From: Dee Joyce
To: City Clerk Dept User
Subject: Craneway contract with Orton, Council and City Attorney Inaction Date: Tuesday, April 2, 2024 11:41:30 AM
This email originated from outside of the City's email system. Do not open links or attachments from untrusted sources.
This email originated from outside of the City's email system. Do not open links or attachments from untrusted sources.
Good Evening,
The contract with Orton regarding it's use of the Craneway may have been signed many years ago by different City Council members, but that does not release the current City Council from taking such actions as to hold Orton to the contract. The current City Council may believe it was a bad contract to have signed, that also does not release the current City Council from holding Orton to the contract.
PB Development's plan of last year for paid-membership pickleball club was denied last year because the Craneway is designated for use as a public trust, governed by the City of Richmond, the California State Lands Commission, and the San Francisco Bay Conservation and Development Commission. Per City staffers themselves, the City of Richmond has not made any approvals for the use of the Craneway for pickleball, membership or no membership. Representatives of PB, Orton and the Pickleball organization pushing this project have been contradictory in their communications with regards to intent of use for the Craneway. On the one hand they claim it would be an event center with restaurant and bar, and on the other, that no events will be scheduled in the future.
The pickleball courts, as they exist now, are permanent alterations to the Craneway, in conflict with Orton's latest claim that there have been only alterations to the decor and theme.
Orton needs to be held accountable for their making permanent alterations to the Craneway without the necessary approvals and their shady and contemptible actions by requiring them to remove the pickle ball courts.
Then, they may submit truthful plans for any change in use for the Craneway.
Respectfully,
Deborah Rheuark, Richmond resident
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From: Leisa Johnson
To: Sabrina Lundy; Jasuara Castaneda; Ursula Deloa
Cc: Pamela Christian; City Clerk Dept User; Leisa Johnson Subject: Revised Public Comments, Item W.3.a - Temporary moratorium on new tobacco retailers - April 2, 2024 City Council Meeting Date: Tuesday, April 2, 2024 3:37:19 PM
This email originated from outside of the City's email system. Do not open links or attachments from untrusted sources.
This email originated from outside of the City's email system. Do not open links or attachments from untrusted sources.
Hello Sabrina, Jasuara and Ursula -
I realize that you have already sent the package out to the City Council. However, can you please incorporate the revised email thread below as my written public comments for the supplementary minutes? Can you please let me know one way or the other when you get a chance? Many thanks.
Warm regards,
Leisa
Begin forwarded message:
From: Leisa Johnson <[email protected]>
Subject: Re: Questions for Consent Calendar Item W.3.a - Moratorium for new tobacco retailers Date: April 2, 2024 at 2:54:37 PM PDT
To: Bisa French <[email protected]>
Cc: Lina Velasco <[email protected]>, Eduardo Martinez <[email protected]>, Claudia Jimenez <[email protected]>, Melvin Willis <[email protected]>, Eva Mann <[email protected]>, Shasa Curl <[email protected]>, City Clerk Dept User <[email protected]>, Hector Rojas <[email protected]>, Shannon Moore <[email protected]>, Dave Aleshire <[email protected]> Please note that I am not bcc’ing the other 4 councilmembers on this reply as I do not wish to inadvertently commit a Brown Act violation.
CM Curl or someone from the City Attorney’s office - Can one of you please forward this communication to the other 4 councilmembers so they are aware of this information before tonight’s CC meeting as it is my understanding that that email forward would not be in violation of the Brown Act as long as they don’t communicate / have a conversation about it.
Thank you, Chief French and Lina for responding. It is very helpful and so very much appreciated.
Unfortunately, there are many questions remaining, including for our City Attorney’s office. As such, I am requesting that this item be pulled this evening.
I am 100% in support of a moratorium on new licenses for tobacco. I also support a moratorium on all new retailers for tobacco, alcohol and cannabis until Code Enforcement and/or RPD has adequate staffing to ensure compliance and appropriate regulatory oversight as authorized by RMC and state law. I simply don’t believe the City has adequate staffing to support the existing regulations let alone any new ones, and hasn’t since 2020, for all three categories. Which is why I asked question #7 below.
Unfortunately, the inability of the City to provide appropriate licensing and regulatory oversight is directly linked to RPD being defunded in back to back years:
2020: $7.8M — $5.8M due to the permanent loss of 34 positions, including 21 sworn officers and 13 civilians 2021: $3M due to the permanent loss of another 12 sworn officer positions.
Total permanent reductions: 46 total positions - 33 sworn officers and 13 civilian positions And this doesn’t even include the numerous officers that RPD has lost due to retirement, resignation and leave since 2020.
I fully appreciate that the department is actively trying to recruit and fill vacant positions, but it will take years to recover from these negative cuts and the loss of so many key regulatory and investigative units in the department.
As Chief French said below, by 2020, they were down to only 1 FTE in the Regulatory Unit prior to transferring it to Code Enforcement in 2021.
Per Lina, Code Enforcement hired one FTE in 2023, but they lost staff and had staff out for various reasons.
It is unclear if this one new FTE in 2023 went to support building & planning code enforcement due to the simultaneous attrition of more FTEs within this department and their roles prior to receiving the Regulatory Unit from RPD in 2021.
Of particular concern is that based on RMC in Chapter 7.106, RPD is legally responsible for licensing and compliance monitoring for tobacco retailers. Key parts of that code are pasted below.
Some key elements of RMC, Chapter 7.106 https://library.municode.com/ca/richmond/codes/code_of_ordinances?nodeId=ARTVIIBU_CH7.106TORELI
7.106.020 - Defnitions.
"Department" as used in this chapter shall mean the Richmond Police Department.
7.106.050 - Location requirements.
Except as provided in Section 7.106.060, in land use districts where tobacco retailing regulated by this chapter would otherwise be a permitted use, no license may be issued, and no existing license may be renewed, to authorize tobacco retailing if the tobacco retailers is:
Within 500 feet of any parcel occupied by any existing tobacco retailing business; or Within 1,000 feet of any parcel occupied by a youth-populated area. For purposes of this subsection, "youth-populated area" means a parcel that is occupied by a:
Public or private school;
Playground open to the public;
Park open to the public or to all the residents of a private community or open to the public or to all the residents of a private community; or Library Open to the Public. For purposes of this section, distance is measured by the shortest line connecting any point on the property line of the parcel on which tobacco retailing business will be established or maintained to any point on the property line of the other parcel. (Ord. No. 20-18 N.S. , § I, 7-17-2018)
7.106.070 - Application procedure.
Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof, and shall include the license application fee set forth under Section 7.106.120.
It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's license. No proprietor may rely on the issuance of a license as a determination by the City that the proprietor has complied with all laws applicable to tobacco retailers. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 7.106.120 of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's license any status or right to act as a tobacco retailer in contravention of any provision of law.
All applications shall be submitted on a form supplied by the Richmond Police Department and shall contain, at a minimum, the following information:
The name, address, telephone number, driver's license or similar identification, including date of birth, of each proprietor of the business that is seeking a license.
A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (1) above.
Proof that the location for which a tobacco retailer's License is sought has been issued a valid state tobacco retailer's license by the California Department of Tax and Fee Administration.
Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous past five years.
A copy of the conditional use permit, if applicable (or an explanation as to why such permit is not required).
A statement signed by each proprietor that no drug paraphernalia is or will be sold at the business seeking the license.All information required by the Department to apply for a tobacco retailer's license shall be updated with the Richmond Police Department whenever the information changes. A tobacco retailer shall provide the Department with any updates within ten (10) business days of a change. (Ord. No. 20-18 N.S. , § I, 7-17-2018)
7.106.080 - Issuance of license.
Upon the receipt of an application for a tobacco retailer's license and the license fee required by this chapter, the Richmond Police Department shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:
The information presented in the application is incomplete, inaccurate, or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.
The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.
The application seeks authorization for tobacco retailing at a location for which this chapter prohibits a license to be issued.
The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending), that is unlawful pursuant to this Code, or that is unlawful pursuant to any other law. (Ord. No. 20-18 N.S.
, § I, 7-17-2018)
7.106.090 - Tobacco retailing without a license.
In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the Department finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's license, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailing License as follows:
After a first violation of this section at a location within any sixty-month period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction), until thirty (30) days have passed from the date of the violation.
After a second violation of this section at a location within any sixty-month period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until ninety (90) days have passed from the date of the violation.
After of a third or subsequent violation of this section at a location within any sixty-month period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until five (5) years have passed from the date of the violation. (Ord. No. 20-18 N.S. , § I, 7-17-2018)
7.106.120 - License fees.
Amount of Fees. The fee shall be established in a schedule of fees. The fees shall be calculated so as to recover the total costs of both license administration and license enforcement, including, for example, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by the Chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program, and shall be separately accounted for. Fees are nonrefundable except as may be required by law. (Ord. No. 20-18 N.S. , § I, 7-17-2018)
7.106.140 - Compliance monitoring.
Compliance with this chapter shall be monitored by the Department. Any peace officer may enforce the penal provisions of this chapter.
Nothing in this chapter shall create a right of action in any tobacco retailer licensee or other person against the city or its agents.
Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing. (Ord. No. 20-18 N.S. , § I, 7-17-2018)
Key Questions/Comments for City Staff and the City Attorney
1. Since RPD is legally required to issue licenses (shall is not the same as may) and has not been doing so since 2020, does that not mean that all licenses — renewals and new — that have been issued from 2021 until now are invalid?
2. As such, has there not been a defacto moratorium on existing and new tobacco retailers since 2021 since there is no ability to issue licenses or renewals per RMC?
3. All three retailers - tobacco, alcohol and cannabis - have regulatory fees associated with them in the master fee schedule. These fees are supposed to cover the cost of FTEs to monitor compliance and enforce code.
Has the City been charging these fees since 2020?
If not, why?
If yes, where have all of those fees been going since 2020?
4. How many licensed retailers violate RMC 7.106.050 (location requirements, see above)? To not have this critical unit staffed for the past 3+ years has put the community, and in particular the youth, at significant risk.
I hope all of these serious concerns and questions can be addressed at tonight’s (or a future) City Council meeting, and that the City Council will understand the gravity of this situation. They need to prioritize the staffing of this department, and hopefully place it back under RPD (where it makes the most sense) once they have been provided the necessary resources and staffing to carry out the legally defined & required responsibilities.
Lastly, thank you again for responding and helping shed light on all of this, and how the Council can help staff effectively perform the duties expected of them and better serve/protect the community in the process.
Warm regards,
Leisa
On Apr 2, 2024, at 12:49 PM, Bisa French <[email protected]> wrote:
Please see my response in green.
Bisa French
Chief of Police
Richmond Police Department
On Apr 2, 2024, at 9:37 AM, Lina Velasco <[email protected]> wrote:
Hi Leisa,
See my responses to your questions in your email below. Please note the moratorium only addresses tobacco and not cannabis or alcohol. The moratorium would restrict new tobacco retailer licenses to be issued temporarily while new enhanced regulations are studied. Renewals would still be permitted, as would all enforcement provisions of the Tobacco Retailers licenses. We hope that you’ll agree this will be beneficial in addressing community concerns raised around tobacco retailers.
-Lina
From: Leisa Johnson <[email protected]
>
Sent: Monday, April 1, 2024 7:02 PM
To: Eduardo Martinez <[email protected]>; Claudia Jimenez <[email protected]>; Melvin Willis <[email protected]>; Eva Mann <[email protected]>; Lina Velasco <[email protected]>; Bisa French <[email protected]> Cc: Shasa Curl <[email protected]>; City Clerk Dept User <[email protected]>; Leisa Johnson <[email protected]> Subject: Questions for Consent Calendar Item W.3.a - Moratorium for new tobacco retailers
This email originated from outside of the City's email system. Do not open links or attachments from untrusted sources.
Good evening Mayor Martinez, Vice Mayor Jimenez, Councilmember Willis, Director Velasco, Ms. Mann, and Chief French -
The other four councilmembers have been bcc’d in case anyone replies all.
Below is a summary of questions regarding the proposed moratorium for new tobacco retailers.
If these questions/concerns can all be addressed via email before tomorrow night’s City Council meeting, great. If not, then I am requesting that the item please be pulled, should no one else have already requested this.
1. Per the agenda report: “Currently, the City has 78 licensed tobacco retailers , which were issued licenses mostly by the Richmond Police Department’s former Regulatory Unit and most recently by Community Development’s Code Enforcement Division.”
How did staff derive this number?
Does it include any shop that has received a license in the past and whose licenses are current? This number is the renewal invoices sent in 2024 only. Only 38 of the 78 renewals have been paid and are current. The moratorium will allow renewals to be issued.
Or does this number also include tobacco retailers who don’t currently have valid licenses? This does not include any unpermitted retailers.
People have posted on social media at least one example of a smoke shop that doesn’t have a valid business license.
2. Per the agenda report: "In addition to special licensing for tobacco retailers, the City does not allow smoke shops in the City; however, complaints have been received that some have been established within the City. Smoke shops currently operating with a tobacco retailer’s license have not been required to obtain a conditional use permit (CUP), as business license issuance is not tied to zoning (or building) code compliance.” If the City does not allow smoke shops, then why were any granted a license to operate as a tobacco retailer? The smoke shop prohibition was adopted in 2016. Those existing prior are legal non-conforming uses. We believe some have established without proper city approvals. Enforcement actions will be pursued.
The CUP comment seems irrelevant if they aren’t even legal to begin with. The CUP process would also provide an opportunity to adopt site-specific conditions and a public notification process to give the public an opportunity to provide comment. The moratorium would prohibit any new tobacco retailer licenses to be issued until we study a new regulations, including potentially increasing the distance requirements between retailers to avoid an over saturation of retailers within the city.
3. Regulatory Unit staffing
RPD transferred the regulatory unit to Code Enforcement some time in 2021 or 2022. When exactly did this transfer happen? In 2021.
How long has the regulatory unit under either RPD or Code Enforcement not been appropriately staffed? When the regulatory unit was still under RPD, when exactly was the last time there was an assigned FTE to this unit prior to transferring it to Code Enforcement? Chief French will have to address this. We had one officer assigned in 2020. He focused mainly on marijuana dispensary compliance. As of 2021 we no longer have a regulatory unit and have not issued any permits.
As of January 2023, Code Enforcement had not hired any new personnel into the regulatory unit. Has anyone been hired to date since the transfer? If not, why? Code Enforcement does not have an established regulatory unit per se, as all Code Enforcement officers can be used to enforce the licensing requirements. We did hire one Code Enforcement Officer 1 in 2023, but the unit has also lost staff during this time and had staff out for various reasons. We have done two recruitment processes for Code Enforcement officers, including one with an outside firm. We are currently working with HR on another process. The market for trained officer is high so it’s been difficult to fill positions.
4. What was/is required by RPD/Code Enforcement, respectively, to issue an alcohol, tobacco or cannabis license.
Is there a special license required in addition to a business license? Yes, there it is a special license required called a tobacco retailers license. Alcohol retail sales require a CUP. Cannabis requires a CUP and Cannabis business permit.
Does licensing (new and annual renewal) require a paper review process only or does it also require an in-person inspection of the property? The ordinance does not require an inspection to occur prior to issuance of a tobacco retailers license. It does allow for compliance checks to confirm retailers are not selling any prohibited items and complying with local, state, and federal regulations regarding tobacco sales.
If the latter, who has been doing those inspections over the past several years when the Regulatory Unit hasn’t been staffed? Code Enforcement officers are assigned to do compliance checks and investigate complaints.
Are these inspections done in parallel with the Planning Division (see #5 below)? No. Only annual inspections for cannabis are done by Planning. Code inspects tobacco and alcohol. Planning is engaged by Code as needed.
5. Per the agenda report, “Tobacco regulations are generally enforced by the Code Enforcement Unit. The Planning Division enforces the licensing and land use components of tobacco businesses within the City.”
By law / RMC, how often are tobacco, alcohol and cannabis retailers required to be inspected and by whom? Current RMC regulations require annual inspection for cannabis and alcohol sales only. When we study new regulations for tobacco, we may want to change this for tobacco. Compliance checks for tobacco are allowed.
When was the last time inspections occurred? It varies based on the regulated substance. We are behind on compliance inspections for tobacco and alcohol given staffing.
When was the last time any enforcement action(s) occurred? Coordinated enforcement actions have not occurred in Code since we assumed responsibilities in 2021.
Are there currently any tobacco retailers & smoke shops within 300 ft of a school or youth-oriented facility? We believe there are and will study this further, but they may be operating without proper licensing.
6. How is the City planning to enforce regulations (existing &/or new) without the proper staffing to do so? This will be studied further and will be specified when new regulations are recommended.
7. Why doesn’t this moratorium extend to new retailers that fall under the oversight of an appropriately staffed Regulatory Unit, including tobacco, alcohol and cannabis? The proposed moratorium only addresses tobacco. This does no affect alcohol and cannabis. The moratorium would allow for enhanced regulations to be studied related to tobacco including possibly increasing the distance between retailers and also providing for a CUP process that will allow the public to be notified and provide comment throughout the process.
Hopefully staff can address these questions for the Council and Public either in advance of or at tomorrow’s City Council meeting.
Thank you.
Warm regards,
Leisa