CC 2019-08-13_09a Introduction of Ordinance Amending Municipal Code_SmokingMEMORANDUM
TO: CITY COUNCIL
FROM: TERESA MCCLISH, COMMUNITY DEVELOPMENT DIRECTOR
CITY ATTORNEY, HEATHER K. WHITHAM
SUBJECT: CONSIDERATION OF INTRODUCTION OF AN ORDINANCE
AMENDING SECTIONS OF THE ARROYO GRANDE MUNICIPAL CODE
RELATING TO SMOKING AND THE REGULATION OF TOBACCO
RETAILERS
DATE: AUGUST 13, 2019
SUMMARY OF ACTION:
Introduction of an Ordinance modifying existing ordinances prohibiting smoking in various
areas of the City to specifically include electronic cigarettes and cannabis and updating
certain sections regulating tobacco retailers to be consistent with modifications to State
law.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
No impact to financial or personnel resources.
RECOMMENDATION:
Introduce an Ordinance amending sections of the Arroyo Grande Municipal Code relating
to smoking and the regulation of tobacco retailers.
BACKGROUND:
The City currently prohibits smoking in all passive or active City parks, which are defined
to include paths, trails, pedestrian bridges, public open spaces and sports facilities
(Section 12.20.060.E). The definition of “smoking” contained in Section 12.20.060.E is
outdated and does not include many newer methods of “smoking” using alternative
nicotine delivery devices that have gained popularity, such as electronic cigarettes. The
City also prohibits smoking in arcades and the sale of “cigarettes” by arcade operators
(Section 16.52.050); however, Section 16.52.050 does not define “cigarettes.”
In addition, the City regulates the sale of tobacco products (Chapter 8.36). In 2016, the
legal age for smoking tobacco products was raised from eighteen to twenty-one. As such,
Chapter 8.36 of the AGMC needs to be amended to comport with the change in State
law. The City also regulates the licensing of tobacco retailers (Chapter 8.38). Chapter
8.38 includes an outdated definition of tobacco product, which does not include electronic
cigarettes.
Item 9.a. - Page 1
CITY COUNCIL
CONSIDERATION OF INTRODUCTION OF AN ORDINANCE AMENDING SECTIONS
OF THE ARROYO GRANDE MUNICIPAL CODE RELATING TO SMOKING AND THE
REGULATION OF TOBACCO RETAILERS
AUGUST 13, 2019
PAGE 2
ANALYSIS OF ISSUES:
The City prohibits smoking in its public parks, which are defined to include paths, trails,
pedestrian bridges, public open spaces and sports facilities. The City also prohibits
smoking in arcades. In addition to the laws contained in the AGMC, State law prohibits
smoking in the following locations: (1) within twenty feet of main entrances, exits and
operable windows of public buildings; (2) within playgrounds or youth sports facilities; (3)
in indoor work places including bars and restaurants (with certain exceptions); (4) in day
care facilities; and (5) in a car when a child is present. In addition, State law prohibits the
smoking or ingestion of cannabis or cannabis products in all public places and wherever
smoking tobacco is prohibited.
Since the City’s adoption of its smoking regulations, electronic cigarettes and other forms
of nicotine delivery devices have greatly increased in popularity. In addition, recreational
cannabis is now legal in California.
At the May 28, 2019 City Council meeting, Mayor Ray Russom requested and Council
Member Lan George concurred, that the City’s ordinance governing smoking be revised
to include electronic cigarettes. Electronic cigarettes are battery-operated devices, often
designed to resemble a cigarette, that deliver and emit a nicotine-containing aerosol.
Electronic cigarettes are considered electronic delivery devices and have many names.
They are frequently referred to as e-cigs, e-hookahs, hookah pens, vapes and vape pens.
The California Department of Public Health has advised that the electronic cigarette
aerosol that users inhale from the device and exhale can contain harmful and potentially
harmful substances. While the Department of Public Health acknowledges electronic
cigarettes may contain fewer toxic chemicals than regular cigarettes, electronic cigarette
aerosol can contain nicotine, heavy metals like lead, volatile organic compounds, and
cancer-causing agents.
The Ordinance presented for introduction expands definitions of smoking contained within
the AGMC to include electronic cigarettes and cannabis.
The Ordinance also amends sections of the AGMC regulating the sale of tobacco to
reflect the change in State law increasing the legal age to purchase and smoke tobacco
products from eighteen to twenty-one.
ADVANTAGES:
Modifying the City’s AGMC definitions of smoking to include other forms of nicotine
delivery devices and cannabis will better protect the citizens of Arroyo Grande and its
visitors from the harmful effects of second hand smoke. Amending the portions of the
AGMC regulating tobacco retailers will ensure the AGMC is consistent with State law.
Item 9.a. - Page 2
CITY COUNCIL
CONSIDERATION OF INTRODUCTION OF AN ORDINANCE AMENDING SECTIONS
OF THE ARROYO GRANDE MUNICIPAL CODE RELATING TO SMOKING AND THE
REGULATION OF TOBACCO RETAILERS
AUGUST 13, 2019
PAGE 3
DISADVANTAGES:
No disadvantages identified.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Introduce the Ordinance amending sections of the Arroyo Grande Municipal Code
relating to smoking and the regulation of tobacco retailers; or
2. Modify and introduce the Ordinance; or
3. Provide direction to staff.
ENVIRONMENTAL REVIEW:
This Ordinance is not a “project” under the California Environmental Quality Act (CEQA)
pursuant to CEQA Guideline Section 15378(b)(5), which applies to organizational or
administrative activities of governments that will not result in direct or indirect physical
changes in the environment. In accordance with the California Environmental Quality Act
(CEQA) and the State CEQA Guidelines, it has been determined that this item is not
subject to CEQA Per Section 15061(b)(3) of the Guidelines, regarding the common sense
rule that where it can be seen with certainty that there is no possibility of a significant
effect on the environment, an activity is not subject to CEQA.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted in accordance with Government Code Section 54954.2.
Item 9.a. - Page 3
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE AMENDING SECTIONS OF THE ARROYO
GRANDE MUNICIPAL CODE RELATING TO SMOKING AND
THE REGULATION OF TOBACCO RETAILERS
WHEREAS, in order to protect the public health, safety, and general welfare of its citizens,
the Arroyo Grande Municipal Code regulates smoking and activities related to smoking in
various provision of the Arroyo Grande Municipal Code; and
WHEREAS, the City Council finds it is in the best interest of the City and its residents to
amend the definitions related to smoking contained in the Arroyo Grande Municipal Code
in order to include electronic smoking devices and cannabis; and
WHEREAS, due to modifications to State law, the City Council also desires to update
sections of the Arroyo Grande Municipal Code related to the regulation of tobacco
retailers in order to remain consistent with State law.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE DOES
ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. Subsection E, of Section 12.20.060 of Chapter 12.20 of Title 12 of the
Arroyo Grande Municipal Code is hereby amended to read as follows:
12.20.060 – Behavior in parks.
No person using a park shall:
E. Smoke in any passive or active city park, including dedicated public parks,
paths, trails, pedestrian bridges, public open spaces and sports facilities. For the
purposes of this chapter, “smoke” means inhaling, exhaling, burning, or carrying any
lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant
product, including cannabis and cannabis products, intended for inhalation, whether
natural or synthetic, in any manner or in any form. To “smoke” includes the use of an
electric smoking device that creates an aerosol or vapor, in any manner or in any form,
or the use of any oral smoking device for the purpose of circumventing the prohibition
of smoking.
SECTION 3. Subsection C.8 of Section 16.52.050 of Chapter 16.52 of Title 16 of the
Arroyo Grande Municipal Code is hereby amended to read as follows:
16.52.050 – Arcades.
C. Minimum Development and Performance Standards.
Item 9.a. - Page 4
ORDINANCE NO.
PAGE 2
8. Smoking and Drinking. No alcoholic beverages or tobacco products
shall be sold or consumed on the premises, and there shall be no smoking within the
arcade. For the purposes of this chapter, “smoking” means inhaling, exhaling, burning,
or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated
tobacco or plant product, including cannabis and cannabis products, intended for
inhalation, whether natural or synthetic, in any manner or in any form. “Smoking”
includes the use of an electric smoking device that creates an aerosol or vapor, in any
manner or in any form, or the use of any oral smoking device for the purpose of
circumventing the prohibition of smoking. “Tobacco product” shall have the same
meaning as that term is defined in Business and Professions Code Section 22950.5 as
that section may be amended from time to time.
SECTION 4. Sections 8.36.010 and 8.36.020 of Chapter 8.36 of Title 8 of the Arroyo
Grande Municipal Code are hereby amended to read as follows:
Section 8.36.010 – Posting of signs.
Any person, business, tobacco retailer, or other establishment subject to this
chapter shall post conspicuously, at each point of purchase, a notice stating that selling
tobacco products to anyone under twenty-one (21) years of age is illegal and subject to
penalties. The notice must comply in all respects with Business and Professions Code
Section 22952 as such section may be amended from time to time. For the purposes of
this chapter, “tobacco products” shall have the same meaning as defined in Business
and Professions Code Section 22950.5 as such section may be amended from time to
time.
Section 8.36.020 – Sales to minors.
No person, business, tobacco retailer, or owner, manager or operator of any
establishment subject to this chapter shall sell, offer to sell or permit to be sold any
tobacco product as defined by Business and Professions Code Section 22950.5 as such
section may be amended from time to time, to an individual without requesting and
examining identification establishing the purchaser’s age as twenty-one (21) years of
age or older. This section does not apply to the sale, giving or furnishing of a tobacco
product to active duty military personnel who are eighteen (18) years of age or older.
An identification card issued by the United States Armed Forces shall be used as proof
of age for this purpose.”
SECTION 5. The definition of “Tobacco product” contained in Section 8.38.020 of
Chapter 8.38 of Title 8 of the Arroyo Grande Municipal Code is hereby amended to read
as follows:
8.38.020 – Definitions.
The following words and phrases, whenever used in this chapter, shall have the
meanings defined in this section unless the context clearly requires otherwise:
“Tobacco product” means any of the following:
Item 9.a. - Page 5
ORDINANCE NO.
PAGE 3
1. A 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, or snuff.
2. An electric device that delivers nicotine or other vaporized liquids to the
person inhaling from the device, including, but not limited to, an electronic
cigarette, cigar, pipe, or hookah.
3. Any component, part, or accessory of a tobacco product, whether or not sold
separately.
“Tobacco product” does not include a 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 the product is marketed and sold solely for such
an approved purpose.”
SECTION 6. This Ordinance is not a “project” under the California Environmental Quality
Act (CEQA) pursuant to CEQA Guideline Section 15378(b)(5), which applies to
organizational or administrative activities of governments that will not result in direct or
indirect physical changes in the environment. In accordance with the California
Environmental Quality Act (CEQA) and the State CEQA Guidelines, it has been
determined that this item is not subject to CEQA Per Section 15061(b)(3) of the
Guidelines, regarding the common sense rule that where it can be seen with certainty
that there is no possibility of a significant effect on the environment, an activity is not
subject to CEQA.
SECTION 7. A summary of this Ordinance shall be published in a newspaper published
and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council
meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text
of the proposed Ordinance shall be posted in the office of the City Clerk. Within fifteen
(15) days after adoption of the Ordinance, the summary with the names of those City
Council members voting for and against the Ordinance shall be published again, and the
City Clerk shall post a certified copy of the full text of such adopted Ordinance. This
Ordinance shall take effect and be in full force and effect thirty (30) days after its passage.
SECTION 8. This Ordinance shall take effect and be in full force and effect thirty (30)
days after its passage.
SECTION 9. If any section, subsection, sentence, clause, or phrase of this Ordinance is
for any reason held to be 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 and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
Item 9.a. - Page 6
ORDINANCE NO.
PAGE 4
On motion by Council Member ______, seconded by Council Member _______, and by
the following roll call vote to wit:
AYES:
NOES:
ABSENT:
the foregoing Ordinance was adopted this ____ day of _______, 2019.
Item 9.a. - Page 7
ORDINANCE NO.
PAGE 5
___________________________________
CAREN RAY RUSSOM, MAYOR
ATTEST:
___________________________________
KELLY WETMORE, CITY CLERK
APPROVED AS TO CONTENT:
________________________________
JIM BERGMAN, CITY MANAGER
APPROVED AS TO FORM:
___________________________________
HEATHER K. WHITHAM, CITY ATTORNEY
Item 9.a. - Page 8