Union City City Council
February 27, 2024

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Compliance Statement
Based on information provided by Verizon Wireless and predictive modeling, the Niles Decoto - E installation proposed by Verizon Wireless will be compliant with Radiofrequency Radiation Exposure Limits of 47 C.F.R. §§ 1.1307(b)(3) and 1.1310. At the rooftop of 24 Union Square, RF alerting signage and restricting access to these areas to authorized personnel that have completed RF safety training is required for Occupational environment compliance. The proposed operation will not expose members of the General Public to hazardous levels of RF energy at ground level or in adjacent structures.

Certification
I, David C. Cotton, Jr., am the reviewer and approver of this report and am fully aware of and familiar with the Rules and Regulations of both the Federal
Communications Commissions (FCC) and the
Occupational Safety and Health Administration (OSHA)
with regard to Human Exposure to Radio Frequency
Radiation, specifically in accordance with FCC’s OET
Bulletin 65. I have reviewed this Radio Frequency
Exposure Assessment report and believe it to be both
true and accurate to the best of my knowledge.

General Summary
The compliance framework is derived from the Federal Communications Commission (FCC) Rules and Regulations for preventing human exposure in excess of the applicable Maximum Permissible Exposure (“MPE”) limits. At any location at this site, the power density resulting from each transmitter may be expressed as a percentage of the frequency-specific limits and added to determine if 100% of the exposure limit has been exceeded. The FCC Rules define two tiers of permissible exposure differentiated by the situation in which the exposure takes place and/or the status of the individuals who are subject to exposure. General Population / Uncontrolled exposure limits apply to those situations in which persons may not be aware of the presence of electromagnetic energy, where exposure is not employment-related, or where persons cannot exercise control over their exposure. Occupational / Controlled exposure limits apply to situations in which persons are exposed as a consequence of their employment, have been made fully aware of the potential for exposure, and can exercise control over their exposure. Based on the criteria for these classifications, the FCC General Population limit is considered to be a level that is safe for continuous exposure time. The FCC General Population limit is 5 times more restrictive than the Occupational limits.

In situations where the predicted MPE exceeds the General Population threshold in an accessible area as a result of emissions from multiple transmitters, FCC licensees that contribute greater than 5% of the aggregate MPE share responsibility for mitigation.

Radio Frequency Emissions Compliance Report for Verizon Wireless Site Name: Niles Decoto - E Site Structure Type: Rooftop Address: 24 Union Square Latitude: 37.589085
Union City, CA 94587 Longitude: -122.016526
Report Date: August 22, 2023 Project: New Build
City Council/RSA Agenda 153 Tuesday, February 27, 2024
Niles Decoto - E - New Build 08.22.2023

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Table 1: FCC Limits
Frequency
(MHz)
Limits for General Population/ Uncontrolled Exposure Limits for Occupational/ Controlled Exposure Power Density
(mW/cm2)
Averaging Time
(minutes)
Power Density
(mW/cm2)
Averaging Time
(minutes)
30-300 0.2 30 1 6
300-1500 f/1500 30 f/300 6
1500-100,000 1.0 30 5.0 6
f=Frequency (MHz)
Based on the computational guidelines set forth in FCC OET Bulletin 65, Waterford Consultants, LLC has developed software to predict the overall Maximum Permissible Exposure possible at any location given the spatial orientation and operating parameters of multiple RF sources. The power density in the Far Field of an RF source is specified by OET-65 Equation 5 as follows:

𝑆𝑆 = 𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸
4⋅𝜋𝜋⋅ 2 (mW/cm2)
where EIRP is the Effective Radiated Power relative to an isotropic antenna and R is the distance between the antenna and point of study. Additionally, consideration is given to the manufacturers’ horizontal and vertical antenna patterns as well as radiation reflection. At any location, the predicted power density in the Far Field is the spatial average of points within a 0 to 6-foot vertical profile that a person would occupy. Near field power density is based on OET-65 Equation 20 stated as 𝑆𝑆 = �
180
𝜃𝜃𝐵𝐵𝐵𝐵
� ⋅ 100 ⋅ 𝑃𝑃𝑖𝑖𝑖𝑖
𝜋𝜋 ⋅ 𝑅𝑅 ⋅ ℎ (mW/cm2)
where Pin is the power input to the antenna, θBW is the horizontal pattern beamwidth and h is the aperture length.

Some antennas employ beamforming technology where RF energy allocated to each customer device is dynamically directed toward their location. In the analysis presented herein, predicted exposure levels are based on all beams at full utilization (i.e. full power) simultaneously focused in any direction. As this condition is unlikely to occur, the actual power density levels at ground and at adjacent structures are expected to be less that the levels reported below. These theoretical results represent maximum-case predictions as all RF emitters are assumed to be operating at 100% duty cycle.

For any area in excess of 100% General Population MPE, access controls with appropriate RF alerting signage must be put in place and maintained to restrict access to authorized personnel. Signage must be posted to be visible upon approach from any direction to provide notification of potential conditions within these areas.

Subject to other site security requirements, occupational personnel should be trained in RF safety and equipped with personal protective equipment (e.g. RF personal monitor) designed for safe work in the vicinity of RF emitters. Controls such as physical barriers to entry imposed by locked doors, hatches and ladders or other access control mechanisms may be supplemented by alarms that alert the individual and notify site management of a breach in access control. Waterford Consultants, LLC recommends that any work activity in these designated areas or in front of any transmitting antennas be coordinated with all wireless tenants.

City Council/RSA Agenda 154 Tuesday, February 27, 2024
Niles Decoto - E - New Build 08.22.2023

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Analysis
Verizon Wireless proposes the following installation at this location:
• (16) (N) ANTENNAS
• (8) (N) RADIO UNITS @ ANTENNAS
The antennas will be mounted on a 79.08-foot Rooftop with centerlines 82 & 84 feet above ground level.

Proposed antenna operating parameters are listed in Appendix A. Other appurtenances such as GPS antennas, RRUs and hybrid cable below the antennas are not sources of RF emissions. No other antennas are known to be operating in the vicinity of this site.

Figure 1: Antenna Locations
City Council/RSA Agenda 155 Tuesday, February 27, 2024
Niles Decoto - E - New Build 08.22.2023

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Power density decreases significantly with distance from any antenna. The panel-type antennas to be employed at this site are highly directional by design and the orientation in azimuth and mounting elevation, as documented, serves to reduce the potential to exceed MPE limits at any location other than directly in front of the antennas. For accessible areas at ground level, the maximum predicted power density level resulting from all Verizon Wireless operations is 5.4463% of the FCC General Population limits. Incident at adjacent structures depicted in Figure 1, the maximum predicted power density level resulting from all Verizon Wireless operations is 12.5955% of the FCC General Population limits. The proposed operation will not expose members of the General Public to hazardous levels of RF energy at ground level or in adjacent structures.

For accessible areas at the roof level of 24 Union Square, the maximum predicted power density level resulting from all Verizon Wireless operations is 69.95184% of the FCC Occupational limits (349.7592% of the FCC General Population limits). Based on the operating parameters in Appendix A, the maximum cumulative predicted power density level from all antennas on the interior top floor is 5.3581% of the FCC General Population limits. Waterford Consultants, LLC recommends posting contact information and RF Guidelines signage that informs personnel entering the site of basic precautions to be followed when working around antennas. For areas near the antennas that are predicted to exceed the General Population limits, RF alerting signs (Caution) should be posted to be visible upon approach to provide notification of potential conditions at these areas. These recommendations are depicted in Figure 2. Any work activity in front of transmitting antennas should be coordinated with Verizon Wireless.

City Council/RSA Agenda 156 Tuesday, February 27, 2024

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Compliance Requirement Diagram (Access Location)
Final Compliant
Configuration

GUIDELINES NOTICE CAUTION WARNING NOC INFO BARRIER/MARKER Access Point(s) ☒ [3] ☐ [#] ☒ [1] ☐ [#] ☒ [3] ☐ N/A
Figure 2.1: Mitigation Recommendations
City Council/RSA Agenda 157 Tuesday, February 27, 2024
Niles Decoto - E - New Build 08.22.2023

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Compliance Requirement Diagram (Alpha Sector)
Final Compliant
Configuration

GUIDELINES NOTICE CAUTION WARNING NOC INFO BARRIER/MARKER Alpha ☐ [#] ☐ [#] ☒ [1] ☐ [#] ☐ [#] ☐ N/A
Figure 2.2: Mitigation Recommendations
City Council/RSA Agenda 158 Tuesday, February 27, 2024
Niles Decoto - E - New Build 08.22.2023

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Compliance Requirement Diagram (Beta Sector)
Final Compliant
Configuration

GUIDELINES NOTICE CAUTION WARNING NOC INFO BARRIER/MARKER Beta ☐ [#] ☐ [#] ☒ [1] ☐ [#] ☐ [#] ☐ N/A
Figure 2.3: Mitigation Recommendations
City Council/RSA Agenda 159 Tuesday, February 27, 2024
Niles Decoto - E - New Build 08.22.2023

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Compliance Requirement Diagram (Gamma Sector)
Final Compliant
Configuration

GUIDELINES NOTICE CAUTION WARNING NOC INFO BARRIER/MARKER Gamma ☐ [#] ☒ [1] ☒ [1] ☐ [#] ☐ [#] ☐ N/A
Figure 2.4: Mitigation Recommendations
City Council/RSA Agenda 160 Tuesday, February 27, 2024
Niles Decoto - E - New Build 08.22.2023

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Compliance Requirement Diagram (Delta Sector)
Final Compliant
Configuration

GUIDELINES NOTICE CAUTION WARNING NOC INFO BARRIER/MARKER Delta ☐ [#] ☒ [1] ☒ [1] ☐ [#] ☐ [#] ☐ N/A
Figure 2.5: Mitigation Recommendations
City Council/RSA Agenda 161 Tuesday, February 27, 2024
Niles Decoto - E - New Build 08.22.2023

7430 New Technology Way, Suite 150 Frederick, Maryland 21703 (703) 596-1022 Phone www.waterfordconsultants.com Appendix A: Operating Parameters Considered in this Analysis Antenna #: Carrier: Manufacturer Pattern: Band (MHz):

Mech
Az
(deg):

Mech
DT
(deg):

H BW
(deg):

Length
(ft):

TPO
(W): Channels:

Loss
(dB):

Gain
(dBd):

ERP
(W):

EIRP
(W):

Rad
Center
(ft):
1 Verizon JMA MX06FRO660-02 04DT 700 50 0 60 5.9 40 2 0 12.45 1406 2307 82 1 Verizon JMA MX06FRO660-02 04DT 850 50 0 53 5.9 40 2 0 12.35 1374 2255 82 1 Verizon JMA MX06FRO660-02 00DT 1900 50 0 57 5.9 20 4 0 15.85 3077 5048 82 2 Verizon JMA MX06FRO660-02 04DT 700 50 0 60 5.9 40 2 0 12.45 1406 2307 82 2 Verizon JMA MX06FRO660-02 04DT 850 50 0 53 5.9 40 2 0 12.35 1374 2255 82 2 Verizon JMA MX06FRO660-02 00DT 2100 50 0 53 5.9 40 4 0 15.45 5612 9207 82 2 Verizon JMA MX06FRO660-02 00DT 2100 50 0 53 5.9 20 4 0 15.45 2806 4604 82 3 Verizon ERICSSON KRE105281-1 3500 50 0 64 0.7 5 4 0 9.36 173 283 84 4 Verizon ERICSSON SON_AIR6449 NR TB 03.24.21 3700 VZW 3700 50 0 11 2.8 320 1 6 23.55 18203 29864 84 5 Verizon JMA MX06FRO660-02 04DT 700 140 0 60 5.9 40 2 0 12.45 1406 2307 82 5 Verizon JMA MX06FRO660-02 04DT 850 140 0 53 5.9 40 2 0 12.35 1374 2255 82 5 Verizon JMA MX06FRO660-02 00DT 1900 140 0 57 5.9 20 4 0 15.85 3077 5048 82 6 Verizon JMA MX06FRO660-02 04DT 700 140 0 60 5.9 40 2 0 12.45 1406 2307 82 6 Verizon JMA MX06FRO660-02 04DT 850 140 0 53 5.9 40 2 0 12.35 1374 2255 82 6 Verizon JMA MX06FRO660-02 00DT 2100 140 0 53 5.9 40 4 0 15.45 5612 9207 82 6 Verizon JMA MX06FRO660-02 00DT 2100 140 0 53 5.9 20 4 0 15.45 2806 4604 82 7 Verizon ERICSSON KRE105281-1 3500 140 0 64 0.7 5 4 0 9.36 173 283 84 8 Verizon ERICSSON SON_AIR6449 NR TB 03.24.21 3700 VZW 3700 140 0 11 2.8 320 1 3 23.55 36320 59587 84 9 Verizon JMA MX06FRO660-02 04DT 700 230 0 60 5.9 40 2 0 12.45 1406 2307 82 9 Verizon JMA MX06FRO660-02 04DT 850 230 0 53 5.9 40 2 0 12.35 1374 2255 82 9 Verizon JMA MX06FRO660-02 00DT 1900 230 0 57 5.9 20 4 0 15.85 3077 5048 82 10 Verizon JMA MX06FRO660-02 04DT 700 230 0 60 5.9 40 2 0 12.45 1406 2307 82 10 Verizon JMA MX06FRO660-02 04DT 850 230 0 53 5.9 40 2 0 12.35 1374 2255 82 10 Verizon JMA MX06FRO660-02 00DT 2100 230 0 53 5.9 40 4 0 15.45 5612 9207 82 10 Verizon JMA MX06FRO660-02 00DT 2100 230 0 53 5.9 20 4 0 15.45 2806 4604 82 11 Verizon ERICSSON KRE105281-1 3500 230 0 64 0.7 5 4 0 9.36 173 283 84 12 Verizon ERICSSON SON_AIR6449 NR TB 03.24.21 3700 VZW 3700 230 0 11 2.8 320 1 6 23.55 18203 29864 84 13 Verizon JMA MX06FRO660-02 04DT 700 320 0 60 5.9 40 2 0 12.45 1406 2307 82 13 Verizon JMA MX06FRO660-02 04DT 850 320 0 53 5.9 40 2 0 12.35 1374 2255 82 13 Verizon JMA MX06FRO660-02 00DT 1900 320 0 57 5.9 20 4 0 15.85 3077 5048 82 14 Verizon JMA MX06FRO660-02 04DT 700 320 0 60 5.9 40 2 0 12.45 1406 2307 82 14 Verizon JMA MX06FRO660-02 04DT 850 320 0 53 5.9 40 2 0 12.35 1374 2255 82 14 Verizon JMA MX06FRO660-02 00DT 2100 320 0 53 5.9 40 4 0 15.45 5612 9207 82 14 Verizon JMA MX06FRO660-02 00DT 2100 320 0 53 5.9 20 4 0 15.45 2806 4604 82 15 Verizon ERICSSON KRE105281-1 3500 320 0 64 0.7 5 4 0 9.36 173 283 84 16 Verizon ERICSSON SON_AIR6449 NR TB 03.24.21 3700 VZW 3700 320 0 11 2.8 320 1 12 23.55 4572 7502 84 Notes: Table depicts recommended operating parameters for Verizon Wireless proposed operations. Signal propagation loss due to rooftop building material assumed to be 6 dB.

City Council/RSA Agenda 162 Tuesday, February 27, 2024
City Council/RSA Agenda 163 Tuesday, February 27, 2024
City Council/RSA Agenda 164 Tuesday, February 27, 2024
City Council/RSA Agenda 165 Tuesday, February 27, 2024
City Council/RSA Agenda 166 Tuesday, February 27, 2024
Description of Services
The company offers voice, data and video services and solutions on its award-winning networks aŶd ƉlaƚfŽƌmƐ͕ deliǀeƌiŶg ŽŶ cƵƐƚŽmeƌƐ͛ demaŶd fŽƌ mŽbiliƚLJ͕ ƌeliable ŶeƚǁŽƌk cŽŶŶecƚiǀiƚLJ͕ security and control. Verizon was the first company in the world to launch commercial 5G for mobility, fixed wireless and mobile edge computing. The company's operating structure focuses on two customer-faciŶg aƌeaƐ͗ CŽŶƐƵmeƌ aŶd BƵƐiŶeƐƐ͘ CiƚinjeŶ VeƌinjŽŶ iƐ ƚhe cŽmƉaŶLJ͛Ɛ responsible business plan for economic, environmental and social advancement.

Verizon provides 5G, 4G LTE, Fiber Optic and Multi Edge Compute (MEC) services. This facility will have all LTE bands in addition to the 5G C band.

The network also serves Local Police, Fire and Emergency Services.

The Consumer segment provides consumer-focused wireless and wireline communications services and products, as well as FWA broadband and Fios.

Statement of Use
Exhibit C
City Council/RSA Agenda 167 Tuesday, February 27, 2024
Desk Item
DATE: FEBRUARY 1, 2024
TO: PLANNING COMMISSION
FROM: CARMELA CAMPBELL, ECONOMIC AND COMMUNITY

DEVELOPMENT DIRECTOR
SUBJECT: ADMINISTRATIVE SITE DEVELOPMENT REVIEW (ASD-23-023), USE PERMIT (UP-23-008)
Staff received questions/comments from Planning Commissioner Jo Ann Lew regarding the project. The following are the questions received and staff’s responses (in red italics) Commissioner Lew Comments

1. Staff Agenda item 5.B.1 contains a recommendation from the director for approval of Administrative Site Development Review ASD-23-023 and Use Permit UP-23-008 for a proposed wireless facility in the Station Mixed Use Commercial (CSMU) district. According to the City’s Municipal Code, Title 18, Chapter 18.56, Section 18.56.020, use permits require City Council approval in the CSMU district.

Please clarify the staff report and confirm the planning commission has the authority to approve this use permit application. By the way, I based the aforementioned on the online copy of Title 18?
Per the requirements in UCMC Section 18.56.070, the City Council is the decision maker for all Use Permits in the CSMU District. Accordingly, the recommendation has been amended as follows:
“Staff recommends the Planning Commission Approval and the City Council approve ASD23-023 and UP-23-008, making the specific findings listed in Section VI of the staff report, subject to the amended Conditions of Approval, and adopt a resolution confirming this action.”

2. Staff report, page 4, Section B states “the project is subject to Chapter 18.114, Wireless Telecommunications Facilities.” According to Section 18.114.020B.E, an “antenna…installed in a location where it is not readily visible from the public rightof-way” is exempt from the requirements of Chapter 18.114. Please clarify the City’s ATTACHMENT 3
City Council/RSA Agenda 168 Tuesday, February 27, 2024
interpretation of this exemption and its decision to apply Chapter 18.114 requirements to this project.

Regarding UCMC Sec. 18.114.020B.E, “To the extent feasible, the antenna is installed in a location where it is not readily visible from the public right-of-way,” staff made the interpretation that without proper screening the antennas would clearly be visible from the public rights-of-way at several prominent locations. Staff must review the project to ensure that it is properly screened pursuant to UCMC Chapter 18.114.

3. Staff report, page 8, I recommend restating the first finding for the use permit as follows: “That the proposed location of the conditional use is in accord with the purposes of Title 18 and the purposes of the CSMU district in which the site is located.” Specifying the title number and name of the district adds clarity to the finding.

Duly noted. The first finding for the Use Permit will be changed to read “That the proposed location of the conditional use is in accord with the purposes of Title 18 and the purposes of the CSMU district in which the site is located.”

4. Staff report, page 8, the City’s proposed text in support of the first finding appears to lack a connection between the proposed location of the wireless facility and the applicable purposes of Title 18 (as listed in 18.04.020) and those of the CSMU district (as listed in 18.38.10). I recommend the following revision or something similar be made on page 8 and page 13 (Item e).

The location of the new wireless facility will protect the character of the CSMU district by installing and screening all equipment within a new rooftop cupola and equipment enclosure; ancillary electrical equipment will be located in the building’s existing electrical room on the ground floor. This new facility will promote orderly and beneficial development by improving the availability and quality of wireless service for residents and businesses. The new facility is compatible with the character of development in the CSMU district with the remodeling of the rooftop to enclose and screen the antennas and equipment. The new facility will enhance opportunities in the district for a variety of uses, such as research and development, office, and commercial, because it will provide a full array of communication services.

The intention of the first finding in the staff report was to convey the purpose of Title 18 and the CSMU district. The finding shall be updated with the revision Commissioner Lew has provided herein.

City Council/RSA Agenda 169 Tuesday, February 27, 2024

5. Staff report, page 11, Condition of Approval (COA) #14 – is this COA related to the recommendation by Waterford Consultants, LLC (Waterford) contained in Attachment 1 to Exhibit A, page 4, last paragraph? Please clarify.

Condition of Approval (COA) #14 was a requirement from the Fire Marshall to ensure that there was proper signage to note the locations and potential safety conditions of the proposed wireless facility and supporting equipment cabinets. Upon further discussion, the Fire Marshal has determined that the signage requirements as stated in the General Summary and Analysis of the of the RF report prepared by Waterford Consultants, LLC is sufficient and consistent with the requirements of the Fire Marshal’s Office.

Therefore, per agreement with the Fire Marshal, this Condition has been deleted.

6. Staff report, page 12, COA #17 requires an access door “with no locking apertures…on the door.” Please explain this requirement and whether an example of this access door is contained in Exhibit A.

This requirement from the Fire Marshal is meant to ensure access to the facility for emergency response personnel. This access door is not included in Exhibit A. This condition will be revised as follows per discussion with the Fire Marshal:
“Plans submitted for Building Permit review and approval shall include an enclosure constructed around the base of the antennas, containing an access door at least 36 inches in width and incorporating a Knox Box locking system to ensure security for the facility and access for emergency response personnel.”

7. Attachment 1 to Exhibit A, page 2, last paragraph, last sentence contains a recommendation that appears to have been overlooked by the City. It states “Waterford Consultants, LLC recommends that any work activity in these designated areas (where there is potential for exposure to radiofrequency radiation) or in front of any transmitting antennas be coordinated with all wireless tenants.” Please clarify whether the reference to “tenants” is in regards to the residents of the Avalon property and whether a condition of approval (COA) will be provided to address this recommendation.

Staff has been advised by the City’s legal counsel that staff may include a condition of approval that the wireless facility complies with applicable FCC Regulations regarding radio frequency, and the safety requirements listed in the RF report (regarding identification and warning signage on the roof). The City may not impose other conditions or establish its own threshold for radio frequency. To clarify, “tenant” is referring to the tenant of a wireless facility, meaning the service provider that leases a space for the facility. “Tenant” is not referring to the residential tenants of Avalon.

City Council/RSA Agenda 170 Tuesday, February 27, 2024

8. Attachment 1 to Exhibit A, page 4, last paragraph, Waterford provides signage recommendations and examples to be used for this project. Is this addressed in COA #14 (see #5 above)? If not, will a COA be provided to address these recommendations?
As mentioned in #5 above, upon further discussion with the Fire Marshal, staff is deleting COA #14 since the signage has already been discussed in the RF report and the Fire Marshal will defer to those requirements.

9. Will the new wireless services cause any interference to existing communications services provided by other carriers? Please explain.

Staff have been informed by the applicant that it is commonplace for Verizon Wireless and the other wireless carriers to collocate on the same tower or rooftop. Their frequencies typically do not interfere with each other because the FCC licenses to each carrier frequency bands do not overlap. There are no other wireless carriers currently installed on the subject building so there will be no interference.

10. Can the roof and penthouse bear the additional load of the cupola, equipment enclosure, and all associated rooftop equipment? Does Exhibit A provide any information in this regard? Please provide any information you may have.

Per the applicant, as part of the building permit process, a structural analysis will be done by a licensed structural engineer as a part of that application. Support for the weight of the proposed installation will be confirmed prior to building permit issuance.

11. How will the applicant, property owner and/or equipment owner ensure the facility and equipment are secure and protected from theft, destruction, or malfunctions/failures? Please explain what security measures are planned.

The antenna enclosure/cupola extension can only be accessed by climbing a ladder on the northwest side of the mechanical penthouse. The bottom 10’ of the ladder will be covered and locked. The equipment enclosure is surrounded by a 9’3”, vinyl coated, anti-climb chain link fence painted to match the existing penthouse. These are considered to be reasonable security measures by Verizon’s design teams. Additionally, COA #17 requires an enclosure constructed around the base of the antennas, containing an access door at least 36 inches in width and incorporating a Knox Box locking system to ensure security for the facility.

City Council/RSA Agenda 171 Tuesday, February 27, 2024
Planning Commission Minutes 1 February 1, 2024

CITY OF UNION CITY
DRAFT

MINUTES FOR THE REGULAR PLANNING COMMISSION MEETING
ON THURSDAY, FEBRUARY 1, 2024, AT 7:00 P.M.

IN THE COUNCIL CHAMBERS OF CITY HALL
34009 ALVARADO-NILES ROAD
UNION CITY, CA 94587

AND VIA TELECONFERENCE

1. CALL TO ORDER
A. PLEDGE OF ALLEGIANCE
B. ROLL CALL:

PRESENT: Vice Chairperson Seyi Mclelland and Commissioners Jo Ann Lew, Ignacio Romero and Alternate Commissioner Prairna
Gupta Garg
ABSENT: Chairperson Lee Guio, Commissioner Amandeep Sandhu and Alternate Commissioner Kevin Finnerty
STAFF: Carmela Campbell (Economic & Community Development Director); Natalie Dean (Associate Planner); Derek Farmer (Planning Manager); Juliet Vaughn (on behalf of Deputy City Attorney); Denisse Anzoategui Homen (Administrative
Assistant III) and Tracey Barragan (Administrative Assistant)

2. APPROVAL OF MINUTES

1. The regular Planning Commission minutes for December 7, 2023 The minutes for the December 7, 2023, Planning Commission meeting were approved as submitted.

3. ORAL COMMUNICATIONS: None

4. WRITTEN COMMUNICATIONS: None

5. PUBLIC HEARINGS
A. CONTINUED HEARINGS: None
B. NEW HEARINGS

1. PETER HILLIARD, ON AIR LLC FOR VERIZON WIRELESS;

AVALON UNION CITY, LP, ADMINISTRATIVE SITE
DEVELOPMENT REVIEW (ASD-23-023) AND USE PERMIT (UP23-008); Peter Hilliard, On Air, LLC for Verizon Wireless, on behalf of Avalon Union City, LP, is seeking Administrative Site Development Review and Use Permit approval for a new
enclosed wireless facility on top of an existing, five-story 315,077 square-foot multifamily residential building and to increase the height of the building from 79 to 86 feet. The project includes construction of one, new 417 square-foot cupola on the top of an attached parking structure bringing the total height of the building to approximately 86 feet. The cupola ATTACHMENT 4
City Council/RSA Agenda 172 Tuesday, February 27, 2024
Planning Commission Minutes 2 February 1, 2024
will house 16 new antennas with eight (8) new radio units. The project is located at 14 Union Square: (APN: 87-19-1-25). Staff recommends that the project be categorically exempt under Section 15303 (e), New Construction or Conversion of Small Structures, of the California Environmental Quality Act (CEQA) Guidelines.

Natalie Dean, Associate Planner provided a PowerPoint presentation for Peter Hilliard, On Air LLC for Verizon Wireless, Avalon Union City, LP, Administrative Site Development Review (ASD23-023) and Use Permit (UP-23-008). She reported a Desk Item had been prepared which clarified that the Use Permit would require the approval of the City Council, the findings would be amended per recommendations, Conditions of Approval had been amended and updated in response to the Desk Item, clarification the application involved no interference with other providers, and the supportive structure for the facility would be confirmed and addressed prior to the issuance of building permits.

Ms. Dean recommended the Planning Commission recommend City Council approval of ASD23-023 and UP-23-008, making the specific findings listed in Section VI of the staff report, subject to the amended Conditions of Approval, and adopt a resolution confirming this action.

Commissioner Romero asked about the project design and whether environmental impacts had been considered to ensure wildlife and fauna would not be impacted by the project design.

Ms. Dean explained that the project was categorically exempt from the CEQA Guidelines since it involved the construction of a small structure and staff had used that categorical exemption and had not conducted more environmental review. CEQA listed categorical exemptions for projects that qualified, which staff had used to determine whether CEQA review would be required.

Commissioner Romero asked whether or not the general public or emergency services would experience any outages during installation of the proposed equipment.

Ms. Dean suggested the applicant provide clarification.

Carmela Campbell, Economic & Community Development Director stated first responders worked off of a different network to ensure minimal disruptions, but the applicant should provide further clarification.

Commissioner Gupta Garg asked whether more antennas would be considered in the future to cover gaps in coverage for the entire zone from a Verizon standpoint. She asked if moving the antennas, a bit down south or on another property, would result in better coverage.

Ms. Campbell suggested that question be deferred to the applicant.

Commissioner Gupta Garg understood that FRP windows would be considered with no finish and asked the purpose of the windows. Also, pursuant to the plans it appeared that louvers would be painted black and may stand out to the public and create too much of a contrast. If they matched something existing that would be fine, but she did not want it to be out of language with the design intent of what currently existed.

Ms. Dean deferred to the applicant in terms of siting but clarified that photo simulations had been provided to show the proposed colors. The windows were intended to match a cupola on the building with the windows to have openings. She commented there was a shadow line on the plans. She also clarified Image 3 of the plans and noted there was no black color on the building other than the shadow line.

Ms. Campbell suggested the applicant provide feedback on the louvers as proposed.

City Council/RSA Agenda 173 Tuesday, February 27, 2024
Planning Commission Minutes 3 February 1, 2024
Vice Chair Mclelland also commented on the coverage area as depicted on Slide 14 of the PowerPoint presentation. She understood while there was a gap in coverage from Verizon, there would be coverage from other network providers.

Ms. Dean confirmed that the coverage area represented Verizon only. She added that she was not aware if there was a coverage gap for other wireless companies.

Ms. Campbell suggested the applicant provide clarification since information on coverage from Verizon only had been provided.

Vice Chair Mclelland asked whether or not other locations for the proposed wireless facility had been considered and more detail of how the applicant had decided this location was the most appropriate since it was a residential rather than a commercial building.

Ms. Dean understood the applicant had attempted to secure a facility within the New Haven Unified School District (NHUSD) at Logan High School, but the wireless facility had not been allowed for some reason. She understood the subject location was not the only location that had been considered. She also clarified the coverage map and the areas of coverage in-building, incar and on the street.

PUBLIC HEARING OPENED
Aaron Delao, Centerline Communications, representing Peter Hilliard, responded to the questions from the Planning Commission and clarified the finish of the louvers with the goal for the FRP of the structure to match the existing color of the buildings, which would be radio transparent to allow signals to go through the material. The three windows as shown on the photo simulations were on a pop-up on the building with the windows added by Planning to match the architectural features. The coverage map was again clarified with reliable coverage as depicted on the map for in-building, in-car and on the street, with spotty coverage towards the Safeway Shopping Center. Between that area and the freeway in between there was mostly residential with little commercial sites to locate the equipment.

Mr. Delao clarified the equipment would cover part of the zone that currently had no coverage, as depicted on the coverage map. The existing site was a tall structure and advantageous to allow wider coverage. The area of south of Decoto Road was comprised of mostly one-story buildings and if the antennas had to be placed on a lower structure there would be a need for more antennas and no one wanted a proliferation of antenna structures, whereas the structure where the antennas had been proposed to be placed was 81-feet in height at the top of the parking structure, one of the reasons the subject site had been chosen.

Mr. Delao also clarified the existing network would remain in place during installation of the new antennas; coverage would not change until the new site had been brought on-air to fill the gaps in coverage; the public would be safe during installation; and the Federal Communications Commission (FCC) required information be provided to the public on the work to be performed on the building including contact information and a number for the Verizon network operations center in the event of an emergency for the public to be informed of any issues. In addition, battery cabinets had been planned to supply energy with battery backup to be provided in the event of a power outage.

Mr. Delao stated a standby generator had also been planned, and in the event of a natural or other disaster and if a power outage occurred for an extended period of time the site could still operate. While the generators would generate noise, the batteries would not. The generators would only operate in the event of an extended outage or up to an approximate twenty-minute test cycle once per month, but the noise would not be that loud. The location of the generator was clarified and since the building was a parking structure meant to hold a lot of weight, if the City Council/RSA Agenda 174 Tuesday, February 27, 2024
Planning Commission Minutes 4 February 1, 2024
generators were placed at a lower level there may be a lot of echoes. Also, if placed on the ground floor there would be people to hear it and its proposed location, enclosed by a fence and next to the existing architecture, was the quietest place to be.

Mr. Delao further clarified the generator would be diesel driven, which was common practice at cell sites, encouraged by the State of California, out in the open air and seven stories off the ground and would seldom operate.

Mr. Delao explained that electric battery generated generators had not been considered since electric batteries only operated for a short period of time. Having a cellular network up and running in the event of an outage was of paramount importance and the reason why generators had been planned for all cell sites, where possible.

Mr. Delao clarified that alternative sites had been considered. Verizon had started looking for sites in 2020 and Logan High School had been a perfect location given it had tall light standards, but the NHUSD had rejected the proposal. A search ring had been expanded with sites explored to the east and north, including some PG&E lattice towers across from the railroad tracks but they had been too close to existing cellular sites to the north on Mission Boulevard. The proposed site had been chosen given the building height and a willing landlord. Again, the generator would seldom operate, the noise sounded like a muffled lawn mower, was not on top of the residences but the parking structure and while it may be heard it would not be overly disruptive.

PUBLIC HEARING CLOSED
Commissioner Lew liked the project, had no issues with the project and all questions she had had been clarified in advance.

Derek Farmer, Planning Manager, requested an amendment to the language in the staff recommended motion as follows:

Planning Commission recommend City Council approve ASD-23-023 and UP-23-008, making the specific findings listed in Section VI of the staff report, subject to the amended Findings and Conditions of Approval, included in the Desk Item and adopt a resolution confirming this action.

Commissioner Lew moved that the Planning Commission recommend City Council approve ASD23-023 and UP-23-008, making the specific findings listed in Section VI of the staff report, subject to the amended Findings and modified Conditions of Approval, included in the Desk Item and adopt a resolution confirming this action. Commissioner Romero seconded. The motion was carried by the following roll call vote:

AYES: (GUPTA GARG, LEW, MCLELLAND, ROMERO)
NOES: (NONE)
ABSTAIN: (NONE)
ABSENT: (GUI, FINNERTY, SANDHU)
The motion passed 4-0.

6. SUPPLEMENTAL STAFF REPORTS: None
A. CONTINUED REPORTS: None
B. NEW REPORTS: None

7. ECONOMIC DEVELOPMENT REPORTS: None
City Council/RSA Agenda 175 Tuesday, February 27, 2024
Planning Commission Minutes 5 February 1, 2024

8. COMMISSION MATTERS:

A. Follow-Up on Planning Commission Referrals to the City Council There was no report.

B. Upcoming Applications for the Regular Planning Commission Meeting on February 15, 2024.

Ms. Campbell reported the Planning Commission meeting scheduled for February 15, 2024, would include a new industrial building in Central Industrial Park and expansion of an existing preschool on the west side of Union City.

9. GOOD OF THE ORDER
Commissioner Lew reported that February 2, 2024, would be Groundhog Day, and stated she did not have to be copied on any emails from legal staff since legal communications were proprietary and confidential.

Commissioner Romero urged everyone to be safe throughout the rainy season.

10. ADJOURNMENT: 7:55 P.M.

City Council/RSA Agenda 176 Tuesday, February 27, 2024
PLANNING COMMISSION RESOLUTION NUMBER 01-24

RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF UNION CITY

RECOMMENDING APPROVAL TO THE CITY COUNCIL OF ADMINISTRATIVE SITE DEVELOPMENT REVIEW (ASD-23-023) AND USE PERMIT (UP-23-008) FOR A NEW ENCLOSED WIRELESS FACILITY ON TOP OF AN EXISTING, FIVE-STORY, 315,077 SQUARE-FOOT MULTIFAMILY RESIDENTIAL BUILDING AT 24 UNION SQUARE (APN 87-19-1-25), WITHIN THE STATION MIXED USE COMMERCIAL (CSMU) ZONING

DISTRICT
WHEREAS, the applicant Peter Hilliard, On Air, LLC, for Verizon Wireless, on behalf of Avalon Union City, LP, is seeking Administrative Site Development Review (ASD-23-023) and Use Permit (UP-23-008) approval for a new enclosed wireless facility on top of an existing, five-story, 315,077 square-foot multifamily residential building and to increase the height of the building from 79 to 86 feet. The project includes construction of one, new 417 square-foot cupola on the top of a mechanical penthouse located on an attached parking structure bringing the total height of the building to approximately 86 feet. The cupola will house 16 new antennas with eight (8) new radio units; and WHEREAS, the 3.8-acre project site is located at 14 Union Square (APN 87-19-1-25); and
WHEREAS, the project site has a General Plan designation of Station Mixed Use Commercial and a Zoning designation of CSMU (Station Mixed Use Commercial); and WHEREAS, pursuant to Section 18.76.050 of the Union City Municipal Code, the Planning Commission held a duly noticed public hearing on the Administrative Site Development Review (ASD-23-023) and Use Permit (UP-23-008) applications on February 1, 2024, at which time all interested parties had the opportunity to be heard. The Planning Commission considered the staff report dated February 1, 2024, and all written and oral testimony; and
WHEREAS, the project plans, photo simulations, and Statement of Use are labeled Exhibits A, B, and C, respectively, attached hereto and made a part hereof.

NOW, THEREFORE, BE IT RESOLVED, that the Planning Commission of the City of Union City does hereby find as follows:

California Environmental Quality Act
A. That this project is categorically exempt under Section 15303 New Construction or Conversion of Small Structures, of the California Environmental Quality Act (CEQA) Guidelines; and
Administrative Site Development Review
B. That approval of this application is consistent with the General Plan, specifically Policy PF-8.8 Minimize Visual Impacts, as the proposed wireless facility will be located in an enclosed cupola structure on top of an existing mechanical penthouse on the roof of a parking structure, thereby minimizing any potential visual impacts when viewed from ATTACHMENT 5
DRAFT
City Council/RSA Agenda 177 Tuesday, February 27, 2024
Planning Commission Resolution No. # 01-24
ASD-23-023, UP-23-008, 24 Union Square Page 2 of 6
public right of ways and residential areas. The cupola structure will be painted to match the existing building, and proposed materials will be architecturally consistent with the building. Additionally, Condition #7 requires that all visible conduits be concealed and screened. There are no specific plans applicable to the site; and C. That approval of this application is consistent with the purpose of Title 18, which seeks to promote and protect the public health, safety, morals, comfort, convenience, and the general welfare of the people and to promote the orderly and beneficial development of such areas. Approval of this application is also consistent with the requirements of the CSMU zoning district in which the site is located; and D. That the project will be a minor modification to an existing building and will promote orderly, attractive, and harmonious development and the stability of land values and investments and the general welfare, by preventing the establishment of uses or the erection or maintenance of structures having undesirable qualities which are not properly related to their sites, or which would not meet the specific intent clause or performance standard requirement of the zoning title. Furthermore, the presence of the new antennas will improve the coverage for Verizon Wireless and improve service to customers in the vicinity and for the needs of residents, businesses, and first responders in the City of Union City; and
Use Permit
E. That the proposed location of the conditional use is in accord with the purposes of Title 18 and the purposes of the CSMU district in which the site is located. The location of the new wireless facility will protect the character of the CSMU district by installing and screening all equipment within a new rooftop cupola and equipment enclosure; ancillary electrical equipment will be located in the building’s existing electrical room on the ground floor. This new facility will promote orderly and beneficial development by improving the availability and quality of wireless service for residents and businesses. The new facility is compatible with the character of development in the CSMU district with the remodeling of the rooftop to enclose and screen the antennas and equipment. The new facility will enhance opportunities in the district for a variety of uses, such as research and development, office, and commercial, because it will provide a full array of communication services; and
F. That the location of the use, as conditioned, is not detrimental to the public health, safety, welfare, or materially injurious to properties within the vicinity. The project will adhere to all required conditions from the City and responsible agencies pertaining to public health, safety, and welfare. Under 18.114.100, wireless telecommunication facilities must meet standards and regulations of the Federal Communications Commission (FCC), the California Public Utilities Commission (PUC), and any agency with the authority to regulate radio frequency emissions of wireless telecommunication facilities. The applicant has submitted documentation, the Radio Frequency Emissions Compliance Report, which attests that the project meets said standards and City Council/RSA Agenda 178 Tuesday, February 27, 2024
Planning Commission Resolution No. # 01-24
ASD-23-023, UP-23-008, 24 Union Square Page 3 of 6
requirements, as shown in Attachment 1 to Exhibit A; further, the height is only increasing by seven (7) feet, the minimum required to accommodate the antennas and will be constructed upon an existing mechanical room that is located on the roof’s parking lot. The new facility will also be in a location more interior to the overall site; and
G. The project is consistent with the general plan, which encourages the development and maintenance of state-of-the-art communication infrastructure and services to bolster the City’s economic competitiveness and support businesses and residents; the new wireless facility will improve the coverage for Verizon Wireless and improve service to customers in the vicinity. The project complies with Title 18 by providing a use that promotes and protect the public health, safety, morals, comfort, convenience, and the general welfare of the people; and
Wireless Telecommunication Facilities
H. That visual impacts of the project will be reduced by matching the existing building in colors and materials, including trims along the edges of the structures. The applicant has provided all documents that evidence compliance with requirements for design, safety, agency, and Operation and maintenance standards; and I. That all equipment will be screened and set back from the right-of-way as much as feasible. The wireless facility will be enclosed in a cupola structure that is designed to match the architecture of the building and screen the antennas; and J. The new wireless facility will improve the coverage for Verizon Wireless and improve service to customers in the vicinity. Verizon will deploy a new coverage network to serve the wireless needs of residents, businesses, and first responders in the City of Union City. Under 18.114.100, wireless telecommunication facilities must meet standards and regulations of the Federal Communications Commission (FCC), the California Public Utilities Commission (PUC), and any agency with the authority to regulate radio frequency emissions of wireless telecommunication facilities. The applicant has submitted documentation, the Radio Frequency Emissions Compliance Report, which attests that the project meets said standards and requirements, as shown in Attachment 1 to Exhibit A. Further, the height is only increasing by seven (7) feet, the minimum required to accommodate the antennas and will be constructed upon an existing mechanical room that is located on the roof’s parking lot. The new facility will also be in a location more interior to the overall site.

BE IT FURTHER RESOLVED that the Planning Commission of the City of Union City hereby recommends that the City Council approve Administrative Site Development Review (ASD-23-023) and Use Permit (UP-23-008), as set forth in Exhibits A, B and C, respectively, and subject to the following Conditions of Approval.

City Council/RSA Agenda 179 Tuesday, February 27, 2024
Planning Commission Resolution No. # 01-24
ASD-23-023, UP-23-008, 24 Union Square Page 4 of 6
Planning Division
General

1. All actual site improvements shall be made with adherence to the plans listed in Exhibit A, except as they may be modified by other conditions of approval listed below. Any variation or modification from the approved plans are subject to the review and approval of the Economic and Community Development Department.

2. This application shall expire one year from the date of Planning Commission approval unless building permits have been issued and construction diligently pursued.

3. The applicant and/or property owner shall include an annotated copy of the approved Planning Commission Resolution with each set of detailed construction plans submitted for plan check review. Notations to the plans shall be made to clearly indicate how all conditions of approval will be or have been complied with.

Construction plans shall not be accepted without the annotated final conditions of approval included as a note sheet with each set of plans.

4. The applicant and/or property owner shall apply for and take out all required building and fire permits prior to beginning any on-site work. Plans submitted to the Building Division and Fire Department must demonstrate compliance with all applicable local and state requirements.

5. The applicant and/or property owner shall be responsible for ensuring that all contractors and subcontractors have obtained a valid City of Union City business license for the duration of the project.

6. The applicant and/or property owner shall ensure the wireless facility complies with applicable FCC Regulations regarding radio frequency and any and all recommendations for safety requirements including but not limited to those safety recommendations listed in Attachment 1 to Exhibit A, the radio frequency report.

Building Materials and Finishes

7. Prior to the issuance of building permits, the applicant and/or property owner shall submit samples and details of color palettes and all exterior materials, for review and approval by the Economic & Community Development Department. The color samples shall be provided in a binder with paint and material schemes along with full-size brush-outs as opposed to paint chips. Color swatches shall also be painted on the cupola structure for review and approval by the Economic and Community Development Department prior to full painting. Any future amendments or changes to the approved painting schemes shall be submitted to the Economic and Community Development Department for approval prior to the full painting of the proposed structure.

8. All visible conduits shall be concealed and screened.

City Council/RSA Agenda 180 Tuesday, February 27, 2024
Planning Commission Resolution No. # 01-24
ASD-23-023, UP-23-008, 24 Union Square Page 5 of 6

9. Prior to issuance of building permits, the applicant/property owner shall pay all applicable fees (Capital Facilities Fee, Park Facilities Fee, etc.) that are in effect at the time of building permit issuance.

10. Prior to issuance of building permits, the applicant and/or property owner shall pay the General Plan Cost Recovery Fee in effect at the time of building permit issuance. The current fee is $1.00 per $1,000.00 of construction valuation per City Council Resolution Number 3379-07.

Building Division

11. Any construction shall fully comply with the Building Standard Codes in effect at the time of building permit issuance.

12. The applicant/property owner shall provide detailed construction plans (working drawings) and calculations to the Building Division for plan review prior to issuance of a building permit. Plans and supporting documents shall be prepared by a statelicensed architect or engineer. Upon completion of the plan check, all applicable fees shall be paid, and a building permit issued prior to commencement of any actual construction work on-site.

13. The applicant/property owner shall maintain the property to be free of litter, weeds, debris, etc., both before and after issuance of building permits. Daily litter and debris collection rounds shall be conducted on the site and an adequate number of trash receptacles shall be provided to minimize litter accumulation.

14. The applicant/property owner shall not locate construction debris boxes within the public right-of-way (ROW), driveways or on adjacent private properties.

Fire Department

15. The existing parapet shall remain in its current position and there shall not be an increase in height.

16. It shall be noted on plans for building permits that the applicant/property owner will ensure any roof access will not be impeded and or be obstructed to direct access to the antennas.

17. Plans submitted for Building Permit review and approval shall include an enclosure constructed around the base of the antennas, containing an access door at least 36 inches in width and incorporating a Knox Box locking system to ensure security for the facility and access for emergency response personnel.

18. The applicant/property owner shall apply for a hot work permit for all welding and or cutting operations.

Public Works Department

19. The applicant/property owner shall install ‘No Dumping – Drains to Bay’ stencils at all storm drain inlets on site.

Environmental Programs
City Council/RSA Agenda 181 Tuesday, February 27, 2024
Planning Commission Resolution No. # 01-24
ASD-23-023, UP-23-008, 24 Union Square Page 6 of 6

20. The applicant/property owner is hereby advised that unauthorized discharge of any kind to the storm water system, which includes the streets and gutters, is prohibited, and that such discharges, whether intentional or not, are subject to penalties up to $20,000 per violation per day. This applies both to the construction phase and to routine facility operations.

21. The applicant/property owner shall note on plans for building permit submittal indicating the total volume of battery electrolyte in the equipment cabinets under Verizon’s control at this site at project completion.

I HEREBY CERTIFY that the foregoing resolution was introduced and adopted at a regular meeting of the Planning Commission of the City of Union City held on February 1, 2024, by the following vote:

AYES: (MCLELLAND, LEW, ROMERO, GUPTA)
NOES: NONE
ABSTAIN: NONE
ABSENT: (SANDHU AND GUIO)
MOVED: (LEW)
SECONDED: (ROMERO)
APPROVED:
______________________________________

SEYI MCLELLAND, VICE-CHAIRPERSON
ATTEST:
_________________________________

CARMELA CAMPBELL, SECRETARY
City Council/RSA Agenda 182 Tuesday, February 27, 2024
Agenda Item
DATE: 2/27/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: JOAN MALLOY, CITY MANAGER
SUBJECT: RECEIVE REPORT ON POTENTIAL PUBLIC SAFETY PARCEL TAX AND UTILITY USERS’ TAX REVENUE MEASURES FOR THE NOVEMBER 2024

ELECTION AND PROVIDE POLICY DIRECTION
Staff recommends that the City Council receive a report on potential revenue measures for the November 2024 election. The purpose of any potential revenue measure would be to close the ongoing operating budget deficit of approximately $3 million per year. This is the first in a series of reports that the City Council may receive on revenue measure approaches that could be considered. No final decision is necessary at this time; however, feedback and policy direction would be helpful to help guide staff on next steps.

STRATEGIC PLAN ALIGNMENT
This item is in alignment with Goal A. Financial Stability and Sustainability of the City Council Strategic Plan.

Under GoalA, it is specifically related to the following strategies:

Strategy 1: Develop a comprehensive fiscal sustainability model to address the General Fund’s long-term structural deficit.

Strategy 8: Determine the feasibility of a revenue ballot measure for November 2024 and/or November 2026 to address critical facilities and infrastructure needs.

Strategy 9: Pursue the placement of a voter-approved revenue measure on a ballot to address the funding gap between revenues and expenditures for fundamental public safety and other city services.

BACKGROUND
At the June 13, 2023 study session and public hearing for the FY 2023-2024 and FY 2024-2025 Biennial Budget and Five-Year Capital Improvement Plan, and review of the long-range financial forecast, the City Council expressed an interest in exploring possible voter-approved revenue measures to address anticipated future budget deficits of approximately $3 million per year in funding City services, in particular public safety services. While the City currently maintains a healthy General Fund reserve, the rising costs of supplies, equipment, contracts, and employee salaries, and retirement obligations, are projected to adversely impact the General Fund. The rise in expenditures is growing faster than City revenues. The General Fund is projected to fall to the minimum reserve fund balance of twenty percent of its annual operating expenditures by 2028, which is equivalent to approximately ten weeks of operations. The City Council has prudently adopted Financial Principles to maintain a minimum twenty percent General Fund reserve. In addition, City Council/RSA Agenda 183 Tuesday, February 27, 2024
has prudently adopted Financial Principles to maintain a minimum twenty percent General Fund reserve. In addition, the City Council has identified fiscal stability and sustainability as its primary goal in the Strategic Plan.

As a result of the City Council’s direction in June 2023, staff engaged TeamCivX to evaluate community support for a renewal of the Public Safety Parcel Tax (PSPT) in either the March 2024 primary election or in November 2024 general election, which included a statistically reliable opinion survey of local voters conducted by Godbe Research. The results of the community survey were presented to the City Council on November 14, 2023 and are summarized later in this report. The survey concluded that a PSPT in March 2024 did not likely have the community support to succeed, in part because the high voter threshold of 66.67% would be necessary for a parcel tax to pass.

At the November 14, 2023 meeting, the City Council directed staff to not proceed with the PSPT for the March 2024 primary election, and instead to focus on other possible revenue measures that could be considered for the November 2024 general election. This included a possible increase to the Utility Users’ Tax (UUT), amendments to the Business License Tax (BLT), and options for a possible renewal of the PSPT.

Since the November 14, 2023 meeting, the City Attorney submitted a request for advice from the Fair Political Practices Commission (FPPC) on behalf of Mayor Dutra-Vernaci and Councilmember Singh as a result of their business operations in Union City that could be impacted by an amendment to the BLT. Mayor Dutra-Vernaci and Councilmember Singh are still awaiting the advice letter from the FPPC. As such, this report will only discuss the possible consideration of a renewal to the PSPT and an increase and extension to the existing Utility Users’ Tax.

DISCUSSION
Public Safety Parcel Tax (PSPT)
Historically, Union City voters supported and approved a PSPT as a dedicated source of funding to keep Union City safe. The PSPT was first approved by voters in 2004, followed by a renewal in 2008 and a subsequent renewal in 2016. In all instances, a four-year duration was tied to the tax. The most recent PSPT renewal effort in 2020 failed to meet the required two-thirds vote threshold, and it expired on June 30, 2021.

The most recent community survey that was conducted by Godbe Research assessed voter attitudes and potential support specifically for a parcel tax measure to restore and protect public safety services. The survey of likely 2024 voters occurred between September 6-18, 2023 and had a sample size of 448 respondents with a margin of error of ±4.60%. The community survey results are further detailed in the Presentation attached to the November 14, 2023 staff report (link: November 14, 2023 Staff Report), which covers how a PSPT would perform in March 2024 versus November 2024. This staff report will focus on the survey results that look to the November 2024 election and beyond.

Table 1 below summarizes the survey results for the three scenarios that were tested for the PSPT to determine how support may change when going from $0.18 per building square foot, to $0.12 per building square foot, and to $0.06 per building square foot. Beyond that, the parcel tax measure was then presented in terms of an annual dollar amount rather than by cents per building square foot.

The purpose of testing a wide range of rates was to provide the City Council with options that would increase revenues to allow for the expansion of staffing and enhanced services. As a special tax, the revenues could only be spent on what is identified in the tax measure; this is not a general tax, which can be spent on any government operations. The first $3 million, however, would be needed to close the existing operating budget deficit and would not go towards new public safety services.

Table 1
NOVEMBER 2024
$0.18/ft2 $0.12/ft2 $0.06/ft2
Support 52.1% 54.4% 59.0%
Oppose 31.9% 33.9% 30.9%
City Council/RSA Agenda 184 Tuesday, February 27, 2024
Oppose 31.9% 33.9% 30.9%
Don’t Know 16.1% 11.7% 10.0%
$324/year $216/year $108/year
Support 44.4% 54.0% 63.7%
Oppose 46.4% 36.1% 28.4%
Don’t Know 9.3% 10.0% 7.8%
Anticipated
Revenue $9.4M $6.26M $3.1M
Table 1 illustrates that none of the options were successful in reaching the required 66.67% voter threshold needed to pass, though the lowest rate of $0.06 per square foot surveyed the best. When voters understood the average annual cost per household unit, the support shifted, going lower to 44.4% support at $0.18 per square foot (average $324 per household unit), and increasing to 63.7% support at $0.06 per square foot (average $106 per household unit). However, it should be noted that the ballot language would be based on the per building square foot cost and not the average expected payment per household unit. Knowing the average cost per unit though could be a public education component should the City Council desire to pursue this option.

Should the City Council desire to continue exploring a renewal of the PSPT, TeamCivX suggests that a tax rate of $0.05 per square foot of limited duration be tested. This rate would have an annual revenue stream of approximately $2.6 million per year and average annualcost of $90 per household unit.

With regards to the duration of the parcel tax, the City Council will need to weigh appropriate sunset dates, keeping in mind that the UUT sunsets on December 31, 2028 and the One-Half Cent Sales Tax sunsets on March 31, 2034. The most recent community survey by Godbe Research revealed that a PSPT with a 12-year duration that would expire in 2036 had a support rate of 56.4% of likely voters, short by 10.27 percentage points of passing. Lastly, short-term durations of four years, similar to the past PSPT, limit the City’s ability to reinvest in public safety and hire and train staff for the long-term given the uncertainty of the future of the revenue stream.

Utility Users’ Tax (UUT)
Union City voters approved a 5% UUT in November 2020 with 56.9% voter approval. The UUT was placed on the ballot after the renewal of the PSPT failed to receive the 66.67% threshold that was required for the special tax in the March 2020 primary election.

The new UUT successfully replaced the revenue that was lost when the PSPT expired on June 31, 2021. For FY 2022-2023, the UUT revenues were $6.3 million. Should the City Council wish to explore increasing the UUT, which is a general tax and only requires a vote >50%, the expected additional revenue increments are as follows in Table 2:

Table 2
New
UUT
Rate
Increase
Over
Current
Additional
Annual
Revenue

5.5% .5% $640,000
6% 1% $1,280,000

6.5% 1.5% $1,920,000
7% 2% $2,560,000

7.5% 2.5% $3,200,000
8% 3% $3,840,000

8.5% 3.5% $4,480,000
9% 4% $5,120,000

9.5% 4.5% $5,760,000
10% 5% $6,400,000
City Council/RSA Agenda 185 Tuesday, February 27, 2024
To reach the $3 million threshold to close the operating budget deficit, the UUT would need to be increased from the current rate of 5% to 7.5%. Nearby cities with UUT rates above 5% are shown in Table 3:

Table 3
City UUT Rate
Alameda 7.5%
Oakland 7.5%
Berkeley 7.5%
San Leandro 6%
Hayward 5.5%
Unincorporated
Alameda Co.

6.5%
The existing UUT will expire in December 2028. Should the City Council seek voter approval to increase the UUT, staff would recommend that the City Council also seek to extend the UUT at the same time. Otherwise, the City Council would likely need to seek an extension in the November 2026 general election at the latest to avoid a possible fiscalcliff in 2028 when the current UUT would expire.

Conclusions
Based on analysis of the November 2023 survey results, pursuing a PSPT measure in the November 2024 general election could be challenging because of the high voter approval of 66.67% that is needed to pass the measure. As noted, should the City Council desire to further explore this option, it is recommended that a tax rate of $0.05 per square foot (averaging $90 per household unit) for a limited duration be tested in a future community survey. This rate would have an annual revenue stream of approximately $2.6 million per year and would not cover the operating budget deficit.

Pursuing an increase in the UUT rate has not yet been tested among likely voters; however, the voter threshold to pass the general tax is >50%, a significantly lower threshold than the supermajority required for a special tax. To cover the $3 million operating budget deficits, the City would need to seek a UUT rate of 7.5%, an increase of 2.5% though other rates could be considered. Additionally, TeamCivX recommends that the City Councilexplore extending the UUT as part of any possible increase.

Lastly, to not overload the ballot, the City Council will need to consider the timing of all voter-approved initiatives in the election cycles. As a reminder, the current UUT expires in December 2028, and so it should be place on the ballot for voter consideration in either 2024 or 2026. The extension of the One-half Cent Sales Tax should be place on the ballot in either 2030 or 2032. A renewal of the PSPT could be placed on any ballot, and the BLT can be amended at any generalelection. Table 4 illustrates these potential revenue measures and the election cycle.

Table 4
Election Cycle/Year
Nov
2024
Mar
2026
Nov
2026
Mar
2028
Nov
2028
Mar
2030
Nov
2030
Mar
2032
Nov
2032
Mar
2034
Nov
2034
Mar
2036
Nov
2036
Mar
2038
Nov
2038
UUT * * Expire
Dec
31 PSPT * * * * * * * * * * * * * * *
Sales
Tax
* * Expire
Mar
31 BLT * * * * * * * *
City Council/RSA Agenda 186 Tuesday, February 27, 2024
*Denotes election cycles for renewing/amending/extending voter-approved revenue measures.

Staff members are seeking initial feedback on these two possible revenue measures for the November 2024 ballot: the UUT and/or the PSPT. Additional information will be forthcoming on the BLT in March and is not part of the discussion for this item.

Staff members are working towards a timeline to have the City Council narrow the possible revenue measure(s) by April 2024 so that a second community survey can be undertaken in May 2024. Based on results from that survey and with City Council consideration, a final decision on the placement of a revenue measure or measures would be made in July 2024 to submit to the Registrar of Voters by August 9, 2024.

The City Council may also decide not to pursue any revenue measures and plan to cut $3 million annually from the General Fund in the next two-year budget cycle FY 2025-2026 and 2026-2027.

FISCAL IMPACT
There is no immediate impact associated with consideration of this item. Fiscal impact on the General Fund would be dependent on the direction received by the City Counciland the outcome of any potential revenue measure.

The City’s long-term financial forecast indicates a shortfall averaging $3.0 million from FY 2025 to FY 2035. As previously stated, the General Fund is projected to fall below the minimum reserve fund balance goal of twenty percent of its annual operating expenditures by 2028 and would be depleted by 2035 if no corrective action is taken.

RECOMMENDATION
Staff recommends that the City Council receive this report and provide feedback on policy direction for these two possible revenue measures. As noted, a final determination to place a revenue measure or measures on the November 2024 ballot is anticipated to be made by April 2024.

Prepared by:

Joan Malloy, City Manager
Submitted by:

Joan Malloy, City Manager
City Council/RSA Agenda 187 Tuesday, February 27, 2024
Agenda Item
DATE: 2/27/2024
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: KRISTOPHER J. KOKOTAYLO, CITYATTORNEY
SUBJECT: WAIVE FURTHER READING AND ADOPT AN ORDINANCE AMENDING UNION CITY MUNICIPAL CODE CHAPTER 5.42 “TOBACCO
RETAILERS”
The City Council previously introduced an ordinance amending Chapter 5.42, “Tobacco Retailers”, of the Union City Municipal Code (“UCMC”) (the “Tobacco Retailers Ordinance”). After considering potential text amendments at meetings on July 25, 2023, January 9, 2024, and January 23, 2024, the City Council introduced an ordinance amending the Tobacco Retailers Ordinance on February 13, 2024. The City Attorneys Office has now prepared this item for adoption of the ordinance amending the Tobacco Retailers Ordinance.

STRATEGIC PLAN ALIGNMENT
There are no Strategic Plan goals associated with this agenda item.

BACKGROUND
The City Council previously considered the proposed ordinance amending the Tobacco Retailers Ordinance as follows: 1) during a study session on July 25, 2023; 2) as an item at the regular City Council meeting on January 9, 2024; and 3) as an item at the regular City Council meeting on January 23, 2024.

At the regular City Council meeting on January 23, 2024, the City Council provided direction to return with a proposed ordinance amending the Tobacco Retailers Ordinance with the following notable amendments:
1) Prohibit the sale of vape products.
2) Prohibit the sale of flavored tobacco products, consistent with state law. 3) Prohibit the sale of tobacco products in pharmacies. 4) Amend the minimum single cigar price from $5 to $8 with an annual increase by the Consumer Price Index (CPI) by City Council resolution.
5) Amend the minimum pack size for cigars (unless sold at the single cigar price identified above) from 5 to 10 City Council/RSA Agenda 188 Tuesday, February 27, 2024
with a $15 per pack minimum.
6) Prohibit the issuance of tobacco retail licenses within 500 feet of each other but allow the transfer of a tobacco retailers license with the transfer of a business by revising the definition of “arm’s length transaction”. 7) Increase the amount for fines related to violations. 8) Provide an enforcement date of June 1, 2024.
9) Prohibit the redemption and use of coupons by tobacco retailers and prohibit certain discounts.

The City Council also referred a number of additional items to the Legislation and Policy Committee for consideration.

The proposed Ordinance was introduced at the February 13, 2024 meeting of the City Council by a 4-1 vote.

DISCUSSION
The City Council voted 4-1 to waive full reading and introduce an ordinance amending the Tobacco Retailers Ordinance at its February 13, 2024 regular meeting.

If adopted, the ordinance will not be enforced until June 1, 2024.

FISCAL IMPACT
There is no direct fiscal impact as a result of adopting the proposed ordinance.

RECOMMENDATION
Staff and the City Attorney’s Office recommend that the City Council waive further reading and adopt the proposed ordinance amending the Tobacco Retailers Ordinance or provide further direction.

Prepared by:

Juliet Vaughn, Attorney
Submitted by:

Kristopher J. Kokotaylo, City Attorney
ATTACHMENTS:

Description Type
Draft Tobacco Retailer Ordinance Ordinance
Exhibit A -Amendment to Tobacco Retailer Regulations Exhibit Item7.b Powerpoint Attachment
City Council/RSA Agenda 189 Tuesday, February 27, 2024
ORDINANCE NO. XXX-24

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF UNION CITY AMENDING CHAPTER 5.42, “TOBACCO
RETAILERS”, OF THE UNION CITY MUNICIPAL CODE
WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, welfare, and morals of their citizens; and
WHEREAS, approximately 480,000 people die in the United States from smoking-related diseases and exposure to secondhand smoke every year, making tobacco use the nation’s leading cause of preventable death;
1 and
WHEREAS, the World Health Organization (WHO) estimates that tobacco kills 98 million people and causes over 1.4 trillion dollars in economic damage each year; 2 and
WHEREAS, 5.6 million of today’s Americans who are younger than 18 are projected to die prematurely from a smoking-related illness;
3 and
WHEREAS, tobacco use is the number one cause of preventable death in California4and continues to be an urgent public health issue; and
WHEREAS, tobacco use among priority populations in California contributes to health disparities and creates significant barriers to health equity; 5 and
WHEREAS, despite the State’s efforts to limit youth access to tobacco, youth are still able to access tobacco products in California;
6 and

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, GA: 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. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf 2 World Health Organization. WHO Report on the Global Tobacco Epidemic, 2019: Offer Help to Quit Tobacco Use. 2019. Available at: https://apps.who.int/iris/handle/10665/326043. 3 Supra, Note 1.
4 California Department of Public Health, California Tobacco Control Program. The #1 Preventable Cause of Death.
http://tobaccofreeca.com/other-tobacco-products/the-number-1-preventable-cause-of-death. Accessed May 12, 2020. 5 California Tobacco Control Program. California Tobacco Facts and Figures 2019. Sacramento, CA:

California Department of Public Health. 2019.
6 California Tobacco Control Program. California Tobacco Facts and Figures 2016. Sacramento, CA:

California Department of Public Health. 2016. California Tobacco Control Program. California Tobacco Facts and Figures 2019. Sacramento, CA: California Department of Public Health. 2019. California Student Tobacco Survey, 2017-18. San Diego, California: Center for Research and Intervention in Tobacco Control (CRITC), University of California, San Diego; April 2019; Centers for Disease Control and Prevention. Best Practices for Comprehensive Tobacco Control Programs — 2014. 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; Centers for Disease Control and Prevention. Youth Risk Behavior Surveillance — United States, 2019.

City Council/RSA Agenda 190 Tuesday, February 27, 2024
Ordinance No. XXX-24

WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act, enacted in 2009, prohibited candy and fruit flavored cigarettes7largely because these flavored products are marketed toward youth and young adults,8and younger smokers and more likely than older smokers to have tried these products;
9 and
WHEREAS, in a 2019 observation survey of 36 tobacco retailers within Union City conducts by the Alameda County Public Health Department, 86% of stores surveyed sold flavored tobacco products; and
WHEREAS, according to the California Department of Public Health, flavored tobacco products are used by the majority of youth and young adult tobacco users (86.4% and 57.7%) in California;
10 and
WHEREAS, mentholated and flavored products have been shown to be “starter” products for youth who begin using tobacco11 and that these products help establish tobacco habits that can lead to long-term addiction;
12 and
WHEREAS, research indicates that the FDA ban in 2009 on all flavored cigarette products (except menthol) led to a 6% decrease in youth tobacco use and a 17% decrease in the likelihood of a youth becoming a cigarette smoker;
13 and

California: Tobacco Use. 2019. Available at: https://nccd.cdc.gov/youthonline/app/Results.aspx?LID=CA. Accessed August 31, 2023; Lin C, Baiocchi M, Halpern-Felsher B. Longitudinal trends in e-cigarette devices used by Californian youth, 2014–2018. Addict Behav. 2020;108:106459. doi: 10.1016/j.addbeh.2020.106459. 7 21 U.S.C. § 387g(a)(1)(A).
8 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults:

A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Pre- vention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2012. Available at: https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf.; Villanti AC, Collins LK, Niaura RS, Gagosian SY, Abrams DB. Menthol cigarettes and the public health standard:
a systematic review. BMC Public Health. 2017;17(1):983. doi: 10.1186/s12889-017-4987-z; Institute of Medicine.

Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products. Washington, DC: The National Academies Press. 2015. Available at: t: https://www.nap.edu/catalog/18997/public-health-im-plications-ofraising-the-minimum-age-of-legal-access-to-tobacco-products. 9 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults:

A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Pre- vention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2012. Available at: https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf. 10 California Tobacco Control Program. California Tobacco Facts and Figures 2019. Sacramento, CA:

California Department of Public Health. 2019.
11 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults:

A Report of the Surgeon General. Atlanta, GA: 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. 2012. Available at: https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf. 12 Id.
13 Courtemanche CJ, Palmer MK, Pesko MF. Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use. Am J Prev Med. 2017;52(5):e139-e146. doi: 10.1016/j.amepre.2016.11.019.

City Council/RSA Agenda 191 Tuesday, February 27, 2024
Ordinance No. XXX-24

WHEREAS, studies indicate that laws prohibiting the sale of flavored tobacco products lead to decreases in youth tobacco use;
14 and
WHEREAS, in 2020, California passed SB 793, which amended California Health and Safety Code Section 104559.5 to prohibit the sale of most types of flavored tobacco products, including flavored electronic cigarettes, non-premium flavored cigars, as wells as flavored enhancers;15 and
WHEREAS, in 2022, California voters passed Proposition 31, which upheld SB 793;16 and
WHEREAS, 75.64 percent of voters in Alameda County voted yes to uphold SB 793;17 and
WHEREAS, California Health and Safety Code Section 104559.5 still allows the sale of flavored loose-leaf pipe tobacco and premium cigars with a wholesale price of twelve dollars ($12.00 or more), as well as flavored shisha/hookah tobacco if sold in licensed stores that only allow people twenty-one (21) years of age on the premises at any time;18 and WHEREAS, the health effects of non-cigarette tobacco products such as cigars, cigarillos, smokeless tobacco, and shisha are substantial as demonstrated by research that shows that noncigarette tobacco products have addictive levels of nicotine, harmful toxins, and dangerous carcinogens;19 and
WHEREAS, unlike cigarette use that has steadily declined among youth, the U.S. has seen a surge in teen e-cigarette use, and youth e-cigarette use remains a serious public health concern;20 and
WHEREAS, research has consistently shown that increases in cigarettes prices will result in less smoking across various sociodemographic populations;21 and

Farley SM, Johns M. New York City flavoured tobacco product sales ban evaluation. Tob Control. 2017;26(1):78-84. doi: 10.1136/tobaccocontrol-2015-052418; Pearlman DN, Arnold JA, Guardino GA, Boles Welsh E. Advancing Tobacco Control Through Point of Sale Policies, Providence, Rhode Island. Prev Chronic Dis. 2019;16:E129. doi: 10.5888/pcd16.180614.
15 California Health and Safety Code (HSC) Section 104559.5. 16 Statement of the Vote Summary Pages. November 8, 2022, General Election. State of California. https://elections.cdn.sos.ca.gov/sov/2022-general/sov/06-summary.pdf. 17 Official Election Site of Alameda County. General Election (Certified Final Results) – November 08, 2022.

Last Updated: Thursday, December 08, 2022. https://www.acgov.org/rovresults/248/. 18 California Health and Safety Code (HSC) Section 104559.5. 19 Hoffmann D, Hoffmann I. Chapter 3: Chemistry and Toxicology. In: Smoking and Tobacco Control Monograph No. 9: Cigars: Health Effects and Trends. National Cancer Institute; 1998. 20 Park-Lee E, Ren C, Cooper M, Cornelius M, Jamal A, Cullen KA. Tobacco Product Use Among Middle and High School Students — United States, 2022. MMWR Morb Mortal Wkly Rep 2022;71:1429–1435. National Youth Tobacco Survey (NYTS). https://www.cdc.gov/mmwr/volumes/71/wr/mm7145a1.htm?s_cid=mm7145a1_w. 21 Yao T, Ong MK, Max W, et al. Responsiveness to cigarette prices by different racial/ethnic groups of US adults. Tob Control. 2018;27(3):301-309. doi: 10.1136/tobaccocontrol-2016-053434.

City Council/RSA Agenda 192 Tuesday, February 27, 2024
Ordinance No. XXX-24

WHEREAS, a systematic review by the U.S. Community Preventive Services Task Force found that a 20% price increase would reduce demand for cigarettes by approximately 10.4%, the prevalence of adult tobacco use by 3.6%, and initiation of tobacco use by young people by 8.6%; 22 and
WHEREAS, youth are particularly responsive to changes in tobacco prices and evidence suggests that tobacco companies deliberately target youth with price reductions;23 and WHEREAS, although federal and state law ban the sale of individual cigarettes, neither federal nor California state laws restrict the sale of individual little cigars and cigars;24 and WHEREAS, neither federal nor California law set a minimum price for tobacco products; and
WHEREAS, minimum price markups and related laws in other states have been shown to be effective at increasing the price of cigarettes but may remain vulnerable to price manipulation by the tobacco industry without attention to coupons and discounts; 25 and
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 so dangerous to smoke;
26 and
WHEREAS, the City Council of the City of Union City has a substantial interest in protecting youth and underserved populations from the harms of tobacco use; and WHEREAS, the City Council of the City of Union City finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the City of Union City in order to protect the health, safety, and welfare of its residents.

22 Community Preventive Services Task Force. Reducing Tobacco Use and Secondhand Smoke Exposure:

Interventions to Increase the Unit Price for Tobacco Products. 2012. 23 U.S. Department of Health and Human Services. Preventing Tobacco Use Among Youth and Young Adults:

A Report of the Surgeon General. Atlanta, GA: 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. 2012. Available at: https://www.ncbi.nlm.nih.gov/books/NBK99237/pdf/Bookshelf_NBK99237.pdf 24 21 C.F.R. § 1140.16(b); Cal. Penal Code § 308.3(a).
25 Huang J, Chriqui JF, DeLong H, Mirza M, Diaz MC, Chaloupka FJ. Do state minimum markup/price laws work? Evidence from retail scanner data and TUS-CPS. Tob Control. 2016;25(Suppl 1):i52-i59. doi:

10.1136/tobaccocon- trol-2016-053093.
26 Hudmon KS, Fenlon CM, Corelli RL, Prokhorov AV, Schroeder SA. Tobacco sales in pharmacies: time to quit. Tob Control. 2006;15(1):35-38. doi: 10.1136/tc.2005.012278.

City Council/RSA Agenda 193 Tuesday, February 27, 2024
Ordinance No. XXX-24

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

SECTION 1. Recitals.

The above recitals (“Recitals”) are true and correct and made a part of this Ordinance.

SECTION 2. CEQA. Approval of the amendments is exempt from further environmental review under the general rule in California Environmental Quality Act (CEQA) Guidelines Section 15061(b)(3) that CEQA only applies to projects that have the potential for causing a significant effect on the environment. As a series of text amendments and additions, it can be seen with certainty that there is no possibility that the ordinance will have a significant effect on the environment.

SECTION 3. Municipal Code Amendment Chapter 5.42.

Section 5.42 “Tobacco Retailers,” of the Union City Municipal Code is hereby amended to read as displayed in Exhibit A, incorporated and made a part of this Ordinance.

SECTION 4. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.

SECTION 5. Publication and effective date. Within fifteen (15) days from and after adoption, this Ordinance shall be published once in the Tri-City Voice, a newspaper of general circulation printed and published in Alameda County and circulated in the City of Union City, in accordance with California Government Code Section 36933. This Ordinance shall take effect thirty (30) days after its adoption and shall not be enforced until June 1, 2024.

City Council/RSA Agenda 194 Tuesday, February 27, 2024
Ordinance No. XXX-24

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Union City at a regular meeting held on this 27th day of February 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:

CAROL DUTRA-VERNACI
Mayor
ATTESTED: APPROVED AS TO FORM:

THAI NAM N. PHAM
City Clerk
KRISTOPHER J. KOKOTAYLO
City Attorney
Attachments:

1. Exhibit A - Amendment to Tobacco Retailer Regulations in Union City Municipal Code City Council/RSA Agenda 195 Tuesday, February 27, 2024

EXHIBIT A

5.42.010 Definitions.

The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
“Administrator” means the Administrative ServicesFinance Director or designee. “Arm’s length transaction” means a sale or transfer, in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, as determined by the parties, neither of which is under any compulsion to participate in the transaction. A sale or transfer between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction.
“Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.means anything that can be exchanged for or used to acquire an electronic cigarette, electronic cigarette paraphernalia, electronic cigarette or tobacco product, such as a printed piece of paper, voucher, ticket, rebate, rebate offer, check, credit, token, code, password, or anything labeled “coupon” or “coupon offer.”
“Department” means the Administrative ServicesFinance Department. “Drug paraphernalia” shall have the definition set forth in California Health and Safety Code Section 11014.5, as that section may be amended from time to time. “Electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine.

Electronic smoking device 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. “Electronic cigarette” means “a device that can provide an inhalable dose of nicotine by delivering a vaporized solution” as defined in California Health and Safety Code Section 119405(b), as that section may be amended from time to time, or any device designed to vaporize a liquid solution that releases flavored vapor. “Electronic cigarette paraphernalia” means any device designed to provide an inhalable dose of nicotine or a flavored liquid solution through vaporization, nicotine-based or flavored solution-based cartridges for use with electronic cigarettes, and any other item designed for the vaporization, preparation, storing, or consumption of electronic cigarette products. “Electronic cigarette product” means any substance containing nicotine or a flavored liquid solution for vaporization, including 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. “Flavored Tobacco Product” means any tobacco product that imparts:

1. a taste or odor distinguishable by an ordinary consumer, other than the taste or odor of tobacco, either prior to or during the consumption of such tobacco product, City Council/RSA Agenda 196 Tuesday, February 27, 2024
including but not limited to tastes or odors relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or

2. a heating, cooling, or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.
“License” means a tobacco retailer’s license as defined below. “Licensee” means a tobacco retailer with a tobacco retailer’s license. “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States. “Nominal cost” means the cost of any item that is transferred from one person to another for less than the total of: (1) twenty-five percent of the full retail value of the item exclusive of taxes and fees; plus (2) all taxes and fees previously paid and all taxes and fees still due on the item at the time of transfer.
“Nonsale distribution” means to give, within the jurisdictional limits of the City, a tobacco product or coupon at no cost or at nominal cost to a person who is not a tobacco seller. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. “Pharmacy” means 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.
“Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent 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.
“Public place” means any place within the City, public or private, that is open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses. “Retailer” means tobacco retailer as defined herein.
“Self-service display” means the open display or storage of electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
“Tobacco” means leaves of the tobacco plant dried and prepared for smoking or ingestion.
“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. “Tobacco product” means tobacco and any substance containing tobacco, including, but not limited to, cigarettes, cigars, cigarillos, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or Formatted: Numbered + Level: 1 + Numbering Style:
1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at:

0.53" + Indent at: 0.78"
City Council/RSA Agenda 197 Tuesday, February 27, 2024
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.

1. any product containing, made of, or derived from tobacco or 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, snuff, or snus;

2. any 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.
“Tobacco product" does not mean 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.
“Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange., electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia.
“Tobacco retailing” shall mean means engaging in the activities of a tobacco retailer. the doing of any of these things. This definition is without regard to the quantity of electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. “Tobacco retailer’s license” means the license issued pursuant to Section 5.42.050this chapter that authorizes electronic-cigarette or tobacco retailing at a certain location and by a certain tobacco retailer.

5.42.020 Requirements and prohibitions.

A. Tobacco Retailer License Required. It is unlawful for any person to act as a tobacco retailer in the City without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer’s license is a nuisance as a matter of law.

B. Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, State, or Federal law applicable to electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products, tobacco paraphernalia, or tobacco retailingthe sale of tobacco products.

C. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

D. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a n electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia, tobacco product or tobacco paraphernalia to another person who appears to be under the age of City Council/RSA Agenda 198 Tuesday, February 27, 2024
twenty-seven years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under State law to purchase and possess the electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia, tobacco product or tobacco paraphernalia.

E. Minimum Age for Persons Selling Tobacco. Persons employed by a tobacco retailer under this chapter that sell tobacco products must be at least the minimum legal sales age established by state law. No person who is younger than the minimum age established by State law for the purchase or possession of electronic cigarette products or tobacco products shall engage in tobacco retailing.

F. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

G. False and Misleading Advertising Prohibited. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been revoked:

1. Shall keep all electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products and tobacco paraphernalia out of public view. The public display of electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license; and

2. Shall not display any advertisement relating to electronic cigarettes, electronic cigarette products, electronic cigarette paraphernalia, tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer’s location or that could lead a reasonable consumer to believe that such products can be obtained at that location.

H. Signage Violations. It is a violation of this chapter for any licensee to violate any local, State, or Federal law regulating exterior, storefront, window, or door signage.

I. Drug Paraphernalia. It is a violation of this chapter for any licensee or any of the licensee’s agents or employees, to violate any local, State, or Federal law regulating controlled substances or drug paraphernalia.

J. Nonsale Distribution of Tobacco Products Prohibited.

1. No tobacco retailer nor any agent or employee of a tobacco retailer shall engage in the nonsale distribution of any electronic cigarette, electronic cigarette paraphernalia, electronic cigarette product, tobacco product or coupon in any public place.

2. No person, motivated by an economic or a business purpose, shall knowingly permit the nonsale distribution of any electronic cigarette, electronic cigarette paraphernalia, electronic cigarette product, tobacco product or coupon: (a) anywhere in any public place under the legal or de facto control of the person; or (b) through any agent or employee of the person.

This provision shall not apply to coupons incidentally distributed in connection with a printed or electronic publication, such as, for example, magazines, newspapers, and websites, so long as that person’s distribution of a publication containing coupons is not primarily motivated by an economic or a business purpose to distribute coupons.

3. No tobacco retailer may honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price.

4. No tobacco retailer may sell any tobacco product to a consumer through a multiple-package discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or other item.

City Council/RSA Agenda 199 Tuesday, February 27, 2024

5. No tobacco retailer may provide any free or discounted item to a consumer in exchange for the purchase of any tobacco product.

K. Minimum Pack Size for Cigars.

1. Notwithstanding any other provision of this chapter, no tobacco retailer shall sell, offer for sale, or exchange for any form of consideration:
a. Any single cigar, whether or not packaged for individual sale; b. Any number of cigars fewer than the number contained in the manufacturer’s original consumer packaging designed for retail sale to a consumer; or c. Any package of cigars containing fewer than tenfive cigars. d. Cigars at a price of less than fifteen dollars per package of ten cigars, including all applicable taxes and fees.

2. This subsection does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds either eightfive dollars, including all applicable taxes and fees.

This or the dollar amount may be increased annually by the Consumer Price Index, as determined by the City Council and adopted by resolution of the City Council and adjusted from time to time, whichever is higher. The public shall be given notice of any such resolution in the manner notice is given of ordinances of the City.

3. This subsection shall apply to cigars, cigarillos and any other cigar product regardless of the terminology used for the product.

L. Sale of Electronic Smoking Devices. No person may sell or possess with the intent to sell any electronic smoking device within the city.

M. Flavored Tobacco Products. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.

1. Presumptive flavored tobacco product. There shall be 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 taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product is a flavored tobacco product. Any communication by or on behalf of the manufacturer or retailer of a tobacco product that such tobacco product imparts a taste or odor other than the taste or odor of tobacco, or that imparts a heating, cooling, or numbing sensation, constitutes presumptive evidence that the tobacco product is a flavored tobacco product. This includes but is not limited to public statements that a product is flavored, such as describing the product as “chill,” “ice,” “fresh,” “arctic,” “sweet,” “spicy,” or “frost.”

5.42.030 Limits on eligibility for a tobacco retailer license.

A. No license shall be issued to authorize tobacco retailing at other than a fixed location.

B. No license shall be issued to authorize tobacco retailing at a location where electronic cigarettes, electronic cigarette paraphernalia, electronic cigarette products or tobacco products are prohibited from being distributed pursuant to Title 18.

C. No license shall be issued to a location or a tobacco retailer where prohibited pursuant to Section 5.42.110.

D. Proximity to other tobacco retailers. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within 500 feet of a tobacco retailer location already licensed pursuant to this chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of City Council/RSA Agenda 200 Tuesday, February 27, 2024
the property line of the parcel on which an existing licensee’s business is located. This restriction does not apply to an applicant who has been licensed to sell tobacco products as of March 1, 2024.

E. Pharmacies. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.

5.42.040 Application procedure.

A. Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct tobacco retailing and shall be signed by each proprietor or an authorized agent thereof.

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 retailing. 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 5.42.110(D) 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 Department and shall contain the following information:

1. The name, address, and telephone number of each proprietor of the business seeking a license;

2. The business name, address, and telephone number of the single fixed location for which a license is sought;

3. 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 subsection (A)(2);

4. 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 Board of EqualizationDepartment of Tax and Fee Administration;

5. 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 five years;

6. A statement signed by each proprietor that no drug paraphernalia is or will be sold at the location for which the license is sought;

7. Such other information as the Department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.

B. A licensed tobacco retailer shall inform the Department in writing of any change in the information submitted on an application for a tobacco retailer’s license within ten business days of a change.

C. All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law, subject to the laws’ exemptions.

City Council/RSA Agenda 201 Tuesday, February 27, 2024

5.42.050 Issuance of license.

Upon the receipt of a complete application for a tobacco retailer’s license and the license fee required by this chapter, the Administrator shall issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists:

A. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter; B. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subsection shall not constitute a basis for denial of a license if the applicant provides the City with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm’s length transaction; C. The application seeks authorization for tobacco retailing for a proprietor or location for which this chapter prohibits a license to be issued, including the provisions of Section 5.42.110;
D. 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;
E. The location for which a tobacco retailer’s license is sought lacks a valid state tobacco retailer’s license by the California Department of Tax and Fee AdministrationBoard of Equalization.

5.42.060 License renewal and expiration.

A. Term and Renewal of License. A tobacco retailer’s license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license and submit the license fee no later than thirty days prior to expiration of the term.

B. Expiration of License. A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To renew a license not timely renewed pursuant to subsection A, the proprietor must:

1. Submit the license fee and application renewal form; and

2. Submit a signed affidavit affirming that the proprietor:
a. Has not sold and will not sell any electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia, tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed; or b. Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5.42.110(A) of this chapter, before seeking renewal of the license.

5.42.070 Licenses nontransferable.

A. A tobacco retailer’s license may not be transferred from one person to another or from one location to another. A new tobacco retailer’s license is required whenever a tobacco retailing location has a change in proprietor(s).

B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

City Council/RSA Agenda 202 Tuesday, February 27, 2024

1. The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

2. The new proprietor(s) provide the City with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm’s length transaction.

5.42.080 License conveys a limited, conditional privilege.

Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the City identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5.

5.42.090 Fee for license.

The fee to issue or to renew a tobacco retailer’s license shall be established from time to time by resolution of the City Council and shall be included within the City’s Master Fee Schedule. The fee shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering this chapter, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

5.42.100 Compliance monitoring.

A. Compliance with this chapter shall be monitored by the Police Department. The City may designate any number of additional persons to monitor compliance with this chapter.

B. Compliance checks shall be conducted so as to allow the Police Department to determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with laws regulating youth access to electronic cigarettes, electronic cigarette paraphernalia, electronic cigarette products or tobacco products. When the Police Department deems appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

C. The City shall not enforce any law establishing a minimum age for electronic cigarette, electronic cigarette paraphernalia, electronic cigarette product or tobacco product purchases or possession against a person who otherwise might be in violation of such law because of the person’s age (hereinafter “youth decoy”) if the potential violation occurs when:

1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the City;

2. The youth decoy is acting as an agent of a person designated by the City to monitor compliance with this chapter; or

3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Alameda County Public Health Department or the California Department of Health Services.

City Council/RSA Agenda 203 Tuesday, February 27, 2024

5.42.110 Violations Suspension and revocation of license.

A. Violations. Suspension or revocation of tobacco retailer license for violation. In addition to any other penalty authorized by law, a Tobacco Retailer License shall be suspended or revoked if the Department finds or a court of competent jurisdiction determines, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any provision of this Chapter.If the Administrator has reasonable cause to believe a violation of this chapter exists, or if any court of competent jurisdiction determines the same, the Administrator may issue a notice of violation and begin the revocation process as follows:

1. Upon a finding of a first violation of this Chapter at a location within any 5 year period, the License shall be suspended for 30 days.First Violation. After a first violation of this chapter at a location within any sixty-month period, the Administrator shall:
a. Issue a written warning to the licensee, which includes: the facts supporting the finding of a violation, the penalties for further violations of this chapter, and provides thirty days within which the licensee may cure the violation and advise employees of applicable regulations or contact the Administrator to challenge the finding of a violation. b. If the licensee contacts the Administrator to challenge the finding of a violation, the Administrator shall provide written notice of a hearing, not less than five business days after the notice, at which the tobacco retailer may show cause, at a time and place specified in the notice, why a violation does not exist. Should the tobacco retailer fail to present evidence at such hearing establishing, in the reasonable determination of the Administrator, that a violation does not exist, the Administrator shall provide written notice to the tobacco retailer that the notice of violation is upheld.

2. Upon a finding of a second violation of this Chapter at a location within any 5 year period, the License shall be suspended for 90 days.Second Violation. After a second violation of this chapter at a location within any sixty-month period, the license shall be revoked and no new license shall be issued for the location or the tobacco retailer until thirty days have passed from the date of revocation.

3. Upon a finding of a third violation of this Chapter at a location within any 5 year period, the License shall be suspended for 1 year.Third Violation. After a third violation of this chapter at a location within any sixty-month period, the license shall be revoked and no new license shall be issued for the location or the tobacco retailer until ninety days have passed from the date of revocation.

4. Upon a finding of four or more violations of this Chapter at a location within any 5 year period, the License shall be revoked with no new license issued for a five year period.Fourth Violation and Additional Violations. After four or more violations of this chapter at a location within any sixty-month period, the license shall be revoked and no new license may issue for the location or tobacco retailer until five years have passed from the date of revocation.

B. Revocation Procedures. If the licensee contacts the Administrator to challenge the finding of a violation, the Administrator shall provide written notice of a hearing, not less than five business days after the notice, at which the tobacco retailer may show cause, at a time and place specified in the notice, why a violation does not exist. Should the tobacco retailer fail to present evidence at such hearing establishing, in the reasonable determination of the Administrator, that a violation does not exist, the Administrator shall provide written notice to the tobacco retailer that the notice of violation is upheld. If a license is subject to revocation, the City Council/RSA Agenda 204 Tuesday, February 27, 2024
Administrator shall provide written notice of revocation along with the reasons for revocation, facts suggesting violation, the penalties for violation, and ability to appeal pursuant to subsection C. Within five days of the mailing of notice of revocation, the tobacco retailer shall cease the operation of the business for which the license was issued.

C. Appeal of Revocation. A decision of the Administrator to revoke a license is appealable to the City Manager and must be filed with the City Clerk within ten days of mailing of the Administrator’s notice of revocation. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager is not available for a revocation made pursuant to subsection D. The date, time, and place of appeal hearings shall be provided in writing to the tobacco retailer with at least ten days’ notice and copies of hearing rules. If the tobacco retailer fails to present evidence establishing that tobacco retailer is entitled to retain the license, the City Manager shall uphold the revocation and give written notice to the tobacco retailer. Within five days of the mailing of the notice of upheld revocation, the tobacco retailer shall cease operation of the business for which the license was issued.

D. Revocation of License Wrongly Issued. A tobacco retailer’s license shall be revoked if the Administrator finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.42.050 existed at the time application was made or at any time before the license issued. The decision by the Administrator shall be the final decision of the City. Such a revocation shall be without prejudice to the filing of a new license application.

5.42.120 Enforcement.

A. Criminal Prosecution. Each incident of violation of this chapter is a misdemeanor. The Department may impose administrative penalties as follows:

1. For a first violation of this Chapter within any 5 year period, two hundred fifty dollars ($250);

2. For a second violation of this Chapter within any 5 year period, five hundred dollars ($500); and

3. For a third or subsequent violation of this Chapter within any 5 year period, one thousand dollars ($1,000).n infraction subject to a one hundred dollar fine or otherwise punishable pursuant to Section 1.16.030 of this Code. Other violations of this chapter may, in the discretion of the City Prosecutor, be prosecuted as infractions or misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of the Police Chief or designee. In addition, any peace officer or code enforcement official also may enforce this chapter.

B. Civil Enforcement by the City.

1. Fines. Violations of this chapter are subject to a civil action brought by the City of Union City, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

2. Injunctions, Nuisance Abatement, and Code Enforcement. 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. Where the City pursues a civil action to remedy a violation of this chapter, the prevailing party shall be entitled to recovery of attorneys fees if the City elects, at the beginning City Council/RSA Agenda 205 Tuesday, February 27, 2024
of that action, to seek recovery of its own attorneys’ fees pursuant to Government Code Section 38773.5 as currently drafted or as amended.

C. General Provisions.

1. Cumulative Remedies. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

2. Violations. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. A violation exists for each day on which an electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia,a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter. A violation also exists for each individual retail electronic cigarette, electronic cigarette product or tobacco product and each individual retail item of electronic cigarette paraphernalia tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter.

3. Nuisances. Violations of this chapter are hereby declared to be public nuisances.

4. No Testimony for Persons Under Eighteen. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

City Council/RSA Agenda 206 Tuesday, February 27, 2024

CITY COUNCIL MEETING
February 27, 2024
City Council/RSA Agenda 207 Tuesday, February 27, 2024
ITEM 7.B ORDINANCE AMENDING
CHAPTER 5.42 “TOBACCO RETAILERS”
City Council
February 27, 2024
City Council/RSA Agenda 208 Tuesday, February 27, 2024
3 Background
• July 25, 2023: The City Council held a study session regarding possible amendments to the Tobacco Retailers License Ordinance.
• January 9 and January 23, 2024: The City Council held meetings on both dates to consider possible amendments and provided direction to return with a first reading of an ordinance and referred a number of items to the Legislation and Policy Committee for further consideration. • February 13, 2024: City Council held a first reading and introduced the Ordinance.

City Council/RSA Agenda 209 Tuesday, February 27, 2024
4 Highlights of proposed Ordinance
Key aspects of the Tobacco Retailers License Ordinance include:
• Prohibition on the sale of vape products.
• Prohibition on the sale of flavored tobacco products. • Prohibition on the sale of tobacco products in pharmacies. • Minimum single cigar price of $8 (increase from $5) with possible annual increases by the Consumer Price Index (CPI).
• Minimum pack size of 10 (increase from 5) for cigars with a minimum price of $15. • Increase the amount for fines related to violations. • Prohibit the issuance of tobacco retail licenses within 500 feet of each other. • Allow the transfer of a tobacco retailers license with the transfer of a business and revising the definition of “arm’s length transaction”. This will allow existing tobacco retailers within 500 feet of each other to continue being a tobacco retailer despite a change in business ownership. • Prohibition on discounts.
• Enforcement date of June 1, 2024.

City Council/RSA Agenda 210 Tuesday, February 27, 2024
5 Recommendation
Staff and the City Attorney’s Office recommends that the City Council waive further reading and adopt, the proposed ordinance amending Union City Municipal Code Chapter 5.42, “Tobacco Retailers” or provide any further direction as necessary.

City Council/RSA Agenda 211 Tuesday, February 27, 2024
Agenda Item
City Council/RSA Agenda 212 Tuesday, February 27, 2024