HomeMy WebLinkAbout05/06/2003, BUS 5 - TOBACCO REGULATIONS councit °°°°�
5-6-03
acEnaa REpont
CITY OF SAN LUIS OBISPO
FROM: Gilbert A. Trujillo, Interim City Attornep
SUBJECT: TOBACCO REGULATIONS
CAO RECOMMENDATION
1. Review and discuss expanded tobacco use regulations the City may impose as
directed by Council on February 18, 2003.
2. Direct staff to prepare an ordinance that licenses tobacco retailers and return with
it for Council consideration within the next ninety days.
3. Take no further action at this time on the other three regulations proposed by the
San Luis Obispo County Tobacco Control Program: a) prohibition on the use of
tobacco products in outdoor public areas such as parks, bus shelters and train
stations; b) regulation of the location of tobacco retailers; and c) additional
regulation of signage.
DISCUSSION
On February 18, 2003, Council directed staff to review a variety of ideas for curtailing the use of
tobacco products by minors, including the adoption of a tobacco licensing ordinance and banning
tobacco advertising in the City.
Cities in California have begun to adopt ordinances requiring the licensure of tobacco retailers in
order to ensure compliance with all federal, state and local laws regarding this product. Many
cities have also begun to expand the list of prohibited smoking areas in order to protect the health
and welfare of their citizens and the public. These ordinances have not been directly tested in
court to date, but appear to be a legal way for the City to make sure that tobacco distribution laws
are followed, and to give the city an enforcement mechanism in cases where they are not.
A 2002 survey taken by the San Luis Obispo County Tobacco Control Program indicates that in
the City of San Luis Obispo, 52% of retailers sold tobacco to minors, compared with 17.10%
statewide, and lower percentages in other neighboring cities.
1. Licensing Ordinance
Many cities have already adopted tobacco retail licensing ordinances for the purposes stated
above. The City Attorney office has examined the case law in this area and is of the opinion that
the City of San Luis Obispo is free to adopt a licensing program for tobacco retailers. If Council
directs staff to pursue such an ordinance, it will be based upon the model ordinance developed by
0
Council Agenda Report—Tobacco Regulations
Page 2
the Technical Assistance Legal Center ("TALC") for the Public Health Institute. The City of San
Luis Obispo has long been a leading advocate of tobacco safety and municipal regulation. This
ordinance would continue that effort, and allow the City to protect minors from the illegal sale of
tobacco products. Such an ordinance would require each of the estimated 46 tobacco retail
establishments in the City to obtain a license to sell tobacco products. A fee would be imposed
on the licensee to cover the Police Department's enforcement costs as well as the City's
administrative costs in administering the program. It is estimated the fee would be
approximately $150 to $200 a year based on an estimated four (4) sting operations per year
conducted by the Police Department. If a tobacco retailer sells to a minor, he or she could face
the suspension and/or revocation of his or her license.
2. Expanding the Public Areas Where Smoking is Prohibited
Many cities have also adopted regulations that prohibit smoking from outdoor public areas and
outside doorways and other building openings. The City Council may direct staff to amend
Municipal Code section 8.16.020 to prohibit smoking within the boundaries of a park or
recreational area, or within twenty (20) feet of the boundaries of such an area. In addition, the
Council could prohibit smoking at bus, train and taxi shelters, service waiting areas, including,
but not limited to, ticket or service lines, public transportation waiting areas, and public
telephones. The Council may also prohibit smoking within twenty (20) feet of the entrance or
exit to an enclosed public space. The Police Department has noted a concern regarding the
enforcement of such an ordinance. Under current staffing levels, the Police Department would
not be able to respond in a timely fashion to each and every reported violation.
If the Council directs staff to pursue such an ordinance, Council should direct staff to forward the
matter to the Parks and Recreation Commission since the ordinance would effect the rules and
regulations of the City's parks, in addition to other public areas.
3. Zoning/Conditional Use Permit Requirement for Tobacco Retail Sales
TALC also suggests a land use ordinance that would regulate the location of tobacco retail
establishments much along the same lines as adult businesses. Zoning regulations must be
reviewed by the Planning Commission prior to their introduction to the City Council (except in
legal emergencies). No existing businesses could be forced to relocate or cease tobacco retailing
in less than a reasonable time based upon their investment. A local zoning ordinance can
prohibit all new tobacco retailers from locating near residential zones and areas frequented by
children, such as schools and parks, for example. Because a land use ordinance cannot be
applied retroactively to existing businesses that sell tobacco products, its effectiveness is
questionable and may not be worth the effort to implement such an ordinance that may have
limited benefits.
4. Sign Regulations
TALC has also set forth a model ordinance for sign laws. Sign laws must be content neutral.
Therefore, the model ordinance does not forbid tobacco advertising, but instead attempts to
Council Agenda Report—Tobacco Regulations
Page 3
regulate all signage in such a way as to hinder the sale of tobacco products to minors. A review
of the sign code for the City of San Luis Obispo reveals that there is little practical difference
between the current rules in San Luis Obispo and the rules proposed by TALC. Therefore, no
changes are warranted at this time, but staff will continue to monitor the issue for new
developments.
CONCURRENCES
Staff from the City Attorney's Office, Administration, Community Development, Finance, Parks
and Police Department met to discuss the various regulations. Staff concurs with the contents of
this report. Staff from the County Tobacco Control Program has also expressed support for a
tobacco retail licensing ordinance. If the Council directs staff to proceed with the
Recommendations above, staff will work with the Chamber of Commerce to solicit input prior to
returning to Council with a draft ordinance.
FISCAL IMPACT
The Licensure Ordinance would result in additional cost recovery to the Police Department for
sting operations. Expanding the list of prohibited smoking areas was of particular concern to the
Police Department since they may not have the resources to respond to smoking complaints
without additional resources. In addition, there would be costs associated with additional
signage.
ALTERNATIVES
There is no legal requirement that such ordinances be adopted. The City Council could choose
not to pursue one or more of the ordinances and could direct that no further efforts be made by
staff to develop such regulations.
Attachments
1. November 16, 2002 Article from the Tribune on Smoking Sting
2. Percent of Retailers Selling Tobacco to Minors — Source: County Tobacco Control
Program
UNDEI(A(;k PVRCIIASES
� ' � � totes •
SLO . smok"in sten nets 14 s
YOLTTH,'16, IS ABLE TO GET TOBACCO ,OR PIPES MORE INSIDE "'
AT MORE THAN HALF OF TARGETED SHOPS Who.got taught: A IISt.Of;'1
the offending stores page alo;
S A x Luis O s I s r o purchased tobacco or pipes at 14 of die
27 stores entered on the late after-
BYJEFF BALLINGFR noons of Nov..6 and 7, according to
Tea TRIOUNP,. Uoyd Henning,a health educator with quite easily."
More than half of the San Luis Obis- the Tobacco Control Program of San The operation's illegal tobacco
po stores involved In a tobacco sales Luis Obispo County's Public Health sales
rate
rof 52 memory, wasthe
Henning
sting last week sold tobacco or pipes to Department. , • ' .1ig
an underage teen. "It was quite a surprise," Henning said, and more than three times
Enlisted by the San Luis Obispo Po- said. "I couldn't believe it. ...This 16- '
lice Department, a 16-year-old youth year-old was able to Purchase tobacco I'lease see TOBACCO,A�0
�ri—x-� ,; •--xr
Tobaccoi�■t ,{ "J}',i ,r a,�t Fa h
From Pap Al
�,y�r�6rr�th�'�h;in�t;t►I�,'� �
higher than the state average '�UU66 A&A th8t„+3blt ittih
of 17 percent. Tht, city and
county agencies collaborated `ylhodlau��tiUrin�d1f ;
on the sting. �f�fC�by r�tlOt� of?�ut4�t ,
Previous stings that San Luis 'kK ''�i�►�blicF'Irr '
Obispo police conducted with 61*1bltj",WIth thA'�011h1 ? +4•.
the county agency recorded Me- :OUR i`Itkb tt1q�'s
gal sales of 5 percent in 1999 and � � � d If, t11
none in 1997. Yin' + ”
State law prohibits sales of to-
bacco products and tobacco-re
the
trE thlH t;hhtrr i F S�oil
lated items to anyone under t ` t SArltaibSU$tt�I„ ` ° l,
age of 18. `;C��(�iF,9elf.�q
Why was the rate so high this rptlt',blft 7id.� ` tt+t1�
time in San Luis Obispo? `� Iliiileef ' f
"I can't really say,” Henning (g s Fa IDA
said. ,df D. 1,"s' �, �• r
�,��,1�Etta�a�rtia�i�#' ii
He suggested a couple of pos e}.. a;f.t3d07' . ;Std
'rtir.f r.,t ero Y
sibilities, including a high �{L�I ownl i turnover in in sales clerks at ser Md ?1.1YSthh 'A
vice stations and convenience �'p �„
stores,causing some employees Y5 ?fSilblihd SifiEi Ifd4�,a:
to not get proper training about lShlti�;� tari bit rdabbrtirY`
the tobacco law. itt, bbd!n��r,NI�itV�a}i tiNb
The sting ruled out one of the
leading factors that increase the �'r t�igiiar3' t,Pt�i�4th
likelihood of an illegal tobacco , t {�
sale: familiarity between a clerk rr !Mhi L�gttehi ISbit 14315
a ;•,
~,��sfi tit p
�„ trttt�rey�t�„�,_� , ,,, •,
and an underage youth. Hen- T x x
ning said the youth was from
outside the area ` tla '�h�ribi►� �
He said the stings, and ensu- • AiN'3 11 °� •
ing publicity about them, help " , Y+
get the word out and reduce �Iil-
legal
t hfri trek 8tt8h1
legal sales rates. � t.,�� ��kt,•�t•e��w {{„ i'
Henning also said there is a �—
simple solution: lt���fUttN r IrttOrzi tfTir�l1b41ft,
"Asking for ID's and checking ',� ?}ata.h3f tali itodcts ,
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Allen Settle-Tobacco Regulations - _ Page 1—�
From: <ANCARTER@aol.com>
To: <asettle@slocity.org>, <cmulholland@slocity.org>, <kschwartz@slocity.org>,
<jewan@slocity.org>; <dromero@slocity.org>
Date: Tue; May 6, 2003 1:02 PM
Subject: Tobacco Regulations
Dear Council Members: RECEIVED
I apologize for the tardiness of this e-mail. 1 had planned to attend MAY 0 6 2003
tonight's meeting, but now find that I cannot.
I would urge you to consider some sort of ban against public smoking. The SLO CITY CLERK
first step would be to direct this item to an appropriate commission for
drafting.
The excuse that"the Police Department would not be able to respond in a
timely fashion to each and every violation" is a poor one. This is currently
the case with most minor code violations, including noise and speeding.
Enacting an ordinance enables citizens to police code violations.
My concerns about public smoking are as follows:
My own health— It annoys me when I have to run the gauntlet of cigarette
smoke.to enter a public facility or commercial establishment, walk down a
public street, or wait for a bus. I note that citizens often have to run
such a gauntlet at City Hall given the placement of an ashtray outside the
main doors. Also, try walking past any of the bars downtown on a Thursday,
Friday, or Saturday night. Smoking at the main bus stop by City Hall is
rampant.
Stopping underage smoking—Many teenagers begin their smoking while
"hanging out' in public with their friends. A public smoking ban would
discourage such activity. A good example is Garden Street in front of
Linnea's in the late aftemoon or early evening.
Anti-loitering tool—Enacting a public smoking ban would provide the police
with another tool to use against undesirable loitering. My experience is
that most loitering by transients includes smoking. A good example is the
flag circle at the edge of Mission Plaza during the day.
Andrew Carter
CC: <Iprice@slocity.org>, <khampian@slocity.org>
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