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HomeMy WebLinkAbout101-Staff report.pdf 1 SARATOGA CITY COUNCIL MEETING DATE: July 15, 2009 AGENDA ITEM: DEPARTMENT: Community Development CITY MANAGER: Dave Anderson PREPARED BY: Richard Taylor, City Attorney DIRECTOR: John Livingstone, AICP SUBJECT: Zoning Ordinance Amendment to Create Regulations for Tobacco Retailers RECOMMENDED ACTION: Review the draft ordinance and provide direction to staff. REPORT SUMMARY: The City regularly receives information from the Public Health Institute (“PHI”) regarding potential ordinances to protect public health. Mayor Page requested that staff prepare a report to Council with a draft ordinance based on a PHI model to require tobacco retailers to obtain a use permit. DISCUSSION: The attached draft ordinance would regulate tobacco retailers in the City of Saratoga. It is based on a Model Land Use Ordinance Regulating the Location and Operations of Tobacco Retailers drafted by the Public Health Institute (www.phi.org) and its Technical Assistance Legal Center. Model Ordinance suggests numerous regulatory options, some of which are included in the proposed amendment, and others of which are discussed below as “policy issues”. In addition to the policy issues, the attached draft would be refined to better fit with the Saratoga Code if Council elects to proceed with an ordinance. The proposed amendment begins with findings, which describe Saratoga’s specific interest in regulating Tobacco Retailers and its authority to do so. More general information about the health consequences of smoking and current trends in California can be found on the Public Health Institute website and on the attached “Fast Facts” sheet from the Center for Disease Control and Prevention.1 1 http://www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/index.htm 2 The amendment has two main components: 1) it requires new Tobacco Retailers to obtain a conditional use permit (CUP), with alternate provisions for existing Tobacco Retailers, and 2) it limits the density of new Tobacco Retailers. This is discussed in more detail below. Conditional Use Permits New Tobacco Retailers (defined as any person who sells tobacco products) would be allowed to operate only in commercial zoning districts and only after obtaining a CUP. (If Council elects to proceed with this ordinance staff would conduct further research to confirm that there are no existing tobacco retailers outside of commercial districts.) The granting of a CUP would be discretionary, and would require ongoing compliance with the following conditions: · Tobacco products must be secured, so that only employees have access; · Tobacco Retailers must comply with existing state, local and federal laws; · Sale of tobacco products must be by individuals 18 or older; · No sale to or sampling by individuals under 18 years of age; and · No smoking on the premises of a Tobacco Retailer. The ordinance would provide that if a Tobacco Retailer fails to comply with the conditions or with other applicable law, the Community Development Director can suspend the right to sell tobacco for 30 days for the first violation and 90 days for a second violation within a 60-day period. For the third violation, the Director can revoke Tobacco Retailer’s right to sell tobacco. These suspension and revocation procedures differ from the enforcement procedures for other CUP violations, as tobacco violations tend to be more technical in nature. The tobacco procedures are similar the enforcement mechanisms for State regulation of liquor licenses. For Tobacco Retailers already in existence at the time of enactment, the operator is not required to obtain a CUP. Instead, the operator must apply to the Director within a specified time period to obtain an Administrative Tobacco Retailer Permit. In the application, the operator must declare that it will comply with the conditions for the CUP listed above. If the operator fails to obtain the Administrative Tobacco Retailer Permit within the specified time, they must obtain a CUP through the process described above. A suspension or revocation decision is appealable to the Planning Commission. Within the general framework of a CUP requirement there are three policy issues: CUP Policy Issue 1: The City must determine whether tobacco retailer CUPs will be issued by the Planning Commission or would be uses subject to Community Development director approval under the new expedited use permit review process. Similarly, the City must determine whether use permit suspensions/revocations may be issued by the Director or may only be instituted by the Planning Commission. 3 CUP Policy Issue 2: As drafted the ordinance provides that existing Tobacco Retailers be given 180 days from the date of enactment to obtain an Administrative Tobacco Retailer Permit. The City Council could also consider other time frames. CUP Policy Issue 3: The City Council could consider having enforcement decisions appealed to a hearing officer instead of the Planning Commission. Density Limits The second component of the amendment would limit the density of new Tobacco Retailers. No new Tobacco Retailer could obtain a CUP on a parcel located within 500 feet of any existing Tobacco Retailer. Existing Tobacco Retailers would not be subject to this requirement. Within the general framework of a density limitation there are several policy issues: Density Policy Issue 1: The draft ordinance limits new Tobacco Retailers within 500 feet of existing Tobacco Retailers. The Council could direct a different distance. Density Policy Issue 2: The PHI Model Ordinance also restricts the location of “Significant” Tobacco Retailers (retailers that devote a certain percentage of floor area to, or that derive a certain amount of gross sale receipts from, tobacco products) to areas more than 1,000 feet from youth-oriented activities. Saratoga’s ordinance could include this type of provision. If included, the City Council could adjust the definition of Significant Tobacco Retailer or the distance restrictions. Density Policy Issue 3: The PHI Model Ordinance also restricts the total number of Tobacco Retailers based on the City’s population (i.e., one Tobacco Retailer per 1,000 residents). Saratoga’s ordinance could include this type of provision. Enforcement In addition to the suspension and revocation enforcement activities already described, the amendment also declares that any violation of this section would constitute a public nuisance. The City also retains the ability to enforce the section through civil actions, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, unfair business practice proceedings, and suits for injunctive relief. Enforcement Policy Issue: As an additional enforcement option, the PHI Model Ordinance also includes a private right of action. This would allow private individuals to independently enforce the ordinance in lieu of the City. 4 FISCAL IMPACTS Staff time would be required to administer the ordinance. Some of these costs will be recovered through application fees. ALTERNATIVES The Public Health Institute has model ordinances regulating secondhand smoke in recreational areas, imposing licensing requirements, and tobacco sampling programs. The City Council could consider these ordinances in addition to or instead of the use permit requirement. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The City would not require use permits or regulate the density of tobacco retailers. FOLLOW UP ACTION: If the Council wishes to consider adoption of the attached ordinance staff will present it to the Planning Commission for review and comment to the City Council as required by state law for zoning code amendments. ADVERTISING, NOTICING AND PUBLIC CONTACT: Notice for this meeting. ATTACHMENTS: A. Proposed Ordinance B. Fast Facts Handout from the Center for Disease Control and Prevention P:\SARATOGA\RESOLUTI\Tobacco Ordinances\Tobacco Ordinance (draft Staff Report).doc