Title
Health and Human Services Agency (HHSA) and Planning and Building Department recommending the Board:
1) Adopt and authorize the Chair to sign Urgency Ordinance 5192, pursuant to California Government Code Section (GC) 65858, adopting an interim moratorium on new tobacco retailer applications for all purposes within the unincorporated areas of the County of El Dorado pending the study and development of reasonable regulations, with the Urgency Ordinance being in effect for forty-five (45) days from the date of adoption, unless extended by the County Board of Supervisors; and
2) Find that the urgency ordinance is not a “project” under the California Environmental Quality Act (CEQA) and even if it were a project 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 (4/5 vote required).
FUNDING: N/A
Body
DISCUSSION / BACKGROUND:
On December 5, 2023, HHSA, in collaboration with the Planning and Building Department, delivered a presentation on Tobacco Retail Density and Zoning Education (File ID 23-1992). HHSA and Planning and Building also requested Board direction for staff regarding the development of a Tobacco Retail Zoning Regulation. The Board proceeded to adopt and authorize the Chair to execute Resolution of Intention 179-2023, directing staff to initiate the development of an amendment to Title 130 of the County Zoning Ordinance. Subsequently, the Board instructed HHSA and the Planning and Building Department to return within 90 days with a recommendation for an Urgency Ordinance. This Urgency Ordinance will adopt a moratorium on new tobacco retailer applications for all purposes within the unincorporated areas of the County, pending a study of a more permanent ordinance.
The purpose of this Urgency Ordinance is to protect the public health, safety, and welfare of its residents and businesses and to improve health outcomes, by encouraging patterns of development that promote a healthy community. El Dorado County has seen a proliferation of tobacco retailer businesses since 2020 (an increase of 36%) and the County is concerned about the harmful effects of tobacco on County residents and especially youth. Research indicates that the density and proximity of tobacco retailers increase smoking behaviors and policies to reduce tobacco retailer density have shown to be effective. The Urgency Ordinance aims to achieve this goal by temporarily halting tobacco retailer applications, allowing the County to proceed with the implementation of restrictions on the proximity of tobacco retail sales venues. Presently, the County does not have any zoning restrictions in place for tobacco retailers.
To adopt the Urgency Ordinance the Board is asked to make the following findings, as outlined in the 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 of El Dorado 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 County of El Dorado’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.
This proposed Urgency Ordinance will take effect immediately upon adoption by a vote of at least four-fifths by the Board. Pursuant to Government Code Section 65858, the proposed Urgency Ordinance will be in force for a period of forty-five (45) days, unless extended by the Board as stipulated in Government Code Section 65858.
HHSA and Planning and Building will continue to explore licensing and zoning opportunities, as directed by the Board on December 5, 2023.
ALTERNATIVES:
The Board could choose not to proceed with this Urgency Ordinance and direct staff to pursue other options.
PRIOR BOARD ACTION:
12/05/24, 23-1992, HHSA/Planning and Building, Resolution of Intention to Amend Zoning Code (Title 130)
OTHER DEPARTMENT / AGENCY INVOLVEMENT:
County Counsel
CAO RECOMMENDATION:
Approve as recommended.
FINANCIAL IMPACT:
The adoption of the 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:
Healthy Communities, Good Governance
CONTACT
Olivia Byron-Cooper, MPH, Director, Health and Human Services Agency
Rob Peters, Deputy Director of Planning, Planning and Building Department