HomeMy WebLinkAbout2010/01/05 Item 10~-~ti~~
~~
~`~~~ Councilmember Steve Castaneda
City Of Chula Vista
276 Fourth Avenue
+~+`- Chula Vista, Ca 91910
CIlY OF 619.691.5044 - 619.476.5379 Fax
CHULA VISfA
DATE: Monday, DecemUer 21, 2oog
TO: Mayor and City Councilmembers
FROM: Councilmember Steve Castaneda
CC: City Manager, City Attorney
RE: Tobacco Sales near Schools
MEMO
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As Chair of the Council Public Safety Subcommittee, I propose discussing an ordinance
prohibiting and/or restricting the sale of tobacco near schools.
Each year, 36,000 California kids become new smokers, with 75% of them becoming life-long
smokers. 40,000 Californians die each year as a result of tobacco use and costs Californians
nearly $16 billion annually.
30% of tobacco sales to minors take place within 1,000 feet of a school. By prohibiting or
restricting sales in the proximity of schools, we can significantly ,reduce tobacco access to
children.
I propose the following:
1. Sales Prohibition
At a minimum prohibit sales of tobacco products within 600 feet of a school. 1.,000 feet would
be preferable.
2. Three Strikes and You're Out
If an ordinance grandfathers-in existing tobacco retailers in close proximity to schools, then
those retailers should be subject to penalties including license revocation after a third violation
of selling tobacco to minors.
3. Limited Hours
If an ordinance grandfathers-in existing tobacco retailers, restrict hours of operation/sales
including prohibiting sales during school hours and hours when students are traveling to and
from school.
Thank you for your consideration.
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AN ORDINANCE OF THE r CITY / COUNTY 1 OF r_1
AMENDING THE r _1 MUNICIPAL CODE TO RESTRICT
TOBACCO PRODUCT SALES NEAR SCHOOLS
The [City Council of the City / Board of SUDervisors of the CountJ;:] of [_] does
ordain as follows:
ARTICLE
TOBACCO FIU=E SCHOOLS ACT
SECTION I, FINDINGS. The [ City Council of the City / Board ofSuDcrvisors of
the County] of [_] hereby finds and dec] ares as follows:
WHEREAS, tobacco use causes death and disease and imposes great socia] and
economic costs, as evidenced by the following:
. more than 440,000 people die in the United States from tobacco-related
diseases every year, making it the nation's leading cause of preventable
death; I and
. the medical and economic costs to nonsmokers suffering from lung cancer or
heart disease caused by secondhand smoke are nearly $6 billion per year in.
the United States;2 and
. the total annual cost of smoking in California was estimated at $475 per
resident or $3,331 per smoker per year, for a total of nearly $] 5,8 billion in
smoking-related costs in I 999'a]one;J and
WHEREAS, in California, ]3,3% of the adult population and] 5.4 % of high schoo]
4
students smoke; and
WHEREAS, loea] zoning eontro]s allow loca] governn1ents to regulate the operation
of lawful businesses to avoid circumstances which facilitate violations of state, federal,
and local laws; and
I U.S. Oep'! ofJ-lealth and I-Iuman Servs., Centers for Disease Control and Prevention, Annual Smoking-
Attributable .Mortality, Years of Potential Life Lost, and Economic Costs United Slates /995-/999
MORBIDITY AND MORTALITY WEEKLY REpORT, 5](14), at 300-303 (2002), available al
http://www.cdc,gov/mmwrlPDF/wk/mm5114,pdf(last accessed October 1], 2006),
2 American Academy of Actuaries, Costs Assoc;atedwith Secondhand Smoke, October, 2006, available at
http://www,actuary orglpdflhealth/smoking_oct06.pdf (last accessed October 11,2006).
) Wendy Max, Dorothy p, Rice, Xiu]an Zhang, Hai-Yen Sung, Leonard Miller, Ca!. Dept. of Health Servs.,
The Cost of Smoking in California, 1999, at 76 (2002), available at
http://www.dhs.ca.gov/tobacco/documents/pubs/CostOfSmoking 1999.pdf (last accessed October 18,
2006)
4 CaL Dep't Health Servs, Tobacco Control Sec., 3D-Day Smoking Prevalence Among California Youth (March 2006).
WHEREAS, although it is unlawful to sell tobacco products to minors,S 8.6 % of
California retailers surveyed do sell to minors6 In fact, despite laws in every state
making it illegal to sell tobacco to minors, each year an estimated 924 million packs of
cigarettes are consumed by minors 12 to 17 years of age, yielding the tobacco industry
$480 million in profits from underage smokers;' and
WHEREAS, [ Citv / Cmill1y] has a substantial interest in ensuring that any person
selling or exchanging tobacco products should be at leas(.of a legal age to purchase such
products; and
WHEREAS, [Qi!y / CillmlY] has a substantial interest in promoting compliance with
state laws prohibiting the sales of tobacco products to minors; in promoting compliancc
with federal, state and local laws intended to discourage the purchase of tobacco products
by minors; and finally, and most importantly, in protecting children from being lured into
illegal activity through the misconduct of adults; and
WHEREAS, the California courts in such cases as Cohen v. Board of Supervisors, 40
Ca1.3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal.AppAth 383
(1993), have affirmcd the power of local governments to regulate business activity in
order to discourage violations of state law; and
WHEREAS, the California Constitution, Articlc XI, section 7, provides cities and
counties with the authority to enact ordinances to protect thc hcalth, safety, welfare, and
morals oftheir citizens; and
WHEREAS, a recent study found that 33% of tobacco underage sales took place
within 1000.feet of a schoolS; and
WHEREAS, zoning regulations are necessary to control the location and operation of
the sale or exchange of tobacco products for the protection of public health, safety and
wel fare; and
WHEREAS, [Citv / Cmill1y] of 1_] intends to restrict the location of tobacco
retailers in the [Citv / Countv] for the protection of public health, safety, and welfare of
children; and
5 Cal. Penal Code * 308 (West 1999).
6 Cal. Ocp't Public Health, Tobacco Control Sec., Youth Tobacco Purchase Survey 2009 (survey results arc available at
http://www.cdph.ca.gov/DocumentsfPH09-85-Tobacco~Sales-to-Minors-2009-Chart.pdf). Note that the youth sale
rate cited above is a statewide average. Youth sales rates for a particular city or county may be significantly higher.
Check with your local tobacco prevention proJect, usually located in the county Health Department, to see if local
figures are available.
7 Joseph R. DiFranza, MD & John 1. Librett, MPH, State and Federal Revenuesfrom Tobacco Consumed by Minors,
89(7) Am. J Pub. Health 1106 (July 1999).
8Robert Lipton, Ph.D, The Spatial Distribution of Underage Tobacco Sales and School PrOXImity in Los Angeles.
2
NOW, THEREFORE, THE CITY COUNCIL/BOARD OF SUPERVISORS OF
[ CITY / COUNTY] DOES ORDAIN AS FOLLOWS
SECTION IV. [ARTlCLJi; / SECTION I OF THE I CITY / COUNTY I OF
[_I ZONING CODE IS H1<:RTWY Al\mNDED TO READ AS FOLLOWS:
Section
Definitions
The following words and phrases, whenever used in this article, shall have the meanings
defined in this section unless the context clearly requires otherwise:
Tobacco Product means any product(s) that is used to consume tobacco or any product
that contains any tobacco leaf, including but not limited to: cigarettes, cigars, cigarillos,
blunts, snuff, crcamy snuff, dipping/chewing tobacco, navored tobacco, tobacco water,
tobacco paste, gutka, kretek, shisha, roll-your-own cigarettes, cigarette or cigar rolling
papers, or pIpes.
Tobacco Retailer means any person, retail establishment, or any other legal entity who
knowingly sells, donates, distributes, or delivers to any person(s), for any form of
consideration, tobacco products.
Section _ Zoning Regulations
It is hereby declared that the sense and policy of this section is that no tobacco retailcr
shall be pcrmitted to sell, donate, distribute, or deliver to any person(s), for any form of
consideration, tobacco products within _ feet of any playground, church, public
library, school, or any childeare facility or similar entity providing structurcd, organized
care for youth.
Section
How distance measured
(a) The _-foot distance provided for in section _ shall be measured as a person
walks, using the sidewalk, from the nearest point orthe property line ofthe playground,
church, public library, school, or childcare facility or similar entity providing structured,
organizcd care for youth, to the nearest of the property line of the tobacco retailer.
(b) ]fa tobacco retailcr has an interruption of the continuity of business for a period in
excess of six months, in order to reopen for business, the requirements set forth above
must be complied with.
Section
Enforcement
(a) Enforcement of this chapter shall be the responsibility of [_]. In addition, any
peace officer or code enforcement official also liray enforce this chapter.
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Municipal Authority to Regulate the
Location and Operation of Tobacco Retailers
Revised March 2002
Background
Many California communities are seeing an increase in the number of stores that sell tobacco
products. This memo addresses how public health can be improved when local governments
exercise their constitutional, statutory, and charter authority to regulate the uses oflaud within
their jurisdictions to control tobacco retailing.1
L Police Powers
The California State Constitution grants cities and counties the "police power" to enact
ordinances and regulations that protect the health, safety, welfare and morals of their citizens.'
This police power is broad in scope and elastic in nature, expanding to meet the developments of
modem life.] A local ordinance is legitimate so long as the police power exercised has a rational
relationship to a legitimate state purpose4 While not required in an ordinance, legislative
findings help demonstrate the rationality and legitimacy of the government's actions and can be
especially bendicial if the ordinance raises First Amendment or preemption concerns5 The
attached Model Land Use Ordinance includes data that a community may wish to incorporate
directly into its own local ordinance or keep on file to defend any legal challenges.
II. Land Use Controls
Controlling land use, through zoning regulations for example, has long been recognized as a
fondamentallocal police power. Zoning ordinances enacted by a City Council or Board of
Supervisors determine how land may be used in the city or county as a whole and within a
particular zones within the city or counly.
Two main land use tools are described below with examples of how each can be used to protect
public health and safety. First, zoning ordinances can put general and location-specific
Developed by the Technical Assistance Legal Center (TALC), a project of Public Healih Law & Policy (PHLP), This material
was made possible by funds received from the California Department of Public Health, under contract #04-35336.
PHLP is a nonprofit organization that provides legal information on matters relating to public health, The legal information
provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a
lawyer in their state.
www.phlpnetorg . talc@ph\pnet.org . (510) 302-3380
restrictions on certain uses of property. Second, zoning ordinances also can require conditional
use permits for certain purposes, such as tobacco retailing. These tools are generally applied
before land has been dedicated to a particular use. However, under certain circumstances these
tools can be used to control existing land uses, whether through the "legal nonconforming use"
and "deemed approved" techniques, or through "amortization" (see below for more infonnation).
A. Zoning Ordinances to Regulate the Location of a Tobacco Retailer
Zoning ordinances are used to establish the uses of property in different areas or "zones" within a
city's or county's boundaries. Ideally, zoning ensures that activities which should be near each
other-such as housing and grocery stores-can be near each other, and that those activities
which should be separated-such as housing and heavy industry-are indeed separate. Using
the tool of conditional use permits (discussed more fully below), zoning can ensure that
individualized decisions are made on the compatibility of certair uses.
Given that tobacco products harm community health and safety, it is reasonable for local
government to assess whether the location of tobacco retailers is compatible with residential
areas or with other community land uses. This government role is especially important where
youth access is concerned, given that 57% of 10th graders and 38% of 8th graders perceive that it
would be easy for them to obtain cigarettes from a retail source,' and the best predictor of
adolescent experimentation with cigarettes is the perception that they are easily available.'
To diminish the harm caused by tobacco in a community, local governments can use zoning to:
. Require that tobacco retailers be located away from areas frequented blC~~ild~en (e.g.,
schools, playgrounds, video arcades) on the grounds that children are not allowed to
purchase tobacco products and should not be tempted to make illegal purchases of tobacco
products 8
. Restrict new significant tobacco retailers to light industrial or industrial use zones to
control the "secondary effects" of such businesses such as increased youth smoking rates9
. Limit the total number of tobacco retailers in any community. Ifa city or county
detennines that sufficient outlets for tobacco products already exist in a community, the
government can prohibit new retailers from opening.'O
. Limit the proximity of all tobacco retailers to each other, ensuring, for example, that each
comer at an intersection is not occupied by a tobacco retailer.
TALC's Model Land Use Ordinance applies all ofthese concepts to tobacco retailers.
B. Conditional Use Permits for the Operation of Tobacco Retailers
Although a community may decide to allow new tobacco retailers to open and existing retailers
to continue to operate, it may still impose conditions on all or some.retailers. These conditions
can be imposed on a standardized basis through a general police power or zoning ordinance, or
on an individualized basis through "conditional use permits" (CUPs).
CUPs are used to make an individualized determination as to the suitability of a proposed use in
a particular, unique 10cation.'1 For example, with appropriate findings linking a decision to
Regulating the Location and Operation of Tobacco Retailers - 2
public health and safety, a city can deny a business's CUP application ifits location appears
hannful to the public welfare, such as a tobacco retailer locating next to a school.12
Examples of controls that may be adopted by general police powers, or imposed via zoning or a
CUP include:
.
Self-service display bans that require the tobacco product to be retrieved by a retail clerk
and given to the customer. To apply to existing tobacco retailers, a sclf-service ban is best
imposed in a general police power ordinance. I] A self-service display ban additionally may
be made a condition of a CUP or license.
.
Requirements that tobacco retailers post warnings conceming the prohibition against sales
to minors, and post signs.stating the legal age to buy tobacco products and warning that the
retailcr will check identification for all purchases. Again, to apply to existing tobacco
retailers, these requirements are best imposed in general police power ordinances. To
. increase enforcement opportunities, the requirements may be made a requiremcnt of a CUP
or license.
Requirement that any store clerk that sells tobacco products be at least 18 years old.
.
Requirement that the retailer comply with all local, state, and federal tobacco control laws.
.
Prohibition on smoking in retail or wholesale tobacco shops (to eliminate the exception
contained in Californian Labor Code section 6404.5).
.
Other individualized conditions can be drafted for each CUP. For example, conditions can
bc imposed related to the floor space devoted to tobacco products, the hours of operation,
etc.
TALC recommends that land use ordinances declare that a violation of any standardized or
individualized condition or restriction on the business constitutes a public nuisance. This will
give the local govemment the authority to close down a tobacco retailer ifthere is snfficient
evidence that the bnsiness is violating any part of the ordinance.
Similarly, a violation of the ordinancc~or any other law-constitutes an unfair business act or
practice under California Business and Professions Code section 17200. ]4 TALC recommends
that land use ordinances state this fact explicitly. Section 17200 gives the local government the
authority to collect $2,500 in damages from a tobacco retailer for each violation. IS TALC's
Model Land Use Ordinance includes these recommended statements.
c. Options for Regulating Existing Tobacco Retailers
Unlike general police power ordinances, new zoning ordinances or amendments usually only
apply to new businesses (e.g., they have prospective application). This is because an existing
property owner or occupant may have a legal right to continue a lawfully established business or
other use ofland.IG However, zoning requirements can sometimes be applied retrospectively to
existing uses of land through such tools and concepts as legal nonconforming uses, amortization,
and deemed approved status.
Regulating the Location and Operation of Tobacco Retailers _)
t
Legal Nonconforming Uses: A legal nonconforming use is one that was legal when
it began, but is now prohibited by an ordinance. Zoning ordinances generally cannot and do not
require the immediate"termination of legal nonconforming uses. Rather, the nonconforming uses
are "grandparenteu"-e.g., they are allowed to remain despite the new lawl7
Amortization: Communities can either terminate an existing use of property
immediately, through a cash payment, or after a period of time, through "amortization." In the
context of land use, amortization is the "paying down" of a financial obligation over time-like
paying down a mortgage. The constitutional obligation that a public entity pay "just
compensation" for property it appropriates or makes unusable is satisfied by allowing the
nonconforming use to continue for a set period of time. The appropriate "amortization period"
depends upon many factors and is calculated on a case-by-case basis18 Many localities already
have zoning ordinances that include amortization procedures and standardized formulae. In fact,
many ordinances amortize a business over the course of six months or a year (and in some
instances even less' time), and give the business owner the burden of showing why a longer
period of time may be needed due to unique circumstances pertaining to hisfher business.
Deemed Approved Status: A relatively new government tool is to declare an
existing business that would otherwise be a "legal nonconforming use" to be "deemed approved"
(e.g., no longer a legal nonconfonning use) if the business conforms to new regulatory standards.
The new standards would be the same as those applied to new businesses in the conditions of
their CUPs.
Several jurisdictions have successfully regulated existing alcohol retailers by granting them
"deemed approved" status if they comply with new conditional use pemlit standards (e.g.,
graffiti abatement, limited hours or operation, and outside lighting requirements). TALC's Model
Land Use Ordinance applies this tool by requiring existing tobacco retailers to conform to
"Deemed Approved Perfonnance Standards," which are identical to the "Conditional Use
Pennit" conditions (e.g., self-service display ban, minimum age for clerks, and compliance with
all tobacco laws (see section II.B above)). A tobacco retailer who fails to meet the new standards
is declared a "public nuisance" and can be shut down. While successfully used to control the
secondary effects of alcohol sales (such as loitering, public drunkenness, graffiti, etc.), this new
tool is untested as a method to control the secondary effects of tobacco sales (e.g., increased
youth smoking rates).
Conclusion
A land use ordinance is a powerful tobacco control tool and is uniquely suited to controlling the
local ion of tobacco retailers. Land use controls, just like other regulations, can be adopted by a
community at any time. It may be most advantageous if the controls are adopted before a tobacco
retailer seeks to open in an unsuitable location within the community. This way a city or county
can lawfully prevent a tobacco retailer from opening across the street from a school or
playground, while at the same time avoiding potential legal challenges from existing retailers.
Regulating the Location and Operation of Tobacco Retailers - 4
1 For purposes of this memo, "tobacco retailer" means a store that sells tobacco products. Each community must
develop a definition of a tobacco retailer before it enacts an ordinance to regulate such retailers, which may 0
change to meet the particular needs or goals ofa city or county. The model ordinance attached to this
memorandum suggests two definitions, based on Oakland's Planning Code. See Oakland Planning Code, S
17.09.40.
2 See Cal. Canst. art. XI, S 7.
3 See Miller v. Board oj Public Works, 195 Ca!. 477, 484 (1925); Birkenfield v. Cily of Berkeley, 17 Ca!. 3d 129
(1976). See also, Consolidaled Rock Producls v. Cily of Los Angeles, 57 Ca!. 2d 5 \ 5,522 (1962).
q See Swbblefield Consrr, Co. v, City of San Bernardino, 32 Cal. App, 4th 687, 712- ] 3 (1995), For instance, if a city
zones an area of the city to preclude a proposed development solely because the developer had political
differences with the mayor, it has performed an arbitrary or capricious act without rational basis because then;: is
no link between the developer's political beliefs and the use of the property for a development. However, If there
is any reason to preclude development in the area, such as increased traffic, neighborhood opposition or protection
ofa wetland, the zoning must be upheld, See, e,g., Village of Willow brook v, 01ech, 120 5.Ct. 1073 (2000)
(concluding that arbitrary and discriminatory zoning also can violate equal protection).
5 See Arne! Development Co. v. City of Costa Mesa, 28 Ca!. 3d 511, 520 (1980) (noting that zoning is a legislative
act reviewable only under traditional mandate principles, that is, for arbitrary and capricious action). See also,
Lockard v, City of Los Angeles, 33 Cal. 2d 453, 460 (1949) (holding that zoning jegislation is presumed to be
constitutional, and this presumption can only be overcome by a clear showing of arbitrariness and irrationality).
6Tobacco Control Section, Cal. Dep't of Health Servs., Independent Evaluation u.!the California Tobacco Conlrol
Prevention & Education Program: Wave 2 DC/ta, 1998, Wave 1 & Wave 2 Data Comparisons 1996-1998 76
(2001), available at http://www.dhs.ca.gov/tobacco/documents/Wave2IEreport.pdf (last updated Apr. 24, 200 I).
7 Leslie A. Robinson et al., Predictors of Riskfor Different States of Adolescent Smoking in a Biracial Sample. 65 J.
of Consultative Clinical Psycho!. 653,657 (] 997).
8 Cf Suter. 57 Cal. App.4th at 1133 (upholding prohibition on minors entering store whose "primary" business is
selling firearms, on the grounds that minors are barred from owning firearms),
9 Cf Lakeland Lounge of Jackson, Inc., 973 F.2d at 1258-59 (upholding the regulation of adult businesses premised
on the bad "secondary effects" of those establishments such as crime, c1eterior<ltion ofrctail trade, and a decrease
in property values).
10 Cf Van Sicklen, 15 Cal. App. 3d at 127-28 (upholding denial of use permit for gas station on the gl ounds that
there was a sufficient number of stations in the area).
II See Saadv. City ofI3erkcley, 24 Cal. App. 4th at 1206 (1994) (upholding a denial ofa permit to build a single-
family re~idence based on an individualized design review process).
12 Jd. at ]259
IJ See Bravo Vending v, City a/Rancho Jvfirage, 16 Cal. App. 4th 383 (1993),
14 Hew/ett v Squaw Valley Ski Corp., (1997) 54 Ca!. App. 4th 499, 529-33 (1997) (holding that ongoing violation of
a conditional use permit violated the local zoning ordinance and was basis for unfair business practice. "The
unfair competition stntllte is not confined to anticompetitive business practices, but is also directed toward the
public's right to protection from fraud, deceit, and unlawful conduct"); Cat. Bus. & Prof. Code S 17200 (1997) in
pertinent part states, "unfair competition shall mean and include any unlawful, unfair or fraudulent business act or
practice." See, e.g., Cnnsumers Union ofU.S" Inc, 1'. Alta-Dena Certified Dairy, (1992) 4 Cal. App. 4th 963, 967
(1992) (finding an unfair business practice action based on a violation of Alameda County ordinance regul~ting
sale of raw milk),
15 Co!. Bus. & Prof. Code i 17206 (1997).
16 See Bauer v, San Diego, 75 Cal. App. 4th 1281 (1999); Hansen Bros. Enrerprise v, Board afSupervlSors, 12 Cal.
App, 4th 533, 552 (1996) (stating "a provision which exempts existing nonconforming uses 'is ordinarily included
in zoning ordinanct:s bcc<iuse of the hardship and doubtful constitutionality of compelling the irnrneJiatt
discontinuance of nonconfonning uses. "'); Goat Hi!! Tavern v City a/Cosra /vfesa, 6 Cal. App. 4th 1519 (1992).
17 Ifa legal nonconforming use is considered to be seriously injurious to public health, welfare, and safety over and
above its nonconforming status, it may be terminated as a public nuisance. For example, a city may not be able to
close down an existing mining operation simply by rezoning the area but could close it down ifit endangered
several new residential subdivisions.
lH Bohannon v, City of San Diego, 30 Cal. App, 3d 416, 426 (1973)..
Regulating the Location and Operation ofTnbacco Retailers - 5
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Oerober 16, 2009
Honorable Alex Padilla
Room 4038. State Capitol
TOBACCO SALES: AREA NEAR SCHOOLS OR
CHILDCARE FACILITIES - #0924783
Dear Senator Padilla:
Pursuant to the request of Mandy Lee, acting on your behalf, we are ptoviding this
written confirmation of the oral opinion we provided to her under RN 09:24634. The
question addressed in that oral opinion was whether a city or county may lawfully enact an
ordinJ.nrc to restrict or prohibit the sak"Qf [ol1.1(co products, near schools or other facilities
that offer otganized care fot children.
On Oerober 15, 2009, we orally conveyed to Mandy Lee our opinion that a city or
county may lawfully enact an ordinance to restrict or prohibit the sale of tobacco products
near schools or other facilities that offer organized care for children.
If you would like fUtther assistance with this issue, please contact the undersigned
deputy at 34] .8359.
Very truly yours,
Diane F. Boyer. Vine
Legislative Counsel
By
Eric D. Dye
Deputy Legislative Counsel
EDD:jgg