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HomeMy WebLinkAboutCC AG PKT 2013-12-09 #KTHRU: Jill R. Ingram, City Manager SUBJECT: DISCUSSION OF SMOKE SHOPS, ELECTROW; CIGARETTES, DRUG PARAPHERNALIA I SUMMARY OF REQUEST: Staff requests that the City Council consider this report, consider public input, seek input from stakeholders, and provide direction to staff to return with an ordinance regulating smoke shops, smoking lounges, electronic cigarettes, and drug paraphernalia. At the August 26, 2013 meeting, the City Council adopted Ordinance No. 1631-U, an urgency ordinance declaring a moratorium on the acceptance, processing or issuance of any zoning permit, building permit, occupancy permit, business license or any other entitlement for the establishment and operation of electronic cigarette retailers, drug paraphernalia retailers and smoke shops. On September 23, 2013, the City Council extended the moratorium for ten months and 15 days to allow staff additional time to coordinate with the City Attorney's office and prepare necessary provisions to address smoke shops, electronic cigarettes, and drug paraphernalia. Staff has researched the experience of other jurisdictions in dealing with these smoke shops, electronic cigarettes, and drug paraphernalia to better understand how these matters potentially impact communities. Staff found that in some cases, electronic cigarette retailers and smoke shops have expanded their operations to include the sale of drug paraphernalia and synthetic drugs that are potentially harmful to the public and to detrimental to the general quality of life. Staff also found that there are currently no state or federal regulations regarding electronic cigarettes, including no restrictions on the sale of these devices to minors. This is particularly concerning due to the addictive properties of nicotine and marketing of flavored nicotine products that could appeal to children. Agenda Item — & These uses thus have the potential for long term adverse secondary effects and significant irreversible changes to neighborhoods and community character that warrants regulation by the City. TOPICS OF DISCUSSION: • Definition of Smoke Shops Staff recommends that smoke shops be defined as establishments that devote more than 16 square feet of product display surface area for wholesale or retail sale of electronic smoking devices, tobacco products, tobacco paraphernalia, or any combination thereof. The proposed definition would treat the sale of electronic cigarettes (classified as electronic smoking devices) the same as the sale of tobacco products. It should be noted that display areas in several existing drug stores, convenience stores, and supermarkets may already exceed 16 square feet. The implications of this proposed definition are discussed further below. • CUP Requirement Smoke shops would not be allowed as a permitted use by right, but would require approval of a conditional use permit pursuant to the requirements of the Zoning Code. Establishments that devote less than 16 square feet to display such products will not need a CUP. Restrictions on Location and Separation Requirements Staff recommends that smoke shops be limited to the GC (General Commercial) and SC (Service Commercial) zones. They would remain prohibited in areas subject to the Main Street Specific Plan. Staff recommends that smoke shops not be allowed within 1,000 feet of any other smoke shop, or any park, educational facility, religious facility, or property in the Public and Semipublic Facilities (P -S) zone. Only a handful of smoke shops could operate in the City if the Council so directs. For example, smoke shops would not be allowed in the shopping center on Pacific Coast Highway where Pavilions is located. • Smoking Lounges Prohibited Staff recommends that smoking lounges (defined as establishments that sell electronic smoking devices, tobacco products, and tobacco paraphernalia for use by customers on the premises) be prohibited throughout the City. Page 2 • Regulations for the Sale and Distribution of Electronic Smoking Devices State and federal law already regulate the sale and distribution of tobacco products, including restrictions on the sale of tobacco products to minors. These laws do not, however, address electronic smoking devices. Staff recommends that the ordinance impose regulations on the sale of electronic smoking devices similar to those that already apply to tobacco products (e.g., prohibit sales to minors and require sellers to confirm the age of buyers by checking an official identification). Self- service displays and vending machines for electronic smoking devices would be prohibited. All sales would have to require the seller's assistance to access the electronic smoking devices. It should be noted that these regulations would apply to all electronic smoking device vendors regardless of whether their business qualifies as a smoke shop. • Advertising An additional issue is whether advertising for electronic smoking devices should be limited or otherwise regulated. If directed by the City Council, staff would further study the matter in consultation with the City Attorney. • Businesses Selling, Furnishing, or Distributing Drug Paraphernalia Prohibited Staff recommends that the ordinance incorporate the definition of "drug paraphernalia" found in Section 11014.5 of the California Health & Safety Code, a copy of which is attached to this report. This definition includes "electric pipes" that are marketed for use with controlled substances. So long as electronic smoking devices are not marketed for use with controlled substances, they are not considered drug paraphernalia subject to the ordinance's prohibition. • Existing Uses Whenever the City introduces new regulations, it must consider how to address existing uses that are inconsistent with the new requirements. As noted above, staff recommends that smoke shops be defined as establishments that devote more than 16 square feet of product display surface area. If the City Council so directs, it is likely that many businesses that currently sell tobacco, electronic smoking devices, or tobacco paraphernalia would qualify as "smoke shops" because their displays exceed the 16 square -foot threshold. This could include convenience stores such as 7- Eleven, drug stores such as CVS, and supermarkets such as Pavilions, that have large displays devoted to cigarette sales. Page 3 Under the Municipal Code, any business where land use rendered non- conforming by a later- enacted CUP requirement has one year to apply for a CUP. Some existing businesses might reduce the size of their electronic smoking or tobacco displays rather than apply for a CUP. Of those that choose otherwise, however, many of them would likely be barred from obtaining a CUP due to such distancing requirements. For example, staff believes that the cigarette display at 7- Eleven on Pacific Coast Highway already exceeds the 16- square foot threshold. The business would not be eligible for a CUP, however, because it is within 1,000 feet of Zoeter Field. There is no requirement in the law to exempt existing uses from these regulations. However, on occasion, the City Council has allowed existing lases to continue without requiring a CUP provided the use is not intensified or expanded. Staff seeks City Council direction on this issue, and would encourage the City Council to direct staff to seek input from affected stakeholders such as Vons and the Southland Corporation (owner of 7- Eleven). ENVIRONMENTAL IMPACT: There is no environmental impact related to this item. LEGAL ANALYSIS: The City Attorney has reviewed and approved as to form. FINANCIAL IMPACT: There is no financial impact related to this item. RECOMMENDATION: Staff requests that the City Council consider this report, consider public input, seek input from stakeholders, and provide direction to staff to return with an or nance regulating smoke shops, smoking lounges, electronic cigarettes, and drA paraphernalia. SU BPITTE D Br: NOTED AIVD APPROVED: (�ILA I �)� ill . Ingram, City a ager ctor of Community Development Attachments: A. Health and Safety Code § 11014.5. Page 4 Attachment A California Health and Safety Code § 11014.5 (a) "Drug paraphernalia" means all equipment, products and materials of any kind which are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this division. It includes, but is not limited to: (1) Kits designed for use or marketed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived. (2) Kits designed for use or marketed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances. (3) Isomerization devices designed for use or marketed for use in increasing the potency of any species of plant which is a controlled substance. (4) Testing equipment designed for use or marketed for use in identifying, or in analyzing the strength, effectiveness, or purity of controlled substances. (5) Scales and balances designed for use or marketed for use in weighing or measuring controlled substances. (6) Containers and other objects designed for use or marketed for use in storing or concealing controlled substances. (7) Hypodermic syringes, needles, and other objects designed for use or marketed for use in parenterally injecting controlled substances into the human body. (8) Objects designed for use or marketed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as: (A) Carburetion tubes and devices. (B) Smoking and carburetion masks. (C) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand. (D) Miniature cocaine spoons, and cocaine vials. (E) Chamber pipes. (F) Carburetor pipes. (G) Electric pipes. (H) Air-driven pipes. (1) Chillums. (J) Bongs. (K) Ice pipes or chillers. (b) For the purposes of this section, the phrase "marketed for use" means advertising, distributing, offering for sale, displaying for sale, or selling in a manner which promotes the use of equipment, products, or materials with controlled substances. (c) In determining whether an object is drug paraphernalia, a court or other authority may consider, in addition to all other logically relevant factors, the following: (1) Statements by an owner or by anyone in control of the object concerning its use. (2) Instructions, oral or written, provided with the object concerning its use for ingesting, inhaling, or otherwise introducing a controlled substance into the human body. (3) Descriptive materials accompanying the object which explain or depict its use. (4) National and local advertising concerning its use. (5) The manner in which the object is displayed for sale. (6) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products. (7) Expert testimony concerning its use. (d) If any provision of this section or the application thereof to any person or circumstance is held invalid, it is the intent of the Legislature that the invalidity shall not affect other provisions or applications of the section which can be given effect without the invalid provision or application and to this end the provisions of this section are severable.