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HomeMy WebLinkAboutCC AG PKT 2014-01-13 #KTO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager , a That the City Council provide further direction regarding regulations affecting smoke shops, smoking lounges, electronic cigarettes, and drug paraphernalia. At the City Council meeting of December 9, 2013, staff opened the discussion regarding electronic cigarettes and classifying the use as the same for tobacco products. Locational provisions, entitlement process and prohibited uses were also discussed. Towards the end of the discussion, City Council instructed staff to further review the possibility of grandfathering existing businesses, omit the definition of surface display area and apply the same State Labor Codes for smoking in public places for electronic cigarettes. Based upon the Council discussion, staff recommends defining smoke shops as establishments that primarily engage in the 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, gas stations, and supermarkets would not be affected by this definition. 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 Agenda M Oral 103 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. 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. Under staff's proposal, these laws will apply to 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 Under the proposed scenario, existing businesses would not be impacted by the ordinance. The existing businesses could continue as status quo. The threshold for establishing a surface area would be eliminated. There is no environmental impact related to this item. LEGAL ANALYSIS: The City Attorney has reviewed and approved as to form. There is no financial impact related to this item. RECOMMENDATION: bl-I I I L91 Ly-WI I Lei 0 It 0 a of 21 Jiml Basharn %, k D ector of Community Development Attachments: NOTED AND APPROVED: QVR. Ingram', City A. Health and Safety Code § 11014.5. AM 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.