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HEARING - Health and Human Services Agency (HHSA), Public Health Division, Tobacco Use Prevention Program and the Planning and Building Department (Planning) recommending the Board:
1) Adopt and authorize the Chair to sign Urgency Ordinance 5197 pursuant to California Government Code Section 65858, extending an interim forty-five day moratorium for ten months and fifteen days, on new tobacco retailer applications for all purposes within the unincorporated areas in El Dorado County, pending the study and development of reasonable regulations (4/5 vote required);
2) Find that the extension interim moratorium is not a “project” under the California Environmental Quality Act (CEQA) and even if it were a project, it would be exempt from the CEQA pursuant to statutory exemption CEQA Guidelines Section 15061 (b)(3)(Common Sense Exemption) because there is no possibility that adoption of this temporary moratorium would have a significant effect on the environment;
3) Receive the requested presentation on tobacco retail zoning and licensing provisions; and
4) Direct staff to return with a tobacco retail license draft ordinance that reflects Board direction.
FUNDING: N/A
Body
DISCUSSION / BACKGROUND:
On December 5, 2023, HHSA, Public Health Division, TUPP and the Planning presented on Tobacco Retail Density and Zoning seeking Board guidance for a Tobacco Retail Zoning Regulation (File ID 23-1992). The Board adopted Resolution of Intention 179-2023, authorizing staff to amend Title 130 of the County Zoning Ordinance. The Board also instructed HHSA and Planning to return with a recommendation for an Urgency Ordinance within 90 days and with more information about zoning and licensing/permitting regulations for retailers and how those provisions differ.
On January 30, 2024, the Board approved Urgency Ordinance 5192, imposing an interim 45-day moratorium on new tobacco retailer applications in unincorporated areas of El Dorado County (File ID 24-0022). The Urgency Ordinance aims to address the 36% increase in tobacco retailers since 2020, particularly concerning for youth, by implementing restrictions on the proximity of tobacco retailers to youth sensitive sites based on research linking density and proximity to increased smoking behaviors. The Urgency Ordinance seeks to protect public health and foster a healthy community.
Urgency Ordinance Extension:
The Board is being asked to approve an Ordinance that will extend Urgency Ordinance 5192 until January 30, 2025. To adopt the Extension Urgency Ordinance the Board is asked to make the following findings, as outlined in the Extension Urgency Ordinance:
A. Under Article XI, Section 7 of the California Constitution, the County 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 County 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 County may as an urgency measure adopt an interim ordinance prohibiting land uses that may be in conflict with contemplated land use regulations that the County is studying or considering or intends to study 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 County has seen a proliferation of new tobacco retailers and is concerned for the health and safety of residents and visitors to the County.
F. The County 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 County has a compelling interest in protecting the public health, safety, and welfare of its residents and businesses, improving health outcomes and encouraging patterns of development that promote a healthy community. In order to create regulations to reduce the availability of tobacco products and tobacco advertising near youth-orientated areas, limit other tobacco retailers, and ensure the effective implementation of the County’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 Board of Supervisors concludes are necessary to protect the public safety, health and welfare of residents and business within the County.
The extension of this interim moratorium, if approved by a vote of at least four-fifths by the Board, will become effective March 15, 2024. In accordance with Government Code Section 65858, the proposed Urgency Ordinance will remain in effect for a duration of ten (10) months and fifteen (15) days, unless the Board decides to extend it as allowed under GC Section 65858.
Lastly, in accordance with GC 65858(d), both HHSA and Planning have published a public notice detailing the steps taken to address the circumstances that prompted the enactment of the ordinance on the County Planning Services webpage, accessible at: https://www.edcgov.us/County%20Public%20Notices/Land%20Use%20and%20Dev%20Services/Pages/Public-Notices-Land-Use-RSS-Feed.aspx.
Direction on Tobacco Retail License Ordinance:
Staff have met with multiple County Departments and both cities within the County to determine which Tobacco Retail restrictions make sense for El Dorado County. From those discussions, the following Tobacco Retail License Restrictions are being recommended by the Health and Human Services Agency and Planning:
For significant tobacco retailers, which is a retailer with 20 percent or more of the floor or display area devoted to tobacco products:
•1,500 feet from sensitive use and same use. Sensitive use is defined as a library, public park, church, community center, public school, or indoor or outdoor recreational facilities that are primarily designed to serve persons under the age of 18.
•Capped one tobacco retailer per 2,500 county unincorporated residents.
For all Tobacco Retailers:
•No free samples, discounts, or coupons.
•Minimum price and pack size.
•Prohibit the sale of single use/disposable e-cigarettes and products not approved by the FDA.
Once the Board provides direction on the general provisions of the Tobacco Retail License Ordinance, staff will develop a draft ordinance and return to the Board for review, input, and approval. With the draft ordinance will be a full fiscal analysis of the provisions of the ordinance.
ALTERNATIVES:
The Board could choose not to extend the Urgency Ordinance and direct staff to pursue other options. The Board could choose not to direct staff to return with a tobacco retail license draft ordinance.
PRIOR BOARD ACTION:
1) 12/05/23, 23-1992, HHSA/Planning and Building, Resolution of Intention to Amend Zoning Code (Title 130)
2) 01/30/24, 24-0022, HHSA/Planning and Building Urgency Ordinance, Tobacco Retailer Businesses
OTHER DEPARTMENT / AGENCY INVOLVEMENT:
County Counsel
CAO RECOMMENDATION:
Approve as recommended.
FINANCIAL IMPACT:
The adoption of the Extension Urgency Ordinance presents the possibility of lost tax revenue from new retailers who cannot open a new tobacco retail location during the moratorium. Funding for staff time will be sourced from the California Department of Public Health, Tobacco Use Prevention Program.
CLERK OF THE BOARD FOLLOW UP ACTIONS:
1) If adopted, the Clerk of the Board will obtain the Chair's signature on the Urgency Ordinance;
2) If adopted, the Clerk of the Board will publish the Urgency Ordinance to include the final Board vote within 15 days after Final Passage; and
3) If adopted, the Clerk of the Board will send the full Urgency Ordinance to Municode for codification following Final Passage.
STRATEGIC PLAN COMPONENT:
Safe and Healthy Communities
CONTACT:
Olivia Byron-Cooper, MPH, Director, Health and Human Services Agency
Rob Peters, Deputy Director of Planning, Planning and Building Department