CITY COUNCIL June 20, 2016 LEGISLATIVE

Transcription

1 CITY COUNCIL June 20, 2016 LEGISLATIVE SUBJECT: AN ORDINANCE OF THE CITY OF WEST HOLLYWOOD REQUIRING LICENSURE OF TOBACCO RETAILERS TO REDUCE THE ILLEGAL SALE OF TOBACCO TO MINORS BY ADDING CHAPTER TO TITLE 5 (BUSINESS LICENSES, REGULATIONS AND PERMITS) OF THE WEST HOLLYWOOD MUNICIPAL CODE; AMENDING SECTION (BUSINESSES REQUIRED TO BE LICENSED) TO INCLUDE "TOBACCO RETAILERS;" RENAMING CHAPTER 7.12 (TOBACCO VENDING MACHINES AND ADVERTISING SIGNS), AMENDING SECTIONS , , AND , AND REPEALING SECTIONS , , AND AND 7.32 (TOBACCO SALES NEAR SCHOOLS) IN ORDER TO ELIMINATE REDUNDANCY WITH CHAPTER 5.114; AND AMENDING THE DEFINITION OF "SMOKE/SMOKING" IN SECTION (14) (DEFINITIONS) TO INCLUDE EMISSIONS FROM ELECTRONIC SMOKING DEVICES. INITIATED BY: DEPARTMENT OF PUBLIC WORK Oscar Delgado, Public Works Direct"......,~ Jeffery Aubel, Code Compliance Manage~-... Daniel Mick, Code Compliance Supervi STATEMENT ON THE SUBJECT: The West Hollywood City Council will review and approve an amendment to the Business License Ordinance creating a new category of business license, Tobacco Retailers License. RECOMMENDATION: Introduce on first reading ORDINANCE NO. 16- "AN ORDINANCE OF THE CITY OF WEST HOLLYWOOD REQUIRING LICENSURE OF TOBACCO RETAILERS TO REDUCE THE ILLEGAL SALE OF TOBACCO TO MINORS BY ADDING CHAPTER TO TITLE 5 (BUSINESS LICENSES, REGULATIONS AND PERMITS) OF THE WEST HOLLYWOOD MUNICIPAL CODE; AMENDING SECTION (BUSINESSES REQUIRED TO BE LICENSED) TO INCLUDE "TOBACCO RETAILERS;" RENAMING CHAPTER 7.12 (TOBACCO VENDING MACHINES AND ADVERTISING SIGNS), AMENDING SECTIONS , , AND , AND REPEALING SECTIONS , , AND AND 7.32 (TOBACCO SALES NEAR SCHOOLS) IN ORDER TO ELIMINATE REDUNDANCY AGENDA ITEM 6.A.

2 WITH CHAPTER 5.114; AND AMENDING THE DEFINITION OF "SMOKE/SMOKING" IN SECTION (14) (DEFINITIONS) TO INCLUDE EMISSIONS FROM ELECTRONIC SMOKING DEVICES." BACKGROUND AND ANALYSIS: Despite the State's and City's efforts to limit youth access to tobacco, studies have shown that minors are still able to access tobacco products, with a particular inclination towards those products that are flavored. Smokeless tobacco products, including chewing tobacco, snuff, snus and nicotine solutions (consumed via electronic smoking devices, such as electronic cigarettes) come in dozens of flavors 1 (i.e., cotton candy and bubble gum 2 ) to mask the harsh taste of tobacco 3 and which are attractive to minors. 4 In 2011, more than two-fifths of U.S. middle and high school smokers reported using flavored tobacco products. 5 Cigars are the second most common form of tobacco used by minors, 6 and many of the popular brands among teens are available in flavors such as apple, chocolate, grape, and peach. 7 In California, 36.8 percent of high school students have smoked a whole 1 Chen, C; Isabelle, LM; Pickworth, WB; et al "Levels of Mint and Wintergreen Flavorants: Smokeless Tobacco Products vs. Confectionary Products." Food and Chemical Toxicology. 48(2): Cameron, JM; Howell, ON; White, JR; et al "Variable and Potentially Fatal Amounts of Nicotine in E-cigarette Nicotine Solutions." Tobacco Control. U.S. Department of Health and Human Services Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 549, 3 Nelson, DE; Mowery, P; Tamar, S; et al "Trends in Smokeless Tobacco Use Among Adults and Adolescents in the United States." American Journal of Public Health. 96(5): ; U.S. Department of Health and Human Services Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, 4 U.S. Department of Health and Human Services Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, 5 King, BA; Dube, SR; and Tynan, MA "Flavored-Little-Cigar and Flavored-Cigarette Use Among U.S. Middle and High School Students." Journal of Adolescent Health X%2813% /abstract 6 Centers for Disease Control and Prevention "Youth Risk Behavior Surveillance - United States, 2011," Morbidity and Mortality Weekly Report (MMWR). 61 (4). 7 U.S. Department of Health and Human Services Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 205,

3 cigarette by 14 years of age; 8 and among middle school students who were current cigarette users in 2004, 70.6 percent were not asked to show proof of age when they purchased or attempted to purchase ci~arettes from a store, and 66.4 percent were not refused purchase because of their age. Research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes. For example, a review of 33 California communities with strong tobacco retailer licensing ordinances shows that the youth sales rate declined in 31 of these communities after the ordinances were enacted, with an average decrease of 26 percent in the youth sales rate; 10 over 90 percent of enforcement agencies surveyed in 2000 rated license suspension or revocation after repeated violations as an effective strategy to reduce youth access to tobacco; 11 and a study found that odds of daily smoking were reduced by two percent for each one percent increase in merchant compliance with youth access laws. 12 For these reasons, on February 16, 2016, the City Council directed the City Attorney to draft an ordinance that would create a Tobacco Retailer Licensing program in order to ensure that retailers comply with tobacco control laws and the City's business standards, and to prohibit the sale of (flavored) tobacco products to minors. The direction to the City Attorney was for the Tobacco Retailer Business License program to include the following requirements: 1. All retailers selling tobacco products and electronic cigarette paraphernalia, including but not limited to cigarette packages, chewable tobacco products, e cigarettes, e-liquid products, etc. shall be required to apply for a TRL and pay a fee as determined by the Department of Finance. The TRL shall be renewed annually. 2. All retailers that receive a TRL from the City of West Hollywood shall adhere to the adopted regulations as prescribed in the ordinance that shall be drafted by 8 Chapman, R State Health Officer's Report on Tobacco Use and Promotion in California. California Department of Public Health, California Tobacco Control Program, p n%20tobacco.pdf 9 U.S. Department of Health and Human Services, Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report: Tobacco Use, Access & Exposure to Tobacco Among Middle & High School Students, l.s., (12): , 10 American Lung Association in California, Center for Tobacco Policy & Organizing Tobacco Retail Licensing is Effective, ploads/2013/09/t obacco-retailer-licensing-is-effective-septem ber pdf 11 California Department of Health Services, Tobacco Control Section Final Report, Independent Evaluation of the California Tobacco Control Prevention & Education Program: Waves 1, 2, and 3 ( ), p. 110, www. cdph. ca. gov/prog rams/tobacco/documents/wavescom plete. pdf 12 U.S. Department of Health and Human Services Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General,

4 the City Attorney and approved by the City Council. Any violations to the adopted regulations included in the adopted ordinance shall be subject to a fine as described under the proper section of the West Hollywood Municipal Code. 3. Any subsequent violations could lead to increased fines and/or the scheduling of a hearing by the Business License Commission of the City for modification, suspension or revocation of the TRL. A draft Tobacco Retailers Business License ordinance was placed on the agenda for the April 4, 2016 City Council session. Prior to being heard, the item was tabled for multiple reasons. First, City Council asked that Staff meet with the business community and hear any questions or concerns that they may have. This was done on April 20, 2016, when staff met with several tobacco retailers and the West Hollywood Chamber of Commerce. The meeting was very positive and attendees were supportive of the proposed ordinance as it was not overly burdensome. City Council also tabled the item due to concerns that the item was not heard by the Business License Commission, which oversees the West Hollywood Business License Ordinance, nor the Planning Commission, as there were concerns that certain portions of the proposed ordinance may conflict with the West Hollywood Zoning Code. The West Hollywood Business License Commission was presented with this item on May 3, public speakers, from the LA County Health Dept., Valley Community Healthcare, and Pacific Hills School, spoke in favor of recommending the ordinance to the City Council. After a lively debate, the West Hollywood Business License Commission unanimously supported the proposed ordinance. Planning staff reviewed the proposed language that addresses signage and determined that there was no conflict with existing code. Additionally, Planning staff determined that the proposed requirement that all new Tobacco Products Shops be located at least 1000 feet from any "Youth Populated Area" is in substantial compliance with the distance requirements found in WHMC On June 2, 2016, the West Hollywood Planning Commission reviewed the proposed ordinance and unanimously agreed that the new ordinance does not represent any significant deviation from existing City law. SUMMARY OF PROPOSED CHANGES The purpose of this ordinance would be to protect the health, safety, and welfare of City residents by encouraging responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those involving the sale or distribution of tobacco and nicotine products to minors. The attached ordinance would create a Tobacco Retailer Licensing program that would adhere to the existing general business licensing scheme articulated in Chapter 5.04; while explicitly providing for specific considerations as "a business required to be licensed" under Chapter The following is a summary of the notable aspects of the proposed ordinance:

5 Section Definitions Electronic smoking device cartridges can be filled with not only liquid nicotine, but a variety of substances, including known carcinogens, harmful chemicals and even liquid marijuana. The proposed definition of "Electronic Smoking Devices" is broad enough to cover all electronic smoking devices regardless of whether they are being used to deliver nicotine or other substances in order to help promote compliance with local laws. The inclusion of Electronic Smoking Devices in the definition of Tobacco Products is consistent with the direction given to the City Attorney by the City Council. The manufacture and distribution of flavored cigarettes (excluding menthol) is banned by federal law. 13 As such, the ordinance neither addresses the sale of flavored cigarettes nor includes flavored cigarettes within its proposed definition of "Flavored Tobacco Product." (Presently, there is some uncertainty regarding whether or how the U.S. Food and Drug Administration will regulate menthol cigarettes.) Note, however, that neither federal law nor California laws preempt the regulation of other flavored products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, and electronic smoking devices and the nicotine solutions used in these devices - meaning that the City could ban the sale of such products, should it choose to do so. Though broad enough to include nonconventional tobacco and nicotine products (such as electronic cigarettes, nicotine gel, and nicotine lollipops), the definition of "Tobacco Product" also provides for an exception for FDA-approved cessation products intended to benefit public health (e.g., nicotine patches and other nicotine cessation products). In order to prevent sham ownership changes and evasion of the City's license penalty provisions, the term "Tobacco Retailer" is defined to include persons with an ownership or managerial interest in the business. Section Limits on eligibility and location The language of this section would consolidate and expand upon the existing provisions of Chapter 7.32 (Tobacco Sales Near Schools). In order to "assist in the implementation and enforcement of state policy and law by making it more difficult for minors illegally to purchase cigarettes from retailers in close proximity to schools," Section prohibits the sale/distribution of tobacco products within 600 feet of any elementary, middle and high school. (See sections and ). Further, Section provides exceptions for the establishment of a school within 600 feet of an existing tobacco retailer; a tobacco retailer that limits entry to persons 18 years of age or older; and hotels that sell tobacco products as part of incidental retail sales U.S.C. 387g

6 The proposed language of section would inherit the stated purpose of Section by continuing to impose the 600 foot proximity prohibition from not only schools, but all libraries, theaters, arcades, playgrounds, and community/child-care facilities (aka "Youth Populated Area"). Likewise, this section would provide exceptions for existing tobacco retailers, 18-and-over tobacco retailers, and hotels which incidentally sell tobacco. Additionally, this section would also prohibit the establishment of a "Tobacco Product Shop" (i.e., cigar lounge or principal tobacco retailer) within 1,000 feet of any Youth Populated Area, as well as prohibit temporary and mobile vending of tobacco products. Section Operating requirements and prohibitions Purchase/Sale. In general, this subsection would prohibit the purchase or sale of tobacco products by anyone younger than the minimum age required by state law to possess tobacco products. This section deliberately omits stating a specific age of minority (such as 18) so the law will not have to be amended if state law changes the legal age for using tobacco. Furthermore, and in conformance with federal law, proof of identification is required from anyone purchasing tobacco products who appears to be under the age of 30. This provision is consistent with California Penal Code Section 308, et seq., which prohibits the sale of tobacco products to minors, as well as Health & Safety Code Section which prohibits the sale of electronic cigarettes to minors. Self-Service Displays & Signs. Currently, Sections and prohibit vending machines and self-service displays in any location open to persons younger than the minimum age established by state law for the purchase or possession of Tobacco Products. The Code currently provides for other certain limited exemptions. The proposed ordinance retains the current prohibitions and limited exemptions. Packaging and Labeling. This subsection prohibits a retailer from selling any tobacco product to any consumer unless that product is properly labeled and is in the original manufacturer's packaging that is intended for sale to consumers. This is consistent with the federal Family Smoking Prevention and Tobacco Control Act. Minimum Packaging Size for Little Cigars. California Penal Code Section prohibits the sale of cigarettes except in packages containing at least 20 cigarettes. The Board of Equalization considered products that meet the federal definition of "little cigars" or "small cigars" to be cigarettes for excise tax purposes. As such, Little Cigars are prohibited by State law from being sold in quantities of less than 20. This subsection does not conflict with existing law, but brings clarity to the issue. False & Misleading Advertisement. This subsection would prohibit a retailer who cannot legally sell Tobacco Products/Paraphernalia from displaying or advertising such items - to do so would be misleading to consumers (arguably a violation of California Business and Professions Code section 17500, and could invite illegal sales).

7 Section Compliance monitoring and enforcement This provision would designate any member of the West Hollywood Code Compliance Division, the Alcohol Beverage Control Department, and the Los Angeles County Sheriff's Department to monitor Tobacco Retailers' compliance with the ordinance. This section would also establish a minimum number of inspections in order to ensure some level of enforcement. Section Tobacco retailing without a valid license Seizing and destroying illegally offered products requires additional procedures beyond the normal hearing for license suspension. In part, this is because of the possibility that the true owner of products seized is not the licensee. For example, cigarettes could be sold on a consignment basis (i.e., the store owner sells products owned by someone else in exchange for a portion of the sales price). Such owners must be provided due process before their property is destroyed. An independent administrative hearing regarding the forfeiture of any seized products is recommended. With the exception of being required to obtain a Tobacco Retailers Business License, there is little in this proposed ordinance that is not already part of Federal, State, or local law. By including provisions in this ordinance beyond just requiring businesses to obtain the license, Code Compliance provides licensees a singular location where they can find a fairly comprehensive list of what codes their business activity is governed by, rather than searching through multiple chapters, sections, and codes. Staff believes that the proposed ordinance will meet the direction given by City Council without unduly burdening the businesses that will be governed by it. CONFORMANCE WITH VISION 2020 AND THE GOALS OF THE WEST HOLLYWOOD GENERAL PLAN: This item is consistent with the Primary Strategic Goal(s) (PSG) and/or Ongoing Strategic Program(s) (OSP) of: OSP-11: Community Education. OSP-12: Actively Participate in Regional Issues. In addition, this item is compliant with the following goal(s) of the West Hollywood General Plan: SN-2: Minimize exposure to hazardous materials. EVALUATION:

8 Code Compliance will monitor the impacts of this amendment and will report back to the City Council if there are any issues. ENVIRONMENTAL SUSTAINABILITY AND HEAL TH: Not applicable COMMUNITY ENGAGEMENT: Meetings were held with the businesses that will be directly impacted by this new ordinance. Additionally, staff met with the West Hollywood Chamber of Commerce's Government Affairs Committee. Publicly noticed meetings were also held by the Business License Commission and the Planning Commission. OFFICE OF PRIMARY RESPONSIBILITY: The Department of Public Works, Commercial Code Compliance Division is responsible for the management of Regulatory Business Licensing. FISCAL IMPACT: AMOUNT $12, DESCRIPTION This item will generate new City revenues from Business License Fees. ATIACHMENTS: A. Ordinance No