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CM Flavored Tobacco Product Ban____________________________________________________________________________________ FOR CITY CLERK ONLY Council Meeting: 04/15/2019 Disposition: Accepted report and provided direction to staff Agenda Item No: 6.b Meeting Date: April 15, 2019 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: City Manager’s Office Prepared by: Ethan Guy, Professional Analyst City Manager Approval: ___________ TOPIC: FLAVORED TOBACCO PRODUCT BAN SUBJECT: INFORMATIONAL REPORT ON POTENTIAL BAN ON THE SALE OF FLAVORED TOBACCO PRODUCTS IN SAN RAFAEL RECOMMENDATION: Review draft Flavored Tobacco Ban ordinance (Attachment 1) and provide staff direction. BACKGROUND: Over the last 12 months, several neighboring jurisdictions have approved bans on flavored tobacco and the sale of tobacco at pharmacies (Table 1). The purpose of these bans is to combat significant increases in youth tobacco and nicotine use attributed to the availability of flavored tobacco products such as e- cigarettes and vaping products. Staff was asked to examine a potential regulation banning the sale of flavored tobacco products in San Rafael. Table 1. Tobacco Bans in Marin Jurisdictions Jurisdiction Ban Type Effective Date County of Marin Flavored Tobacco Ban Pharmacy Tobacco Retail Ban July 1, 2019 San Anselmo Flavored Tobacco Ban Pharmacy Tobacco Retail Ban January 1, 2020 Fairfax Flavored Tobacco Ban Pharmacy Tobacco Retail Ban January 1, 2019 Larkspur Flavored Tobacco Ban Pharmacy Tobacco Retail Ban January 1, 2020 Corte Madera Flavored Tobacco Ban Pharmacy Tobacco Retail Ban January 1, 2020 Sausalito Flavored Tobacco Ban November 1, 2018 Novato Flavored Tobacco Ban Pharmacy Tobacco Retail Ban January 1, 2019 SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 Flavored Tobacco Flavored Tobacco refers to any product containing or derived from tobacco or nicotine which imparts a “characterizing flavor”. The term “characterizing flavor” refers to a distinguishable taste or aroma or both, other than the taste or aroma of tobacco. Characterizing Flavors include, but are not limited to, tastes or aromas relating to any: fruit, chocolate, vanilla, honey, candy cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. Legislative History On August 16, 1999, the City Council adopted Ordinance No. 1741 enacting Chapter 8.15 of the San Rafael Municipal Code establishing a permitting process for tobacco retail sales and regulating tobacco advertising and promotion. On February 18th, 2003, the City Council adopted Ordinance No. 1797 amending Section 14.03 and Section 14.05 of the San Rafael Municipal Code establishing a new definition of “Significant Tobacco Retailer” as “a retail establishment that devotes 20% or more of its sales or display area to, or derives 75% or more of its gross sales receipts from, the sale of tobacco products and/or tobacco paraphernalia. Ordinance No. 1797 further prohibited the establishment of significant tobacco retailers within 1,000 feet of schools (public and private elementary, junior high, and high schools), public parks, public libraries, arcades, youth/teen centers, community/recreation centers, licensed daycare centers for children, shopping malls, and houses of worship with organized youth programs. In 2012, the City Council passed amendments to the City’s smoking ordinance that enhanced outdoor and indoor air regulations. The ordinance was designed to meet three goals: 1. Reduce the negative health impacts related to secondhand smoke; 2. Reduce the risk of smoking-related fires; and 3. Reduce non-biodegradable cigarette litter (cigarette butts). The notable new elements of the 2012 ordinance were: • Prohibits smoking in all duplexes and multi-family housing (any unit with a share wall), as well as all common areas of multi-family residential properties. Property owners may elect to create “designated smoking areas” should they meet certain criteria. These rules apply to renter and owner-occupied units. • Prohibits smoking in our parks and recreation areas. • Prohibits smoking on all sidewalks, pedestrian areas, and public places such as plazas in our Downtown, except while actively passing on the way to another destination. In 2016, the City Council passed further amendments to the City’s smoking ordinance to include the following elements: 1. Prohibit use of e-cigarettes in public places, but allow them in private residences; 2. Eliminate the exception that allows smoking while actively passing throughout the entire Downtown area; and 3. Add pedestrian-friendly signage to the Downtown. Tobacco Retailer Permit San Rafael currently requires any business wanting to sell Tobacco to obtain a Tobacco Retailer License (TRL). The business is required to apply for the TRL by paying an initial fee of $48 and submitting the following as part of their business license: 1. The name, address, telephone and fax numbers of the applicant. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3 2. The business name, address, telephone and fax numbers of each location for which a tobacco retailer's permit is sought. 3. Such other information as the city deems reasonably necessary for implementation and enforcement of this chapter. Once a TRL is obtained, businesses are charged an annual renewal fee of $3 as part of their business license renewal.1 As of December 31st, 2019, San Rafael has 54 active TRLs (Table 2). Grocery stores and Service Stations had the highest number of TRLs at 15 licenses for each building type. A complete list of all active TRLs can be found in Attachment 2. Table 2. Active Tobacco Retailer Licenses by Business Type (as of 12/31/18) Business Type Total Bakery (Retail) 1 Cocktail Lounge 2 Drug Store 5 Grocery 15 Liquor Store 5 Motor Vehicle Repair 1 Restaurant 5 Service Station 15 Take Out Food 2 Tobacco 2 Warehouse 1 Total 54 Enforcement of the TRL program is conducted as part of a Memorandum of Understanding (MOU) with the Marin County Sheriff’s Department. Funds for this enforcement are provided each year with county general fund monies. As part of this enforcement, the Sheriff conducts compliance checks at every tobacco retailer outlet in the county at least once each year. In addition to this MOU, the Sheriff began a three-year California Department of Justice grant on April 1st that will provide additional compliance checks through at least March 2022. American Lung Association State of Tobacco Control The American Lung Association (ALA) is an advocacy group whose goals are to eliminate tobacco use and tobacco-related lung disease, improve the air so that it will not cause or worsen lung disease, and reduce the burden of lung disease on patients and their families. They produce an annual report called State of Tobacco Control (SOTC). In the most recent 2018 SOTC, San Rafael received an overall “A” grade as well as “A” grades in all three components of this grade: Smokefree Outdoor Air, Smokefree Housing, and Reducing Sales of Tobacco Products. 2 The ALA has also included an “Emerging Issues” category providing bonus points for jurisdictions with regulations addressing the following topics: Emerging Products Definition: Secondhand Smoke & Licensing, Retailer Location Restrictions, Sale of Tobacco Products in Pharmacies, Flavored Tobacco Products, Minimum Pack Size Cigars, and Flavored Tobacco. In 2018, San Rafael received bonus points for existing regulations covering Secondhand Smoke and Retailer Location Restrictions. 1 Fees are lower than other Marin jurisdictions with comparable programs which charge $50 for the initial and annual renewal fee. 2 https://www.lung.org/local-content/california/documents/state-of-tobacco-control/2018/counties/marin-countypdf.pdf SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4 ANALYSIS: Youth Tobacco Use While California law prohibits the sale or furnishing of tobacco products and smoking paraphernalia to minors under the age of 213, there were alarming increases in current use of any tobacco product among both middle and high school students between 2017 and 2018, primarily because of an increase in e-cigarette use.4 In 2018 at San Rafael City Schools, 17% of seventh-grade students have reported ever using e-cigarettes (Exhibit A) and 17% of tenth-grade students currently use e-cigarettes (Exhibit B).5 3 (Cal. Penal Code § 308), (Cal. Bus. & Prof. Code § 22956) 4 https://www.fda.gov/TobaccoProducts/PublicHealthEducation/ProtectingKidsfromTobacco/ucm4051 73.htm 5 https://calschls.org/reports-data/search-lea-reports/ SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5 According to the U.S. Food & Drug Administration: In the 2016 National Youth Tobacco Survey, the three reasons youth respondents selected for their e-cigarette use: 1. Use by "friend or family member" (39.0%) 2. Availability of "flavors such as mint, candy, fruit, or chocolate" (31.0%) 3. The belief that "they are less harmful than other forms of tobacco such as cigarettes" (17.1%)6 During the one-year period between 2017 and 2018, among high school students who currently used e-cigarettes, use of flavored e-cigarettes increased as well. 68% more high school students used flavored e-cigarettes. Use of any flavored e-cigarette went up among current users from 60.9 percent to 67.8 percent, and menthol use increased from 42.3 percent to 51.2 percent among all current e-cigarette users—including those using multiple products—and from 21.4 percent to 38.1 percent among exclusive e-cigarette users. Additionally, kids whose first tobacco product was flavored are more likely to become current tobacco users than those whose first product was tobacco-flavored. 7 While Flavored Tobacco bans restrict all sales of flavored tobacco products at “brick-and-motor” retail locations in San Rafael, it does not completely end all sales. Flavored Tobacco products are still available for purchase online as well as in neighboring jurisdictions without a ban. Anecdotal evidence indicates that youth can access vaping products purchased by individuals of legal age as well parents buying the products, “thinking they emit harmless water vapor instead of nicotine-infused vapor.”8 Potential Amendments to the San Rafael Municipal Code Chapter 8.15 Staff has attached a draft of the following potential changes to the San Rafael Municipal Code Chapter 8.15 necessary for a potential ban on the sale of flavored tobacco and tobacco sales in pharmacies. (Attachment 1) If the City Council moves forward with a Flavored Tobacco ban like those enacted by neighboring jurisdictions, the following amendments will be needed to the San Rafael Municipal Code Chapter 8.15: • Update Section 8.15.005-Definitions. Updates will be required to include corresponding definitions for a “Characterizing Flavor” and expanding the definition of “Tobacco Product” to include products from both tobacco leaf and nicotine. • New Section 8.15.110- Prohibition Against Sale or Offer for Sale of Flavored Tobacco Products. A new section to Chapter 8.15 will be required specifically outlining the ban on sale or offer for sale of Flavored Tobacco Products. These changes would impact nearly all businesses with a TRL, as they would prohibit the sale of menthol cigarettes and single use flavored electronic cigarettes. San Rafael currently has one business specializing in the sale of e-cigarettes and vaping liquid:9 1. VIP Vape Store- 826 2nd St. Suite B, San Rafael, CA 94901 6 https://www.cdc.gov/mmwr/volumes/67/wr/mm6706a5.htm 7 https://www.fda.gov/TobaccoProducts/PublicHealthEducation/ProtectingKidsfromTobacco/ucm625887.htm 8 https://www.sfchronicle.com/business/article/Why-Juul-is-thriving-despite-the-crackdown-on-13746124.php 9 https://www.yelp.com/search?find_desc=Vape%20Shops&find_loc=San%20Rafael%2C%20CA SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 6 While this location does have valid business license—approved as a video store—both businesses are operating without a Tobacco Retailer License due to the ambiguity regarding the sale of products derived from nicotine but not tobacco leaf. If the City Council decides to move forward with a ban on tobacco sales in pharmacies like those enacted by neighboring jurisdictions, the following amendments will be needed to the San Rafael Municipal Code Chapter 8.15: • Update Section 8.15.005-Definitions. Updates will be required to include corresponding definitions for a “Pharmacy”. • New Section 8.15.110- Prohibition Against Tobacco Products Sales at Pharmacies. A new section to Chapter 8.15 will be required specifically outlining the ban on sale of Tobacco Products at Pharmacies. While there are five active TRLs at “Drug Stores”--two Rite Aide stores, two Walgreen stores, and one CVS—CVS does not carry tobacco products due to a nationwide corporate ban on tobacco sales. Anecdotal FISCAL IMPACT: There is no direct fiscal impact of this informational report to the City. As discussed earlier, enforcement of the TRL program is conducted as part of a Memorandum of Understanding (MOU) with the Marin County Sheriff’s Department. Funds for this enforcement are provided each year with county general fund monies. Any expansion of the TRL ordinance, including a Flavored Tobacco ban, would be enforced through this mechanism at no additional cost to the City. OPTIONS: The City Council has the following options to consider on this matter: 1. Direct staff to return with draft ordinance as written. 2. Direct staff to return with draft ordinance with modifications. 3. Direct staff to return with more information. 4. Take no action. RECOMMENDED ACTION: Review attached draft Flavored Tobacco Ban ordinance (Attachment 1) and provide staff direction. ATTACHMENTS: 1. Draft Amendments to SRMC 8.15- “Tobacco Retail Sales, Advertising and Promotion” 2. Tobacco Retailer Licenses in San Rafael (as of 12-31-2018) DRAFT DATE: April 4, 2019 1 ORDINANCE NO.________ AN ORDINANCE OF THE CITY OF SAN RAFAEL CITY COUNCIL AMENDING CHAPTER 8.15 OF THE SAN RAFAEL MUNICIPAL CODE, ENTITLED “TOBACCO RETAIL SALES, ADVERTISING AND PROMOTION” THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1. FINDINGS. WHEREFORE, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 2. AMENDMENT OF MUNICIPAL CODE. Chapter 8.15 of the San Rafael Municipal Code, entitled “Tobacco Retail Sales, Advertising and Promotion” is hereby amended to read in its entirety as follows: Chapter 8.15 - TOBACCO PRODUCT RETAIL SALES, ADVERTISING AND PROMOTION 8.15.005 - Definitions. The following words and phrases, whenever used in this chapter, shall have the meaning defined in this section unless the context clearly requires otherwise: A. A. "Advertising display sign" means a sign, billboard, poster, freestanding sign, balloon, pennant or banner that is temporarily or permanently placed on or affixed to the ground, the sidewalk, a pole or post, a fence, or a building, or is displayed in the windows or doors of a commercial establishment, and that is used to advertise or promote products. "Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco, including Indian cigarettes called "bidis." B. "Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco products. B. "Characterizing Flavor” means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a Tobacco Product or any byproduct produced by the Tobacco Product. Characterizing Flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A Tobacco Product shall not be determined to have a Characterizing Flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is DRAFT DATE: April 4, 2019 2 the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a Characterizing Flavor. C. "Constituent” means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a Tobacco Product during the processing, manufacture, or packing of the Tobacco Product. D. "Distinguishable” means perceivable by either the sense of smell or taste. E. “Flavored Tobacco Product” means any Tobacco Product that contains a Constituent that imparts a Characterizing Flavor. CF. “Labeling” means written, printed, pictorial, or graphic matter upon any Tobacco Product or any of its Packaging. "Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia; "tobacco retailing" shall mean the doing of any of these things. D. "Advertising display sign" means a sign, billboard, poster, freestanding sign, balloon, pennant or banner that is temporarily or permanently placed on or affixed to the ground, the sidewalk, a pole or post, a fence, or a building, or is displayed in the windows or doors of a commercial establishment, and that is used to advertise or promote products. EG. "Mobile billboard" means any sign, placard, billboard, or other advertisement display upon or affixed to a vehicle which display is used to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right- of-way or on private property and visible to the public for a duration of time and in a manner which clearly indicates that the sign is for advertising products illegal to sell to minors or which carry a specific brand name, logo, or indicia of a product illegal to sell to minors. For the purpose of this chapter, a mobile billboard shall not include any advertisements on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products. H. “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a Tobacco Product is sold, or offered for sale, to a consumer. I. “Person” means any individual person, firm partnership, association, corporation, company, organization, or legal entity of any kind. J. “Pharmacy” means a retail establishment in which the profession of pharmacy by a pharmacist licensed by the State of California in accordance with the Business and Professions Code is practiced and where prescription products are offered for DRAFT DATE: April 4, 2019 3 sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals. FK. "Promote" or "promotion" means a display of any logo, brand name, character, graphics, colors, designs, or recognizable color or pattern of colors, or any other indicia or product identification with, or similar to, or identifiable with, those used for any particular brand of tobacco Tobacco productProduct. GL. "Publicly visible location" means any outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or any location inside a commercial establishment immediately adjacent to a window or door where such location is visible from any street, sidewalk, or other public thoroughfare. M. "Tobacco product" means: 1. Any product containing, made, or derived form tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff. 2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah. 3. Notwithstanding any provides of subsections (1) an (2) to the contrary, “Tobacco Product” includes any component, part, or accessory intended or reasonably expected to be used with a Tobacco Product, whether or not sold separately. “Tobacco Product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such approved purpose. N. "Tobacco Retailer" means any store, stand, booth, concession or any other enterprise that engages in the retail sale of Tobacco Products, including but not limited to pharmacies and stores that engage in the retail sale of food; "Tobacco Retailing" shall mean the doing of any of these things. 8.15.010 - Restriction on advertising tobacco Tobacco productsProducts. No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of cigarettes or tTobacco products Products on an advertising display sign in a publicly visible location within five hundred feet (500') of the perimeter of an elementary or secondary school, high school, public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts), day care center, public community center and or public library. DRAFT DATE: April 4, 2019 4 8.15.020 020 - Exceptions. The restrictions contained in Section 8.15.010 shall not apply to advertising or promotions for tobacco Tobacco productsProducts; however Applicant is required to comply with all the provisions of city's sign ordinance Chapter 14.19 of this Code shall apply.: A. A. Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare. B. On vehicles, other than mobile billboards. C. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco Tobacco productsProducts, so long as the sign does not promote any brand of tobacco Tobacco productProduct. D. On tobacco Tobacco product Product packaging. Applicant is required to comply with all provisions of city's sign ordinance Chapter 14.19. 8.15.030 030 - Distribution of promotional items to minors. No person may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor, which bears the brand name, alone or in conjunction with, any other word , logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco Tobacco productProduct. 8.15.100 040 - Self-service displays. It is unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any tobacco Tobacco product Product by any means of self-service merchandising, including but not limited to self -service display, rack, countertop or shelf, or any means other than vendor-assisted sales. All tobacco Tobacco products Products shall be offered for sale exclusively by means of vendor assistance, and all tobacco Tobacco products Products shall be either in a locked case or in an area not accessible to the public prior to sale. 8.15.110 050 - Signs. DRAFT DATE: April 4, 2019 5 Any person, business, or tobacco Tobacco retailer Retailer shall post plainly visible signs at the point of purchase of tobacco Tobacco products Products which state "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID REQUIRED." The letters of said signs shall be at least one inch (1″) high. 8.15.120 100 - Sale to minors prohibited. No person, business, or tobacco retailer shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser's age as eighteen (18) years or greater. 8.15.110 – Prohibition Against Sale or Offer for Sale of Flavored Tobacco Products. A. The sale or offer for sale, by any person or Tobacco Retailer of any Flavored Tobacco Product is prohibited and no person or Tobacco Retailer shall sell, or offer for sale, any Flavored Tobacco Product. B. There shall be a rebuttable presumption that a Tobacco Product is a Flavored Tobacco Product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the Tobacco Product has or produces a Characterizing Flavor including, but not limited to, text, color, and/or images on the product’s Labeling or Packaging that are used to explicitly or implicitly communicate that the Tobacco Product has a Characterizing Flavor. 8.15.120 – Prohibition Against Tobacco Products Sales at Pharmacies. No person shall sell Tobacco Products in a pharmacy. 8.15.130 - Tobacco vending machines prohibited. No person, business, or tobacco Tobacco retailer Retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any vending machine for the purpose of selling or distributing any tobacco Tobacco productProduct. 8.15.200 - Requirement for tobacco Tobacco retailer Retailer permit. It is unlawful for any person to act as a tobacco Tobacco retailer Retailer without first obtaining and maintaining a valid tobacco Tobacco retailer's Retailer's permit pursuant to this chapter for each location at which that activity is to occur. DRAFT DATE: April 4, 2019 6 No permit may be issued to authorize tobacco Tobacco retailers Retailers at other than a fixed location; peripatetic tobacco Tobacco retailing Retailing and tobacco Tobacco retailing Retailing from vehicles are prohibited. Permits are valid for one year. Each tobacco Tobacco retailer Retailer must apply for the tobacco Tobacco retailer's Retailer's permit or for the renewal of the tobacco Tobacco retailer's Retailer's permit at the same time the applicant applies for, or renews their city business license. 8.15.210 - Application procedure. A. Application for a tobacco Tobacco retailer's Retailer's permit shall be submitted in the name of the person or entity proposi ng to conduct retail tobacco sales of Tobacco Products and shall be signed by such person or an authorized agent thereof. All applications shall be submitted to the city and shall contain the following information: 1. The name, address, telephone and fax numbers of the applicant. 2. The business name, address, telephone and fax numbers of each location for which a tobacco retailer's permit is sought. 3. Such other information as the city deems reasonably necessary for implementation and enforcement of this chapter. B. A fee for the tobacco retailer's permit shall be established by city council in its fee schedule resolution as amended from time to time. The applicant shall pay the fee at the time the application is submitted. The application shall be submitted at the same time as the applicant's initial application for or renewal of a city business license. 8.15.220 - Issuance of permit. A. Upon the receipt of an application for a tobacco retailer's permit, the city shall issue a permit unless the Community Developme nt Director, or designee, determines that evidence demonstrates one of the following bases for denial: 1. The application is incomplete or inaccurate. 2. The application seeks authorization for tobacco Tobacco retailing Retailing by a person or at a location for which a suspension is in effect pursuant to Section 8.15.250 of this chapter. 3. The application seeks authorization for tobacco Tobacco retailing Retailing that is otherwise unlawful under provisions of state or federal law or the provisions of the San Rafael Municipal Code. DRAFT DATE: April 4, 2019 7 8.15.230 - Display of permit. Each permittee shall prominently display the permit at each location where tobacco Tobacco retailing Retailing occurs. 8.15.240 - Permits nontransferable. A tobacco Tobacco retailer's Retailer's permit is nontransferable. In the event a person to whom a permit has been issued changes business location or sells the business referenced in that person's permit, that person must apply for a new permit prior to acting as a tobacco Tobacco retailer Retailer at the new location. The transferee of the permittee must apply for a permit in the transferee's name before acting as a tobacco Tobacco retailerRetailer. Any permit reissued pursuant to this section shall expire on the date the previous permit for th e business or person would have otherwise expired. 8.15.250 - Suspension or revocation of permit. A. Grounds for Suspension or Revocation. 1. A tobacco Tobacco retailer's Retailer's permit shall be revoked if the city Director of Community Development, or designee, finds, after not less than 10 days’ notice and opportunity to be heard, that one or more of the basis bases for denial of a permit under Section 8.15.220 of this chapter exists. The revocation shall be without prejudice to the filing of a new application for a permit following correction of the conditions which required revocation. 2. A tobacco Tobacco retailer's Retailer's permit shall be suspended if the city Director of Community Development, or designee, finds, after not less than 10 days’ notice and opportunity to be heard, that the permittee or his or her agent or employee has violated any federal, state or local law governing the sale, promotion, advertisement or display of tobacco, tTobacco productsProducts, or tobacco paraphernalia. B. Suspension of Permit. 1. If the city Director of Community Development, or designee, finds that there are grounds for suspension of a permit, the following sanctions shall be imposed: a. Upon a first finding by the city of a violation by a permittee or any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for ninety (90) days unless (a) : (1) the permittee submits a training plan within a reasonable time established by the city, in form and content acceptable to the city, for the training of all sales employees in the laws pertaining to the sale, advertisement, and display of tobacco, tTobacco productsProducts, or DRAFT DATE: April 4, 2019 8 tobacco paraphernalia to minors, and, techniques to ensure future compliance with said laws; and (2b) the permittee files with the city, within such time as is reasonably established by the city, satisfactory evidence that the training described in the training plan has been completed. 2. Upon the second finding by the city Director of Community Development, or odesignee, off a violation by a permittee or by any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for one hundred twenty (120) days. 3. Upon each subsequent finding by the the city Director of Community Development, or designee, of a violation by a permittee or by any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for one year. C. Appeal of Suspension and/or Revocation. The decision is appealable pursuant to the provisions of Chapter 14.28 of the San Rafael Municipal Code. 8.15.260 - Penalties for violations. A violation of any provision of this chapter is hereby declared a public nuisance, and shall be punishable as provided for in Chapters 1.42, 1.44 and 1.46 of this code. These remedies shall be in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this chapter. 8.15.270 – No conflict with Federal or State law. Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law. 8.15.280 – Not applicable to cannabis businesses. Notwithstanding anything in this chapter to the contrary, this chapter shall not be applicable to any matter regulated by Chapter 10.96 of this code entitled “Cannabis Business”. DIVISION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA). The City Council finds that adoption of this Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to section 15061(b)(3) of the State CEQA Guidelines because it can be seen with certainty that there is no possibility that the adoption of this Ordinance or its implementation would may have a significant effect on the environment, (14 Cal. Code Regs. Section 15061(b)(3)).in that this ordinance applies residential tenant DRAFT DATE: April 4, 2019 9 protection measures to existing residential units in San Rafael, which is solely an administrative process resulting in no physical changes to the environment. DIVISION 4. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordi- nance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. DIVISION 5. EFFECTIVE DATE; PUBLICATION. This Ordinance shall be published once, in full or in summary form, before its final passage, in a newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. If published in summary form, the summary shall also be published within fifteen (15) days after the adoption, together with the names of those Councilmembers voting for or against same, in a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. __________________________ GARY O. PHILLIPS, Mayor ATTEST: ______________________________ LINDSAY LARA, City Clerk The foregoing Ordinance No.______ was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the _______ day of ____________________, 2019 and ordered passed to print by the following vote, to wit: AYES: Councilmembers NOES: Councilmembers ABSENT: Councilmembers and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the _______ day of ____________________, 2019. ______________________________ LINDSAY LARA, City Clerk Attachment 2. Active Tobacco Retailer Licenses in San Rafael (as of 12.31.18) Business Name Business address Bus City, State Business type 4th Street Shell 1833 4TH ST SAN RAFAEL, CA 94901 SERVICE STATION 7-Eleven Store 14132 80 MEDWAY RD SAN RAFAEL, CA 94901 GROCERY 7-Eleven Store 14139 703 B ST SAN RAFAEL, CA 94901 GROCERY Al's Food & Liquors 36 MEDWAY RD SAN RAFAEL, CA 94901 LIQUOR STORE Asian Market 5 MARY ST SAN RAFAEL, CA 94901 GROCERY Azteca #2 802 4TH ST SAN RAFAEL, CA 94901-3224 GROCERY Belli Deli, LLC 1304 2ND ST SAN RAFAEL, CA 94901 TAKE OUT FOOD Beverages & More, Inc. 760 FRANCISCO BLVD W SAN RAFAEL, CA 94901 LIQUOR STORE Caffe Villa At Villa Inn 1600 LINCOLN AVE SAN RAFAEL, CA 94901 RESTAURANT Chevron Stations Inc #2208 949 DEL PRESIDIO BLVD SAN RAFAEL, CA 94903-3615 GROCERY Chevron/ Grand Gasoline 440 3RD ST SAN RAFAEL, CA 94901 SERVICE STATION Circle K #5784 981 FRANCISCO BLVD E SAN RAFAEL, CA 94901 SERVICE STATION Colonial Liquors Of San Rafael 1015 TAMALPAIS AVE SAN RAFAEL, CA 94901 LIQUOR STORE CVS/Pharmacy #4952 909 GRAND AVE SAN RAFAEL, CA 94901 DRUG STORE Dandy Market 100 EL PRADO AVE SAN RAFAEL, CA 94903-3963 GROCERY El Palmar 757 LINCOLN AVE STE 28 SAN RAFAEL, CA 94901-3335 RESTAURANT Famous Market & Deli 1492 LINCOLN AVE SAN RAFAEL, CA 94901 GROCERY Francisco 76- Marin Express Lube, Inc. 831 FRANCISCO BLVD E SAN RAFAEL, CA 94901-4725 SERVICE STATION Fuel 24:7 @ Northgate 930 DEL PRESIDIO BLVD SAN RAFAEL, CA 94903 SERVICE STATION Gateway Gas One 1005 NORTHGATE DR SAN RAFAEL, CA 94903-2500 SERVICE STATION Golden Creme Donut 911 LINCOLN AVE SAN RAFAEL, CA 94901 BAKERY (RETAIL) Irwin Shell 834 IRWIN ST SAN RAFAEL, CA 94901 SERVICE STATION Kosmos Kafe 890 TAMALPAIS AVE SAN RAFAEL, CA 94901-3308 RESTAURANT Mi Rancho Market #2 4140 REDWOOD HWY STE 4 SAN RAFAEL, CA 94903-2791 GROCERY Mighty Quinn, The 1099 4TH ST STE G SAN RAFAEL, CA 94901 TOBACCO Mini Market Store 842 B ST SAN RAFAEL, CA 94901 GROCERY More For Less 141 BELLAM BLVD SAN RAFAEL, CA 94901-4836 GROCERY Northgate Shell 950 DEL PRESIDIO BLVD SAN RAFAEL, CA 94903 SERVICE STATION Perry's Delicatessen 909 LINCOLN AVE SAN RAFAEL, CA 94901 TAKE OUT FOOD Peter's Beacon/ Beacon's Service 108 BELLAM BLVD SAN RAFAEL, CA 94901 SERVICE STATION Pint Size Lounge 1615 4TH ST SAN RAFAEL, CA 94901-2714 COCKTAIL LOUNGE Power Petroleum Corporation 1320 2ND ST SAN RAFAEL, CA 94901-3829 SERVICE STATION Redwood Cafe 175 PAUL DR SAN RAFAEL, CA 94903 RESTAURANT Rite Aid 5957 471 3RD ST SAN RAFAEL, CA 94901 DRUG STORE Rite Aid 5958 1500 NORTHGATE DR SAN RAFAEL, CA 94903 DRUG STORE Safeway #653 700 B ST SAN RAFAEL, CA 94901-3808 GROCERY Safeway #932 350 NORTHGATE ONE SAN RAFAEL, CA 94903-3415 GROCERY San Rafael 76 34 RITTER ST SAN RAFAEL, CA 94901-3323 SERVICE STATION San Rafael Smog Test And Repair Station 1401 2ND ST SAN RAFAEL, CA 94901-2754 MOTOR VEHICLE REPAIR San Rafael Smoke Shop 2222 4TH ST STE A SAN RAFAEL, CA 94901 TOBACCO San Rafael Valero 475 3RD ST SAN RAFAEL, CA 94901 SERVICE STATION Scotty's Market 620 MANUEL T FREITAS PKWY SAN RAFAEL, CA 94903-3198 GROCERY Shineology Car Wash @ Second St. 1515 2ND ST SAN RAFAEL, CA 94901 SERVICE STATION Silada Unocal 76 1125 LINCOLN AVE SAN RAFAEL, CA 94901 SERVICE STATION Smith Ranch Deli & Cafe 101 SMITH RANCH RD SAN RAFAEL, CA 94903 GROCERY Smoky's Deli 21 GOLDEN GATE DR STE K SAN RAFAEL, CA 94901 RESTAURANT Supermercados Mi Tierra 175 BELVEDERE ST SAN RAFAEL, CA 94901-4779 GROCERY Supermercados Mi Tierra Warehouse 97 LOUISE ST STE C SAN RAFAEL, CA 94901 WAREHOUSE Terra Linda 76 & Pro Car Wash 921 DEL PRESIDIO BLVD SAN RAFAEL, CA 94903 SERVICE STATION Trevor's Pub, LLC 927 TAMALPAIS AVE SAN RAFAEL, CA 94901 COCKTAIL LOUNGE United Liquors, Inc. 1556 4TH ST SAN RAFAEL, CA 94901 LIQUOR STORE Walgreens #13584 155 NORTHGATE ONE SAN RAFAEL, CA 94903-3417 DRUG STORE Walgreens 04625 830 3RD ST SAN RAFAEL, CA 94901 DRUG STORE Winton News & Liquors 1149 4TH ST SAN RAFAEL, CA 94901-3006 LIQUOR STORE