ORDINANCE NO. 1716

AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PLACERVILLE ADOPTING AN INTERIM MORATORIUM ON NEW TOBACCO RETAILER APPLICATIONS FOR ALL PURPOSES WITHIN THE CITY OF PLACERVILE PENDING THE DEVELOPMENT AND ADOPTION OF TOBACCO PRODUCT RETAIL REGULATIONS

WHEREAS, the City has seen a proliferation of tobacco and vape shop retail businesses within its incorporated limits, with five new licenses issued since 2020 for establishment within the City, in addition to other existing general retailers that also sell tobacco and vape products; and

WHEREAS, the City is concerned about this recent proliferation of tobacco retailer businesses and the harmful effects of tobacco on City residents, especially youth; and

WHEREAS, the City Council has a substantial interest in protecting City residents, particularly youth and underserved populations, from the harms of tobacco use; and

WHEREAS, tobacco use is the number one cause of preventable death in California and continues to be an urgent public health issue, as evidenced by the following: 40,000 California adults die from their own smoking annually1 ; more than 25% of all adult cancer deaths in California are attributable to smoking2 ; smoking costs California $15.44 billion in annual health care expenses, $3.85 billion in Medicaid costs caused by smoking, and $28.1 billion in smoking-caused productivity losses3 ; tobacco use can cause disease in nearly all of the organs of the body and is responsible for 87% of lung cancer deaths, 32% of coronary heart disease deaths, and 79% of all cases of chronic obstructive pulmonary disease in the United States4 ; and

WHEREAS, 5.6 million of today’s Americans who are younger than 18 years of age are projected to die prematurely from a smoking-related illness5 ; and

WHEREAS, research indicates that the density and proximity of tobacco retailers increase smoking behaviors, including the number of cigarettes smoked per day, particularly in neighborhoods experiencing poverty6 ; and

WHEREAS, the density of tobacco retailers near adolescents’ homes has been associated with increased youth smoking rates7 and initiation of noncigarette tobacco product use8 ; and

WHEREAS, adults who smoke are likely to have a harder time quitting when residential proximity to tobacco retailers is closer9 and density is higher10 ; and

WHEREAS, the recently released 2023 National Youth Tobacco Survey (NYTS) identified a concerning trend that has emerged among middle school students showing a significant rise in the use of any tobacco product reaching 6.6% in 2023, up from 4.5% in 2022. That is an increase of over 46%11 ; and

WHEREAS, in 2023, 10% of middle and high school students (2.80 million) reported current (i.e., past 30-day) use of tobacco products12 ; and

WHEREAS, given the number of middle and high school students that use tobacco products, sustained efforts to prevent initiation of tobacco product use among young persons and strategies to help young tobacco users quit are critical to reducing youth tobacco product use; and

WHEREAS, policies to reduce tobacco retailer density have been shown to be effective and can reduce or eliminate inequities in the location and distribution of tobacco retailers13 ; and

WHEREAS, the City has no specific regulations for tobacco retailers that would protect minors, such as distance requirements from schools and/or youth-oriented areas; and

WHEREAS, on February 13, 2024, the City Council provided staff direction to draft an urgency ordinance to allow staff the opportunity to develop an ordinance to regulate tobacco retail businesses; and

WHEREAS,  Government Code Section 25131 expressly authorizes the City of Placerville to adopt an urgency ordinance immediately upon the introduction and Government Code Section 25123 makes such an urgency ordinance effective immediately:

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PLACERVILLE DOES ORDAIN AS FOLLOWS:

Section 1. Purpose and Authority.

The purpose of this Interim Urgency Ordinance (“Ordinance”) is to establish a temporary moratorium within the incorporated areas of the City on the approval of any new Tobacco Retailer applications for all purposes, while City staff determines the impact of unregulated local Tobacco Retailer licensing and develops regulations to mitigate those impacts. This Ordinance is adopted pursuant to California Constitution Article XI, Section 7, and Government Code Section 65800 et seq., particularly Section 65858 and other applicable law.

Section 2. Findings and Declarations.

The City Council of the City of Placerville makes the following findings in support of the immediate adoption and application of this interim urgency moratorium:

A.   Under Article XI, Section 7 of the California Constitution, the City may adopt and enforce ordinances and regulations not in conflict with general laws to protect and promote the public health, safety, and welfare of its citizens.

B.   Under Government Code Section 25123, the City may enact an ordinance for the immediate preservation of the public peace, health, or safety, which contains a declaration of facts constituting the urgency, and that ordinance will be effective immediately.

C.   Under Government Code Section 65858, the City may as an urgency measure adopt an interim ordinance prohibiting land uses that may be in conflict with contemplated land use regulations that the City is considering and intends to regulate within a reasonable time.

D.   The Smoking Prevention and Tobacco Control Act of 2009 (21 USC §387p) does not preempt state or local law to regulate the “sale, distribution, possession, exposure to, [or] access to” tobacco products.

E.   The City has seen a proliferation of new tobacco retailers and is concerned for the health and safety of residents and visitors to the City.

F.   The City has no specific regulations for tobacco retailers that would protect youth, such as distance requirements from schools, youth-oriented areas, or other tobacco retailers.

G.   The City of Placerville has a compelling interest in protecting the public health, safety, and welfare of its residents and businesses, and to improve health outcomes, and encourage patterns of development that promote a healthy community by creating regulations to reduce the availability of tobacco products and tobacco advertising near youth-orientated areas and other tobacco retailers, in order to ensure the effective implementation of the City of Placerville’s land use objectives and policies, a temporary prohibition (moratorium) on the establishment or approval of new Tobacco Retailers is necessary.

H.   There is no feasible alternative to enactment of this Ordinance that will satisfactorily mitigate or avoid the previously identified impacts to the public health, safety, and welfare with a less burdensome or restrictive effect.

I.   This Ordinance complies with State law and imposes reasonable regulations that the City Council concludes are necessary to protect the public safety, health and welfare of residents and business within the City of Placerville.

Section 3. Declaration of Urgency

Based on the recitals and findings set forth in Section 2, the City Council finds and declares that there is a current and immediate threat to the public health, safety, and welfare arising from the absence of reasonable regulations in the Placerville Municipal Code governing the regulation of Tobacco Retailers in the incorporated areas of the City of Placerville. The City Council determines that this Urgency Ordinance is needed to preserve the public health, safety, and welfare by providing the City with additional time to prepare the draft Tobacco Retail Ordinance for consideration of the comprehensive regulation of Tobacco Retailer licensing, location, and density, for all purposes in the incorporated areas of the City.

Section 4. Moratorium

A temporary moratorium in the incorporated area of the City of Placerville on the approval of any new Tobacco Retailer applications is hereby established.

For purposes of this Ordinance:

A.   “ Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

B.   “Sale” or “ Sell” means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

C.   Tobacco Product means:

   1.    Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

   2.    Any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or

   3.    Any component, part, or accessory of (1) or (2) whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.

“Tobacco Product” does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

D.   “ Tobacco Retailer” means any Person who Sells, offers for Sale, or does or offers to exchange for any form of consideration Tobacco Products. “Tobacco Retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of Tobacco Products sold, offered for sale, exchanged, or offered for exchange.

During the term of this Ordinance, including any extensions hereto:

A.   The City, and any other City official or employee, shall not issue any new City permit, registration, business license, or approval of any type to a Tobacco Retailer within the incorporated areas of the City of Placerville.

B.   This section is cumulative to all other remedies now or hereafter available to abate or otherwise regulate or prevent public nuisances or to enforce the provisions of the Placerville Municipal Code.

C.   To the fullest extent permitted by law, any actions taken under the provisions of this Ordinance by any public officer or employee of the City of Placerville itself shall not become a personal liability of that person or a liability of the City.

D.   As authorized by Government Code Section 25132 and except as otherwise provided by state statute, any person or entity violating any provision of this Ordinance shall be guilty of a misdemeanor.

E.   This Ordinance shall not apply to an application determined to be complete and in compliance with California Government Code Section 65943 prior to the effective date of this Ordinance.

Section 5. Adoption of this Ordinance is Not a Project under the California Environmental Quality Act ( CEQA).

This Ordinance is not a “project” within the meaning of Public Resources Code Section 21065 and CEQA Guidelines Section 15378 because the temporary moratorium on approval of new Tobacco Retailer applications  does not have the potential of resulting in a direct physical change to the environment or reasonably foreseeable indirect physical change in the environment. Even if the adoption of the moratorium were a project, it would be categorically exempt from CEQA under CEQA Guidelines Section 15308 because the moratorium is adopted in order for the County to adopt a regulatory process for the protection of the environment and there are no unusual circumstances under CEQA Guidelines Section 15300.2, and under the “common sense” exemption in CEA Guidelines Section 15061(b)(3) because there is no possibility that adoption of this temporary moratorium would have a significant effect on the environment.

Section 6: Severability.

If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared invalid or unconstitutional.

Section 7. Conflicting Laws.

For the term of this Ordinance, as set forth in Section 8 below, the provisions of this Ordinance shall govern. The provisions of this Ordinance shall prevail in the event that they are in conflict between the provisions of this Ordinance and the provisions of any provision of the Placerville Municipal Code or any other City ordinance, resolution, or policy.

Section 8. Effective Date and Term.

This Urgency Ordinance shall take full force and effect immediately upon adoption by a vote of at least four-fifths of the City Council. In accordance with Government Code Section 65858, this Ordinance shall be in full force and effect for a period of forty-five (45) days, unless extended by the City Council as provided in Government Code Section 65858.

Section 9. The City Clerk is directed to publish this Ordinance, or a summary thereof, within fifteen (15) days in accordance with Government Code Section 36933.

I, REGINA O'CONNELL, CITY CLERK OF THE CITY OF PLACERVILLE, HEREBY CERTIFY this Ordinance was PASSED and ADOPTED by the City Council of the City of Placerville at a regular meeting on March 12, 2024.

AYES:    Clerici, Gotberg, Neau, Saragosa

NOES:    None   

ABSENT:   Yarbrough 

ABSTAIN:    None

___________________________

Mayor Jackie Neau

ATTEST:

_______________________________

Regina O'Connell, CPMC, City Clerk