HomeMy WebLinkAbout7.1 - 3028 Flavored Tobacco and E-Cigarette Ban
Page 1 of 6
STAFF REPORT
CITY COUNCIL
DATE: January 14, 2020
TO: Honorable Mayor and City Councilmembers
FROM:
Linda Smith, City Manager
SUBJECT:
Introduction of an Ordinance Banning the Sale of Flavored Tobacco and
Electronic Smoking Devices, and Report on Additional Policies Deterring
the Use of Tobacco Products
Prepared by: John Stefanski, Assistant to the City Manager
EXECUTIVE SUMMARY:
The City Council will consider adopting an Ordinance Banning the Sale of Flavored
Tobacco and Electronic Smoking Devices and will receive a report on additional, related
policies and educational opportunities to further deter the use of tobacco products within
the City of Dublin.
STAFF RECOMMENDATION:
Waive the reading and INTRODUCE an Ordinance Amending Chapter 4.40 (Tobacco
Retailers) To Title 4 (Regulation Of Businesses) of the Dublin Municipal Code regarding
banning the sale of flavored tobacco and electronic smoking devices; and, receive a
report on additional, related policies and educational opportunities to further deter the
use of tobacco products within the City of Dublin.
FINANCIAL IMPACT:
None.
DESCRIPTION:
Background
On November 19, 2019, following a presentation and discussion on flavored tobacco
prohibitions, the City Council directed Staff to prepare an Ordinance banning the sale of
flavored tobacco and electronic smoking devices as well as a report of other additional,
related policy options, and educational opportunities for the City Council to consider to
further deter the use of tobacco products within the City of Dublin.
Over the past several years, the number of youths who use e-cigarettes has grown
exponentially. The most attributable cause of this is the availability of flavored tobacco
products. According to the most recent National Youth Tobacco Survey, more than 5
Page 2 of 6
million youths are using e-cigarettes today, increasing from 2.6 million in the prior year’s
survey. This striking rise has led numerous cities locally and across the country to
evaluate and enact policies to ban the sale of flavored tobacco products and, in some
jurisdictions, electronic smoking devices altogether. The table below details a sample of
the cities within the Bay Area with varying bans on the sale of flavored tobacco and e -
cigarette products. These cities include, among others:
Municipality Flavored Tobacco
Sales Prohibition
E-Cigarette (Device and
Cartridge) Sales
Prohibition
City of Alameda Yes No
City of Fremont Yes No
City of Livermore Yes Yes*
City of Richmond Yes Yes*
City of San Leandro Yes** No
City and County of San
Francisco
Yes Yes*
*Unless approved by the FDA and not flavored.
**Except for menthol-flavored cigarettes.
Evolving Federal and State Policy
On January 2, 2020 the FDA announced that it would ban the sale of flavored e -
cigarette cartridges, except for menthol and tobacco flavored products. However,
refillable vaporizer liquid flavors would be excluded from the ban.
On January 6, 2020 State Senator Jerry Hill introduced Senate Bill 793 which would
prohibit those flavored tobacco products not included in the Federal ban. The legislation
would prohibit flavors for combustible cigarettes, cigars, chewing tobacco, and hookahs.
Current Policy
The City of Dublin’s Tobacco Retail License program (DMC Chapter 4.40) is the main
vehicle for regulating the sale of tobacco products within the City. Tobacco retailers are
currently able to sell tobacco products (i.e. any substance containing tobacco or derived
from tobacco) regardless of the product’s flavor. This includes more established for ms
of tobacco like cigars, cigarettes, and chewing tobacco as well as electronic smoking
devices and products containing synthetically produced nicotine. Retailers are also able
to sell tobacco paraphernalia (i.e. electronic smoking device cartridges, liqu ids, and any
item designed for the smoking, preparation, storing, consumption, or use of tobacco
products or electronic smoking devices). The Annual Tobacco Retail License Fee is
$298 which covers the administrative cost of the Tobacco Retail License Program.
Any business wishing to sell tobacco products must acquire a Tobacco Retailer’s
License and be located in the C-1 or C-2 Zoning District or certain Planned
Development Zoning Districts and, be a certain distance from other tobacco retailer,
school, park, library, city-owned recreational facility, youth center, and playground.
The City currently has 30 licensed tobacco retailers authorized under DMC Section
4.40.
Page 3 of 6
The City also bans smoking and the use of e-cigarettes in all public spaces and places
of business (DMB Chapter 5.56).
Proposed Policy
The attached Ordinance amends Dublin Municipal Code (DMC) Section 4.40 to ban the
sale of flavored tobacco products, or tobacco products which impart a “Characterizing
Flavor.” This definition ensures that products that do not have an explicit flavor identified
(e.g. “iced madness,” “OMG”) are still subject to the ban. Only tobacco flavored tobacco
products may be sold in the City.
Under the new regulations, no entity within the City may sell an electronic smoking
device. This is regardless to whether the device has been approved by the Food and
Drug Administration and whether the device is tobacco flavored.
The proposed Ordinance shall take effect and be enforced 30 days following its
adoption. However, until July 1, 2020, City will not enforce those portions of the
Ordinance prohibiting the sale the flavored tobacco products or electronic smoking
devices. This is to allow time for tobacco retailers to become compliant with these new
regulations.
Additional Policy Alternatives
Bans on the sale of flavored tobacco and e-cigarettes are the most direct way of
restricting and reducing access to vaping-related tobacco products. However, the City
may wish to enact additional policies that further limit access t o all tobacco products, as
the following section describes.
The next series of policy alternatives are grounded in a basic economic assumption that
an increase in a product’s cost will result in a decrease in demand. In other words,
these policies aim to reduce overall use by increasing the costs of the products
themselves.
Alternative 1: Tobacco Excise Tax (Voter Approval Required)
Excise taxes, or selective sales taxes, are taxes levied on a specific transaction. Often,
excise taxes are put in place to deter individuals from purchasing a type or category of
goods in an attempt to curb the demand of such products (sometimes referred to as
“Sin Taxes”). These taxes provide an effective way to directly increase the cost of a
specific product.
The State of California levies an excise tax on the sale of tobacco products at a rate of
$0.89.
While local taxes on sales of certain products, such as cigarettes and tobacco products
are preempted by state law (Cal. Rev. & Tax. Code §§ 30111, 30462(b)) the City could
explore a tax on the “privilege” to purchase tobacco products, akin to what several cities
have done with the sugar-sweetened beverage tax. This would require voter approval of
either a simple majority or two-thirds majority depending on whether the revenue
generated would be unrestricted or for a specific purpose, respectively.
The City does not have a formal estimate for the amount of revenue a potential excise
Page 4 of 6
tax would yield but anticipates any revenue would be marginal due to the narrow base
for the tax. Staff believes that such negligible revenue would not warrant the effort to
pursue voter approval.
Alternative 2: Minimum Price Floor on Tobacco Products
Similar to the Tobacco Excise Tax, establishing a minimum price floor or purchase price
for tobacco products would increase the cost of a tobacco product. However, whereas
the Tobacco Excise Tax would apply to all tobacco products and a portion of the
revenues would go to the City, the minimum price floor would only affect those tobacco
products priced below the price floor and could, consequently, increase revenues for
tobacco retailers.
A 2018 study by The Ohio State University found that a minimum price floor of $10
could reduce the sale of cigarettes by over 5 billion packs annually.
Neither the State nor Federal Governments have such policies in place. Yet, there are
at least 25 states with a variation of a minimum price floor policy, a relic of the mid -20th
century enacted to protect tobacco retailers against predatory business practices of the
time. These usually took the form of a percentage markup above a wholesale or retail
price.
At the municipal level, a standard dollar figure would be simpler to enforce than a
percentage markup above a wholesale/retail price set by tobacco produc t producers.
Locally, the following jurisdictions employ a minimum price floor on tobacco products in
this manner, as defined in their respective code of ordinances:
Jurisdiction Minimum Price Floor
City of San Leandro $7.00 per 5 cigars
County of Sonoma $7.00 per package of 20 cigarettes; $7.00 per
package of 5 little cigars; $7.00 per package of 5
cigars
City of Windsor $7.00 per package of 20 cigarettes; $7.00 per
package of 5 little cigars; $7.00 per package of 5
cigars; $7.00 per package of 5 units of chewing
tobacco
Each of these policies includes a Consumer Price Index annual inflator.
Alternative 3: Prohibit Tobacco Product Discounts, Coupons, and Promotions
Another strategy for maintaining the price of tobacco products is a ban on the
redemption of tobacco product coupons or discounts often issued by tobacco
companies. The State of California prohibits tobacco retailers from distributing coupons
for some tobacco products, but these regulations neglect to include e -cigarettes and
cigars. By banning the redemption of these coupons, the City would ensure that all
residents would have to pay the full retail price of a tobacco product. The City of
Oakland enacted a law to prohibit coupon redemption and tobacco discounts in 2017.
Along with the proposed ordinance to ban flavored tobacco and e-cigarette products,
alternatives 1 through 3 would likely create reductions in revenue for local businesses
Page 5 of 6
as a result of fewer individuals purchasing tobacco products. These policies are also
considered regressive in nature, meaning that lower-income individuals would have to
pay a larger percentage of their overall income to purchase a tobacco product impacted
by one of these alternatives than individuals with a higher income.
Beyond policies that attempt to curb tobacco usage through economic disincentives, the
City may also restrict access to tobacco products through the following alternatives:
Alternative 4: Bolster Existing Buffer Zones
Under the City’s existing regulations, tobacco retailers shall be at least 1,000 feet from
any school as well as any other licensed tobacco retailer. Tobacco retailers shall also
be at least 500 feet from any park, library, city-owned recreational facility, youth center,
and playground. By increasing these buffer zones , the spaces in which a potential
tobacco retailer can legally operate would become more limited. The City Council may
elect to amend the zoning code to increase the buffer zones to further limit the locations
and, subsequently, the number of tobacco retailers in the City. Under this alternative, a
current licensee would be a legal, non-conforming use and would be able to continue its
operations unless operations have seized for consecutive 12 months , limiting the
efficacy of this alternative.
Alternative 5: Limit the Number of Tobacco Retail Licenses
The City currently has 30 licensed tobacco retailers. The City may wish to cap this
amount or establish a formula for determining the number of available tobacco retail
licenses. For example, California state law limits the number of stores selling alcohol
(not including restaurants and bars) to one license for every 2,500 people residing in the
City. Using this formula logic, the City would currently have the number of licensed
tobacco retailers for a City with a population of 75,000. The City and County of San
Francisco employs a variation of this policy which caps the number of tobacco retail
licenses available at 45 within each Supervisorial District to both reduce the number of
tobacco retailers as well as prevent the clustering of such retailers in certain areas.
Alternative 6: Ban the Sale of Tobacco Products in Pharmacies or Stores Containing
Pharmacies
In 2014 CVS Pharmacy removed all tobacco products from their stores across the
County. However, there are other pharmacy chains that still sell tobacco products in
their stores. None of the licensed tobacco retailers in the City are located in a stand -
alone pharmacy, however two Safeway stores, which contain pharmacies, are licensed
to sell tobacco products (both Lucky and 99 Ranch are licensed tobacco retailers but do
not contain a pharmacy). The City Council could further restrict the access to tobacco
products by banning them in pharmacies or stores that contain pharmacies.
Alternative 7: Tiered Tobacco Retail License Program
The County of Sonoma, among other agencies, created a tiered system for regulating
tobacco products and retailers. Under this regulatory framework, those tobacco retailers
meeting the criteria below would be subject to additional regulations, beyond those of
the current Tobacco Retail License program. The County of Sonoma has set their
criteria as:
Twenty percent (20%) or more of their floor or display area devoted to tobacco
products, paraphernalia, or both; or,
Page 6 of 6
Sixty percent (60%) of gross sales receipts are derived from the sale or
exchange of tobacco products, paraphernalia, or both; or,
Fifty percent (50%) or more of completed sales transactions include tobacco
products or tobacco paraphernalia.
Any tobacco retailer meeting one or more of these criteria is considered a “Significant
Tobacco Retailer.” Significant Tobacco Retailers must require positive identification of
any store patron, confirming they are at least the minimum age under state law to
purchase and possess tobacco prior to them entering the store.
A program of this nature would require additional administrative support above the
current program due to the review and audit of a tobacco retailer’s gross sales receipts,
sales transactions, and store/display layout. Such regulations would warrant the
establishment of an increased licensing fee to recover these costs.
Staff is seeking direction from the City Council on which of these policy alternatives, if
any, to prepare ordinances for adoption.
Additional Educational Opportunities
The City is in the process of developing a Public Safety Announcement (PSA) to
increase awareness around youth tobacco usage and the health impacts caused by it.
This PSA will be ready for distribution in February and will be shown on TV30 as well as
the City’s various social media channels.
The City could, additionally, develop signs or posters detailing the health risks
associated with tobacco usage and require, as a condition of the Tobacco Retail
License, for tobacco retailers to display such signage prominently in their stores or near
their tobacco displays.
Staff is seeking further direction and feedback on whether to pursue additional
educational opportunities. If it is determined that such educational programs are
desired, an estimate of costs and Staff time will be developed .
STRATEGIC PLAN INITIATIVE:
None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
In preparation of this item, Staff sent a letter to each Tobacco Retailer Licensee
notifying them of the potential changes to the City’s existing tobacco regulations. Staff
also notified other interested parties via email.
ATTACHMENTS:
1. Ordinance Banning the Sale of Flavored Tobacco and Electronic Smoking Devices
ORDINANCE NO. __ - 20
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
**************
AMENDING CHAPTER 4.40 (TOBACCO RETAILERS)
TO TITLE 4 (REGULATION OF BUSINESSES)
OF THE DUBLIN MUNICIPAL CODE
WHEREAS, the United States Surgeon General has concluded that secondhand
smoke exposure can cause serious health problems, especially in children; and
WHEREAS, even occasional exposure to secondhand smoke is harmful, and low
levels of exposure to secondhand tobacco smoke can lead to increased health risks; and
WHEREAS, electronic cigarettes produce an aerosol or vapor of undetermined
and potentially harmful substances, which may appear similar to the smoke emitted
by traditional tobacco products; and
WHEREAS, the W orld Health Organization (W HO) recommends that electronic
smoking devices not be used indoors, especially in smoke free environments, in order
to minimize the risk to bystanders of breathing in the aerosol emitted by the devices and
to avoid undermining the enforcement of smoke free laws; and
WHEREAS, the smoking of tobacco and the use of electronic cigarettes are forms
of air pollution and are a danger to public health as well as a material public nuisance;
and
WHEREAS, the California Legislature has recognized the danger of tobacco use
and has made reducing youth access to tobacco products a high priority; and
WHEREAS, despite local, state, and federal efforts to limit youth access to
tobacco, minors are still able to access tobacco products; and
WHEREAS, the federal Family Smoking Prevention and Tobacco Control Act,
enacted in 2009, prohibited candy and fruit -flavored cigarettes, largely because these
flavored products were marketed to youth and young adults, and younger smokers were
more likely to have tried these products than older smokers; and
WHEREAS, although the manufacture and distribution of flavored cigarettes
(excluding menthol) is banned by federal law, neither federal nor California laws restrict
sales of flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless
tobacco, hookah tobacco, and electronic smoking devices and the nicotine solutions used
in these devices; and
WHEREAS, flavored non-cigarette tobacco products have become increasingly
common and are available in a variety of flavors that appeal to children and young adults,
including apple, cherry, chocolate, grape, peach, strawberry, and vanilla; and
WHEREAS, the U.S. Surgeon General has stated that flavored tobacco products
are considered to be “starter” products that help establish smoking habits that can lead
to long-term addiction; and
WHEREAS, electronic cigarette companies have targeted minors with fruit-
flavored products, and it is unknown if e-cigarettes may lead minors to try other tobacco
products; and
WHEREAS, the California Constitution, Article XI, Section 7, provides cities and
counties with the authority to enact ordinances to protect the health, safety, welfare, and
morals of their citizens; and
WHEREAS, California state law prohibits the sale or distribution of free or nominal-
cost cigarettes or smokeless tobacco products (or coupons, coupon offers, or rebate
offers for such products) on public grounds or on private grounds that are open to the
public; and
WHEREAS, California state law specifically allows adoption of a local ordinance
related to the distribution of free or nominal-cost tobacco products that is “more restrictive”
and provides that a stricter local ordinance shall govern in the case of any inconsistency
between the local ordinance and state law; and
WHEREAS, the FDA and federal law also expressly grants state and local
governments the right to enact measures that are more restrictive than those in the federal
law; and
WHEREAS, the City of Dublin has a substantial interest in promoting compliance
with federal, state, and local laws prohibiting the sale or furnishing of tobacco products
and electronic cigarette products to minors; in discouraging the illegal purchase of
tobacco and electronic cigarette products by minors; in promoting compliance with laws
prohibiting sales of cigarettes and tobacco products to minors; and in protecting children
from being lured into illegal activity through adult misconduct; and
WHEREAS, since Chapter 4.40 was last amended in 2010, the public has been
presented with more information about the dangers of electronic cigarettes and flavored
tobacco products; and
WHEREAS, it is the intent of the City Council, in enacting this ordinance, to ensure
compliance with the business standards and practices of the City of Dublin and to
encourage responsible tobacco retailing and to discourage violations of tobacco -related
laws, especially those which prohibit or discourage the sale or distribution of tobacco and
nicotine products to minors, but not to expand or reduce the degree to which the acts
regulated by federal or state law are criminally proscribed or to alter the penalties provided
therein.
NOW, THEREFORE, the City Council of the City of Dublin does ordain as
follows:
Section 1. Recitals.
The above recitals are true and correct and made a part of this Ordinance.
Section 2. Approval of Amendments.
Chapter 4.40.020 of the Dublin Municipal Code is amended as follows (with
additions in italics and deletions in strikethrough):
4.40.020 Definitions.
“Arm’s length transaction” means a sale in good faith and for valuable consideration that
reflects the fair market value in the open market between two informed and willing
parties, neither of which is under any compulsion to participate in the transaction. A sale
for which a significant purpose is avoiding the effect of the violations of this chapter is
not an arm’s length transaction.
“Chief of Police” means the Chief of the Dublin Police Department or his or her
designee.
“Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in
tobacco or any substance containing tobacco and weighing more than three pounds per
thousand.
“Cigarette” means (1) any roll of tobacco wrapped in paper or in any substance not
containing tobacco; and (2) any roll of tobacco wrapped in any substance containing
tobacco, which, because of its appearance, the type of tobacco used in the filler, or its
packaging and labeling, is likely to be offered to, or purchased by, consumers as a
cigarette described herein.
“Characterizing flavor” means a taste or aroma, other than the taste or aroma of
tobacco, imparted either prior to or during consumption of a tobacco product or any
byproduct produced by the tobacco product, including, but not limited to, tastes or
aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy,
cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that 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.
“Electronic smoking device” or “e-cigarette” means any device or delivery system sold
in combination with nicotine which can be used to deliver to a person nicotine in
aerosolized or vaporized form, including, but not limited to, an e -cigarette, e-cigar, e-
pipe, vape pen, or e-hookah. Electronic cigarettes include any component, part, or
accessory of such a device that is used during the operation of the device when sold in
combination with any liquid or substance containing nicotine. Electronic cigarettes also
include any liquid or substance containing nicotine, whether sold separately or sold in
combination with any device that could be used to deliver to a person nicotine in
aerosolized or vaporized form. Electronic cigarettes do not include any device not sold
in combination with any liquid or substance containing nicotine, or any battery, battery
charger, carrying case, or other accessory not used in the operation of the device if sold
separately. an electronic and/or battery-operated device, the use of which may
resemble smoking, which can be used to deliver an inhaled dose of vapors including
nicotine and/or other substances. “Electronic smoking device” includes any similar
device, whether manufactured, distributed, marketed, or sold as an electronic cigarette,
an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a
vapor cigarette, or any other product name or descriptor. “Electronic smoking device”
does not include any product specifically approved by the United States Food and Drug
Administration for use in the mitigation, treatment, or prevention of disease.
“Flavored tobacco product” means any tobacco product that imparts a characterizing
flavor.
“Person” means any natural person, partnership, cooperative association, corporation,
personal representative, receiver, trustee, assignee, or any other legal entity.
“Proprietor” means a person with an ownership or managerial interest in a business. An
ownership interest shall be deemed to exist when a person has a ten percent (10%) or
greater interest in the stock, assets, or income of a business other than the sole interest
of security for debt. A managerial interest shall be deemed to exist when a person can
or does have or share ultimate control over the day-to-day operations of a business.
“Self-service display” means the open display or storage of tobacco products or tobacco
paraphernalia in a manner that is physically accessible in any way to the general public
without the assistance of the retailer or employee of the retailer and a direct pe rson-to-
person transfer between the purchaser and the retailer or employee of the retailer. A
vending machine is a form of self-service display.
“Smoking” means: (1) possessing a lighted tobacco product, lighted tobacco
paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah
pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco
paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or
cigarette of any kind) or (2) the use of an electronic smoking device.
“Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of
smoking materials of all types, cigarette rolling machines, electronic smoking device
cartridges, electronic smoking device liquids, and any other item designed for the
smoking, preparation, storing, consumption, or use of tobacco products or electronic
smoking devices.
“Tobacco product” means:
(1) any product containing, made, or derived from 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,
snuff; and
(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 provision of subsections (1) and (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 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.
“Tobacco product” means any substance containing tobacco or derived from tobacco,
including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff,
chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; any
and all electronic smoking devices; and any product containing synthetically produced
nicotine. “Tobacco product” does not include any cessation product specifically
approved by the United States Food and Drug Administration for use in treating nicotine
or tobacco dependence.
“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. This
definition is without regard to the quantity of tobacco, tobacco products, or tobacco
paraphernalia sold, offered for sale, exchanged, or offered for exchange.
Chapter 4.40.03 of the Dublin Municipal Code is amended as follows (with
additions in italics and deletions in strikethrough):
4.40.030 Tobacco retailer license required; General Requirements and
Prohibitions.
A. It shall be unlawful for any person to act as a tobacco retailer in the city of Dublin
without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this
chapter for each location at which that activity is to occur. Tobacco retailing without a
valid tobacco retailer’s license is a nuisance as a matter of law.
B. Display of License. Each tobacco retailer license shall be prominently displayed in
a publicly visible location at the licensed location.
C. Positive Identification Required. No person engaged in tobacco retailing shall sell
or transfer a tobacco product or tobacco paraphernalia to another person who appears
to be under the age of twenty-seven (27) years without first examining the identification
of the recipient to confirm that the recipient is at least the minimum age under state law
to purchase and possess the tobacco product or tobacco paraphernalia.
D. False and Misleading Advertising Prohibited. A tobacco retailer or proprietor
without a valid tobacco retailer license, including, for example, a person whose license
has been revoked:
1. Shall keep all tobacco products and tobacco paraphernalia out of public
view. The public display of tobacco products or tobacco paraphernalia in violation
of this provision shall constitute tobacco retailing without a license under Section
4.40.100; and
2. Shall not display any advertisement relating to tobacco products or tobacco
paraphernalia that promotes the sale or distribution of such products from the
tobacco retailer’s location or that could lead a reasonable consumer to believe
that such products can be obtained at that location.
E. License may be issued only to a business that will engage in tobacco retail
activities at a fixed location.
F. License Conveys a Limited, Conditional Privilege. Nothing in this chapter shall be
construed to grant any person obtaining and maintaining a tobacco retailer’s license any
status or right other than the limited conditional privilege to act as a tobacco retailer a t
the location in the city identified on the face of the permit. For example, nothing in this
chapter shall be construed to render inapplicable, supersede, or apply in lieu of any
other provision of applicable law, including, but not limited to, any provis ion of this code,
including without limitation the zoning ordinance, building codes, and business license
tax ordinance, or any condition or limitation on smoking in an enclosed place of
employment pursuant to California Labor Code Section 6404.5. For example, obtaining
a tobacco retailer license does not make the retailer a “retail or wholesale tobacco shop”
for the purposes of California Labor Code Section 6404.5.
G. Fee for License. The fee for the issuance and renewal of a tobacco retailer’s
license shall be established from time to time by resolution of the City Council, and shall
be due and payable at the time a license application is submitted to the city. The fee
shall be calculated so as to include, but not exceed, the cost of administration and
enforcement of this chapter, including the administration of the license program, retailer
inspection and compliance checks.
1. In any year where grant funding has been obtained to recover the cost of
administration and enforcement of this chapter, or a portion thereof, the amount of the
license fee charged for the twelve (12) months following receipt of the grant funding
shall be reduced based on the amount of grant funding received and on the total
number of tobacco retailers operating in the city. (Ord. 20-12 § 10 (part))
H. Sale of Flavored Tobacco Products Prohibited. It shall be a violation of this chapter
for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or
offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco
product.
1. There shall be a rebuttable presumption that a tobacco retailer in possession
of four or more flavored tobacco products, including, but not limited to,
individual flavored tobacco products, packages of flavored tobacco products,
or any combination thereof, possesses such flavored tobacco products with
intent to sell or offer for sale.
2. There shall be a rebuttable presumption that a tobacco product is a flavored
tobacco product if a tobacco retailer, manufacturer, or any employee or agent
of a tobacco retailer or manufacturer has:
(a) made a public statement or claim that the tobacco product imparts a
characterizing flavor;
(b) used text and/or images on the tobacco product’s labeling or packaging to
explicitly or implicitly indicate that the tobacco product imparts a
characterizing favor; or
(c) taken action directed to consumers that would be reasonably expected to
cause consumers to believe the tobacco product imparts a characterizing
Flavor.
I. Sale of Electronic Smoking Devices Prohibited. It shall be a violation of this chapter
for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or
offer for sale, or to possess with intent to sell or offer for sale, an electronic smoking
device.
Section 2: California Environmental Quality Act. This Ordinance is exempt from the
California Environmental Quality Act (“CEQA”) per CEQA Guidelines Section
15061(b)(3). Section 15061(b)(3) states that CEQA applies o nly to those projects that
have the potential to cause a significant effect on the environment. The adoption of this
Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the
construction of any building or structure, but it sets forth the regulations that shall be
followed if and when a building or structure is proposed to be constructed or a site is
proposed to be developed. This Ordinance of itself, therefore, has no potential for
resulting in significant physical change in the environment, directly or ultimately.
Section 3. Severability. The provisions of this Ordinance are severable and if any
provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional,
or inapplicable to any person or circumstances, such illegality, invalidity,
unconstitutionality, or inapplicability shall not affect or impair any of the remaining
provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their
applicability to other persons or circumstances.
Section 4. Effective Date. This Ordinance shall take effect and be enforced thirty (30)
days following its adoption. However, until July 1, 2020 City will not enforce those portions
of the Ordinance prohibiting the sale the flavored tobacco products or electronic smoking
devices.
Section 5. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to
be posted in at least three (3) public places in the City of Dublin in accordance with
Section 36933 of the Government Code of the State of California.
PASSED, APPROVED AND ADOPTED this _____ day of February, 2020.
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Mayor
ATTEST:
___________________________________
City Clerk
3451014.2
January 14, 2020
SB 343
Senate Bill 343 mandates supplemental materials that have
been received by the City Clerk’s office that relate to an
agenda item after the agenda packets have been distributed
to the City Council be available to the public.
The attached documents were received in the City Clerk’s
office after distribution of the January 14, 2020, City Council
meeting agenda packet.
Item 7.1
From: empiresam64@aol.com <empiresam64@aol.com>
Sent: Sunday, January 12, 2020 1:29 PM
To: John Stefanski <John.Stefanski@dublin.ca.gov>
Subject: RE: Response to City of Dublin's Retail Tobacco Regulations Letter
January 12, 2020
John Stefanski
Assistant to the City Manager
City Manager’s Office
Dear Mr. Stefanski,
My name is Sadeddin Najjar and I am the current owner of Royal Novelties. I am a smoke shop
owner here in Dublin California and I have a few things to say about the city wanting to ban
flavored tobacco and electronic cigarettes. I believe that the use and sales of flavored tobacco
electronic cigarettes should be banned because it brings underaged community to enter the smoke
shop and not just mine but the others in the area as well. I own the biggest smoke shop in the area
and am having trouble with the underage community. They come in and ask for flavored tobacco
and electronic cigarettes and they assume that I will sell it to them, when I DO NOT sell them any
sort of tobacco or products. I turn them away all day long and even card them and send them out of
my business. Having these products attracts them to come into the store and even my employees
have gotten caught selling to them when I wasn’t in the store and received a ticket for selling them
a product, but unintentionally because they would come in suddenly when we are busy and they
didn’t realize that we forgot to ask for ID because they made a mistake. I made sure they cleared the
tickets legally and they even went to a special school to help clear their names and the tickets. I
don’t want to jeopardize my business and investments. We do not want to have this problem and in
order to solve this problem it would be to ban flavored tobacco and electronic cigarettes. It would
stop all the underaged community from entering the businesses such as mine and others and help. I
even get false Yelp reviews that state I sell to underage and I do not sell to them. They get carded
and turned away and in return they post false reviews. Banning these products will stop them from
entering and making false accusations.
Mr. Stefanski please take in consideration of banning these products to help not just the city, but the
local businesses who really mean well and want to help clean the community and protected. We are
doing our best to turn the underage community away, but it will be more helpful if these items get
banned from being sold here in Dublin. In having these bans, it will stop the underage community
from entering the stores and making purchases and lessen the amount of smoking happening from
that community. I completely support the City of Dublin and their final decisions on this situation
and hope that they will follow through and ban these items.
Sincerely,
Sadeddin Najjar
Sadeddin Najjar
Owner of Royal Novelties
7381 Amador Valley Blvd,
Dublin, Ca, 94568