Agenda packet — Santa Ana City Council, March 1, 2022 (part 5 of 5)

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Sec. 2-105. - Voting by members.

No member of the council shall abstain from any vote unless disqualified, and no disqualified member shall vote. Any disqualified member shall openly state to the presiding officer the fact and nature of such disqualification and shall not be subject to further inquiry. Where no clearly disqualifying conflict of interest appears, the matter of disqualification may, at the request of the member affected, be decided by the other members of the council. A member disqualified by conflict of interest shall request and be granted permission by the presiding officer to absent himself from the room where the council is meeting during debate and vote on the matter. Any member having a remote interest in any matter shall divulge the same to the council before voting.

While violation of Section 2-105 is a misdemeanor, it is not practical to consider enforcing this provision through a criminal action against a councilmember. Further, by past practice, the City Council has not indicated a desire to strictly enforce this provision.

On May 5, 2020, the City Council discussed Section 2-105 and there was a desire for staff to conduct further research and return to the City Council with recommended policy changes or considerations. During this discussion, there were some very pointed remarks about the need for all councilmembers to participate and vote, unless legally conflicted or explaining one’s reason for abstaining on a vote.

Research based on voting policies in other general law and charter cities demonstrates that cities have adopted rules prohibiting abstentions and imposing rules to ensure that all who can legally vote take a vote or have an abstention serve as a concurrence or “yes” vote. Based on that research, the previous direction by the City Council, and the recent request, staff has prepared a proposed ordinance for consideration.

The proposed ordinance addresses all of the following:
Requires declaration of the result of votes taken.
References per Section 410 of the Santa Ana City Charter that no ordinance, resolution, motion, or any item requiring a vote shall be passed, adopted, or become effective unless it receives the affirmative vote of a majority of the full membership of the City Council.
Provides that no member of the City Council shall be permitted to recuse themselves from voting on an item on the City Council meeting agenda unless (1) the councilmember is legally disqualified from voting due to a conflict of interest (including a disqualification under the Political Reform Act or Government Code Section 1090 et sec].) or other legal reason (such as common law conflict of interest or bias) or (2) the councilmember is awaiting advice from the Fair Political Practices Commission (FPPC) or (3) the councilmember states that they are awaiting further information or clarification and will recuse themselves out of an abundance of caution.
Prohibits participation in a vote if one has a conflict and provides that those with a conflict shall leave the dais during the consideration of the matter, provided, City Council 26 – 2 3/1/2022
City Council Voting, Recusal for Conflicts and Prohibiting Abstentions March 1, 2022

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however, that if the matter is being considered on the Consent Calendar and has not been removed from Consent Calendar, the councilmember may remain on the dais and disclose the reason.
Clarifies, consistent with state law, that a disqualified councilmember may speak on the matter as a private citizen, but only to the extent allowed by the Section 18702.5 of the Regulations of the FPPC, or its successor sections. Provides that if a councilmember abstains on a vote in violation of the prohibition, the abstention shall be considered concurrence in the motion and the Clerk shall record the councilmember’s abstention as a “yes” vote.
States that a tie vote means no action has been taken and the item under consideration will not be placed upon a future agenda, unless by a majority vote of the City Council staff is directed to place the item on a future agenda or based on new information or changes in circumstances the City Manager places the item on a future agenda.

Adoption of the proposed ordinance will modernize a law in the SAMC that was last addressed in 1965 and provide needed clarity on the issues of voting, conflicts, recusals and abstentions.

ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.

FISCAL IMPACT
There is no fiscal impact associated with this action.

EXHIBIT(S)

1. Ordinance
Submitted By: Kristine Ridge, City Manager
Approved By: Kristine Ridge, City Manager
City Council 26 – 3 3/1/2022
Ordinance No. NS-XXX

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ORDINANCE NO. NS-XXX

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA AMENDING SECTION 2 -105 OF THE

SANTA ANA MUNICIPAL CODE TO PROHIBIT

ABSTENTIONS UNLESS LEGALLY REQUIRED, TO

REQUIRE UNAUTHORIZED ABSTENTIONS TO BE

COUNTED AND RECORDED AS A VOTE WITH THE

MAJORITY, AND TO DESCRIBE THE CONFLICT

DISQUALIFICATION PROCESS

THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS:

Section 1. The City Council of the City of Santa Ana hereby finds, determines, and declares as follows:

A. The City of Santa Ana seeks to ensure that the Mayor and Members of the City Council, elected to carry out the business of the City, act upon all agenda items presented for consideration.

B. The California Political Reform Act and regulations promulgated thereunder by the Fair Political Practices Commis sion require the Mayor and Councilmembers to disclose conflicts of interest , and new rules require disclosure when an elected official is absent for only a portion of a meeting where the member has a conflict on an agenda item.

C. If t he Mayor or a Councilmember does not have a legally disqualifying conflict of interest , he or she should not be permitted to refrain from voting on an item requiring a vote.

D. Since 1952, the Santa Ana Municipal Code has stated in pertinent part that “no member of the council shall abstain from any vote unless disqualified.” However, because there is no practical way to enforce this charter provision, the City Council desires to provide that an abstention will be counted and recorded as a “yes” vote.

Section 2. Pursuant to the California Environmental Quality Act ("CEQA") and the State CEQA Guidelines, the adoption of this ordinance is exempt from CEQA review pursuant to 14 California Code of Regulations section 15061(b)(3).

Section 3. Section 2- 105 of Article II (City Council) of Ch apter 2 (Administration) of the Santa Ana Municipal Code is hereby amended to read in its entirety as follows:

City Council 26 – 4 3/1/2022
Ordinance No. NS-XXX

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Sec. 2-105. - Voting by Members - Disqualifications and Abstentions.

It is the policy of the Santa Ana City Council that all members present at a City Council meeting fully participate in the discussion of a matter and shall vote for or against an ordinance, resolution, motion, or any other item requiring a vote, unless disqualified by conflict of interest or other legal reason as provided in this section. (a) If the vote is a voice vote, the Mayor or Clerk of the Council shall declare the result and note for the record all yes votes and all no votes. The Council may also vote by roll call or electronic means visible to the public. Regardless of the manner of voting, the results reflecting all yes and no votes , and the members of the Council who cast them, shall be clearly set forth for the record. In accordance with Section 410 of the Santa Ana City Charter, except as otherwise provided elsewhere in the charter or by law, no ordinance, resolution or motion shall be passed, adopted, or become effective unless it receives the affirmative vote of a majority of the full membership of the City Council. (b) No member of the Council shall be permitted to recuse himself or herself from voting on any item on the City Council agenda requiring a vote unless:
(1) The councilmember is legally disqualified from voting due to a conflict of interest (including a disqualification under the Political Reform Act or Government Code Section 1090 et seq .) or other legal reason (such as common law conflict of interest or bias); or
(2) The councilmember is awaiting advice from the F air Political Practices Commission; or
(3) The councilmember states that he or she is awaiting further information or clarification and will recuse themself out of an abundance of caution. (c) If a councilmember is disqualified from voting due to a conflict, the member shall not participate in the consideration of the matter, shall not be counted for the purpose of the quorum, and shall leave the dais during the consideration of the matter; provided, however, that if the matter is being considered on the c onsent calendar and has not been removed from the consent calendar, the councilmember may remain on the dais and disclose t he reason for disqualification. A disqualified councilmember may speak on the matter as a private citizen, but only to the extent allowed by the Section 18702.5 of the Regulations of the Fair Political Practices Commission, or its succes sor sections.
(d) If a councilmember abstains on a vote in violation of this rule, the abstention shall be considered concurrence in the item being voted upon, and the City Clerk shall record that councilmember’s abstention as a “yes” vote. (e) A tie vote means that no action has been taken, and the item under consideration shall not be placed upon a future agenda, unless by a majority vote of the Council, city staff is directed to place the item on a future agenda , or based on new City Council 26 – 5 3/1/2022
Ordinance No. NS-XXX

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information or changes in circumstances , the City Manager places the item on a future agenda.

Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional.

Section 5. This Ordinance shall become effective thirty (30) days after its adoption.

Section 6. The Clerk of the Council shall certify the adoption of this ordinance and shall cause the same to be published as required by law.

ADOPTED this _______ day of ___________, 2022.

_________________________
Vicente Sarmiento
Mayor

APPROVED AS TO FORM:

Sonia R. Carvalho, City Attorney

By:_________________________
John M. Funk
Sr. Assistant City Attorney

AYES: Councilmembers ______________________________________

NOES: Councilmembers _______________________________________

ABSTAIN: Councilmembers _______________________________________

NOT PRESENT: Councilmembers _______________________________________

City Council 26 – 6 3/1/2022
Ordinance No. NS-XXX

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CERTIFICATE OF ATTESTATION AND ORIGINALITY

I, Daisy Gomez, Clerk of the Council, do hereby attest to and certify the attached Ordinance No.

NS-____________ to be the original ordinance adopted by the City Council of the City of Santa Ana on _______________, and that said ordinance was published in accordance with the Charter of the City of Santa Ana.

Date: ________________ ____________________________________ Clerk of the Council
City of Santa Ana

City Council 26 – 7 3/1/2022
City Manager Office
www.santa-ana.org/cm
Item # 27
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
March 1, 2022
TOPIC: Flavored Tobacco
AGENDA TITLE:

Ordinance Options Prohibiting the Sale of Flavored Tobacco Products

RECOMMENDED ACTION
Consider one of the following options:

Option 1
A. Adopt an urgency ordinance prohibiting the sale of flavored tobacco products, including hookah. (Requires five affirmative votes)
B. Adopt an urgency ordinance prohibiting the sale of flavored tobacco products, excluding hookah. (Requires five affirmative votes)
Option 2
A. Approve the first reading of an ordinance prohibiting the sale of flavored tobacco products, including hookah.

B. Approve the first reading of an ordinance prohibiting the sale of flavored tobacco products, excluding hookah.

Option 3
Consider whether to direct staff to prepare an ordinance regarding enforcement and/or security measures for tobacco retailers; or
Option 4
Take no action at this time and wait to see whether senate bill 793 goes into effect following a statewide referendum vote in November 2022.

DISCUSSION
Introduction
At the November 16, 2021 meeting, Councilmember Mendoza added the following Councilmember requested item: Discuss and Consider Directing City Manager to Direct Staff to Introduce an Ordinance to Ban the Sale of Flavored Tobacco Products. There was consensus among a majority of the City Council to proceed with this item.

City Council 27 – 1 3/1/2022
Flavored Tobacco
March 1, 2022

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The item was considered at the December 21, 2021 City Council meeting. The City Council gave direction to staff to come back with revised options including the following:
An ordinance banning flavored tobacco products including a choice of definitions of “tobacco product” that included the SB 793 definition and the American Lung Association definition;
An ordinance banning flavored tobacco products including a choice of definitions of “tobacco product” that included the SB 793 definition and the Public Health Law Center and American Lung Association California definition. This ordinance would contain an exemption for hookah products; and
Look into enforcement and/or security options already utilized by the City for cannabis businesses that may be able to be applied to tobacco retailers.

Background
On November 20, 2006, the City Council enacted Ordinance No. NS-2729 (“Tobacco Retail License ordinance”), amending Chapter 18, Article III of the Santa Ana Municipal Code to establish a permitting process for tobacco retail sales and to regulate their issuance. Below are some of the core elements of the Tobacco Retail License ordinance:
Establishes definitions for terms such as “tobacco paraphernalia”, “tobacco product”, and “tobacco retailer”.
Declares that a person who acts as a tobacco retailer may only do so in a fixed business location and must obtain and maintain a valid tobacco retailer license by following the application procedure set forth in the ordinance. Outlines provisions relating to application, renewal, suspension or revocation, appeal, seizure, and enforcement procedures.

As currently written, the Tobacco Retail License ordinance does not address the topic of flavored tobacco products.

Flavored Tobacco
Flavored tobacco means any tobacco product with added flavorings. This can mean tobacco products that contain a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, alcoholic beverage, herb, or spice. Tobacco products may be flavored to mask the taste or odor of tobacco smoke, enhance tobacco flavor, or decrease the social stigma associated with smoking.

Tobacco Products
There is a wide array of tobacco products. In addition to substances that are made or derived of tobacco (such as cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, and bidis), tobacco products may also consist of electronic smoking devices, any substances that may be aerosolized or vaporized by City Council 27 – 2 3/1/2022
Flavored Tobacco
March 1, 2022

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such devices, and any component of substances made of tobacco or electronic smoking devices (such as filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes).

Tobacco Retailer Licenses; Enforcement
Santa Ana businesses that sell tobacco must obtain a Tobacco Retailer License, which is issued by the Santa Ana Police Department (SAPD). As such, SAPD is responsible for the administration, oversight, and enforcement of said Tobacco Retailer Licenses. There are 261 active tobacco retailer licenses. Within the permitting process, SAPD personnel verifies with the California Department of Tax and Fee Administration (CDTFA) that each business’ retail license is valid and correct on an annual basis. Once the information is verified and payment is received, a permit is issued. To enforce the issuance of Tobacco Retailer Licenses, SAPD conducts weekly enforcement operations that target the illegal use, sales, and distribution of tobacco-related products. In 2021, SAPD personnel conducted 25 operations, which netted 91 citations for tobacco-related infractions.

U.S. Surgeon General Declares Tobacco Use as a Public Health Priority According to the U.S. Centers for Disease Control and Prevention (CDC), tobacco use is the leading cause of preventable death in the United States and worldwide. More than 16 million U.S. residents are living with a disease caused by smoking. Worldwide, tobacco use causes more than 7 million deaths per year. A 2016 report by the U.S. Surgeon General entitled E-Cigarette Use Among Youth and Young Adults: A Report of the Surgeon General. - PDF finds that while nicotine is a highly addictive drug at any age, youth and young adults are uniquely vulnerable to the long-term consequences of exposing the brain to nicotine. The report also finds that secondhand aerosol exhaled into the air by e-cigarette users can expose others to potentially harmful chemicals. In 2018, the Surgeon General’s Advisory on E-Cigarette Use among Youth noted that e-cigarette use increased 78 percent among high school students during the past year, and one in five high school students and one in 20 middle school students currently use e-cigarettes.

To clarify, these substances are tobacco products.

U.S. Food and Drug Administration and Flavored Tobacco Products On their website, the U.S. Food and Drug Administration (FDA) declares that the use of flavorings in tobacco products raises important public health questions. For example, the FDA is aware of scholarly and peer-reviewed research that asserts that flavorings in tobacco products are particularly appealing to youth and young adults. Acknowledging these findings, in 2009, the FDA banned cigarettes with characterizing flavors other than menthol (which have been proven to appeal to youth and young adults). More recently, in April 2021, the FDA announced plans to propose tobacco product standards to ban menthol as a characterizing flavor in cigarettes, as well as to ban all flavors in cigars— including menthol.

Currently, no flavors are banned from other tobacco products (those other than cigarettes with characterizing flavors other than menthol), although scholarly and peer-reviewed City Council 27 – 3 3/1/2022
Flavored Tobacco
March 1, 2022

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research suggests that flavors may make these products more enticing to youth and young adults. The FDA asserts that flavored tobacco products are disproportionately popular among youth—and that removing flavors from tobacco products will help protect people from becoming addicted to them.

Ordinance Prohibiting the Sale of Flavored Tobacco Products Staff has prepared the following options for City Council consideration regarding flavored tobacco products:

Option 1: Adopt urgency ordinance banning the sale of flavored tobacco products and choose whether to use the SB 793 definition of tobacco product or the Public Health Law Center and American Lung Association California definition of tobacco product.

Option 1 is adoption of an urgency ordinance banning the sale of all flavored tobacco products, including hookah, in the City of Santa Ana. The City Council has the choice of utilizing either definition A of “tobacco product” from SB 793 but including hookah 1(currently stayed) or definition B of “tobacco product” from the Public Health Law Center and American Lung Association California. The definitions are as follows:

Definition A (SB 793):
“Tobacco product" means any of the following: (1) a product containing, made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated or chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including but not limited to, cigarettes, cigars, little cigars, hookah tobacco, chewing tobacco, pipe tobacco or snuff; (2) an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including but not limited to, an electronic cigarette, cigar, pipe or hookah; (3) any component, part or accessory of a tobacco product whether or not sold separately. “Tobacco product” does not include a nicotine replacement product approved by the US Food and Drug Administration.

Definition B (Public Health Law Center and American Lung Association California):
“Tobacco product" means: (1) any product that is made from tobacco, or that contains nicotine, that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, hookah tobacco, snuff, or snus.

Electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or (3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
1 For clarity, SB 793 contains an exemption for hookah.

City Council 27 – 4 3/1/2022
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March 1, 2022

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“Tobacco product” does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

Option 2: Adopt urgency ordinance banning the sale of flavored tobacco products but exempting hookah for cultural reasons and choose whether to use the SB 793 definition of tobacco product or the American Lung Association definition of tobacco product.

Option 2 is to adopt an urgency ordinance banning the sale of flavored tobacco products but exempting hookah for cultural reasons. Option 2 allows the City Council to choose between the two definitions of “tobacco product” noted above in Option 1. Option 2 including either definition of “tobacco product” would closely mirror state law (SB 793). As a result, Option 2 includes a provision repealing the ordinance by operation of law if SB 793 goes into effect.

Option 3: Consider whether to direct staff to prepare an ordinance applying certain enforcement or security options currently utilized for cannabis businesses to tobacco retailers.

At the December 21, 2021 City Council meeting, a majority of councilmembers discussed support for enforcement/security requirements for tobacco retailers, including potentially applying those measures required for cannabis establishments. Councilmember Phan mentioned registration and scanning of identification. However, those measures are not required by City operating standards for cannabis except that all cannabis establishments are required to verify that patrons are over the age of 21 or 18 if purchasing medical marijuana.

Cannabis Enforcement/Security
Requirements
Applicable
SAMC
Section
Practical Considerations
The location, interior and exterior, shall be
monitored at all times by web-based closed
circuit television for security purposes. The
camera and recording system must be of
adequate quality, color rendition and resolution
to allow the ready identification of any individual
committing a crime anywhere on or adjacent to
the location.

40-8 3.a.

All controlled access areas, security rooms and
all points of ingress/egress to limited access
areas and all point of sale (POS) areas shall
have fixed camera coverage capable of
40-8 3.b. State law generally
prohibits self-service
displays of tobacco
products. Therefore,
City Council 27 – 5 3/1/2022
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identifying activity occurring within a minimum of
twenty (20) feet.
tobacco products are
normally kept behind a
counter or in a locked
cabinet.

The surveillance system storage device or
cameras shall be transmission control
protocol/TCP capable of being accessed over
the internet by the police department or their
designee on request.
40-8 3.c
All agents, private security officers or other
persons acting for or employed by the business
shall display a laminated identification badge at
least two (2) inches by two (2) inches in size,
issued by the City.
40-8 3.0
At all times when open, the business shall
provide at least one (1) private security guard
who is licensed, possesses a valid Department
of Consumer Affairs “security guard card,” and
has a valid business license.
40-8 4.a
Hours of operation shall be limited to: 7:00 a.m.
to 10:00 p.m. daily.
40-4 4.e May conflict with CUPs
issued to some tobacco
retailers.

Prohibit entry to patrons under the age of 21 40-4.g Many of the tobacco retailers sell other items
that are not age restricted,
such as groceries.

Option 4: Take no action at this time and wait to see whether senate bill 793 goes into effect.

On January 1, 2021, SB 793 banning the sale of flavored tobacco products in California went into effect. However, on January 22, 2021 Referendum 20-003 qualified for the ballot and as a result, stayed SB 793. The referendum is scheduled for the November 8, 2022 general election. The referendum requires that a majority of voters approve SB 793 or it will not become effective2.

If SB 793 is defeated by referendum, any ordinance banning the sale of flavored tobacco adopted by the City would remain effective. Generally, state law preempts local legislation if state law has occupied the field. (See, California Grocers Association v. City of Los Angeles (2011) 52 Cal.4th 177, 190-191.) If SB 793 takes effect, then a City ordinance may remain effective only if it contains stricter provisions than SB 793. SB 793 specifically provides that it “. . .does not preempt or otherwise prohibit the adoption of a 2 If approved by a majority of California voters, five (5) days after the California Secretary of State certifies the general election results, SB 793 will take effect.

City Council 27 – 6 3/1/2022
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local standard that imposes greater restrictions on the access to tobacco products than restrictions imposed by. . . .” [SB 793]. To the extent that there is an inconsistency between . . . [SB 793] and a local standard that imposes greater restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in the local standard shall prevail.”

ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.

FISCAL IMPACT
There is no fiscal impact associated with this action.

EXHIBIT(S)

1. Urgency Ordinance Banning the Sale of Flavored Tobacco

2. Urgency Ordinance Banning the Sale of Flavored Tobacco Excluding Hookah

3. Ordinance Banning the Sale of Flavored Tobacco

4. Ordinance Banning the Sale of Flavored Tobacco Excluding Hookah Submitted By: Kristine Ridge, City Manager
Approved By: Kristine Ridge, City Manager
City Council 27 – 7 3/1/2022
Exhibit 1

ORDINANCE NO. NS-XXXX

AN URGENCY ORDINANCE OF THE CITY COUNCIL OF

THE CITY OF SANTA ANA AMENDING ARTICLE III
ENTITLED TOBACCO RETAIL LICENSE OF CHAPTER 18

OF THE SANTA ANA MUNICIPAL CODE PROHIBITING

THE SALE OF FLAVORED TOBACCO PRODUCTS

WHEREAS, pursuant to the City’s police power, as gra nted broadly under Article XI, S ection 7 of the California Constitution , and Santa Ana Charter S ection 2 00, the Santa Ana City Council has the authority to enact and enforce ordinances and regulations for the public peace, health, and welfare of the City and its residents.

WHEREAS, p ursuant to Santa Ana City Charter Sections 415 and 417 , thi s ordinance is declared by the City Council to be necessary as an emergency measure to protect and preserve the health, safety and welfare of the residents of the City of Santa Ana and will become effective immediately if passed by the affirmative votes of at least two-thirds (2/3) of the members of the City Council. The City Council hereby finds that there is an urgent need to adopt these regulations in order to address the current and immediate threats set forth in these Recitals.

WHEREAS, the City Council finds and determines that the recent increase in use of e-cigarettes by middle and high school students is a grave public health concern.

WHEREAS, according to the American Lung Association, smoking is the number one preventable cause of death in the United States killing over 480,000 people per year1.

WHEREAS, t he U.S. Center for Disease Control and Prevention (“CDC”) has definitively linked smoking to more severe illness from COVID-192.

WHEREAS, a recent CDC study found that 99% of e-cigarettes sold in assessed venues in the United States contain nicotine.

WHEREAS, u se of nicotine can harm the developing brain and the brain continues developing until age 25.

WHEREAS, use of nicotine in adolescence can lead to lower impulse control and mood disorders3.

1 https://www.lung.org/research/sotc/facts

2 https://www.lung.org/research/sotc/facts

3 E-Cigarette Use Among Youth and Young Adults: A Report of the Surgeon General. 2016.

City Council 27 – 8 3/1/2022

Ordinance No. NS - ____

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WHEREAS, t here is evidence that youth may be sensitive to nicotine and that teens can feel dependent on nicotine sooner than adults.

WHEREAS, as of 2017, more than two (2) million teens were currently using e - cigarettes.4

WHEREAS, a ccording to the 2020 National Youth Tobacco Survey, more than

23.6% of high school students in the United States use at least one tobacco prod uct, including e-cigarettes, as well as 6.7% of middle school students.

WHEREAS, i n 2021, 84.7% of youth who reported using e -cigarettes reported using flavored tobacco. The most commonly used flavors were fruit (71.6%), candy, desserts or other sweets (34.1%), mint (30.2%) and menthol (28.8%).5

WHEREAS, f lavorings in tobacco products can make the products more appealing to youth6.

WHEREAS, a ccording to the CDC, each day about 1,600 youth try their first cigarette7.

WHEREAS, according to the CDC, widespread marketing of e-cigarettes and the lower cost (when compared to traditional tobacco products) have contributed t o the use of e-cigarettes among youth.

WHEREAS, if cigarette smoking continues at the current rate among youth in the United States, 5.6 m illion people currently under the age of 18, will die early from a smoking-related illness.8

WHEREAS, many cities throughout California have banned the sale of flavored tobacco including but not limited to, Buena Park, San Jose, La Verne, Los Angeles, Pasadena, El Monte, Glendale, Burbank and Laguna Niguel.

WHEREAS, the California State Legislature passed SB 793 banning the sale of flavored tobacco in 2020 but the statute is stayed pending the outcome of a referendum on the statewide ballot for the November 8, 2022 General Election.

4 Wang, TW, Centzke A, Sharapova S, Cullen KA, Ambrose BK, Jamal A, Tobacco Product Use Among Middle and High School Students- Untied States, 2011-2017. MMWR Morb Mortal Wkly Rep 2018; 67:629-633 5 Park-Lee E, Ren C. Sawdey M, et al. Notes from the Field: E-Cigarette Use Amount Middle and High School Students- National Youth Tobacco Survey, United States, 2021. Morbidity and Mortality Weekly Report, 2021. 70:1387-9.
6 Centers for Disease Control and Prevention. Flavored Tobacco Product Use Among Middle and High School Students—United States, 2014. Morbidity and Mortality Weekly Report, 2015;64(38):1066–70. 7 https://www.cdc.gov/tobacco/data_statistics/fact_sheets/index.htm?s_cid=osh -stu-home-spotlight-001

8 https://www.cdc.gov/tobacco/data_statistics/fact_sheets/youth_data/tobacco_use/index.htm

City Council 27 – 9 3/1/2022

Ordinance No. NS - ____

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WHEREAS, t he staff report for this ordinance dated March 1 , 2022 , shall be incorporated herein by this reference , and together with this ordinance, any amendments or supplements, and oral testimony , shall constitute the neces sary findings for this ordinance.

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

Section 1. The recitals and statements o f fact set forth i n the R ecitals to this ordinance are true and correct, constitute a substant ive part of this ordinance, and are incorporated herein by this reference and adopted by the City Council.

Section 2. Sections 18-90, 18-91, 18-92 and 18 -103 of Article III entitled “Tobacco Retail License” of Chapter 18 of the Santa Ana Municipal Code are hereby amended to read in their entirety as follows (new language is underlined and deleted language is stricken):

Sec. 18-90. Definitions.

The following words and phrases, whenever used in this article, shall have the meanings defined in this section unless the context clearly requires otherwise:

(a) "Department" means the Santa Ana Police Department.

(b) “Characterizing flavor” means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, this is distinguis hable by an ordinary consumer either prior to, or during consumption of, a tobacco product, including but not limited t o, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, a lcoholic beverage, 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 t aste or aroma, or both, as described in the first sentence of this definition that constitutes characterizing flavor.

(b)(c) "Chief" means the Chief of Police or designee.

(d) “Flavored tobacco product” means any tobacco product that imparts a characterizing flavor. There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has (i) made a public statement or claim that the tobacco product imparts a characterizing flavor; (ii) used text and/or images on th e tobacco product’s labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor or (iii) taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.

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(c)(e) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee , assignee, or any other legal entity, and includes the definition of "person" found in Section 1-2 of the Code.

(d)(f) "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist whe n a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day -to-day operations of a business.

(e) "Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

(f)(g) “Tobacco product" means any of the following : (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bi dis, or any other preparation of tobacco; or (2) 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 product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence. (1) a product containing, made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated or chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including but not limited to, cigarettes, cigars, little cigars, hookah tobacco, chewing tobacco, pipe tobacco or snuff; (2) an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including but not limited to, an electronic cigarette, cigar, pipe or hookah; (3) any component, part or ac cessory of a tobacco product whether or not sold separately. “Tobacco product” does not include a nicotine replacement product approved by the US Food and Drug Administration.

[SB-793 Definition including hookah tobacco]

(f)(g) Tobacco product" mean s: (1) any product that is made from substance tobacco, or that contains nicotine, that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a c igar, pipe tobacco, chewing tobacco, hookah tobacco, snuff, or snus. leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; or (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed City Council 27 – 11 3/1/2022

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with the expectation that the product or matter will be introduced into the human body, but does not includ e any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco product dependence.

Electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or n ot the substance contains nicotine; or (3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.

“Tobacco product” does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

[Public Health Law Center and American Lung Association (California) definition including hookah tobacco]

(g)(h) "Tobacco retailer" means any person or business who sells, offers for sale, or does or offers to exchange for any form of consideration, flavored tobacco product, 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.

Sec. 18-91. Tobacco retailer license.

(a) It shall be unlawful for any person to act as a tobacco retailer, or to display or advertise the sale of tobacco pr oducts or tobacco paraphernalia , without obtaining and maintaining a valid tobacco retailer's license pursuant to this article for each location at which that activity is to occur.

(b) It shall be a unlawful for a licensed tobacco retailer, or an agent o r employee thereof to violate any local, state, or federal tobacco-related law.

(d) It shall be unlawful for a licensed tobacco retailer or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to sale, display or advertising of tobacco products, tobacco paraphernalia, or tobacco retailing.

(e) Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

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Sec. 18-92. - Limits on tobacco retail license.

(a) No license shall be issued to authorize tobacco retailing at other than a fixed business place. Tobacco retailing by persons on foot or from vehicles is prohibited.

(b) No license shall be issued to authorize tobacco retailing at any location for which a tobacco retailer license suspension is in effect or during a period of ineligibility following a revocation.

(c) It shall be unlawful for a tobacco retailer, or any of the tobacco retailer’s agents or employees, to sell, offer for sale, possess with intent to sell or offer for sale, a flavored tobacco product.

* * *

Sec. 18-103. Tobacco retailing without a license—Seizure.

(a) Tobacco products, including flavored tobacco products, and tobacco paraphernalia offered for sale or exchange in violation of this article are subject to seizure by the chief or any peace officer and shall be forfeited after the licensee and any other owner of the tobacco products, including flavored tobacco products, and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products, including flavored tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this article. (b) Forfeited tobacco products , including flavored tobacco products and tobacco paraphernalia shall be maintained and destroyed pursuant to the chief's policy for seized evidence.

Section 3. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to s ections 15060(c)(2), 15060(c)(3) and 15061(b)(3) of the State CEQA Guidelines because it will not result in a direct or reasonably foreseeable indirect physical chang e in the environment, because there is no possibility it will have a significant effect on the environment, and it is not a "project," as defined in section 15378 of the State CEQA Guidelines.

Section 4. If any section, subsection, phrase, or clause of th is ordinance is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, phr ase or clause thereof irrespective of the fact that any one or more sections, subsections, phrases, or clauses be declared invalid or unconstitutional.

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Section 5. The Clerk of the Council shall certify to the adoption of this ordinance and cause the same to be published in the manner prescribed by law.

Section 6. This ordinance is introduced, passed and adopted at one and the same meeting and is thereafter immediately effective. The City Council finds that this ordinance is necessary to protect the public safety, health and welfare. The reasons for the emergency are set forth in the Recitals and Section 1 of this ordinance.

ADOPTED this ___ day of ___________________, 2022.

_______________________
Vicente Sarmiento
Mayor

APPROVED AS TO FORM:

Sonia R. Carvalho, City Attorney

_______________________________
Laura A. Rossini
Chief Assistant City Attorney

AYES: Councilmembers: ________________________________________

NOES: Councilmembers: ________________________________________

ABSTAIN: Councilmembers: ________________________________________

NOT PRESENT: Councilmembers: ________________________________________

CERTIFICATE OF ATTESTATION AND ORIGINALITY

I, Daisy Gomez , Clerk of the Council, d o hereby attest to and certify the attached Ordinance No. NS-XXXX to be the original ordinance adopted by the City Council of the City of Santa Ana on .

Date: ________________ ____________________________________ Clerk of the Council
City of Santa Ana
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Exhibit 2

ORDINANCE NO. NS-XXXX

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY

OF SANTA ANA AMENDING ARTICLE III ENTITLED
TOBACCO RETAIL LICENSE OF CHAPTER 18 OF THE

SANTA ANA MUNICIPAL CODE PROHIBITING THE SALE

OF FLAVORED TOBACCO PRODUCTS