CC 2020-12-08_10a Police Department Review of Ordinance 703MEMORANDUM
TO: CITY COUNCIL
FROM: MICHAEL T. MARTINEZ, POLICE CHIEF
BY:JASON CASTILLO, POLICE SERGEANT
SUBJECT: ONE-YEAR REVIEW OF ORDINANCE NO. 703 RELATING TO THE
POSSESSION OF TOBACCO PRODUCTS BY PERSONS UNDER
TWENTY-ONE AND CITATION STATISTICS RELATED TO ARROYO
GRANDE HIGH SCHOOL
DATE: DECEMBER 8, 2020
SUMMARY OF ACTION:
This update provides a one-year review following the adoption of two ordinances
prohibiting the sale and distribution of electronic cigarettes and vaping products and the
second ordinance prohibiting the possession of all tobacco products and paraphernalia
by persons under age twenty-one.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
There are no financial impacts from this item.
RECOMMENDATION:
It is recommended that the City Council receive and file a status update on Ordinance
No. 703, Arroyo Grande Municipal Code (AGMC) section 8.36.060.
BACKGROUND:
On November 6 2019, City Council introduced Ordinance No. 702 prohibiting all retail
sales of electronic cigarette products and paraphernalia, known as vape products, that
have not received premarket review by the Federal Drug Administration (“FDA”). At the
same meeting, Council also introduced Ordinance No. 703 prohibiting the possession of
all tobacco products and paraphernalia by persons under twenty-one. The ordinances
were passed by the City Council on November 26, 2019, and became effective thirty (30)
days later.
The City Council directed Arroyo Grande Police Department staff to conduct a one-year
look back with a summary of data pertaining to Ordinance 703 and the effectiveness of
the enforcement period, focusing on enforcement at Arroyo Grande High School.
The high school had seen a steady increase in use and possession of tobacco products
during the 2018-2019 school year resulting in a total of 78 offenses on campus according
Item 10.a. - Page 1
CITY COUNCIL
ONE-YEAR REVIEW OF ORDINANCE NO. 703 RELATING TO THE POSSESSION OF
TOBACCO PRODUCTS BY PERSONS UNDER TWENTY-ONE AND CITATION
STATISTICS RELATED TO ARROYO GRANDE HIGH SCHOOL.
DECEMBER 8, 2020
PAGE 2
to the Arroyo Grande Police Department’s School Resource Officer’s presentation to the
City Council on October 22, 2019.
The operative sections of Ordinances 702 and 703 read as follows:
8.36.050. Sale and distribution of electronic cigarettes and vaping
products that require, but have not received, a food and drug
administration order approving their marketing.
B. Sale of electronic cigarettes and vaping products prohibited.
1. No person shall sell or distribute an electronic cigarette or vaping
product in retail establishments, excluding online, including all non-flavored
and flavored vaping products, including mint and menthol, to a person in the
City of Arroyo Grande where the electronic cigarette or vaping product is:
a. is a new tobacco product;
b. requires premarket review under 21 U.S.C. § 387j, as may be
amended from time to time; and
c. does not have a premarket review order under 21 U.S.C. §
387j(c)(1)(A)(i), as may be amended from time to time.
C. Violations. Persons violating any provisions of this section shall be
deemed guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine not to exceed one thousand ($1,000) dollars or by
imprisonment in the county jail for a period not to exceed six months or by
both such fine and imprisonment. Any violations of these provisions shall
constitute a separate offense for each and every day during which such
violation is committed or continued. In addition to any other penalty
authorized by law, violations by licensed tobacco retailers shall also be
subject to suspension or revocation of their license in accordance with the
provisions of AGMC Section 8.38.110.
8.36.060. Possession of tobacco products by persons under twenty-
one. No person under the age of twenty-one (21) shall purchase, receive,
or possess any tobacco product as that term is defined in Section 8.38.020
of Chapter 8.38, which includes electronic smoking devices. Any person,
upon conviction of this section, shall pay a fine of seventy-five dollars ($75)
or perform thirty (30) hours of community service work.
ANALYSIS OF ISSUES:
Pursuant to AGMC section 8.36.050, the Arroyo Grande Police Department (AGPD)
conducted compliance checks at all licensed tobacco establishments to ensure all
Item 10.a. - Page 2
CITY COUNCIL
ONE-YEAR REVIEW OF ORDINANCE NO. 703 RELATING TO THE POSSESSION OF
TOBACCO PRODUCTS BY PERSONS UNDER TWENTY-ONE AND CITATION
STATISTICS RELATED TO ARROYO GRANDE HIGH SCHOOL.
DECEMBER 8, 2020
PAGE 3
unauthorized vape products were removed. The inspections results yielded a 100 percent
compliance rate. During the enforcement period of AGMC section 8.36.060 to date,
AGPD’s School Resource Officer issued two Arroyo Grande High School students
citations for possession of vape or tobacco products. The two citations were issued during
the month of February, just prior to the school closures caused by COVID-19.
Both of the citations in these circumstances were dismissed in the interest of justice by
the San Luis Obispo County Superior Court. The Judge overseeing both cases did not
provide an opinion explaining this ruling; however, the Police Department believes this
Ordinance is an effective tool for law enforcement to educate and discourage underage
tobacco usage. Most low level crimes in San Luis Obispo County are either dismissed or
referred to alternative sentencing. The decision made by the Judge should not affect
ongoing enforcement of the Ordinance.
Staff believes the Ordinance did not have the proper amount of time in place to give the
City an overall view of its effectiveness in reducing the use of tobacco products at the
Arroyo Grande High School. In order to obtain measurable data, the Ordinance needs to
be in effect during a school year with students physically attending the high school. In
addition, Arroyo Grande High School has its own administrative enforcement policy on
the use and possession of vape or tobacco products ranging in four disciplinary actions.
The first offense results in Saturday school and an online educational course called Aspire
that is sponsored by the University of Texas, Anderson Cancer Center, and educates the
student on the dangers of using vape and tobacco products. A second offense results in
Saturday school coupled with the Aspire online course. The third offense results in in-
house suspension which means the student is required to sit outside of the administrator’s
office for an entire day completing assigned school work, and a fourth offense results in
off-campus suspension.
Ordinance No. 703, in conjunction with the Arroyo Grande High School disciplinary
processes, provides two separate avenues of discipline with the issuing of a citation to a
student who has committed a second offense for possession or use of tobacco products.
This is an agreed upon strategy between the School Resource Officer and Arroyo Grande
High School Administration. The school and the Police Department’s goal is to educate
the students and change their behavior.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Receive and file staff report; or
2. Provide other direction to staff.
Item 10.a. - Page 3
CITY COUNCIL
ONE-YEAR REVIEW OF ORDINANCE NO. 703 RELATING TO THE POSSESSION OF
TOBACCO PRODUCTS BY PERSONS UNDER TWENTY-ONE AND CITATION
STATISTICS RELATED TO ARROYO GRANDE HIGH SCHOOL.
DECEMBER 8, 2020
PAGE 4
ADVANTAGES:
A prohibition on possession of tobacco products and paraphernalia by persons under
twenty-one creates a deterrent to persons under twenty-one to possess such products
and will provide law enforcement with another tool.
DISADVANTAGES:
No disadvantages have been identified.
ENVIRONMENTAL REVIEW:
No environmental review is required.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
Item 10.a. - Page 4