Item Number: {{item.number}}
City Council / Board of Directors
Public Hearing(s)
Meeting of: June 18, 2024
Submitted By:
Scott Webb, City Planner
Subject:
An Amendment to the Victorville Municipal Code with an Environmental Exemption making various changes pertaining to the regulation and inspection of retail establishments that sell alcohol or tobacco for off-site consumption.
Recommendation:
That the Honorable City Council conduct a public hearing, receive public testimony, and take the following actions:
1) Find the Code Amendment exempt pursuant to Section 15061(b)(3) of the California Environmental Quality Act (CEQA);
2) Introduce Ordinance No. 2450 for adoption, and first reading by title only, to amend Title 16 of the Victorville Municipal Code;
3) Waive a further reading in full of proposed Ordinance No. 2450; and 4) Authorize City staff to seek grant funding to support the implementation of Ordinance No. 2450.
Fiscal Impact:
Changes to a land use regulatory document do not result in a direct fiscal impact. The administration of this ordinance will be conducted by budgeted Code Compliance staff and the cost of the required annual inspections by City staff will be partially off-set by the collection of a $99 compliance inspection fee to begin upon annual renewal inspections.
The collection of the noted compliance inspection fee will be tracked during the implementation of the proposed Ordinance and compared to the actual cost of alcohol/tobacco retailer compliance inspections in order to support any future adjustments to the City’s Master Fee Schedule that may be needed to ensure full cost recovery. 3 6
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Strategic Plan Goal:
Approval of the proposed ordinance will enable the City to further fulfill the following goals outlined in the 2023-2025 Strategic Plan:
•Goal B (Public Safety) – The proposed operational/performance standards, licensing requirements, and annual inspection process will ensure that all alcohol and tobacco retailers are operating their facilities in accordance with State and local laws, which among other things aim to ensure adequate on-site lighting, enhance visibility within premises, and prevent loitering and illegal activities on-site. These standards will therefore implement a public safety strategy that will assist law enforcement agencies and support a thriving and growing community.
•Goal C (Community and Economic Development) – The proposed Victorville Municipal Code amendment includes a proactive Code Enforcement approach that will annually review exterior conditions at applicable retailers in order to confirm compliance with maintenance and site condition standards. This aspect of the proposed Ordinance aims to improve the appearance of non-compliant locations and preserve the community, which will support the establishment of new businesses and retention of existing business in the City.
•Goal D (Reduce Homelessness) – The proposed Ordinance will reduce access to illegal tobacco products and drug paraphernalia, thus making the retailers part of the solution to reduce substance abuse and illegal drug use that are not uncommon within the City’s homeless population. Reducing access to these illegal items should then result in the reduction of homeless outreach efforts in the areas around alcohol and tobacco retailers, which frequently occur near each other.
Executive Summary:
On May 8, 2024, the Planning Commission recommended that the City Council adopt the proposed Ordinance to amend the Victorville Municipal Code (VMC) by a vote of 4-1 (Attachment B). As discussed herein, the subject Ordinance (Attachment A) would implement proactive enforcement of City regulations, ensure compliance monitoring is conducted regularly for all applicable businesses conducting alcohol and tobacco sales for off-site consumption, update standards related to new businesses conducting alcohol and tobacco sales, as well as identify nonconforming off-site alcohol retailers (as “Deemed Approved”) and nonconforming tobacco retailers while causing both retailer types to be subject to performance/operating standards not required when they were originally allowed to engage in retail sales. If approved, the subject amendment and included monitoring/inspection process will be applicable to 18 existing smoke shops and 63 existing businesses that conduct sales of alcohol and tobacco for off-site consumption, with approximately 14% of these businesses subject to the single-service alcoholic beverage prohibition requirements of the VMC via an existing Conditional Use Permit.
Background:
The City of Victorville has historically regulated the sale of alcohol for off-site consumption with discretionary Conditional Use Permit requirements for establishments within over- concentrated census tracts and near sensitive land uses such as residences, schools, religious facilities, and parks. In response to the negative effects these establishments 3 6
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may pose to public health, regulations were broadened over the past eleven years to include a prohibition on single-serve alcoholic beverages in 2013, operating restrictions for businesses selling alcohol for off-site consumption in 2014, as well as tobacco sales and paraphernalia restrictions in 2015 that have largely prevented the further proliferation of new liquor stores and smoke shops within the City of Victorville. A brief synopsis of the City’s actions is provided as “Attachment C” to this Staff Report, which are generally described as follows:
•Ordinance No. 2299 (Single-Serve Restrictions) – June 18, 2013 •Ordinance No. 2324 (Operating Restrictions) – October 7, 2014 •Ordinance No. 2339 (Tobacco/Paraphernalia Restrictions) – August 18, 2015 Although these newer provisions of the Victorville Municipal Code have proven effective at prohibiting the sales of single-serve alcoholic beverages and instituting operating restrictions at new businesses that engage in the retail sales of alcohol and tobacco products for off-site consumption, existing non-conforming businesses that were established prior to these new regulations taking effect have not been held to the same standards as new businesses and still account for the vast majority of establishments within the City. Furthermore, some conforming establishments operating with an active Conditional Use Permit have not been held accountable to maintain required operating restrictions due to the lack of a regular inspection process. Additionally, since the adoption of Ordinance No. 2339, the State of California has passed various regulations as well as provided resources that regulate the sale of tobacco and establish funding opportunities to assist in local enforcement, as discussed below.
•Senate Bill (SB) 793 (Upheld by California voters via Proposition 31) - Effective January 1, 2023, SB 793 (Attachment D) prohibits tobacco retailers from selling, offering to sell, or possessing flavored tobacco products; however, hookah tobacco, loose leaf tobacco, and handmade premium cigars are exempted from this prohibition.
While SB 793 prohibited the sales of flavored tobacco, it did not establish a responsible enforcement agency.
•Assembly Bill (AB) 935 - Effective January 1, 2024, AB 935 (Attachment D) strengthened the California flavored tobacco products prohibition by establishing the California Department of Public Health (CDPH) as the primary state enforcement agency, increased penalties for retailers who do not comply with the law and changed the definition of a retail location to include mobile units such as booths and stands. •California Department of Justice Tobacco Grant Program – The State encourages any local public agency, such as a city, that has authority to enforce tobacco-related state laws or local ordinances to apply and receive funding through the California Department of Justice’s Tobacco Grant Program (Attachment E) to support local partners in the:
oEnforcement of state and local tobacco laws, such as the prohibition of flavored tobacco products;
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oProsecution and penalization of retailers who sell or market tobacco products to youth under the age of 21, including over the internet; oEducation to tobacco retailers on state and local tobacco laws; and oInvestigation and inspections of retailer licensing compliance.
The program is funded by Proposition 56, the California Healthcare, Research and Prevention Tobacco Tax Act of 2016. If authorized by the City Council, City staff will analyze the subject grant opportunity and proceed with applying for available funding, if feasible, which was also recommended by individual members of the Planning Commission.
Discussion:
Basis for Proposal
The City of Victorville and its residents have been subject to adverse impacts resulting from alcohol sales for off-site consumption and tobacco sales that have led to adopting of noted Ordinance Nos. 2299, 2324, & 2339. These adopted Ordinances specifically note that the City Council previously found that:
•Additional regulatory measures were needed to protect residential, commercial, industrial, and civic uses from the harmful effects attributable to the sale of alcoholic beverages. (Ordinance No. 2324)
•Neighborhood character can change over time and the careful regulation of nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute to the deterioration of neighborhoods. (Ordinance No. 2324) •Land use regulations can be structured to provide opportunities for alcoholic beverages sales establishments to operate in a mutually beneficial relationship to each other and to other commercial services while not becoming the source of undue public nuisances in the community. (Ordinance No. 2324) •Prohibiting and regulating certain land uses will assist in creating a safer community by eliminating the ability of certain harmful businesses to locate in Victorville, thus deterring the patrons of these business from loitering in retail areas which may occur due to the nature and operations of certain land uses. (Ordinance No. 2339) •There is a need to prohibit and regulate certain land uses by Ordinance in order to help achieve the City Councils goals of creating a safer, prettier and cleaner community. (Ordinance No. 2339)
•Prohibiting and regulating certain uses in commercial neighborhoods will create a prettier, cleaner community by keeping undesirable businesses out of commercial areas and attracting desirable businesses and owners to commercial neighborhoods. (Ordinance No. 2339)
•The failure of tobacco retailers to comply with tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of Victorville. (Ordinance No. 2339) 3 6
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While the City has previously enacted regulations on the sale of alcohol and tobacco within the City of Victorville, recent data indicates that many of the adverse impacts cited by the City Council are still ongoing as supported by a variety of data, such as:
•Site Assessments – During May/June of 2024, City staff conducted initial assessments of business exteriors and researched license status of all 81 business that would be subject to the proposed Ordinance in order to establish baseline conditions and confirm the violations of the VMC currently taking place. This assessment resulted in the following findings of the 81 businesses assessed:
o55 displayed well over 20% allowable window signage permitted in commercial zones.
o34 sites had maintenance issues (e.g. landscaping not maintained, junk & debris present, trash and empty liquor bottles, illegal structures on-site, etc.). o20 locations had notable instances of loitering during site visits. o6 smoke shops had no current California Department of Tax and Fee Administration license locatable on State databases.
o10 out of 81 business returned no explicit violations.
This data was also preceded by efforts by the Code Compliance Department in October 2021 that assessed 41 convenience / liquor stores and 14 smoke shops.
During the noted assessment by the Code Compliance Department, the clear presence of drug paraphernalia was present within smoke shops while convenience/liquor stores demonstrated higher instances related to loitering and needed exterior maintenance/up-keep of property.
•Homeless Outreach Efforts – The City continues to address the Strategic Plan goal of reducing homelessness, with the City’s recent opening of the Wellness Center and the creation of a Homeless Engagement Team aimed at connecting impacted individuals with available services. While the Homeless Engagement team tracks their efforts with specific locations, when this assistance is compared to the location of alcohol and tobacco retailers as depicted in “Attachment F” of this Staff Report, the proximity of homeless outreach efforts to alcohol/tobacco retailers suggests that the subject retailers are in a position to be a part of the solution to reduce homelessness by decreasing access to drug paraphernalia and items that may support substance abuse, which is a known cause or contributing factor of homelessness. According to recent data from Victorville’s Wellness Center, 34% of the clients report having a substance use disorder.
•Calls for Service – Based upon data provided by the Police Department, a sample of 17 alcohol/tobacco retailers and 8 smoke shops throughout the City of Victorville between the six-month period of June – December of 2023, an average of approximately 29 calls for service were placed at alcohol/tobacco retailer locations and 11 calls for service at smoke shops. For comparison, a sample of 6 supermarkets in the City over the same period resulted an average of 48.5 calls for service at each location; however, supermarkets are approximately 40,000 sq. ft. in size and located within large shopping centers compared to alcohol/tobacco retailers and smoke shops 3 6
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that are usually less than 3,000 sq. ft. in size, located in small commercial strip malls or developed as stand-alone businesses. When adjusted for square footage, small alcohol/tobacco retailers have 10 times more service calls, and smoke shops have 4 times more service calls, compared to supermarkets.
The above noted data, in conjunction with the updated regulations established by the State of California regarding the prohibition of flavored tobacco, warrant updated regulations and requirements for alcohol and tobacco retailers in order to ensure businesses are compliant with existing standards and to take a proactive compliance approach to further implement the goals adopted in the Strategic Plan.
Proposed Code Amendments
Inasmuch as the City’s existing alcohol/tobacco requirements and standards are only monitored during business openings and via public complaints, the proposed amendments discussed herein aim generally to establish an enforcement procedure and penalties for non-compliance with the previously adopted City Ordinances and current State law.
In order to add enforcement measures to ensure compliance with existing VMC standards and existing Conditional Use Permits relating to alcohol and tobacco sales for off-site consumption, as well as revise existing standards on tobacco sales to reflect the Statewide prohibition on flavored tobacco, City staff has prepared a draft Code Amendment to Title 16 of the VMC (known as the “Development Code”) to update the City’s standards and implementation processes. As proposed, the draft Code Amendment is comprised of the reorganization of existing standards as well as the inclusion of new/updated standards and definitions as discussed and summarized below.
Existing/Reorganized Standards
•Alcoholic Beverage Sales – Standards that currently exist in the Development Code for which changes were limited to relocation and minor text adjustments for clarity include the following:
oConditional Use Permit (CUP) – Requirements for alcoholic beverage sales establishments to obtain a CUP prior to operation remain unchanged, with exceptions remaining for large retailers (e.g. grocery and drug stores) and restaurants selling beer & wine.
oFinding of Public Convenience or Necessity (FPCN) – Allowances for the limited approval of a FPCN, required for business seeking alcohol sales within overconcentrated census tracts remains unchanged and continues to allow authorization for large retailers and fueling stations. ▪Over-concentration is defined as having a higher alcohol license/population ratio within the census tract than the county license/population ratio. In these instances, the City is authorized to determine if public convenience or necessity would be served by the issuance of additional ABC licenses via an FPCN. oDistance Requirements – Prohibitions on off-site alcoholic beverage establishments and bars/nightclubs within 600 feet of sensitive land uses (e.g. 3 6
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schools, parks, residentially zoned property, etc.) remain unchanged with limited exceptions for large retailers, convenience markets selling beer & wine only, and micro-breweries.
oOperational Standards – Public nuisance measures, including standards on lighting, refuse containers/collection, loitering, signage, mitigation of alcohol related problems, and compliance with all applicable laws remains unchanged.
Additionally, prohibitions on the sales of drug paraphernalia as well as vegetation that may provide hiding places or window coverings that obstruct the view of the interior of establishments has not been changed.
•Tobacco Sales – Although the proposed amendments expand upon standards for tobacco retailers, the following standards are currently included in the Development Code:
oOperational Standards – Measures that limit display areas for tobacco and tobacco paraphernalia; locate tobacco and tobacco paraphernalia behind service counters; and the prohibition of drug paraphernalia, smoking/vaping on the premises, and the distribution of free tobacco or coupons.
•Applicability – The provisions of the existing Alcoholic Beverage and Tobacco Sales standards are generally applicable to all businesses within the City; however, some limited exceptions exist as discussed below.
oLarge Retailers – General retailers over 8,000 sq. ft. in size (e.g. grocery stores, drug stores, big box retail, etc.) that have less than 10% of their floor area dedicated to alcohol sales are exempt from obtaining a CUP for alcohol sales, as well as single-serve restrictions, and separation requirements. Additionally, since these retailers are exempt from obtaining a CUP, requirements related to tobacco sales are not implemented as conditions of approval; however, tobacco sales at these locations are typically operated as an accessory use and displayed with limited visibility and restricted public access.
oNon-Conforming Alcohol Sales – Existing businesses that were established prior to the required CUP process or have CUP’s that do not prohibit the sales of single- serve alcoholic beverages are currently permitted to sell single-serve alcoholic beverages. This single-serve allowance is protected for these retailers pursuant to California Business and Professions Code Section 23790, and the City Attorney’s Office has confirmed that the subject business may maintain their existing single- serve alcoholic beverage allowances.
oNon-Conforming Tobacco Sales – Although intended to be applicable to all retail sales of tobacco, nonconforming establishments that were established prior to the current operational standards are permitted to remain (e.g. smoke shops permitted to remain as non-conforming uses with display area that exceeds current limitations). However, in practice and due to a lack of enforcement processes, these requirements have only been implemented on new businesses. 3 6
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New/Updated Standards and Definitions
•Definitions – New definitions were added to clarify existing standards and implement new requirements included in the proposal. For example, definitions clearly defining the different types of alcohol sales were added and updated while new definitions relating to “Deemed Approved” requirements and tobacco products were included in the proposed amendment. Additionally, the definition of “single-serve alcoholic beverage” was added; however, this definition previously existed in a different section of the Development Code.
•Land Use Table – Tobacco sales were relocated to reflect their allowance only as an accessory use.
•Alcoholic Beverage Sales – Proposed Development Code standards added or updated via the proposed amendment include the following:
oDeemed Approved – Designates all applicable businesses (e.g. existing non- conforming businesses) “Deemed Approved Establishments” who are subject to all performance standards and any associated Conditional Use Permit. While the prohibition of single-serve alcoholic beverage sales and the implementation of the previously discussed operating standards are not applicable to these establishments pursuant to California Business and Professions Code Section 23790, the noted performance standards are applicable as well as California Business and Professions Code Sections 25612 and 25612.5 (Attachment G).
Applicable performance standards generally address adverse impacts to the area, nuisance activities, signage, and site upkeep in accordance with State law standards; however, they lack the specificity of the operating standards imposed on new business and recently approved business due to the protections afforded to existing nonconforming alcohol sales establishments by the noted Business and Professions Code.
oUpdated Training – Required training is changed from the Responsible Beverage Service Training (RBS) program to the Licensee Education on Alcohol and Drugs (LEAD) program, which is intended to train retail sales employees as opposed to RBS which is intended to train employees in the service sector (e.g. on-site consumption of alcoholic beverages).
•Tobacco Sales – Proposed Development Code standards added or updated via the proposed amendment include the following:
oNonconforming Tobacco Retailers – Designates all applicable businesses (e.g. existing non-conforming tobacco retailers) as nonconforming who are subject to all operational standards, including display area limitations. Once a nonconforming tobacco retailer is in compliance with all operating standards, they are granted a Tobacco Retailer License.
oOperational Standards – New operational standards are included in the proposed amendment to match those standards currently present for off-site alcohol sales establishment. These new standards include public health, safety, and nuisance reduction measures such as standards on lighting, refuse containers/collection, loitering, signage, mitigation of alcohol related problems, and compliance with all 3 6
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applicable laws. Additionally, prohibitions on the sales of drug paraphernalia, flavored tobacco, as well as vegetation that may provide hiding places or window coverings that obstruct the view of the interior of establishments has been added.
Inasmuch as tobacco sales are not regulated by the State of California to the extent that alcohol sales are, the City is legally afforded the ability to implement operating standards to all tobacco retailers, which the noted Senate Bill 793 and Assembly Bill 935 support.
•Inspections/Violations – Since current VMC standards do not include an inspection or violation schedule to ensure ongoing compliance, the proposed amendment corrects this omission by adding the following:
oInitial & Annual Compliance Monitoring – As proposed, all applicable businesses will be required to have an initial compliance inspection as well as annual inspections. Existing Deemed Approved Establishments and nonconforming tobacco retailers would be provided a minimum of 90 days to obtain initial compliance, with new businesses requiring compliance prior to opening. oViolations Schedule – If existing businesses cannot pass an initial compliance inspection within the 90-day grace period, or if businesses fall out of compliance after they have been previously determined to be in compliance with City standards, the business would be subject to inspections at least every fifteen days as well as citations and applicable fees.
•Licensing – Businesses obtaining compliance with operational standards, performance standards, or obtaining a Tobacco Retailer License will be subject to site inspections to ensure compliance with the operating/performance standards discussed. Subsequently, after passed inspections and completed business license applications, retailers will be issued a business license that confirms the business has obtained and maintains Deemed Approved Status and/or a Tobacco Retailer License. •Applicability – The provisions of the proposed update to the City’s Alcoholic Beverage and Tobacco sales standards would retain limited exceptions for large retailers, who would be subject to all applicable operational/performance standards; however, as proposed these establishments would not be subject to the annual compliance monitoring process. Additionally, the allowances for non-conforming alcohol sales and non-conforming tobacco sales would be adjusted as noted in the following discussion.
City staff has identified 81 licensed businesses that would be subject to the provisions of the proposed update to the City’s Alcoholic Beverage and Tobacco sales standards. oNon-Conforming Alcohol Sales – Non-conforming establishments that were established prior to the prohibition on the sales of single-serve alcoholic beverages and previously permitted to continue sales of single-serve alcoholic beverages would maintain that allowance in compliance with the California Business and Professions Code. These businesses would be subject to initial and annual compliance monitoring to verify adherence to applicable performance standards. oNon-Conforming Tobacco Sales – Non-conforming establishments that were established prior to the current operational standards would be required to comply with all operational standards noted herein. However, non-conforming smoke 3 6
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shops would be permitted to exceed display area size requirements given the nature of use.
Given the City’s strategic goals and the health and safety matters detailed in this report, staff is recommending that the City Council adopt Ordinance No. 2450 to further regulate and inspect retail establishments that sell alcohol or tobacco for off-site consumption.
Attachments: A. Ordinance No. 2450 – Draft Municipal Code Amendments B. Executive Summary, Except Minutes & PC Staff Report
C. Ordinance Nos. 2299, 2324, & 2339 – Summaries/Excerpt Text D. Senate Bill 793 & Assembly Bill 935
E. CA Department of Justice Tobacco Grant Program Fact Sheet F. Homeless Outreach & Proximity to Alcohol/Tobacco Retailers G. CA Business and Professions Code Sections 25612 & 25612.5