief of Police
650-738-7314
[email protected]
BACKGROUND/DISCUSSION:

Concerns regarding health problems caused by smoking and second-hand smoke and the attractiveness of flavored tobacco products to minors has created public health policy discussions at the local, state and national level. In response, some local jurisdictions have adopted ordinances prohibiting the sale of flavored tobacco products.

At the request of Councilmembers Bier and O’Neill, staff presented this topic to City Council on January 13, 2020 seeking direction regarding whether to develop an ordinance prohibiting the sale of flavored tobacco products and E-Cigarettes. At the time of the presentation, SB793 was in the process of legislation. SB793 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. An exemption to this bill allows for the sale of hookah products, if the business is properly licensed and does not allow patrons under 21 years of age to enter the business. Direction from City Council was to wait for the outcome on SB793 before determining whether to adopt a local ordinance.

On August 28, 2020, SB793 was signed into law by Governor Newsom. However, on August 31, 2020, implementation of the new law was halted when a referendum was filed with the California Secretary of State to repeal the new law. As of December 2020, the referendum had received the required number of voter signatures to place the item on the November 2022 state ballot. In the November 2022 state election, the voters of the State of California will decide whether to enact or repeal SB793.

With the delay and potential repeal of SB793, City Council listed as one of 17 priorities adopted on April 17, 2021 to “Present an ordinance to City Council for consideration regulating the sale of flavored tobacco in Pacifica.”
This report to Council provides information regarding this issue for City Council consideration.

The City Manager is seeking direction from the Council whether the Council would like to consider at this time a draft ordinance prohibiting the sale of flavored tobacco products in

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Pacifica. This report provides information about this health issue, what other jurisdictions have done, legal costs to develop a draft ordinance, and other information relevant to the Council’s consideration of this topic.

Definitions in City’s Municipal Code
Discussion of a potential ordinance regarding flavored tobacco and E-Cigarette products requires definition of certain terms, including a definition of flavored tobacco products. As a baseline for a full discussion on the subject, below are some relevant definitions which currently exist in Chapter 15 of Title 4 (Smoking Prohibitions) and Chapter 31 of Title 5 (Tobacco Retailing) of the Pacifica Municipal Code relating to Tobacco:

Electronic Smoking Device
"Electronic smoking device" means an electronic and/or battery operated device, which can provide an inhalable dose of nicotine, cannabis, whether recreational or medicinal, or other vaporized liquids to the person inhaling the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for the use in the mitigation, treatment, or prevention of disease.

Tobacco or nicotine product:
"Tobacco or nicotine product" means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco; and any electronic cigarette or other electronic device used to generate smoke; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

Tobacco Retailer:
“Tobacco Retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, or who distributes free or low cost samples of tobacco products or tobacco paraphernalia. “Tobacco retailing" shall mean the doing of any of these things.

This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

The following definitions are not in the City’s Municipal Code but are codified in Chapter 4.99 of Title 4 of the San Mateo County Code of Ordinances relating to regulation of flavored tobacco and may be helpful in the discussion of the development of an ordinance:

Flavored tobacco product: Any tobacco product that contains a constituent that imparts a characterizing flavor.

Constituent: Any ingredient, substance, chemical or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture, or packaging of the tobacco product.

Characterizing Flavor: A distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the

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tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition that constitutes a characterizing flavor.

While the foregoing definitions are not determinative of what definitions may be used in any possible ordinance, they provide a basic understanding of what the relevant terms may mean.

Youth and Flavored Tobacco
Flavored tobacco products have been the subject of negative publicity as they are known to be attractive to minors. According to Tobacco Free Kids, a non-profit organization that works to reduce youth access to tobacco and reduce tobacco related deaths:
• Tobacco industry documents show that the tobacco companies have a long history of developing and marketing flavored tobacco products as “starter” products that attract kids.
• Flavors improve the taste and reduce the harshness of tobacco products, making them more appealing and easier for beginners to try the product and ultimately become addicted.
• Menthol cools and numbs the throat, reducing the harshness of cigarette smoke, thereby making menthol cigarettes more appealing to youth who are initiating tobacco use.
• According to FDA’s Tobacco Product Scientific Advisory Committee (TPSAC), menthol cigarettes increase the number of children who experiment with cigarettes and the number of children who become regular smokers, increasing overall youth smoking. • Flavors can create the false impression that a tobacco product is less harmful than it really is.

Health issues related to tobacco E-cigarettes and ingestion of THC by vaping have gained national attention after a string of deaths and hospitalizations involving the use of these

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products. The Center for Disease Control (CDC) is currently investigating the cause of these illnesses. Research into the causes of these illnesses has not concluded nor identified definitively a specific cause(s). However, the CDC reports illnesses at a much higher level occur as a result of consuming THC vaping products that are black market purchased than THC products purchased legally. While THC-only vaping products that contain cannabis oils tested at State approved facilities are legal to sell in legal cannabis retail operations, the CDC and FDA recommend that people should not use THC-containing e-cigarette, or vaping products, particularly from informal sources like friends, family, or in-person or online sellers.

A February 2019 publication by the Harvard Medical School stated advocates of vaping have promoted it as a way to help cigarette smokers to quit. The article indicated that although giving up nicotine products altogether might be the ultimate goal, there may be health benefits to a smoker who becomes a long-term vaper instead, though this remains unproven.

While the FDA has stated E-cigarettes are unhealthy, they have recommended smokers who have chosen to vape not return to cigarette smoking, but rather should seek FDA approved smoking cessation medications.

Legislation/Policy
On September 16, 2019, Governor Newsom instructed state regulators to “reduce youth vaping consumption” by finding ways to ban illegal and counterfeit vaping products. The Governor also set aside $20 million for a vaping awareness campaign and instructed state health officials to develop signs warning against the hazards of vaping to be placed at retailers and on advertising for E-cigarettes and accessories. Governor Newsom has stated that he does not have the authority to ban flavored vaping products, but would work with legislators in 2020 to ban them.

The effort to ban flavored vaping products emerged in 2020 and SB793 and was signed into law, but as stated above, is subject to a statewide vote in November 2022.

In November 2019, San Francisco voters defeated Measure C, which would have partially overturned San Francisco’s ordinance related to E-cigarettes and flavored tobacco. In San Francisco, certain e-cigarette sales are prohibited anywhere the sale of tobacco products are prohibited. In addition, flavored tobacco product sales are prohibited (including flavored Ecigarettes). Cannabis vaping products are legal to sell anywhere cannabis sales are permitted.

Beginning in late January 2020, San Francisco suspended the sale of electronic cigarettes, except for those E-cigarettes that have gone through required premarket review by the FDA.

The Family Smoking Prevention and Tobacco Control Act (“Act”), passed by the United States Congress in October 2009, bans cigarettes with flavors other than menthol or tobacco.

Flavored E-cigarettes, e-liquids, cigars, hookah, and chewing tobacco are unregulated.

However, the Act also provides that every “new tobacco product” (defined to include any tobacco product not on the market in the United States as of February 15, 2007), must be authorized by the FDA in a premarket review before it may enter the marketplace in the United States. Where it can be shown that there is a lack of showing that permitting the sale of the product would be appropriate for the protection of the public health, the Act requires that the FDA deny the application for premarket review.

A result of a federal court ruling, E-cigarette manufacturers were required to submit applications to the FDA for product approval by September 9, 2020. The ruling allowed these products to remain on the market with a one-year grace period without being subject to FDA enforcement while applications were being reviewed.

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On September, 9, 2021, the FDA announced it had processed 93% of the applications received, and had issued marketing denial orders for more than 946,000 flavored vaping products because their applications "lacked sufficient evidence that they have a benefit to adult smokers sufficient to overcome the public health threat posed by the well-documented, alarming levels of youth use of such products." A decision has not been made on the applications from Juul, the largest E-cigarette manufacturer. The FDA has advised they are processing the remaining applications, many of which are in the final stages of review.

San Mateo County Ordinances
The following San Mateo County jurisdictions prohibit the sales of flavored tobacco products:

1. Burlingame

2. East Palo Alto (Prohibits sale of all E-cigarettes)

3. Half Moon Bay

4. Menlo Park (Prohibits sale of all E-cigarettes)

5. Portola Valley

6. San Carlos

7. San Mateo (Prohibits sale of all E-cigarettes)

8. South San Francisco (Only 21+ years stores are allowed to sell e-cigarettes and flavored tobacco products)

9. Unincorporated San Mateo County (Prohibits sale of all E-cigarettes) Legal Considerations
Under the California Constitution, a "county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal Const art XI, §7). Additionally, cities are authorized by State law to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a license for a violation of any state tobacco control law. (Cal. Bus. & Prof. Code § 22971.3). As a result of the foregoing authority, a number of cities and counties in California have exercised their local legislative power to regulate businesses that sell flavored tobacco and E-cigarette products to address the significant health and safety concerns which arise from use of flavored tobacco and E-cigarettes.

While many cities and counties have adopted ordinances regulating sales of flavored tobacco and/or E-cigarettes, there have been some legal challenges to certain ordinances. As discussed above, the City and County of San Francisco received a referendum challenge, Measure C, which would have partially overturned San Francisco’s ordinance related to Ecigarettes and flavored tobacco. Measure C was primarily funded by JUUL but prior to the November, 2019 election, JUUL decided to pull funding for the Measure and it failed.

Additionally, the City of Livermore received a similar referendum challenge. Although the referendum had qualified for the March 3, 2020 ballot, the referendum backed by JUUL was withdrawn in October, 2019. JUUL has indicated that these withdrawals are due to a change in

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new leadership causing the company to review its policies. Additionally, various tobacco retailers have sued cities that have adopted ordinances regulating flavored tobacco, including the City of Palo Alto, based on various causes of action including alleged violations of the U.S. and California Constitutions. It does not appear that any litigation to date has been successful in overturning these ordinances. However, in order to further reduce the risk of potential litigation exposure, any such ordinance regulating flavored tobacco or E-cigarettes will need to be carefully crafted with findings supporting the health and safety risks of these products.

Conclusion
Marketing flavored tobacco products towards minors and consumption of flavored tobacco products by minors has sparked many communities to adopt local ordinances prohibiting the sales of these products. The information provided in this staff report is intended to guide the Council’s consideration of whether the City should develop an ordinance restricting the sales of certain flavored tobacco products. If the Council is interested in directing the City Manager to return with a draft ordinance prior to a state or federal action, then the following variables need to be clarified:

1. Should the ordinance be focused only on the prohibition of flavored tobacco sales (All flavored tobacco and flavored E-cigarette products)?

2. Should the ordinance prohibit all E-cigarette sales, both flavored and unflavored? Alternatively, should the ordinance prohibit E-cigarette sales except in only 21+ stores?

3. Should the ordinance prohibit cannabis “E-cigarette” products?

4. Other variables?
ALTERNATIVE ACTION:

Request further research/information from staff prior to providing direction regarding a potential ordinance. Council may also desire to accept the report and request no further action from staff.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:

Consideration of a prohibition on the sale of flavored tobacco products and E-cigarettes in Pacifica resonates with the City Council Goal of “A Healthy and Compassionate Community.” FISCAL IMPACT:

The City Attorney’s Office estimates that legal costs relating to preparation of an ordinance would vary depending on the variables identified by Council and range from $6,000 (if Council directs staff to prepare an ordinance to only prohibit flavored tobacco) up to $10,000 (if Council directs staff to also include in the ordinance a prohibition of cannabis e-cigarette products) ORIGINATED BY:

Police
ATTACHMENT LIST:

None (TXT)

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CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
1/24/2022
1 SUBJECT:

Introduction of an Ordinance of the City Council of the City of Pacifica adding Chapter 32, “Sale or Distribution of Electronic Cigarettes” and Chapter 33, “Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited” and amending Section 5-31.03, “Limits on Tobacco Retailer Licenses” within Chapter 31 of Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code to Ban the Sale and Distribution of Flavored Tobacco Products, the Sale and Distribution of Electronic Cigarettes and to Prohibit the Sale of Tobacco Products at Pharmacies in the City of Pacifica
RECOMMENDED ACTION:

Move to waive the first reading of and introduce by title an ordinance of the City Council of the City of Pacifica adding Chapter 32, “Sale or Distribution of Electronic Cigarettes” and Chapter 33, “Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited” and amending Section 5-31.03, “Limits on Tobacco Retailer Licenses” within Chapter 31 of Title 5, “Public Welfare, Morals, and Conduct” of the Pacifica Municipal Code to Ban the Sale and Distribution of Flavored Tobacco Products, the Sale and Distribution of Electronic Cigarettes and to Prohibit the Sale of Tobacco Products at Pharmacies in the City of Pacifica STAFF CONTACT:

Daniel Steidle, Chief of Police
650-738-7314
[email protected]
BACKGROUND/DISCUSSION:

At the request of Councilmembers Bier and O’Neill, staff presented this topic to City Council on January 13, 2020 seeking direction regarding whether to develop an ordinance prohibiting the sale of flavored tobacco products and electronic cigarettes (E-Cigarettes). At the time of the presentation, Senate Bill (SB) 793 was in the legislative process. SB793 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. An exemption to this bill allows for the sale of hookah products, if the business is properly licensed and does not allow patrons under 21 years of age to enter the business. Direction from City Council was to wait for the outcome on SB793 before determining whether to adopt a local ordinance.

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ballot. In the November 2022 state election, the voters of the State of California will decide whether to enact or repeal SB793.

With the delay and potential repeal of SB793, City Council listed as one of 17 priorities adopted on April 17, 2021 to “Present an ordinance to City Council for consideration regulating the sale of flavored tobacco in Pacifica.”
On September 27, 2021, staff presented to City Council a report on the consideration of development of an ordinance prohibiting the sale of flavored tobacco products and E-cigarettes.

Staff requested direction regarding the City Council’s desire to proceed with an ordinance, and if so, what specific elements they wanted included in the ordinance. City Council directed staff to return with an ordinance containing the following:
1) Prohibition on the sale of flavored tobacco with an exemption for adult only business to sell hookah related tobacco products
2) Prohibition on the sale of E-cigarettes
3) Prohibition on the sale of all tobacco products at pharmacies

DISCUSSION
Tobacco use remains the leading cause of preventable death in the United Sates, killing more than 480,000 people each year.
1 It causes or contributes to many forms of cancer, as well as heart and respiratory diseases, among other heath disorders. Tobacco use remains a public health crisis of the first order, in terms of the human suffering and loss of life it causes, the financial costs it imposes on society and the burdens it places on our health care system.

Youth and Flavored Tobacco
Flavored tobacco products have been the subject of negative publicity as they are known to be attractive to minors. According to Tobacco Free Kids, a non-profit organization that works to reduce youth access to tobacco and reduce tobacco related deaths:
• Tobacco industry documents show that the tobacco companies have a long history of developing and marketing flavored tobacco products as “starter” products that attract kids.
• Flavors improve the taste and reduce the harshness of tobacco products, making them more appealing and easier for beginners to try the product and ultimately become addicted.
• Menthol cools and numbs the throat, reducing the harshness of cigarette smoke, thereby making menthol cigarettes more appealing to youth who are initiating tobacco use.
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: 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.

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• According to the Federal Food and Drug Administration’s (FDA) Tobacco Product Scientific Advisory Committee (TPSAC), menthol cigarettes increase the number of children who experiment with cigarettes and the number of children who become regular smokers, increasing overall youth smoking.
• Flavors can create the false impression that a tobacco product is less harmful than it really is.

In the same publication, Tobacco-Free Kids provided the following statistics that were collected in a 2019 survey of middle and high school students:
• 81% of youth who have ever used tobacco products initiated with a flavored product. • 72.3% of youth tobacco users have used a flavored tobacco product in the month preceding the survey.
• At least two-thirds of youth tobacco users report using tobacco products “because they come in flavors I like.”
Flavored tobacco products promote youth initiation of tobacco use and help young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco products. As tobacco companies well know, menthol, in particular, cools and numbs the throat to reduce throat irritation and make the smoke feel smoother, making menthol cigarettes an appealing option for youth who are initiating tobacco use. Tobacco companies have used flavorings such as mint and wintergreen in smokeless tobacco products as part of a "graduation strategy" to encourage new users to start with tobacco products with lower levels of nicotine and progress to products with higher levels of nicotine. It is therefore unsurprising that young people are much more likely to use menthol-, candy- and fruit-flavored tobacco products than adults, including not just cigarettes but also cigars and cigarillos.

Research also shows that use of menthol cigarettes has perpetuated disparities among different groups. According to the 2018 National Survey of Drug Use and Health (NSDUH): 85% of African American smokers, 50% of Hispanic smokers and 47% of Asian American smokers use menthol cigarettes, compared to 29% of White smokers; 51% of lesbian/gay and 46% of bisexual smokers use menthol cigarettes, compared to 39% of heterosexual smokers; 45% of smokers with severe psychological distress use menthol cigarettes compared to 39% of smokers with no past month serious psychological distress; 47% of smokers living in poverty use menthol cigarettes, compared to 36% of smokers with an income exceeding twice the Federal Poverty Threshold; and 60% of pregnant smokers use menthol cigarettes. 2 Health Issues Relating to Use of E-Cigarettes
Health issues have long been chronicled related to smoking of tobacco products and secondhand smoke, and more recently, smoking using e-cigarette devices (“vaping”).

Health issues related to tobacco E-cigarettes and ingestion of THC by vaping have gained national attention after a string of deaths and hospitalizations involving the use of these products. The Center for Disease Control (CDC) is currently investigating the cause of these illnesses. Research into the causes of these illnesses has not concluded nor identified definitively a specific cause(s). However, the CDC reports illnesses at a much higher level occur as a result of consuming THC vaping products that are black market purchased than THC products purchased legally. While THC-only vaping products that contain cannabis oils tested at

8.b
Packet Pg. 173 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 4 January 24, 2022
State approved facilities are legal to sell in legal cannabis retail operations, the CDC and FDA recommend that people should not use THC-containing e-cigarette, or vaping products, particularly from informal sources like friends, family, or in-person or online sellers.

Youth and E-Cigarettes
Electronic smoking device (or “E-cigarette, vape, vape pen, e-hookah, etc.”) usage by youth, however, has been rising as these products become more and more prevalent. Usage by high school students increased 78% between 2017-2018 with 1 in 5 high school students currently using and 1 in 20 middle school students currently using the products. 3 The devices were
available in the U.S. marketplace in the mid-2000s4 and by 2014, the products were the most commonly used tobacco product among middle school and high school students. 5 The Centers
for Disease Control and Prevention also has reported a more than 800% increase in E-cigarette use among middle school and high school students between 2011 and 2015.

According to a 2021 FDA survey, more than 2 million U.S. youth currently use E-cigarettes (11.3% of high school students and 2.8% of middle school students). 6 Among those youth,
about 2 in 5 of them use E-cigarettes frequently while about 1 in 4 use E-cigarettes daily. These survey results show high rates of frequent and daily use which suggests many teens have a strong dependence on nicotine. Of those youth that indicated E-cigarette use in the survey, nearly 85% of them used flavored E-cigarettes.

Almost 17.7 million (7 in 10) youths were exposed to advertisements for E-cigarettes in retail stores in 2016, while about 2 in 5 had exposure on the Internet or on television, and almost 1 in 4 had exposure through magazines and newspapers. E-cigarette advertising has an association with e-cigarette use among youths. The advertising themes and strategies used are similar to traditional cigarette advertising tactics that have been found to appeal to youths. 7 A 2018 National Academy of Sciences, Engineering, and Medicine report found moderate evidence that E-cigarette use increases the frequency and intensity of smoking cigarettes in the future.
8 This is significant because any use of E-cigarettes by young people, according to the U.S. Surgeon General, is not safe even if the young people do not move on to future cigarette smoking.
9 2 Delnevo, CD, et al., “Banning Menthol Cigarettes: A Social Justice Issue Long Overdue,” Nicotine & Tobacco Research, 22(10): 1673-1675, 2020. 3 Cullen KA, Ambrose BK, Gentzke AS, Apelberg BJ, Jamal A, King BA. Notes from the Field: Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students - United States, 2011-2018. 4 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016. 5 Arrazola RA, Singh T, Corey CG, et al. Tobacco use among middle and high school students-United States, 2011- 2014. MMWR Morb Mortal Wkly Rep 2015.
6 FDA and Centers for Disease Control and Prevention (CDC) released findings from the 2021 National Youth

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Packet Pg. 174 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 5 January 24, 2022
Tobacco Survey (NYTS).
7 Marynak K, Gentzke A, Wang TW, Neff L, King BA. Exposure to Electronic Cigarette Advertising Among Middle and High School Students - United States, 2014-2016. MMWR Morb Mortal Wkly Rep 2018. 8 Moritz, T. (2019, March 18). Vaping: It’s All Smoke and Mirrors. 9 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016.

Proposed Ordinance
In accordance with the Council’s direction, staff has prepared an ordinance to add Chapter 32 (Sale or Distribution of Electronic Cigarettes) and Chapter 33 (Sales of Flavored Tobacco Products and Pharmacy Sales of Tobacco Products Prohibited) to Title 5 “Public Welfare, Morals, and Conduct” to the Pacifica Municipal Code.

The proposed ordinance would provide the following:
1) Prohibition on the sale and distribution of all flavored tobacco products within the City.

There is an exemption for licensed tobacco retailers that are adult only (21 years and over) licensed retailers to sell flavored tobacco products for use with a hookah pipe or hookah Products.
2) Prohibition on the sale and distribution of E-cigarettes within the City. 3) Prohibition on the sale of all tobacco products at pharmacies within the City. This includes all businesses where pharmacies are located, regardless of whether the business sells other products in addition to prescription medication.

Per existing Pacifica Municipal Code section 5-31.02, tobacco retailers are required to possess a tobacco retail license from the City. Licenses are valid for a period of one year. In the proposed ordinance, prohibition on the sale of flavored tobacco products, E-cigarettes, and tobacco products at pharmacies would take effect upon next renewal of the permittee's tobacco retail license after the adoption of the ordinance.

The proposed ordinance would also make conforming changes to Section 5-31.03 of the Pacifica Municipal Code to indicate that no license may issue to authorize tobacco retailing at a pharmacy, as that term is defined.

Notices were sent to licensed tobacco retailers informing them of the elements of this proposed ordinance.

ALTERNATIVE ACTION:

If not introduced as presented, Council may choose to introduce this ordinance with amendments or decline to introduce this ordinance and provide staff with further direction RELATION TO CITY COUNCIL GOALS AND WORK PLAN:

The City Attorney costs for bringing this ordinance to adoption is $6,000 - $10,000.

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Packet Pg. 175 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 6 January 24, 2022
Personnel costs relating to enforcement of this ordinance are expected to be minimal.

ORIGINATED BY:

Police
ATTACHMENT LIST:

Attachment A- 09-27-21 Staff Report(PDF)

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Packet Pg. 176 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 7 January 24, 2022
ORDINANCE NO. (ID # 4855)
ORDINANCE NO. XXXX

CODE TO BAN THE SALE AND DISTRIBUTION OF FLAVORED TOBACCO

PRODUCTS, THE SALE AND DISTRIBUTION OF ELECTRONIC CIGARETTES AND TO

PROHIBIT THE SALE OF TOBACCO PRODUCTS AT PHARMACIES IN THE CITY OF

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Packet Pg. 177 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 8 January 24, 2022
and cigarillos. Data from the National Youth Tobacco Survey indicate that more than twofifths of U.S. middle school and high school smokers report using flavored little cigars or flavored cigarettes. Further the Centers for Disease Control and Prevention has reported a more than 800% increase in electronic cigarette use among middle school and high school students between 2011 and 2015. Nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes are sold in thousands of flavors that appeal to youth, such as cotton candy and bubble gum; and
WHEREAS, According to Tobacco Free Kids, a non-profit organization that works to reduce youth access to tobacco and reduce tobacco related deaths:
• Tobacco industry documents show that the tobacco companies have a long history of developing and marketing flavored tobacco products as “starter” products that attract kids.
• Flavors improve the taste and reduce the harshness of tobacco products, making them more appealing and easier for beginners to try the product and ultimately become addicted.
• Menthol cools and numbs the throat, reducing the harshness of cigarette smoke, thereby making menthol cigarettes more appealing to youth who are initiating tobacco use.
• According to the Federal Food and Drug Administration’s (FDA) Tobacco Product Scientific Advisory Committee (TPSAC), menthol cigarettes increase the number of children who experiment with cigarettes and the number of children who become regular smokers, increasing overall youth smoking.
• Flavors can create the false impression that a tobacco product is less harmful than it really is; and
WHEREAS, Tobacco-Free Kids conducted a 2019 survey of middle and high school students and determined the following based on those survey results:
• 81% of youth who have ever used tobacco products initiated with a flavored product.
• 72.3% of youth tobacco users have used a flavored tobacco product in the month preceding the survey.
• At least two-thirds of youth tobacco users report using tobacco products “because they come in flavors I like”; and
WHEREAS, research also shows that use of menthol cigarettes has perpetuated disparities among other groups. According to the 2018 National Survey of Drug Use and Health (NSDUH): 85% of African American smokers, 50% of Hispanic smokers and 47% of Asian American smokers use menthol cigarettes, compared to 29% of White smokers; 51% of lesbian/gay and 46% of bisexual smokers use menthol cigarettes, compared to 39% of heterosexual smokers; 45% of smokers with severe psychological distress use menthol cigarettes compared to 39% of smokers with no past month serious psychological distress; 47% of smokers living in poverty use menthol cigarettes, compared to 36% of smokers with an income exceeding twice the Federal Poverty Threshold; and 60% of pregnant smokers use menthol cigarettes4; and
4 Delnevo, CD, et al., “Banning Menthol Cigarettes: A Social Justice Issue Long Overdue,” Nicotine & Tobacco Research, 22(10): 1673-1675, 2020.

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Packet Pg. 178 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 9 January 24, 2022
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 dangerous to smoke; and
WHEREAS, the Tobacco and Education Research Oversight Committee for California, as well as the American Pharmacists Association, the California Pharmacists Association, and the California Medical Association have called for the adoption of state and local prohibitions of tobacco sales in drug stores and pharmacies; and WHEREAS, electronic smoking device (or electronic cigarette (E-cigarette), vape, vape pen, e-hookah, etc.) usage by youth has been rising. Usage by high school students increased 78% between 2017-2018 with 1 in 5 high school students currently using and 1 in 20 middle school students currently using the products.5 The devices were available in the U.S. marketplace in the mid-2000s6 and by 2014, the products were the most commonly used tobacco product among middle school and high school students;7 and WHEREAS, The Centers for Disease Control and Prevention also has reported a more than 800% increase in E-cigarette use among middle school and high school students between 2011 and 2015; and
WHEREAS, according to a 2021 FDA survey, more than 2 million U.S. youth currently use E-cigarettes (11.3% of high school students and 2.8% of middle school students).8 Among those youth, about 2 in 5 of them use E-cigarettes frequently while about 1 in 4 use E-cigarettes daily. These survey results show high rates of frequent and daily use which suggests many teens have a strong dependence on nicotine. Of those youth that indicated E-cigarette use in survey, nearly 85% of them used flavored Ecigarettes; and WHEREAS, in 2016, it was estimated that 20.5 million (4 in 5) middle and high school students in the U.S. were exposed to advertisements for E-cigarettes from at least one source. This was a significant increase compared to 2014 and 2015 data. Furthermore, almost 17.7 million (7 in 10) youths were exposed to advertisements for E-cigarettes in retail stores in 2016, while about 2 in 5 had exposure on the Internet or on television, and almost 1 in 4 had exposure through magazines and newspapers. E-cigarette advertising has an association with e-cigarette use among youths. The advertising themes and strategies used are similar to traditional cigarette advertising tactics that have been found to appeal to youths;9 and
WHEREAS, a 2018 National Academy of Sciences, Engineering, and Medicine report found moderate evidence that e-cigarette use increases the frequency and intensity 5 Cullen KA, Ambrose BK, Gentzke AS, Apelberg BJ, Jamal A, King BA. Notes from the Field: Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students – United States, 2011-2018. 6 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016. 7 Arrazola RA, Singh T, Corey CG, et al. Tobacco use among middle and high school students—United States, 2011–2014. 8 FDA and Centers for Disease Control and Prevention (CDC) released findings from the 2021 National Youth Tobacco Survey (NYTS)
9 Marynak K, Gentzke A, Wang TW, Neff L, King BA. Exposure to Electronic Cigarette Advertising Among Middle and High School Students – United States, 2014-2016. MMWR Morb Mortal Wkly Rep 2018.

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Packet Pg. 179 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 10 January 24, 2022
of smoking cigarettes in the future.10 According to a report by the Surgeon General, any use of E-cigarettes among young people is not safe even if the young people do not move on to future cigarette smoking;11 and
WHEREAS, on January 13, 2020 and September 27, 2021 staff presented to City Council reports on the consideration of development of an ordinance prohibiting the sales of flavored tobacco products and E-cigarettes; and
WHEREAS, with the delay and potential repeal of SB793, City Council listed as one of 17 priorities adopted on April 17, 2021 to “Present an ordinance to City Council for consideration regulating the sale of flavored tobacco in Pacifica”; and WHEREAS, a local prohibition against the sale and distribution of all electronic smoking devices and flavored tobacco is an effective means to reduce the availability of these products to youth, thereby protecting the public health and safety by discouraging tobacco initiation and continued use.

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PACIFICA DOES ORDAIN AS FOLLOWS:

Section 1. Recitals. The City Council of the City of Pacifica does hereby find the above referenced recitals are true and correct and material to the adoption of this Ordinance.

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Packet Pg. 180 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 11 January 24, 2022
e) “Tobacco Retailer License” “shall mean a Tobacco Retailer that has been issued a License pursuant to
Section 5-31.02 of this Code.
f) "Sell", "Sale" or "to Sell" mean any transaction where, for any consideration, ownership is transferred from one (1) Person or entity to another including, but not limited to any transfer of title or possession for consideration, exchange or barter, in any manner or by any means Sec. 5-32.02 – Sale or Distribution of Electronic Cigarettes Prohibited. a) No Person, Tobacco Retailer, or other legal entity shall Sell or offer for Sale nor Distribute any Electronic Cigarette to a Person within the geographic boundaries of the City.
b) For Tobacco Retailers that have a valid Tobacco Retailer License, the provisions of Section 5-33.02(a) shall take effect upon expiration of the Tobacco Retailer License in effect as of the effective date of this Ordinance.

Sec. 5-32.04 – Public Nuisance.

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Packet Pg. 181 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 12 January 24, 2022
For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:
a) “Adult” shall mean any individual 21 years of age or older. b) “Adult-only retailer” shall mean any retailer or businesses that allows entry only by adults onto the entire premises of the business or retailer, or that require minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. The definition of an “adult-only retailer” does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that are marked or otherwise restricted as adult only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult.
c) "Characterizing flavor" shall mean a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product.

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Packet Pg. 182 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 13 January 24, 2022
j) "Labeling" shall mean written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.
k) "Packaging" shall mean a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold, or offered for sale, to a consumer. l) "Person" means any individual, partnership, cooperative association, private corporation, or any other legal entity.
m) "Pharmacy" shall mean 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.
n) "Sell", "Sale" or "to Sell" shall mean any transaction where, for any consideration, ownership is transferred from one (1) Person or entity to another including, but not limited to any transfer of title or possession for consideration, exchange or barter, in any manner or by any means. o) "Tobacco Product" shall have the same definition as set forth in subsection (h) of Section 5-31.01 of this Code.
p) "Tobacco Retailer" shall have the same definition as set forth in subsection (i) of Section 5-31.01 of this Code.
q) “Tobacco Retailer License” shall mean a Tobacco Retailer that has been issued a License pursuant to Section 5-31.02 of this Code.

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Packet Pg. 183 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 14 January 24, 2022
c) Tobacco Retailers that are Adult-Only Retailers that sell Flavored Tobacco Products for use with a Hookah Pipe or Hookah Products shall be exempt from the requirements of section 5-33.02(a). d) For Tobacco Retailers that have a valid Tobacco Retailer License, the provisions of Section 5-33.02(a) shall take effect upon expiration of the Tobacco Retailer License in effect as of the effective date of this Ordinance.

Sec. 5-33.05 – Public Nuisance.

Any violation of this ordinance is hereby declared a public nuisance.

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Packet Pg. 184 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 15 January 24, 2022
Sec. 5-33.06 – No Conflict with Federal or State Law.

Section 7. Effective Date. This Ordinance shall be in full force and effect thirty (30) days after its adoption and shall be published and posted as required by law.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the ______ day of _______ 20_____, by the following vote:

AYES, Councilmembers:

NOES, Councilmembers:

ABSENT, Councilmembers:

ABSTAIN, Councilmembers:

CITY OF PACIFICA

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Packet Pg. 185 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 16 January 24, 2022
By:

Mary Bier, Mayor
ATTEST:

Sarah Coffey, City Clerk
APPROVED AS TO FORM:

Michelle M. Kenyon, City Attorney

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Packet Pg. 186 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 17 January 24, 2022
* * * * *
(ID # 4855) at 1/24/2022 7:00 PM City Council Regular Meeting

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Packet Pg. 187 Attachment: Attachment B-01-24-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes)

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
2/14/2022
1 SUBJECT:

STAFF CONTACT:

Daniel Steidle, Chief of Police
650-738-7314
[email protected]
BACKGROUND/DISCUSSION:

This staff report serves to continue this item, already in progress, at the February 14, 2022 City Council meeting.

Attached to this report for reference is the staff report from September 27, 2021 (Attachment A) which requested Council direction on this potential ordinance, the staff report from January 24, 2022 (Attachment B), which was presented to Council as the introduction of the ordinance.

ALTERNATIVE ACTION:

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Packet Pg. 188 Attachment: Attachment C: 02-14-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 2
February 14, 2022
Consideration of a prohibition on the sale of flavored tobacco products and E-cigarettes in Pacifica resonates with the City Council Goal of “A Healthy and Compassionate Community.” FISCAL IMPACT:

The City Attorney costs for bringing this ordinance to adoption is $6,000 - $10,000.

Personnel costs relating to enforcement of this ordinance are expected to be minimal.

ORIGINATED BY:

Police
ATTACHMENT LIST:

Attachment A- 09-27-21 Staff Report(PDF)
Attachment B-01-24-22 Staff Report (PDF)

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Packet Pg. 189 Attachment: Attachment C: 02-14-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 3
February 14, 2022
ORDINANCE NO. (ID # 4877)
ORDINANCE NO. XXXX

CODE TO BAN THE SALE AND DISTRIBUTION OF FLAVORED TOBACCO

PRODUCTS, THE SALE AND DISTRIBUTION OF ELECTRONIC CIGARETTES AND TO

PROHIBIT THE SALE OF TOBACCO PRODUCTS AT PHARMACIES IN THE CITY OF

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Packet Pg. 190 Attachment: Attachment C: 02-14-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 4
February 14, 2022
and cigarillos. Data from the National Youth Tobacco Survey indicate that more than twofifths of U.S. middle school and high school smokers report using flavored little cigars or flavored cigarettes. Further the Centers for Disease Control and Prevention has reported a more than 800% increase in electronic cigarette use among middle school and high school students between 2011 and 2015. Nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes are sold in thousands of flavors that appeal to youth, such as cotton candy and bubble gum; and
WHEREAS, According to Tobacco Free Kids, a non-profit organization that works to reduce youth access to tobacco and reduce tobacco related deaths:
• Tobacco industry documents show that the tobacco companies have a long history of developing and marketing flavored tobacco products as “starter” products that attract kids.
• Flavors improve the taste and reduce the harshness of tobacco products, making them more appealing and easier for beginners to try the product and ultimately become addicted.
• Menthol cools and numbs the throat, reducing the harshness of cigarette smoke, thereby making menthol cigarettes more appealing to youth who are initiating tobacco use.
• According to the Federal Food and Drug Administration’s (FDA) Tobacco Product Scientific Advisory Committee (TPSAC), menthol cigarettes increase the number of children who experiment with cigarettes and the number of children who become regular smokers, increasing overall youth smoking.
• Flavors can create the false impression that a tobacco product is less harmful than it really is; and
WHEREAS, Tobacco-Free Kids conducted a 2019 survey of middle and high school students and determined the following based on those survey results:
• 81% of youth who have ever used tobacco products initiated with a flavored product.
• 72.3% of youth tobacco users have used a flavored tobacco product in the month preceding the survey.
• At least two-thirds of youth tobacco users report using tobacco products “because they come in flavors I like”; and
WHEREAS, research also shows that use of menthol cigarettes has perpetuated disparities among other groups. According to the 2018 National Survey of Drug Use and Health (NSDUH): 85% of African American smokers, 50% of Hispanic smokers and 47% of Asian American smokers use menthol cigarettes, compared to 29% of White smokers; 51% of lesbian/gay and 46% of bisexual smokers use menthol cigarettes, compared to 39% of heterosexual smokers; 45% of smokers with severe psychological distress use menthol cigarettes compared to 39% of smokers with no past month serious psychological distress; 47% of smokers living in poverty use menthol cigarettes, compared to 36% of smokers with an income exceeding twice the Federal Poverty Threshold; and 60% of pregnant smokers use menthol cigarettes4; and
4 Delnevo, CD, et al., “Banning Menthol Cigarettes: A Social Justice Issue Long Overdue,” Nicotine & Tobacco Research, 22(10): 1673-1675, 2020.

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Packet Pg. 191 Attachment: Attachment C: 02-14-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 5
February 14, 2022
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 dangerous to smoke; and
WHEREAS, the Tobacco and Education Research Oversight Committee for California, as well as the American Pharmacists Association, the California Pharmacists Association, and the California Medical Association have called for the adoption of state and local prohibitions of tobacco sales in drug stores and pharmacies; and WHEREAS, electronic smoking device (or electronic cigarette (E-cigarette), vape, vape pen, e-hookah, etc.) usage by youth has been rising. Usage by high school students increased 78% between 2017-2018 with 1 in 5 high school students currently using and 1 in 20 middle school students currently using the products.5 The devices were available in the U.S. marketplace in the mid-2000s6 and by 2014, the products were the most commonly used tobacco product among middle school and high school students;7 and WHEREAS, The Centers for Disease Control and Prevention also has reported a more than 800% increase in E-cigarette use among middle school and high school students between 2011 and 2015; and
WHEREAS, according to a 2021 FDA survey, more than 2 million U.S. youth currently use E-cigarettes (11.3% of high school students and 2.8% of middle school students).8 Among those youth, about 2 in 5 of them use E-cigarettes frequently while about 1 in 4 use E-cigarettes daily. These survey results show high rates of frequent and daily use which suggests many teens have a strong dependence on nicotine. Of those youth that indicated E-cigarette use in survey, nearly 85% of them used flavored Ecigarettes; and WHEREAS, in 2016, it was estimated that 20.5 million (4 in 5) middle and high school students in the U.S. were exposed to advertisements for E-cigarettes from at least one source. This was a significant increase compared to 2014 and 2015 data. Furthermore, almost 17.7 million (7 in 10) youths were exposed to advertisements for E-cigarettes in retail stores in 2016, while about 2 in 5 had exposure on the Internet or on television, and almost 1 in 4 had exposure through magazines and newspapers. E-cigarette advertising has an association with e-cigarette use among youths. The advertising themes and strategies used are similar to traditional cigarette advertising tactics that have been found to appeal to youths;9 and
WHEREAS, a 2018 National Academy of Sciences, Engineering, and Medicine report found moderate evidence that e-cigarette use increases the frequency and intensity 5 Cullen KA, Ambrose BK, Gentzke AS, Apelberg BJ, Jamal A, King BA. Notes from the Field: Use of Electronic Cigarettes and Any Tobacco Product Among Middle and High School Students – United States, 2011-2018. 6 US Department of Health and Human Services. E-cigarette use among youth and young adults: a report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, CDC, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2016. 7 Arrazola RA, Singh T, Corey CG, et al. Tobacco use among middle and high school students—United States, 2011–2014.
8 FDA and Centers for Disease Control and Prevention (CDC) released findings from the 2021 National Youth Tobacco Survey (NYTS)
9 Marynak K, Gentzke A, Wang TW, Neff L, King BA. Exposure to Electronic Cigarette Advertising Among Middle and High School Students – United States, 2014-2016. MMWR Morb Mortal Wkly Rep 2018.

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Packet Pg. 192 Attachment: Attachment C: 02-14-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 6
February 14, 2022
of smoking cigarettes in the future.10 According to a report by the Surgeon General, any use of E-cigarettes among young people is not safe even if the young people do not move on to future cigarette smoking;11 and
WHEREAS, on January 13, 2020 and September 27, 2021 staff presented to City Council reports on the consideration of development of an ordinance prohibiting the sales of flavored tobacco products and E-cigarettes; and
WHEREAS, with the delay and potential repeal of SB793, City Council listed as one of 17 priorities adopted on April 17, 2021 to “Present an ordinance to City Council for consideration regulating the sale of flavored tobacco in Pacifica”; and WHEREAS, a local prohibition against the sale and distribution of all electronic smoking devices and flavored tobacco is an effective means to reduce the availability of these products to youth, thereby protecting the public health and safety by discouraging tobacco initiation and continued use.

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PACIFICA DOES ORDAIN AS FOLLOWS:

Section 1. Recitals. The City Council of the City of Pacifica does hereby find the above referenced recitals are true and correct and material to the adoption of this Ordinance.

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e) “Tobacco Retailer License” “shall mean a Tobacco Retailer that has been issued a License pursuant to
Section 5-31.02 of this Code.
f) "Sell", "Sale" or "to Sell" mean any transaction where, for any consideration, ownership is transferred from one (1) Person or entity to another including, but not limited to any transfer of title or possession for consideration, exchange or barter, in any manner or by any means Sec. 5-32.02 – Sale or Distribution of Electronic Cigarettes Prohibited. a) No Person, Tobacco Retailer, or other legal entity shall Sell or offer for Sale nor Distribute any Electronic Cigarette to a Person within the geographic boundaries of the City.
b) For Tobacco Retailers that have a valid Tobacco Retailer License, the provisions of Section 5-32.02(a) shall take effect upon expiration of the Tobacco Retailer License in effect as of the effective date of this Ordinance.

Sec. 5-32.04 – Public Nuisance.

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February 14, 2022
For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:
a) “Adult” shall mean any individual 21 years of age or older. b) “Adult-only retailer” shall mean any retailer or businesses that allows entry only by adults onto the entire premises of the business or retailer, or that require minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. The definition of an “adult-only retailer” does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that are marked or otherwise restricted as adult only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult.
c) "Characterizing flavor" shall mean a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product.

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j) "Labeling" shall mean written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.
k) "Packaging" shall mean a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold, or offered for sale, to a consumer. l) "Person" means any individual, partnership, cooperative association, private corporation, or any other legal entity.
m) "Pharmacy" shall mean 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.
n) "Sell", "Sale" or "to Sell" shall mean any transaction where, for any consideration, ownership is transferred from one (1) Person or entity to another including, but not limited to any transfer of title or possession for consideration, exchange or barter, in any manner or by any means. o) "Tobacco Product" shall have the same definition as set forth in subsection (h) of Section 5-31.01 of this Code.
p) "Tobacco Retailer" shall have the same definition as set forth in subsection (i) of Section 5-31.01 of this Code.
q) “Tobacco Retailer License” shall mean a Tobacco Retailer that has been issued a License pursuant to Section 5-31.02 of this Code.

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Packet Pg. 196 Attachment: Attachment C: 02-14-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes) Pacifica City Council 10 February 14, 2022
c) Tobacco Retailers that are Adult-Only Retailers that sell Flavored Tobacco Products for use with a Hookah Pipe or Hookah Products shall be exempt from the requirements of section 5-33.02(a). d) For Tobacco Retailers that have a valid Tobacco Retailer License, the provisions of Section 5-33.02(a) shall take effect upon expiration of the Tobacco Retailer License in effect as of the effective date of this Ordinance.

Sec. 5-33.05 – Public Nuisance.

Any violation of this ordinance is hereby declared a public nuisance.

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Sec. 5-33.06 – No Conflict with Federal or State Law.

Section 7. Effective Date. This Ordinance shall be in full force and effect thirty (30) days after its adoption and shall be published and posted as required by law.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the ______ day of _______ 20_____, by the following vote:

AYES, Councilmembers:

NOES, Councilmembers:

ABSENT, Councilmembers:

ABSTAIN, Councilmembers:

CITY OF PACIFICA

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By:

Mary Bier, Mayor
ATTEST:

Sarah Coffey, City Clerk
APPROVED AS TO FORM:

Michelle M. Kenyon, City Attorney

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* * * * *
(ID # 4877) at 2/14/2022 7:00 PM City Council Regular Meeting

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Packet Pg. 200 Attachment: Attachment C: 02-14-22 Staff Report (4898 : Adoption of an Ordinance Prohibiting the Sale of Flavored Tobacco and E-Cigarettes)

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
2/28/2022
1 SUBJECT:

Redistricting - Public Hearing #3 to Receive Input Regarding Proposed Draft District Maps, Composition of Council District Boundaries; Select Final Map and Introduce an Ordinance of the City Council of the City of Pacifica Amending Title 2, Chapter 9, “District Elections” to Repeal and Replace Section 2-9.02 “City Council Districts Established” of the City of Pacifica Municipal Code to Adopt City Council District Boundaries Based on 2020 Census Data RECOMMENDED ACTION:

1. Conduct the Public Hearing to Receive Input Regarding Proposed Draft District Maps and Composition of Council District Boundaries; and

2. Select Final Map and Introduce by Title Only and Waive the First Reading of an “Ordinance of the City Council of the City of Pacifica Amending Title 2, Chapter 9, “District Elections” by Repealing and Replacing Section 2-9.02, “City Council Districts Established” of the City Of Pacifica Municipal Code to Adopt City Council District Boundaries Based on 2020 Census Data; and finding ordinance exempt under the California Environmental Quality Act (“CEQA”).

STAFF CONTACT:

Sarah Coffey, City Clerk
650-738-7307
[email protected]
BACKGROUND/DISCUSSION:

On December 17, 2018, the City Council of the City of Pacifica adopted Ordinance No. 839- C.S., establishing a district-based system for the election of members of the City Council by five districts, establishing the boundaries and identification number of each district and establishing the election order of each district. This ordinance added Chapter 9 “District Elections” to Title 2 of the Pacifica Municipal Code. By this action, the City of Pacifica changed from an at-large election system to a by district election system for the election of City Council members, established five voting districts to elect Councilmembers, adopted Map 505b defining City Council district boundaries and establishing the sequence of elections for each district with Districts 1 and 4 to be elected in November 2020 and Districts 2, 3 and 5 to be elected in November 2022.

Every ten years, after the federal census is complete, district lines must be reviewed and, if necessary, adjusted to keep the boundaries as nearly equal in population as possible, allowing for certain variances due to geography, topography, communities of interest, etc., as required by federal and California law. This process of reviewing the census data and adjusting the district boundary lines is called redistricting. The City of Pacifica has engaged National Demographics Corporation (NDC) to provide demographer services to assist in the process of redistricting. The redistricting process for the City of Pacifica must be completed by April 17, 2022. 9 Packet Pg. 201
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In California, the process for redistricting is established by the Fair and Inclusive Redistricting for Municipalities and Political Subdivisions Act (“Act”). Under the Act, cities and counties must conduct certain outreach, maintain websites with publicly available information about draft maps and hold at least four public hearings on the issue.

Under the Act, the council shall draw and adopt boundaries using the following criteria in the listed order of priority (Elections Code 21601(c) for general law cities):

1. Comply with the federal requirements of equal population and the federal Voting Rights Act

2. Geographically contiguous

3. Undivided neighborhoods and “communities of interest” (socio-economic geographic areas that should be kept together)

4. Easily identifiable boundaries

5. Compact (do not bypass one group of people to get to a more distant group of people)

6. Shall not favor or discriminate against a political party Once the above prioritized criteria are met, other traditional districting principles may be considered, such as:

1. Minimizing the number of voters delayed from voting due to a change of their district;

2. Respecting voters’ choices / continuity in office

3. Future population growth
By law, the City must hold at least four public hearings that enable community members to provide input on the redistricting process. The process involves the following requirements:
● At least one hearing must occur before the City draws draft maps ● At least two hearings must happen after the drawing of draft maps ● The fourth hearing can happen either before or after the drawing of draft maps ● City staff or consultants may hold a public workshop instead of one of the required public redistricting hearings
Previously, the first public hearing in the redistricting process was held on January 10, 2022. At the January 10, 2022 Public Hearing, the Council received a presentation from NDC providing a general overview of the redistricting process, information regarding the federal and state requirements regarding the criteria in order of priority to be used to establish district boundaries, review of the existing district boundary map 505b with 2020 census data and received public input on what factors should be taken into consideration while creating district boundaries.

The January 10, 2022 public hearing was held prior to the consideration of any draft maps.

The second public hearing to consider redistricting was held on February 14, 2022. The purpose of the second public hearing was to receive input from the community on what factors should be taken into consideration while evaluating district boundaries such as input on neighborhoods and communities of interest, and to consider any draft maps that have been submitted or prepared. At that public hearing, the existing map 505b and a draft map submitted by a member of the public, identified as map 506, was considered. The Council directed staff to bring further analysis of map 506 with additional information about demographics and street level detail and to consider an additional draft map based on map 506 with adjustments made to boundaries to move an identified population block from District 3 to District 4.

Tonight’s meeting is the third public hearing to consider redistricting and the second at which draft maps will be considered. The purpose of this public hearing on February 28, 2022 is to 9 Packet Pg. 202
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consider draft maps; receive input from the community regarding the draft maps, district boundaries, and election sequencing; to select a final map and election sequencing; and to introduce a proposed ordinance with the final selected district map and election sequencing.

The City has a webpage dedicated to the redistricting process which can be found here:
www.cityofpacifica.org/Redistricting <http://www.cityofpacifica.org/Redistricting> City staff has also made efforts to conduct outreach to the public to provide information on the City’s redistricting process including the following:
• Public Hearing Notice for the January 10, 2022 public hearing was posted at City Hall on January 4, 2022 and published in the Pacifica Tribune on January 5, 2022. • Following the January 10, 2022 public hearing, public mapping kits in English and Spanish were posted to the City website and available at City Hall. • Public Hearing Notice for the February 14, 2022 Public Hearing #2 was posted at City Hall on January 21, 2022 and published in the Pacifica Tribune on January 26, 2022 and February 2, 2022.
• Public Hearing Notice for the February 28, 2022 Public Hearing #3 was posted at City Hall on February 11, 2022 and published in the Pacifica Tribune on February 16, 2022 and February 23, 2022, published in Spanish in El Reportero on February 25, 2022 and published in Chinese in the World Journal on February 24, 2022. • Information on redistricting and soliciting public input and submission of draft maps for the redistricting process were published in the City of Pacifica’s “Connect With Pacifica” weekly e-newsletter and distributed by email on January 21, 2022, January 28, 2022 and February 4, 2022.
• Information on redistricting and soliciting public input and submission of draft maps in reference to the February 14, 2022 Public Hearing was also published to the City’s NextDoor and Facebook social media feeds on February 2, 2022. • Draft maps for consideration at the February 28, 2022 Public Hearing were published on the City’s Redistricting webpage (www.cityofpacifica.org/Redistricting <http://www.cityofpacifica.org/Redistricting>) on February 20, 2022.

Public comments and input regarding redistricting can be sent to the City via email to [email protected]; please indicate “Redistricting” in the subject line.

Draft Maps
The community was encouraged to submit proposed maps by February 4, 2022 for consideration at the February 14, 2022 public hearing and by February 18, 2022 for consideration at the February 28, 2022 public hearing. Based on the draft map received and direction from the Council at the February 14, 2022 public hearing, the following draft maps are under consideration for discussion at tonight’s public hearing:

A. Map 505b
Map 505b (Attachment A) is the existing district boundary map which was adopted on by Ordinance No. 839-C.S. on December 17, 2018 by the City Council, establishing the current district-based system for the election of members of the City Council.

Demographer consultant NDC’s analysis of the 2020 census data and map 505b and has determined that the map is population balanced as all of the Council districts only deviate by a total of 1.87%. The analysis of map 505b is attached for reference as Attachment B.

Additionally, map 505b would meet the criteria specified in Elections Code section 21601(c). Thus, the Council could consider the existing map 505b for re-adoption. 9 Packet Pg. 203
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B. Draft District Map 506
One submitted district map from an individual member of the public was received and discussed at the February 14, 2022 Public Hearing. The draft map corresponding to the map submitted by the member of the public, as rendered by NDC, is attached as Attachment C. At the February 14, 2022 meeting, the Council consensus was to consider map 506 for further discussion with additional information and detail provided following NDC’s additional analysis of the map and providing a format of the map that could be detailed to street level. NDC’s analysis of the 2020 census data and map 506 and has determined that the map is population balanced with a total deviation of 9.98%. This deviation is barely within the 10% threshold that is presumptively constitutional in evaluating districts as population balanced. The analysis of map 506 is attached for reference as Attachment D. Due to the total population deviation, this map is not recommended by Staff.

C. Draft District Map 506b
During the discussion of map 506 at the February 14, 2022 Public Hearing, Council directed staff to consider an additional draft map based on map 506 with adjustments made to boundaries to move an identified population block from District 3 to District 4.

Map 506b represents the Council-directed modifications based on map 506. Map 506b is attached as Attachment E. NDC’s analysis of the 2020 census data and map 506b has determined that the map is not population balanced, as it has a total population deviation of 13.42% as shown in the analysis attached for reference as Attachment F. Map 506b cannot be further considered for adoption, as it does not meet the federal requirements of equal population under the federal Voting Rights Act.

Ordinance
Based on the analysis provided, Council discussion and input from members of the public received during the previous public hearings related to redistricting staff recommends selecting map 505b as the final district map and re-adopting map 505b. Staff has prepared the proposed ordinance which amends Pacifica Municipal Code section 2-9.02 to repeal and replace the existing code provisions. The sequencing of the elections is found in Pacifica Municipal Code Section 2-9.04 and will remain unchanged. This provision provides for Districts 2, 3 and 5 to be elected in November 2022 and Districts 1 and 4 to be elected in November 2024.

It is recommended to introduce and waive the first reading and read by title only, the ordinance proposed as attached.

Next Steps
An additional public hearing is scheduled to be held on March 14, 2022. If the proposed Ordinance is introduced at tonight’s meeting, the Ordinance will be in order for adoption at the March 14, 2022 City Council meeting following the Public Hearing #4 to be conducted at that meeting.

The process timeline to complete the redistricting and map adoption process is summarized as follows:
• Public Hearing #1 January 10, 2022 - review process and laws, review 2020 census data, receive input on composition of districts
• Public Hearing #2 February 14, 2022 - review draft maps • Public Hearing #3 February 28, 2022 - selection of final map and election sequencing 9 Packet Pg. 204
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and introduction of ordinance
• Public Hearing #4 March 14, 2022 - Final adoption of ordinance CEQA:

Introduction of this ordinance is exempt from environmental review as the adoption of this Ordinance does not qualify as a “project” pursuant to Public Resource Code section 21065 and CEQA Guidelines Sections 15320, 15378 and 15061(b)(3) since it can be seen with certainty that there is no possibility that adoption of the Ordinance would cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:

The process of evaluating City Council districts with respect to updated 2020 census data and consideration of redistricting is consistent with the following Council adopted Goals:
“A Connected Community” includes taking actions to restore trust in City government, expanding communication and building community.

FISCAL IMPACT:

The fiscal impact of engaging NDC as the consulting demographer ranges from $3,500 to a notto-exceed amount of $45,000 per the attached agreement, with the low-range cost being associated with concluding the redistricting process with a finding that the current districts are “still balanced.”
Additional costs for the redistricting process that are not reflected in the agreement not-toexceed cost include city attorney legal expenses, publication expenses related to notices of public hearings associated with the redistricting process, printing and publication expenses for additional informational community outreach and advertising, and translation costs for meetings or printed materials, if necessary. The primary expense related to redistricting would be the engagement of the demographer per the attached agreement. Expenses for redistricting would be budgeted under the general fund City Manager - Election Expenses fund

01.200210.52331.0000.000.

ORIGINATED BY:

City Clerk
ATTACHMENT LIST:

Attachment A: Existing District Map 505b (PDF)
Attachment B: NDC 2020 Census Data Analysis - Map 505b (PDF) Attachment C: Draft District Map 506(PDF)
Attachment D: NDC 2020 Census Data Analysis - Map 506(PDF) Attachment E: Draft District Map 506b (PDF)
Attachment F: NDC 2020 Census Data Analysis - Map 506b (PDF) 9 Packet Pg. 205
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February 28, 2022
ORDINANCE NO. (ID # 4902)
ORDINANCE NO. _______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PACIFICA AMENDING TITLE 2, CHAPTER 9, “DISTRICT ELECTIONS” BY REPEALING AND REPLACING SECTION 2-9.02, “CITY COUNCIL DISTRICTS ESTABLISHED” OF THE CITY OF PACIFICA MUNICIPAL CODE TO ADOPT CITY COUNCIL DISTRICT BOUNDARIES BASED ON 2020 CENSUS DATA
WHEREAS, the City Council adopted Ordinance No. 839-C.S. on December 17, 2018, to provide for the election of members of the City Council of the City of Pacifica by-district in five single-member districts and establish district boundaries for five City Council districts as defined in the voting district map 505b and set forth the election sequence of the five districts; and WHEREAS, pursuant to California Elections Code 21601, following each federal decennial census for a city whose council is already elected using district-based elections, the council shall, by ordinance or resolution, adopt boundaries for all of the council districts of the city so that the council districts shall be substantially equal in population as required by the United States Constitution; and
WHEREAS, California Elections Code section 21600 et seq., requires, among other things, that following each decennial federal census, and using that census as a basis, the city council by ordinance or resolution, adopt boundaries for any or all of the council districts of the city so that the council districts shall be substantially equal in population as required by the United States Constitution ( “redistricting”); and
WHEREAS, pursuant to California Elections Code 21607.1(a), at a regular meeting held on January 10, 2022, the City Council held a public hearing where the public was invited to provide input regarding the composition of the City’s voting districts before any draft maps were drawn; and
WHEREAS, thereafter, at regular meetings held on February 14, 2022 and February 28, 2022, pursuant to the City Council held public hearings pursuant to California Elections Code 21607, the City Council held public hearings where the public was invited to provide input regarding the content of the draft maps that had been released at least seven (7) days before each meeting, and the City Council considered and discussed the same; and WHEREAS, at a regular meeting held on February 28, 2022, the City Council selected the final voting district map and set forth the introduction of this Ordinance for a first reading and confirmed the election sequence as set forth in Pacifica Municipal Code Section 2-9.04; and WHEREAS, in compliance with Elections Code section 21607.1(b)(c) and (d), all of the public hearings were commenced at a fixed time after 5:30 p.m., on a weekday, and were accessible to persons with disabilities; and
WHEREAS, in compliance with Elections Code section 21608(a), the Council took steps to encourage residents, including those in underrepresented communities and non-English speaking communities, to participate in the redistricting public review process. These steps include, but are not limited to the following:
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• Public Hearing Notice for the January 10, 2022 public hearing was posted at City Hall on January 4, 2022 and published in the Pacifica Tribune on January 5, 2022.
• Following the January 10, 2022 public hearing, public mapping kits in English and Spanish were posted to the City website and available at City Hall. • Public Hearing Notice for the February 14, 2022 Public Hearing #2 was posted at City Hall on January 21, 2022 and published in the Pacifica Tribune on January 26, 2022 and February 2, 2022.
• Public Hearing Notice for the February 28, 2022 Public Hearing #3 was posted at City Hall on February 11, 2022 and published in the Pacifica Tribune on February 16, 2022 and February 23, 2022, published in Spanish in El Reportero on February 25, 2022 and published in Chinese in the World Journal on February 24, 2022.
• Information on redistricting and soliciting public input and submission of draft maps for the redistricting process were published in the City of Pacifica’s “Connect With Pacifica” weekly e-newsletter and distributed by email on January 21, 2022, January 28, 2022 and February 4, 2022.
• Information on redistricting and soliciting public input and submission of draft maps in reference to the February 14, 2022 Public Hearing was also published to the City’s NextDoor and Facebook social media feeds on February 2, 2022. • Draft maps for consideration at the February 28, 2022 Public Hearing were published on the City’s Redistricting webpage
(www.cityofpacifica.org/Redistricting) on February 20, 2022.

WHEREAS, pursuant to Elections Code section 21608(c), the City established a redistricting website which provided a schedule with the date, time, and location for any public hearing relating to redistricting on the internet at least five days before the hearing and also provided access to redistricting data and for the purposes of drawing draft maps and paper mapping tools; and
WHEREAS, a final public hearing is scheduled to be held at a regular meeting of the City Council on March 14, 2022, to review additional public input related to the selection of final district map and election sequencing, consider such input, prior to adoption of the proposed Ordinance; and
WHEREAS, pursuant to Elections Code section 21608(d)(1), all draft maps considered by the Council were published on the City’s redistricting website at least seven days before being considered for adoption as a final map by the Council.

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PACIFICA DOES HEREBY ORDAIN AS FOLLOWS:

Section 1. Recitals. The City Council hereby finds that the foregoing recitals are a true and accurate and are incorporated herein by reference.

Section 2. California Environmental Quality Act (CEQA) Determination.

Adoption of this Ordinance is exempt from environmental review as the adoption of this Ordinance does not qualify as a “project” pursuant to Public Resource Code section 21065 and CEQA Guidelines Sections 15320, 15378 and 15061(b)(3) since it can be seen with certainty that there is no possibility that adoption of the Ordinance would cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

Section 3. Code Amendment. Title 2, “Administration”, Chapter 9, “District Elections” is amended by repealing Section 2-9.02, “City Council Districts” in its entirety and replacing it to read as follows:
“2-9.02. - City Council Districts.
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Five City Council districts are hereby adopted in the City of Pacifica. The boundaries and identifying number of each district for the City Council elections shall be as described on the Council District Map 505b included and incorporated below:
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Section 4. Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unenforceable by a court of competent jurisdiction, the remaining portions of this Ordinance shall nonetheless remain in full force and effect. The Council of the City of Pacifica hereby declares that it would have adopted each section, subsection, sentence, clause, phrase, or portion of this Ordinance, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions of this Ordinance be declared invalid or unenforceable.

Section 5. Effective Date.

This Ordinance shall take effect thirty (30) days after adoption as provided by Government Code section 36937.

Section 6. Publication; Certification.

The City Clerk shall attest to the adoption of this Ordinance and cause the same to be published in accordance with State law. The City Clerk is also authorized and directed to file Map 505b and the GIS shapefile, with the San Mateo County Registrar-Recorder. In the case of any parcels that are split across Council district boundaries, the County Registrar-Recorder shall apply a uniform methodology to adjust the boundary line to a border of the parcel without materially affecting the population within each affected district.

PASSED AND ADOPTED this ____day of March 2022, by the following vote:

AYES:

NOES:

ABSTAIN:

ABSENT
__________________________
Mary Bier, Mayor
ATTEST: APPROVED AS TO FORM:
________________________________ ___________________________ Sarah Coffey, City Clerk Michelle Kenyon, City Attorney 9 Packet Pg. 209
Pacifica City Council 10 February 28, 2022
* * * * *
(ID # 4902) at 2/28/2022 6:00 PM City Council Regular Meeting 9 Packet Pg. 210
1 2
5 3
4 Golden Gate Natl
Rec Area
Coast
Hwy
Reina Del Mar Ave
Crespi Dr
Rosita Rd
San Pedro Ave
Fire
Rd
Rockaway Beach Ave
Adobe
Dr
Linda Mar Blvd
Terra
Nova
Blvd
Oddstad
Blvd
Rainier
Ave
E
s
pla
n
a
d
e
Ave
Edgemar Ave
Palm
etto
Ave
Monterey Rd
Beach Blvd
K
oha al A
v
e
Paloma Ave
Inverness
Dr
�2021 CALIPER

9.a
Packet Pg. 211 Attachment: Attachment A: Existing District Map 505b (4902 : Redistricting Based on 2020 Census - Public Hearing 3 + Ordinance Introduction) Category Field 12345 Total
Total Population 7,742 7,710 7,657 7,763 7,802 38,674
Population Deviation 7 -25 -78 28 67 145
Pct. Deviation 0.09% -0.32% -1.01% 0.36% 0.87% 1.87%
Hispanic/Latino 21% 18% 17% 18% 21% 19%
NH White 22% 42% 59% 59% 61% 48%
NH Black 4% 3% 2% 1% 1% 2%
NH Asian/Pac.Isl. 49% 34% 19% 19% 14% 27%
NH Native Amer. 1% 1% 1% 1% 1% 1%
Total 6,085 5,778 5,875 6,208 5,825 29,770
Hisp 19% 19% 14% 17% 13% 17%
NH White 26% 47% 68% 65% 73% 56%
NH Black 7% 3% 3% 1% 1% 3%
Asian/Pac.Isl. 47% 29% 14% 15% 11% 23%
Native Amer. 0% 0% 1% 0% 0% 0%
Total 4,699 5,010 5,613 5,979 5,983 27,284
Latino est. 28% 19% 13% 14% 13% 17%
Spanish-Surnamed 26% 17% 12% 12% 12% 15%
Asian-Surnamed 12% 10% 5% 5% 4% 7%
Filipino-Surnamed 10% 4% 2% 2% 1% 4%
NH White est. 41% 64% 78% 78% 82% 70%
NH Black 10% 4% 3% 1% 1% 4%
Total 3,879 4,246 4,947 5,283 5,277 23,632
Latino est. 28% 18% 12% 14% 12% 16%
Spanish-Surnamed 25% 17% 11% 12% 12% 15%
Asian-Surnamed 13% 10% 5% 6% 4% 7%
Filipino-Surnamed 10% 4% 1% 2% 1% 3%
NH White est. 42% 64% 78% 78% 82% 71%
NH Black 10% 4% 3% 1% 1% 4%
Total 2,542 3,059 4,027 4,290 4,214 18,132
Latino est. 25% 16% 11% 13% 12% 14%
Spanish-Surnamed 23% 15% 11% 12% 11% 14%
Asian-Surnamed 10% 9% 4% 4% 3% 6%
Filipino-Surnamed 9% 3% 1% 2% 1% 3%
NH White est. 46% 68% 81% 80% 83% 74%
NH Black est. 11% 4% 3% 2% 1% 3%
age0-19 22% 20% 19% 23% 22% 21%
age20-60 57% 60% 56% 48% 50% 54%
age60plus 21% 20% 25% 29% 28% 24%
immigrants 32% 28% 15% 14% 12% 21%
naturalized 81% 74% 75% 85% 73% 78%
english 55% 62% 83% 83% 87% 74%
spanish 11% 12% 6% 6% 4% 8%
asian-lang 29% 21% 6% 8% 5% 14%
other lang 4% 4% 5% 3% 4% 4%
Language Fluency Speaks Eng. "Less than
Very Well" 16% 10% 4% 6% 3% 8%
hs-grad 43% 37% 37% 44% 42% 41%
bachelor 29% 33% 25% 26% 27% 28%
graduatedegree 12% 16% 27% 17% 16% 18%
Child in Household child-under18 36% 29% 26% 29% 31% 30% Pct of Pop. Age 16+ employed 71% 72% 71% 64% 67% 69%
income 0-25k 7% 9% 7% 10% 3% 7%
income 25-50k 9% 11% 11% 8% 9% 9%
income 50-75k 10% 11% 11% 12% 15% 12%
income 75-200k 52% 47% 47% 48% 54% 49%
income 200k-plus 22% 22% 25% 22% 19% 22%
single family 73% 69% 77% 87% 95% 80%
multi-family 27% 31% 23% 13% 5% 20%
rented 31% 41% 32% 25% 17% 29%
owned 69% 59% 68% 75% 83% 71%
Housing Stats
Voter Registration (Nov
2020)
Voter Turnout (Nov
2020)
Total population data from California's adjusted 2020 Census data. Citizen Voting Age Population, Age, Immigration, and other demographics from the 2015-2019 American Community Survey and Special Tabulation 5-year data. Turnout and Registration data from California Statewide Database ("Latino" figures calculated by NDC using Census Bureau's Latino undercount by surname estimate).

Voter Turnout (Nov
2018)
Household Income
Education (among those
age 25+)
Immigration
Age
Language spoken at
home
City of Pacifica - Map 505b
2020 Census
Total Pop.

Citizen Voting Age Pop

9.b
Packet Pg. 212 Attachment: Attachment B: NDC 2020 Census Data Analysis - Map 505b [Revision 1] (4902 : Redistricting Based on 2020 Census - Public 1 2
5 4
3 Golden Gate Natl
Rec Area
Coast
Hwy
Reina Del Mar Ave
Crespi Dr
Rosita Rd
San Pedro Ave
Fire
Rd
Rockaway Beach Ave
Adobe
Dr
Linda Mar Blvd
Terra
Nova
Blvd
Oddstad
Blvd
Rainier
Ave
E
s
pla
n
a
d
e
Ave
Edgemar Ave
Manor Dr
Palm
etto
Ave
Monterey Rd
Beach Blvd
K
oha al A
v
e
Hickey
Blvd
Paloma Ave
Inverness
Dr
�2021 CALIPER

9.c
Packet Pg. 213 Attachment: Attachment C: Draft District Map 506 (4902 : Redistricting Based on 2020 Census - Public Hearing 3 + Ordinance Introduction) Category Field 12345 Total
Total Population 7,996 7,456 8,183 7,411 7,628 38,674
Population Deviation 261 -279 448 -324 -107 772
Pct. Deviation 3.37% -3.61% 5.79% -4.19% -1.38% 9.98%
Hispanic/Latino 19% 21% 17% 17% 21% 19%
NH White 31% 33% 57% 61% 61% 48%
NH Black 4% 3% 2% 2% 1% 2%
NH Asian/Pac.Isl. 44% 39% 20% 18% 14% 27%
NH Native Amer. 1% 1% 1% 1% 1% 1%
Total 6,041 5,822 6,200 6,058 5,650 29,770
Hisp 18% 20% 16% 16% 13% 17%
NH White 37% 35% 66% 67% 74% 56%
NH Black 6% 5% 3% 2% 1% 3%
Asian/Pac.Isl. 39% 38% 14% 15% 11% 23%
Native Amer. 0% 0% 1% 0% 0% 0%
Total 4,906 4,803 6,051 5,674 5,850 27,284
Latino est. 23% 23% 13% 13% 13% 17%
Spanish-Surnamed 21% 21% 12% 12% 12% 15%
Asian-Surnamed 12% 10% 6% 5% 4% 7%
Filipino-Surnamed 8% 6% 2% 2% 1% 4%
NH White est. 51% 55% 77% 80% 82% 70%
NH Black 7% 7% 3% 2% 1% 4%
Total 4,065 4,060 5,308 5,036 5,163 23,632
Latino est. 23% 23% 13% 13% 12% 16%
Spanish-Surnamed 21% 21% 12% 12% 11% 15%
Asian-Surnamed 13% 10% 6% 5% 4% 7%
Filipino-Surnamed 8% 6% 2% 2% 1% 3%
NH White est. 52% 55% 77% 79% 82% 71%
NH Black 6% 7% 3% 2% 1% 4%
Total 2,752 2,849 4,286 4,137 4,108 18,132
Latino est. 20% 21% 12% 12% 12% 14%
Spanish-Surnamed 18% 19% 11% 11% 11% 14%
Asian-Surnamed 10% 8% 4% 4% 4% 6%
Filipino-Surnamed 7% 5% 2% 1% 1% 3%
NH White est. 57% 59% 79% 81% 83% 74%
NH Black est. 7% 7% 3% 2% 1% 3%
age0-19 21% 21% 20% 22% 23% 21%
age20-60 58% 60% 53% 51% 50% 54%
age60plus 21% 20% 27% 27% 28% 24%
immigrants 29% 31% 16% 14% 12% 21%
naturalized 79% 77% 78% 83% 72% 78%
english 61% 56% 82% 83% 87% 74%
spanish 11% 12% 6% 6% 4% 8%
asian-lang 23% 28% 7% 7% 5% 14%
other lang 5% 4% 5% 3% 4% 4%
Language Fluency Speaks Eng. "Less than
Very Well" 13% 13% 5% 4% 3% 8%
hs-grad 37% 43% 41% 40% 42% 41%
bachelor 33% 30% 24% 26% 28% 28%
graduatedegree 15% 13% 22% 22% 16% 18%
Child in Household child-under18 31% 33% 24% 30% 31% 30% Pct of Pop. Age 16+ employed 70% 72% 69% 66% 67% 69%
income 0-25k 8% 8% 8% 9% 3% 7%
income 25-50k 9% 11% 7% 11% 9% 9%
income 50-75k 9% 12% 12% 12% 15% 12%
income 75-200k 52% 47% 48% 46% 55% 49%
income 200k-plus 22% 22% 25% 22% 19% 22%
single family 63% 79% 76% 87% 96% 80%
multi-family 37% 21% 24% 13% 4% 20%
rented 39% 34% 33% 24% 17% 29%
owned 61% 66% 67% 76% 83% 71%
Housing Stats
Voter Registration (Nov
2020)
Voter Turnout (Nov
2020)
Total population data from California's adjusted 2020 Census data. Citizen Voting Age Population, Age, Immigration, and other demographics from the 2015-2019 American Community Survey and Special Tabulation 5-year data. Turnout and Registration data from California Statewide Database ("Latino" figures calculated by NDC using Census Bureau's Latino undercount by surname estimate).

Voter Turnout (Nov
2018)
Household Income
Education (among those
age 25+)
Immigration
Age
Language spoken at
home
City of Pacifica - Map 506
2020 Census
Total Pop.

Citizen Voting Age Pop

9.d
Packet Pg. 214 Attachment: Attachment D: NDC 2020 Census Data Analysis - Map 506 (4902 : Redistricting Based on 2020 Census - Public Hearing 3 + 1 2
5 4
3 Golden Gate Natl
Rec Area
Coast
Hwy
Reina Del Mar Ave
Crespi Dr
Rosita Rd
San Pedro Ave
Fire
Rd
Rockaway Beach Ave
Adobe
Dr
Linda Mar Blvd
Terra
Nova
Blvd
Oddstad
Blvd
Rainier
Ave
E
s
pla
n
a
d
e
Ave
Edgemar Ave
Manor Dr
Palm
etto
Ave
Monterey Rd
Beach Blvd
K
oha al A
v
e
Hickey
Blvd
Paloma Ave
Inverness
Dr
�2021 CALIPER

9.e
Packet Pg. 215 Attachment: Attachment E: Draft District Map 506b (4902 : Redistricting Based on 2020 Census - Public Hearing 3 + Ordinance Introduction) Category Field 12345 Total
Total Population 7,996 7,456 7,278 8,316 7,628 38,674
Population Deviation 261 -279 -457 581 -107 1,038
Pct. Deviation 3.37% -3.61% -5.91% 7.51% -1.38% 13.42%
Hispanic/Latino 19% 21% 17% 18% 21% 19%
NH White 31% 33% 57% 61% 61% 48%
NH Black 4% 3% 2% 2% 1% 2%
NH Asian/Pac.Isl. 44% 39% 21% 18% 14% 27%
NH Native Amer. 1% 1% 1% 1% 1% 1%
Total 6,041 5,822 5,552 6,705 5,650 29,770
Hisp 18% 20% 16% 16% 13% 17%
NH White 37% 35% 66% 66% 74% 56%
NH Black 6% 5% 3% 2% 1% 3%
Asian/Pac.Isl. 39% 38% 14% 15% 11% 23%
Native Amer. 0% 0% 2% 0% 0% 0%
Total 4,906 4,803 5,317 6,408 5,850 27,284
Latino est. 23% 23% 13% 13% 13% 17%
Spanish-Surnamed 21% 21% 13% 12% 12% 15%
Asian-Surnamed 12% 10% 6% 5% 4% 7%
Filipino-Surnamed 8% 6% 2% 2% 1% 4%
NH White est. 51% 55% 77% 79% 82% 70%
NH Black 7% 7% 2% 2% 1% 4%
Total 4,065 4,060 4,678 5,666 5,163 23,632
Latino est. 23% 23% 13% 13% 12% 16%
Spanish-Surnamed 21% 21% 12% 12% 11% 15%
Asian-Surnamed 13% 10% 6% 5% 4% 7%
Filipino-Surnamed 8% 6% 2% 2% 1% 3%
NH White est. 52% 55% 78% 79% 82% 71%
NH Black 6% 7% 2% 2% 1% 4%
Total 2,752 2,849 3,812 4,611 4,108 18,132
Latino est. 20% 21% 12% 12% 12% 14%
Spanish-Surnamed 18% 19% 11% 11% 11% 14%
Asian-Surnamed 10% 8% 4% 4% 4% 6%
Filipino-Surnamed 7% 5% 2% 2% 1% 3%
NH White est. 57% 59% 80% 81% 83% 74%
NH Black est. 7% 7% 2% 2% 1% 3%
age0-19 21% 21% 20% 22% 23% 21%
age20-60 58% 60% 56% 49% 50% 54%
age60plus 21% 20% 24% 29% 28% 24%
immigrants 29% 31% 15% 14% 12% 21%
naturalized 79% 77% 77% 83% 72% 78%
english 61% 56% 83% 83% 87% 74%
spanish 11% 12% 5% 7% 4% 8%
asian-lang 23% 28% 6% 8% 5% 14%
other lang 5% 4% 5% 3% 4% 4%
Language Fluency Speaks Eng. "Less than
Very Well" 13% 13% 4% 5% 3% 8%
hs-grad 37% 43% 40% 41% 42% 41%
bachelor 33% 30% 25% 26% 28% 28%
graduatedegree 15% 13% 23% 21% 16% 18%
Child in Household child-under18 31% 33% 25% 29% 31% 30% Pct of Pop. Age 16+ employed 70% 72% 71% 64% 67% 69%
income 0-25k 8% 8% 6% 11% 3% 7%
income 25-50k 9% 11% 8% 11% 9% 9%
income 50-75k 9% 12% 12% 11% 15% 12%
income 75-200k 52% 47% 49% 45% 55% 49%
income 200k-plus 22% 22% 25% 22% 19% 22%
single family 63% 79% 75% 87% 96% 80%
multi-family 37% 21% 25% 13% 4% 20%
rented 39% 34% 34% 24% 17% 29%
owned 61% 66% 66% 76% 83% 71%
Housing Stats
Voter Registration (Nov
2020)
Voter Turnout (Nov
2020)
Total population data from California's adjusted 2020 Census data. Citizen Voting Age Population, Age, Immigration, and other demographics from the 2015-2019 American Community Survey and Special Tabulation 5-year data. Turnout and Registration data from California Statewide Database ("Latino" figures calculated by NDC using Census Bureau's Latino undercount by surname estimate).

Voter Turnout (Nov
2018)
Household Income
Education (among those
age 25+)
Immigration
Age
Language spoken at
home
City of Pacifica - Map 506b
2020 Census
Total Pop.

Citizen Voting Age Pop

9.f
Packet Pg. 216 Attachment: Attachment F: NDC 2020 Census Data Analysis - Map 506b (4902 : Redistricting Based on 2020 Census - Public Hearing 3 +

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
2/28/2022
1 SUBJECT:

Adoption of a Resolution approving the Temporary Safe Parking Program, Operations Agreement with the Pacifica Resource Center, and Funding for the Program; and Introduce an Ordinance amending sections of Titles 4 and 5 the Pacifica Municipal Code related to on-street parking regulations in order to allow participants of the Safe Parking Program to park on the street for more than 72 hours.

RECOMMENDED ACTION:
1) Move to adopt the Resolution approving the Temporary Safe Parking Program, the Operations Agreement with the Pacifica Resource Center, and Funding for the Program; and finding Approval of the Program Exempt under the California Environmental Quality Act.
2) Move to Introduce by Title Only and Waive further reading of “Ordinance of The City Council of The City of Pacifica To Amend Article 12 of Chapter 7 "Traffic" Within Title 4 of The Pacifica Municipal Code To Add Section Sec. 4-7.1207 and to Amend Section 5-

2.03, “Violations: Abatement” Within Chapter 2, "Vehicles Parked For Seventy-Two Hours Or More”, Within Title 5 Of The Pacifica Municipal Code Relating To Temporary Safe Parking Permit; and finding Ordinance exempt under the California Environmental Quality Act.

STAFF CONTACT:

Michelle Marchetta Kenyon, City Attorney – (510) 273-8780 [email protected]
Kevin Woodhouse, City Manager – (650) 738-7408
[email protected]
BACKGROUND/DISCUSSION:

The Lawsuit and Settlement Agreement
On March 15, 2021, the ACLU, the Legal Aid Society of San Mateo County and Disability Rights Advocates filed a class action lawsuit against the City of Pacifica on behalf of the Plaintiffs1 challenging the City’s Oversized Vehicle (OSV) Ordinance and its Vehicular Habitation Ordinance2. The lawsuit alleges that the OSV Ordinance (Pacifica Municipal Code Sections 4-

7.1204 and 4-7.1205) and the Vehicular Habitation Ordinance (Pacifica Municipal Code 4-

7.1114) are unconstitutional. It further alleges that the OSV Ordinance violates the Americans with Disabilities Act, the California Disabled Persons Act, the Rehabilitation Act of 1973 and California Government Code §11135. On November 8, 2021, the City Council adopted Resolution No. 72-2021 approving execution of a settlement agreement (“Settlement Agreement”) for the lawsuit and approving a memorandum of understanding with Pacifica Resource Center (“PRC”) for development and implementation of a temporary safe parking program (“Program”) and identifying the 13 designated parking spots that would be used for the Program.
1 Named Plaintiffs identified in the Complaint are as follows: Sean Geary, Linda Miles, Jared Carr, Harry Bode, and Stephen Sanders
2 Geary, et al. v. City of Pacifica, Case No. 3:21-cv-01780 10 Packet Pg. 217
Pacifica City Council 2
February 28, 2022
As part of the Settlement Agreement, the City agreed to develop and adopt an on-street Program, to be jointly administered with PRC. If adopted, the attached Resolution would both approve the Program and the Operations Agreement with PRC which sets forth the obligations of the City and PRC which are discussed in more detail below.

Temporary Safe Parking Program
City staff worked with PRC to develop a three-year Program in the City of Pacifica which will provide participants living in an operational recreational vehicle, trailer or motorhome with operating restroom facilities a temporary parking space for a limited period of time as participants in the Program try to find permanent housing solutions. The Program would allow parking of oversized vehicles in 13 designated parking spaces for up to 29 days at a time. PRC would implement the Program, with assistance from the City, in accordance with the Operations Agreement between PRC and the City and other supporting documents developed by PRC to be used between PRC and the participants in the Program, such as a Participant Bill of Rights and Onsite Code of Conduct, as well as a Release of Liability.

The thirteen locations, which were approved by the Council on November 8, 2021, are as follows:
(1) 4 spaces on the west side of Oceana Boulevard, west of the City of Pacifica Public Works Department Building at 151 Milagra Avenue. (2) 3 spaces on Lundy Way. To accommodate these spaces, the City will widen Lundy Way sufficient to make OSV parking safe.
(3) 1 space on Milagra Drive, across the road from City of Pacifica Public Works Department Building at 151 Milagra Avenue.
(4) 1 space on the west side of Francisco Boulevard near the North Coast County Water District facility at 2400 Francisco Boulevard.
(6) 2 spaces on the west side of Bradford Way near the Sharp Park Golf Course. (7) 2 spaces on San Pedro in the dirt ROW in front of ACE Hardware.

Individuals who desire issuance of a parking permit associated with the Program will apply to PRC, which will screen the applicants. PRC’s screening process at a minimum, will consist of an application form and application review process. The purpose of PRC’s assessment is to ensure that applicants can meet the Program criteria. Among some of the requirements that participants in program must abide by are adherence to codes of conduct while they are seeking PRC services towards housing and will be required to sign a Release of Liability.

PRC will be responsible for issuing Permits to those individuals who meet the criteria for the Program (“Permit Holders”) either in the form of a “Regular Permit”, “Provisional Permit” or “Short-Term Permit.” Applicants to the Program who meet all of the criteria for the Program may be issued a “Regular Permit” upon admittance to the Program for a single term of 29 days, with the potential for renewal for additional 29-day terms at a different parking space. Renewal of the Regular Permit may be granted by PRC, in PRC’s sole discretion. Applicants who do not meet all of the criteria for the Program at the time the application is filed with the PRC and who may need additional time to comply with the Program may be issued a “Provisional Permit” upon admittance to the Program for one single term of 29 days with no renewal period. PRC may issue Provisional Permits, to Applicants who meet at least two of the Program criteria identified above, so long as the total number of Provisional Permits issued at any point does not exceed the maximum total of six Provisional Permits. Further, PRC, at its discretion, may issue Short-Term Permits, for oversized vehicle parking for not more than 72 hours at Parking Sites that are not assigned to Regular or Provisional Permit Holders. Permits may be terminated when Permit Holders no longer meet the criteria for the Program or are otherwise disqualified to participate in the Program.
10 Packet Pg. 218
Pacifica City Council 3
February 28, 2022
PRC, at its discretion, will collect a fee for the Program at the time the Regular Permit or Provisional Permit is issued and upon reissuance of the Regular Permit every 29 days. There is no fee for Short-Term Permits. The fee shall be set on a sliding scale and will be paid to PRC.

The fee schedule is as follows:
• $29 for families with income at 30% or below median income; • $290 for families with income between 30% and 50% of median income; and • $725 for families with income between 50% and 80% of median income.

Of the 13 spaces in the Program, 5 are located in the Coastal Zone:
• 1 space on the west side of Francisco Boulevard near the North Coast County Water District facility at 2400 Francisco Boulevard.
• 2 spaces on the west side of Bradford Way near the Sharp Park Golf Course. • 2 spaces on San Pedro in the dirt ROW in front of ACE Hardware.

The designation of these five spaces assigned for oversized vehicle parking may be considered “development” as it is broadly defined in the Coastal Act and the City’s Local Coastal Plan and would require a Coastal Development Permit (“CDP”). Staff will thus be proceeding with an application for a CDP if the Program is approved.

Operations Agreement with PRC
The Resolution, if adopted, will also approve an Operations Agreement (“OA”) between the Pacifica Resource Center which specifies the obligations of PRC and the City and provide details regarding the framework for the Program. Some of PRC’s obligations under the OA include: screening of applicants, issuance of Regular, Provisional and Short Term permits (as discussed above), assignment of parking spaces, requiring adherence to codes of conduct, written documentation provided to Permit Holders, assist in maintenance of parking spaces, cohosting of a mobile dumping station, and periodic reporting to City on status of Program.

The City’s funding obligations are set forth in the OA and include: striping of the 13 parking spaces as described in the OA, regular police patrol of the parking spaces, co-hosting of a mobile dumping station at a cost of up to $30,000 per year and payments to PRC in installments of $120,000 by June 30, 2022; $120,000 by June 30, 2023; and $120,000 by June 30, 2024, as well as the provision of dumpsters or drop off service for garbage disposal.

The OA also provides that the Code of Conduct for Regular and Provisional Permit Holders require at a minimum that all Permit Holders do the following: (i) properly dispose of gray and black water; (ii) properly dispose of trash and recyclables; (iii) keep all personal property within the Designated Vehicle and do not place any personal property or items around the exterior of the Designated Vehicle, including but not limited to chairs, tables, tarps, BBQs; (iv) do not cook outside the Designated Vehicle or light any fires; (v) do not store hazardous materials in or around the Designated Vehicle; (vi) do not participate in illegal drug use or sales, illegal activities or violence; (vii) properly control pets; (viii) do not block any access to the sidewalk; (ix) be considerate of neighbors and not loiter, trespass, publicly use drugs or alcohol, light fires, or use open flames or other burners in the Parking Site or surrounding area; and (x) comply with all laws during participation in the Program. The Code of Conduct for Short-Term Permit Holders shall require at a minimum that all Short-Term Permit Holders do the following: (i) properly dispose of gray and black water; (ii) properly dispose of trash and recyclables; (iii) keep all personal property within the Designated Vehicle and do not place any personal property or items around the exterior of the Designated Vehicle including but not limited to chairs, tables, tarps, BBQs; (iv) do not cook outside the Designated Vehicle or light any fires; (v) do not store hazardous materials in or around the Designated Vehicle; (vi) do not participate in illegal drug 10 Packet Pg. 219
Pacifica City Council 4
February 28, 2022
use or sales, illegal activities or violence; (vii) properly control pets; (viii) do not block any access to the sidewalk; and (ix) be considerate of neighbors and not loiter, trespass, publicly use drugs or alcohol, light fires, or use open flames or other burners in the Parking Site or surrounding area.

Participants in the Program would also be required to sign a Release of Liability, which would specify that the participants assume all risks of participating in the Program and that PRC and the City of Pacifica shall not be held liable for any injury or damages. The Release also specifies that no tenancy rights are created through participation in the Program.

Temporary Safe Parking Permit Ordinance
In order for participants in the Safe Parking Program to park on the street for more than 72 hours, the City must also amend its parking regulations to establish a parking program to allow for Permit Holders to park legally for the duration of the Permit. The proposed Ordinance, if adopted, would add a new PMC Section 4-7.1207, which specifies various parameters for the use of Regular, Provisional, and Short-Term Permits under the Program. Section 4-7.1207 further provides that no vehicle shall be parked in a Parking Site without displaying a valid Permit issued in accordance with the Program, and that any person violating any provision of section 4-7.1207 is guilty of an infraction, and upon conviction, shall be punishable as set forth in Chapter 2 of Title 1 of the Code.

The proposed Ordinance would also amend PMC Section 5-2.03 to create an exemption from the City’s 72-hour parking limitation for vehicles displaying either a valid Regular Permit or Provisional Permit under the Program. No exemption is necessary for the Short-Term Permits since those permits only allow parking in the Safe Parking Sites for 72 hours.

Mobile Dumping Services Program
An important part of this program is the provision of a mobile dumping services program in order for participants to safely dispose of blackwater from their motorhomes, ensuring public health and environmental protection. It is envisioned that this service would be coordinated between the City and PRC, funded by the City, staffed on-site by the PRC, and would be operated by a licensed third-party contractor. City staff have evaluated potential locations on City property for the program to operate one day every two weeks and have determined that the most feasible location is at the 2212 Beach Boulevard location that is currently used as a Public Works storage yard. This site has sufficient ingress and egress capability for motorhomes, is visually protected, and is off-street. After initially conducting the program and gaining experience with the number of motorhomes being served and site logistics, should another location be identified that is more desirable, the program could be moved in the future. Based on quotes received by the PRC, a program servicing an average of 13 motorhomes once every two weeks is estimated to cost $30,000.

ALTERNATIVE ACTION:

Although not recommended, the Council could choose not to approve the Resolution approving the Program and OA, which would cause the Geary litigation to continue.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
“A Healthy and Compassionate Community” includes addressing affordable housing and mental health services, investigating strategies related to homelessness, and supporting youth services.

CEQA:

Adoption of the Resolution approving the Program and Operations Agreement and introduction 10 Packet Pg. 220
Pacifica City Council 5
February 28, 2022
of the Temporary Safe Parking Permit Ordinance are exempt from the California Environmental Quality Act (CEQA). CEQA Guidelines Section 15301 – Existing Facilities exempts the operation, permitting, leasing, or licensing of existing public facilities involving negligible or no expansion of the use beyond that existing at the time of determination of exemption. In this case the public facility, parking areas on existing streets, will continue to be used for that purpose. Section CEQA Guidelines 15304(e) – Minor Alterations to Land exempts minor temporary uses having negligible or no permanent effects on the environment. Further, since the parking areas in the ROW are being used for the purpose they are originally intended, it could be argued that the Program and Ordinance are not a “project” that may cause a direct, or reasonably foreseeable indirect, physical change in the environment and are exempt under the “common sense” exception (14 Cal. Code Regs. § 15061(b)(3)) because it can be seen with certainty that there is no possibility that these actions to approve the Safe Parking Program, the Operations Agreement and introduction of the proposed ordinance would have a significant effect on the environment.

FISCAL IMPACT:

This program is proposed as a partnership between the City, the County of San Mateo, and the Pacifica Resource Center. In the Adopted Fiscal Year 2021-22 Budget, the City Council allocated $150,000 in American Rescue Plan Act (ARPA) funding for assistance to the vehicularly housed and a mobile dumping station program. A mobile dumping station program, serving an average of 13 vehicles once every two weeks is estimated to cost $30,000 per year.

Therefore, $120,000 in FY2021-22 ARPA funding could be committed to the Safe Permit Parking Program. This amount is recommended for each year of the three-year program.

The County of San Mateo has allocated $400,000 in ARPA funding for this program, in part in response to PRC grant applications and the PRC’s working relationship with the County to fund assistance to the unhoused. And the Pacifica Resource Center additionally has applied for Homeless Outreach Funds, of which approximately $50,000, if received, could be applied to the program. In addition, other grant opportunities in the future may become available that could be applied to this program, and the program will generate a small but unknown amount from participant fees that could be applied to the program.

Year 1
(July 2022-
June, 2023)
Year 2
(July 2023-
June, 2024)
Year 3
(July 2024-
June, 2025)
City (ARPA or other) $120,000 $120,000 $120,000
County (ARPA) $160,000 $193,000 $47,000
PRC (Grants or other) $50,000 $50,000 $50,000
Total Funding Available: $330,000 $363,000 $217,000
Est. Program Expense: $(330,000) $(363,000) $(363,000)
Balance: $0 $0 $(146,000)
ARPA funds are required to be obligated by December 31, 2024 and expended by December 31, 2026. Therefore, the $146,000 shortfall in Year 3 in the above table could be funded through an additional grant or if the program is successful and the Board of Supervisors approves, additional ARPA funding from the County and/or the City.

In the event the Council does not approve the Program, the Geary litigation will continue, and the City would incur significant additional costs in defending the lawsuit which could exceed $500,000. These additional costs would be in addition to the over $300,000 in legal defense costs already expended in this lawsuit. The Geary Plaintiffs will also seek recovery of the additional attorneys’ fees incurred for this further litigation, also estimated to potentially exceed $500,000.
10 Packet Pg. 221
Pacifica City Council 6
February 28, 2022
ORIGINATED BY:

City Manager's Office
ATTACHMENT LIST:

A. Resolution Approving the Temporary Safe Parking Program, Operations Agreement with the Pacifica Resource Center, and Funding for the Program (DOC) B. Exhibit to Resolution - DRAFT Operations Agreement with Code of Conduct Exhibits (PDF) C. Ordinance Amending Sections of Titles 4 and 5 the Pacifica Municipal Code (DOCX) 10 Packet Pg. 222
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA APPROVING THE

TEMPORARY SAFE PARKING PROGRAM, THE OPERATIONS AGREEMENT WITH THE PACIFICA RESOURCE CENTER AND FUNDING FOR THE PROGRAM; AND FINDING THE

APPROVAL OF THE PROGRAM EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL

QUALITY ACT
WHEREAS, on March 15, 2021, the ACLU, the Legal Aid Society of San Mateo County and Disability Rights Advocates filed a class action lawsuit (Geary, et al. v. City of Pacifica, Case No. 3:21-cv-01780) against the City of Pacifica on behalf of the Plaintiffs, Sean Geary, Linda Miles, Jared Carr, Harry Bode and Stephen Sanders, challenging the City’s Oversized Vehicle (OSV) Ordinance and its Vehicular Habitation Ordinance in the United States District Court for the Northern District of California; and
WHEREAS, the lawsuit alleges that the OSV Ordinance (Pacifica Municipal Code Sections 4-7.1204 and 4-7.1205) and the Vehicular Habitation Ordinance (Pacifica Municipal Code 4-7.1114) are unconstitutional and further alleges that the OSV Ordinance violates the Americans with Disabilities Act, the California Disabled Persons Act, the Rehabilitation Act of 1973 and California Government Code §11135; and
WHEREAS, through the lawsuit, Plaintiffs seek a declaration that the OSV Ordinance and the Vehicular Habitation Ordinance are unconstitutional, a preliminary and permanent injunction directing the City to cease all efforts to enforce the Ordinances, restitution for fines and penalties collected under the Ordinances, and attorney’s fees; and WHEREAS, on July 14, 2021, the Court issued a limited injunction that required the City to make available on its website, at City Hall and at Pacifica libraries a list and map of the already existing places where OSVs can safely park; and WHEREAS, on November 8, 2021, the City Council of the City of Pacifica adopted Resolution No. 72-2021, approving execution of the Settlement Agreement for the lawsuit and approving a Memorandum of Understanding (“MOU”) with Pacifica Resource Center (“PRC”), which formalized the City and PRC’s agreement to work together to identify the substantive terms and details of a temporary safe parking program (“Program”) and an operations agreement for the Program; and
WHEREAS, under the Program, the City would allow parking of oversized vehicles under certain conditions such as meeting certain safety standards, operable toileting facilities, and adherence by owners of the oversized vehicle to a strict code of conduct; and WHEREAS, pursuant to the Settlement Agreement and the MOU, the City has been working with PRC to prepare the proposed Program Operations Agreement with PRC, the Code of Conduct for Regular and Provisional Permit Holders, the Code of Conduct for Short-Term Permit Holders, and the Release of Liability in furtherance of the development of the proposed Program.

WHEREAS, the City has allocated in the adopted Fiscal Year 2021-22 Budget, $150,000 in American Rescue Plan Act (ARPA) funding for assistance to the vehicularly housed and a mobile dumping station program; and
WHEREAS, up to $120,000 in FY2021-22 ARPA funding could be committed to the Safe Permit Parking Program; and

10.a
Packet Pg. 223 Attachment: A. Resolution Approving the Temporary Safe Parking Program, Operations Agreement with the Pacifica Resource Center, and WHEREAS, the City’s funding obligation for the Program will total up to $360,000, payable in installments of $120,000 by June 30, 2022; $120,000 by June 30, 2023; and $120,000 by June 30, 2024; and
WHEREAS, other funding necessary for the Program will be provided by San Mateo County and PRC.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pacifica hereby finds that the approval of this Resolution is exempt under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301 – Existing Facilities exempts the operation, permitting, leasing, or licensing of existing public facilities involving negligible or no expansion of the use beyond that existing at the time of determination of exemption. In this case the public facility, parking areas on existing streets, will continue to be used for that purpose. Section CEQA Guidelines 15304(e) – Minor Alterations to Land exempts minor temporary uses having negligible or no permanent effects on the environment. Further, since the parking areas in the ROW are being used for the purpose they are originally intended, it could be argued that the Program and Ordinance are not a “project” that may cause a direct, or reasonably foreseeable indirect, physical change in the environment and are exempt under the “common sense” exception (14 Cal. Code Regs. § 15061(b)(3)) because it can be seen with certainty that there is no possibility that these actions to approve the Safe Parking Program and the Operations Agreement would have a significant effect on the environment.

BE IT FURTHER RESOLVED that the Council hereby approves a three-year Temporary Safe Parking Program in the City of Pacifica which provides participants living in an operational recreational vehicle, trailer or motorhome with operating toileting facilities a temporary parking space for a limited period of time while participants in the Program try to find permanent housing solutions which Program is more fully described in the staff report prepared for adoption of this Resolution and the Operations Agreement between PRC and the City.

BE IT FURTHER RESOLVED that the Council hereby approves the Operations Agreement and authorizes the City Manager to execute the Operations Agreement between the City and PRC in substantially the form attached hereto as Exhibit A, with minor revisions that may be approved by the City Manager and the City Attorney, and to execute any other necessary documents to effectuate the terms of the Operations Agreement.

BE IT FURTHER RESOLVED that the Council hereby approves funding for the City’s obligations relating to the Program, as set forth in the Operations Agreement, including payments to PRC in installments of $120,000 to PRC by June 30th of each year of the Program. • • • •
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the 28
th day of February, 2022, by the following vote:

AYES, Councilmembers:

NOES, Councilmembers:

ABSENT, Councilmembers:

ABSTAIN, Councilmembers:

10.a
Packet Pg. 224 Attachment: A. Resolution Approving the Temporary Safe Parking Program, Operations Agreement with the Pacifica Resource Center, and Mary Bier, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ ______________________________ Sarah Coffey, City Clerk Michelle Marchetta Kenyon, City Attorney

10.a
Packet Pg. 225 Attachment: A. Resolution Approving the Temporary Safe Parking Program, Operations Agreement with the Pacifica Resource Center, and

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Pacifica City CouncilFebruary 28, 2022

Pacifica City Council
February 28, 2022