HomeMy WebLinkAboutAGENDA REPORT 2014 0219 CCSA REG ITEM 09F ITEM 9.F.
CITYOF MOORPARK,CALIFORNIA
City Council Meeting
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AGENDA REPORT sr.
TO: Honorable City Council
FROM: David A. Bobardt, Community Development Director
DATE: February 10, 2014 (CC Meeting of 2/19/2014)
SUBJECT: Consider Resolution Concurring with the Community Development
Director's Determination under Section 17.20.030 of the Zoning
Ordinance that Establishments that Primarily Sell Electronic
Cigarettes and Supplies for Use both On-Site and Off-Site Shall Have
the Same Review Requirements as Tobacco Stores and Making a
Determination of Exemption from CEQA in Connection Therewith
BACKGROUND
The Community Development Department has in the past year received several
inquiries from prospective businesses wishing to establish stores that primarily sell
electronic cigarettes and supplies for both on-site and off-site use. This use is not listed
in the use matrices (Sections 17.20.050 and 17.20.060) of the Zoning Ordinance.
Section 17.20.030 allows for the Community Development Director to review a
proposed use and determine the review requirements, based on the use being similar in
nature, character, and intensity to one or more of the permitted uses.
At the present time, one prospective electronic cigarette retailer/vapor bar has notified
staff of the desire to open such a business in the Moorpark Plaza shopping center and
is seeking a permit from the City. Although Section 17.20.030 of the Zoning Ordinance
can be initiated formally by a private entity paying a fee and submitting an application,
staff believes that a determination on this use should be made in advance of any
application and fee, based on the number of inquiries that are being received. A
resolution has been prepared for Council consideration to concur with the Community
Development Director's determination below on the review requirements for this use.
DISCUSSION
Electronic cigarettes, electronic vaping devices, and personal vaporizers, are all
relatively recent inventions that utilize battery-powered heating elements that vaporize
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Honorable City Council
February 19, 2014
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liquid solutions such as propylene glycol, glycerin, or polyethylene glycol 400 mixed with
flavorings and most often nicotine in variable concentrations. The devices are often
made to look like cigarettes, cigars, or pipes. Electronic cigarette vapor bars typically
combine retail sales of electronic cigarettes and supplies with a place where customers
can use the electronic cigarette products. Drinks and snacks may be sold to
accompany the electronic cigarette use.
Electronic cigarettes are not a recognized medical device to quit smoking. The World
Medical Association has determined that electronic cigarettes, "are not comparable to
scientifically-proven methods of smoking cessation," and that, "neither their value as
therapeutic aids for smoking cessation nor their safety as cigarette replacement is
established.
(World Medical Association. Statement on Electronic Cigarettes and Other Electronic Nicotine Delivery Systems. October 2012.
www. wma. netlen/30publications/1Opoliciesle19/index. html)
In addition, the U.S. Food and Drug Administration has raised concerns that electronic
cigarettes, which are often marketed in appealing flavors, can increase nicotine
addiction among young people and may lead youth to try conventional tobacco
products.
(USFDA -E-Cigarette: Questions and Answers. 2010. www.fda.gov/forconsumerslconsumerupdateslucm225210.htm)
Federal law does not regulate the sale of electronic cigarettes. Under California Health
and Safety Code Section 119405, the sale of electronic cigarettes to minors is
prohibited. Although the smoking of tobacco in public places is regulated by State law
under the Labor Code, Government Code, and Health and Safety Code, as well as
locally by the Moorpark Municipal Code, neither State law nor the Moorpark Municipal
Code currently regulates the use of electronic cigarettes in public places. A number of
cities have adopted or are considering local regulations on the use of electronic
cigarettes in public places.
Because 1) electronic cigarettes are primarily used as a method of delivering nicotine, a
substance found in tobacco products, 2) electronic cigarettes are not a recognized
medical device for the cessation of smoking and may increase nicotine addiction, and 3)
State law prohibits the sale of electronic cigarettes to minors, the Community
Development Director has determined that establishments that primarily sell electronic
cigarettes and supplies for on-site or off-site use are most like "Tobacco stores,
including but not limited to cigarette, cigar, and smoking paraphernalia shops," as listed
in Section 17.20.060(A)(26) of the Zoning Ordinance and would be subject to the same
review requirements. Tobacco stores are currently allowed in the Commercial Planned
Development (CPD) Zone after obtaining a Conditional Use Permit (CUP), which
requires a noticed public hearing before the Planning Commission.
It should be noted that the CUP requirement for tobacco stores does not apply to stores
that sell tobacco products where the sale of tobacco products is not a primary use (e.g.
grocery stores, convenience stores, etc.) The same principle would apply to stores that
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Honorable City Council
February 19, 2014
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sell electronic cigarettes and supplies where their sale is not a primary use. Any
change in Federal, State, or City regulations related to electronic cigarette sales or use
could affect this determination.
ENVIRONMENTAL DETERMINATION
The Community Development Director has determined that the determination of review
requirements under Section 17.20.030 is exempt from the California Environmental
Quality Act of 1970 as amended, ("CEQA") on the grounds that the imposition of review
requirements is not a project pursuant to State CEQA Guidelines Section 15061 (b)(3)
because it can be seen with certainty that there is no possibility that the imposition of
review requirements, as distinguished from the future approval of particular uses, may
have a significant effect on the environment. This is because this determination is only
imposing new review requirements on potential E-Cigarette establishments and uses
and is not approving those establishments or uses.
FISCAL IMPACT
None.
STAFF RECOMMENDATION
Adopt Resolution No. 2014---
Attachment:
Resolution No. 2014-
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RESOLUTION NO. 2014---
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, CONCURRING WITH THE
COMMUNITY DEVELOPMENT DIRECTOR'S DETERMINATION
UNDER SECTION 17.20.030 OF THE ZONING ORDINANCE
THAT ESTABLISHMENTS THAT PRIMARILY SELL
ELECTRONIC CIGARETIES AND SUPPLIES FOR USE BOTH
ON-SITE AND OFF-SITE SHALL HAVE THE SAME REVIEW
REQUIREMENTS AS TOBACCO STORES AND MAKING A
DETERMINATION OF EXEMPTION FROM CEQA IN
CONNECTION THEREWITH
WHEREAS, Section 17.20.030 of the Zoning Ordinance allows for the
Community Development Director to review a proposed use that is not listed in the use
matrices in Sections 17.20.050 and 17.20.060 of the Zoning Ordinance and determine
the review requirements, based on the use being similar in nature, character, and
intensity to one or more of the listed uses; and
WHEREAS, information from the World Medical Association and U.S. Food and
Drug Administration has demonstrated that electronic cigarettes are primarily used as a
method of delivering nicotine, a substance found in tobacco products, and electronic
cigarettes are not a recognized medical device for the cessation of smoking and may
increase nicotine addiction; and
WHEREAS, The California Health and Safety Code Section 119405 prohibits the
sale of electronic cigarettes to minors; and
WHEREAS, based on the reasons above, the Community Development Director
has determined that establishments that primarily sell electronic cigarettes and supplies
for on-site or off-site use are most like "Tobacco stores, including but not limited to
cigarette, cigar, and smoking paraphernalia shops," as listed in Section
17.20.060(A)(26) of the Zoning Ordinance and would be subject to the same zoning
limitations and review requirements; and
WHEREAS, the Community Development Director has determined that the
determination of review requirements under Section 17.20.030 is exempt from the
California Environmental Quality Act of 1970, as amended, ("CEQA") on the grounds
that the imposition of review requirements is not a project pursuant to State CEQA
Guidelines Section 15061 (b)(3) because it can be seem with certainty that there is no
possibility that the imposition of review requirements, as distinguished from the future
approval of particular uses, may have a significant effect on the environment. This is
because this determination is only imposing new review requirements on potential E-
Cigarette establishments and uses and is not approving those establishments or uses.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. ENVIRONMENTAL DETERMINATION: The City Council concurs
with the determination of the Community Development Director that the determination of 91
Resolution No. 2014---
Page 2
review requirements under Section 17.20.030 is exempt from the California
Environmental Quality Act of 1970, as amended, ("CEQA") on the grounds that the
imposition of review requirements is not a project pursuant to State CEQA Guidelines
Section 15061 (b)(3) because it can be seem with certainty that there is no possibility
that the imposition of review requirements, as distinguished from the future approval of
particular uses, may have a significant effect on the environment. This is because this
determination is only imposing new review requirements on potential E-Cigarette
establishments and uses and is not approving those establishments or uses.
SECTION 2. DETERMINATION OF REVIEW REQUIREMENTS: The City
Council concurs with the determination of the Community Development Director that
establishments that primarily sell electronic cigarettes and supplies for on-site or off-site
use are most like "Tobacco stores, including but not limited to cigarette, cigar, and
smoking paraphernalia shops," as listed in Section 17.20.060(A)(26) of the Zoning
Ordinance and would be subject to the same review requirements.
SECTION 3. The City Clerk shall certify to the adoption of this resolution and
shall cause a certified resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 19th day of February, 2014.
Janice S. Parvin, Mayor
ATTEST:
Maureen Benson, City Clerk
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