HomeMy WebLinkAboutD-1 Staff Report - First Reading Ordinance Code Amendment No. 249 - Tobacco and Vaping ShopsSCHEDULED ITEM/PUBLIC HEARING
D-1
TO:
VIA:
FROM:
DATE:
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
SERGIO GONZALEZ, CITY MANAGER
MATT MARQUEZ, ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR
JANUARY 19, 2021
SUBJECT: FIRST READING OF AN ORDINANCE FOR CODE AMENDMENT NO. 249
ADDING SECTION 88.42.240 TO THE AZUSA MUNICIPAL CODE AND
AMENDING SECTIONS 88.22.065, 88.24.005, 88.26.005, AND 88.70.020 TO
REGULATE TOBACCO AND VAPING SHOPS/RETAILERS.
BACKGROUND:
The City of Azusa Municipal Code (AMC) does not explicitly address retail tobacco/vaping shops, and
over the last few years, the City has experienced a significant increase in the number of these types of
businesses. On October 19, 2020, the City Council directed staff to develop regulations for these uses.
The City has determined that it is appropriate to ensure that retailers comply with tobacco control laws
and the City’s business standards to protect the health, safety and welfare of its residents and visitors.
On October 19, 2020 and November 2, 2020, the City Council directed staff to develop regulations on
these uses. On December 9, 2020, the City of Azusa’s Planning Commission, by a vote of 5 to 0,
recommended that the City Council adopt a Draft Ordinance (Attachment 2) with recommended
changes. The recommended changes are discussed in the Analysis section below.
RECOMMENDATION:
Staff recommends that the City Council take the following actions:
1)Find the requested project exempt from the California Environmental Quality Act (CEQA); and
2)Open the Public Hearing, waive further reading, and introduce by title only Ordinance No. 2021-
01:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA
ADOPTING CODE AMENDMENT NO. 249 ADDING SECTION 88.42.240 TO THE
AZUSA MUNICIPAL CODE AND AMENDING SECTIONS 88.22.065, 88.24.005,
88.26.005, AND 88.70.020 TO REGULATE TOBACCO AND VAPING SHOPS AND
DETERMINING THE ORDINANCE TO BE EXEMPT FROM CEQA
APPROVED FIRST
READING ORDINANCE
CITY COUNCIL 1/19/2021
Code Amendment No. 249 – First Reading of Draft Ordinance – Tobacco and Vaping Shops/Retailers
January 19, 2021
Page 2 of 4
ANALYSIS:
Code Amendment No. 249 - Summary
On August 28, 2020, California Governor Gavin Newsom signed into law Senate Bill 793 (SB 793),
prohibiting the sale of most flavored tobacco products across the state. Under the legislation, retailers
are banned from selling flavored electronic cigarettes and other vapor products, menthol cigarettes, non-
premium flavored cigars and cigarillos, and other flavored smokable, vapable and smokeless tobacco
products. Additional standards such as zoning/land use designations, limits on number and location of
retailers, and other operational requirements, fall under the authority of individual municipalities. To
that end, the attached draft ordinance sets forth a number of proposed additional regulations governing
tobacco and vaping retail establishments in the City of Azusa.
The code amendment will specify location and operation standards for tobacco and vaping
shops/retailers. Currently, tobacco and vaping shops/retailers are classified as general retail and allowed
in most Corridors. The code amendment will specify the following as it relates to tobacco and vaping
shops/retailers:
• Create a specific land use designation
• Provide related definitions
• Permit tobacco and vaping shops/retailers only in the DW (West End Industrial) District zone
and DWL (West End Light Industrial) District zone with an approved Minor Use Permit
• Require distance requirements from sensitive uses where children may gather
• Establish Development and Operational Standards
• Provide specification and requirements on amortization period as it relates to nonconforming
tobacco and vaping shops/retailers not located in the permitted zones, with opportunities for
extension of such amortization periods under certain narrow circumstances.
If the code amendment is adopted, the City would have a total of 14 non-conforming tobacco and
vaping shops that will adhere to the amortization requirements. Below is a list of the existing tobacco
and vaping shops in the city by zone:
Zone Quantity
CAH Arrow Highway Corridor 3
CSA South Azusa Avenue Corridor 1
CAZ Azusa Avenue Corridor 1
DT TOD Downtown District 4
GOLD TOD Gold Line District 2
RT 66 TOD Route 66 District 1
DU-MU University District – Mixed Use 1
NC Neighborhood Center 1
Total 14
Upon code amendment adoption, none of the existing tobacco retailers would be located in a permitted
zone designation. In order to conform to the new ordinance, these tobacco retailers will need to relocate
into a permitted zone at the conclusion of the amortization period. The information above is a summary
of the proposed code amendment. The attached draft ordinance and Planning Commission Meeting Staff
Code Amendment No. 249 – First Reading of Draft Ordinance – Tobacco and Vaping Shops/Retailers
January 19, 2021
Page 3 of 4
Report on December 9, 2020 is more detailed and provides more information on each related item in the
code amendment.
Planning Commission’s Recommended Changes
As stated above, the Planning Commission recommended that the City Council adopt the Draft
Ordinance for Code Amendment No. 249 with the recommended changes in Section 88.42.240.E.4:
The City shall have no more than 1 tobacco/vaping shops for every 4,000 8,000 residents, to a
maximum of 14 7 tobacco/vaping shops, within the City’s boundaries including existing and
proposed new tobacco/vaping shops.
Planning Commissioners brought up multiple reasons for the changes. In summary, the Commission
believed that by increasing the ratio to 1 shop for every 8,000 residents and limiting the maximum
number to 7 shops (due to an over-concentration of these uses), would promote healthy communities,
and ensure that these shops are not in the vicinity of youth-populated areas.
Additionally, another change made was to ensure that if the existing tobacco and vaping shops wished to
relocate in the DW (West End Industrial District) and DWL (West End Light Industrial District) zones,
it would be done on a first-come, first-serve basis until the maximum number of shops reaches 7. This
approach provides existing retailers an incentive to relocate sooner and prior to the expiration of the
amortization period. However, this does not prohibit new tobacco shops that seek to locate within the
DW or DWL zones. The proposed limit on the maximum of 7 shops would be enforced on new or
existing City shops seeking to relocate within the DW or DWL zones. The change is included in
subsection I:
4. For existing tobacco or vaping shops that seek to relocate within the DW or DWL zone, their
MUP applications will be reviewed on a first-come, first-serve basis until the maximum of 7
tobacco/vaping shops have been reached.
FISCAL IMPACT:
There is no fiscal impact associated with introducing a first reading of the Ordinance.
Prepared by: Reviewed by:
Robert (Dean) Flores Manuel Muñoz
Assistant Planner Planning Manager
Reviewed by: Fiscal Reviewed by:
Matt Marquez Talika M. Johnson
Director of Economic and Community Development Director of Administrative Services
Reviewed by: Reviewed and Approved by:
Marco Martinez Sergio Gonzalez
City Attorney, BB&K City Manager
Code Amendment No. 249 – First Reading of Draft Ordinance – Tobacco and Vaping Shops/Retailers
January 19, 2021
Page 4 of 4
Attachments:
1) December 9, 2020 Planning Commission Staff Report
2) Draft Ordinance No. 2021-01
ECONOMIC AND COMMUNITY DEVELOPMENT DEPARTMENT
REPORT TO THE PLANNING COMMISSION
AGENDA ITEM
F-2
TO: CHAIRPERSON AND MEMBERS OF THE PLANNING COMMISSION
FROM: ROBERT (DEAN) FLORES, ASSISTANT PLANNER
VIA: MATT MARQUEZ, DIRECTOR OF ECONOMIC AND COMMUNITY
DEVELOPMENT
DATE: DECEMBER 9, 2020
SUBJECT: RECOMMEND APPROVAL TO CITY COUNCIL OF CODE AMENDMENT
NO. 249, WHICH ADDS SECTION 88.42.240 TO THE AZUSA MUNICIPAL
CODE AND AMENDS SECTIONS 88.22.065, 88.24.005, 88.26.005, AND
88.70.020 TO REGULATE TOBACCO AND VAPING SHOPS/RETAILERS.
___________________________________________________________________________
RECOMMENDATION
Staff recommends that the Planning Commission open the public hearing, hear any public
comments, and approve Resolution No. 2020-PC26 (recommending that the City Council adopt
Code Amendment No. 249).
BACKGROUND
The City of Azusa Municipal Code (AMC) does not explicitly address retail tobacco/vaping shops,
and over the last few years, the City has experienced a high level of interest in these types of
businesses. On October 19, 2020, the City Council directed staff to develop regulations for these
uses. The City has determined that is appropriate to ensure that retailers comply with tobacco
control laws and the City’s business standards to protect the health, safety and welfare of its
residents and visitors.
Attachment 1
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 2 of 10
ANALYSIS
Land Use Requirements
Tobacco is the leading cause of preventable death in the United States and kills nearly 6 million
people each year globally. According to the Centers for Disease Control and Prevention, more than
400,000 deaths in the United States each year are attributable to tobacco use, including one-third
of all cancer deaths. In an effort to keep tobacco products and smoking paraphernalia out of the
hands of minors, staff has proposed requiring tobacco and vaping retail establishments in the City
to obt ain a Minor Use Permit (MUP). Requiring an MUP will not unduly burden legitimate
business activities of retailers who sell such products to adults and will allow the City to regulate
the operation of lawful businesses and discourage violations of federal, state, and local tobacco
control and youth tobacco access laws. To that end, the attached ordinance sets forth a proposed
set of regulations governing tobacco and vaping retail establishments in the City.
Upon adoption of the attached ordinance, it would be unlawful for any person to act as a tobacco
or vaping shop in the City without first obtaining and maintaining a valid MUP and City business
license. Additionally, tobacco and vaping shops will only be permitted — with an approved MUP
— in the DW (West End Industrial District) and DWL (West End Light Industrial District) zones.
In addition, the number of tobacco/vaping shops will be limited to 1 shop for every 4,000 residents,
to a maximum of 14 tobacco/vaping shops. Eligibility to operate as a tobacco or vaping shop will
be limited in that no MUP or business license may be issued, and no existing business license may
be renewed, that authorizes tobacco retailing within 1,000 feet of a “Youth-Populated Area.” A
"Youth-Populated Area" means a parcel in the City that is occupied by any of the following:
a. A private or public preschool, kindergarten, elementary, middle, or high school,
b. A library open to the public,
c. A playground open to the public,
d. A youth center, defined as a facility where children, ages 6 to 17, inclusive, come
together for programs and activities,
e. A recreation facility open to the public, defined as an area, place, structure, or other
facility that is used either permanently or temporarily for community recreation, even
though it may be used for other purposes. "Recreation facility" includes, but is not
limited to, a gymnasium, playing court, playing field, and swimming pool,
f. An arcade open to the public,
g. A park open to the public or to all the residents of a private community, or
h. A licensed child-care facility or preschool as defined in California Health & Safety
Code § 1596.78
Additionally, a tobacco or vaping shop will not be able to operate within 1,000 feet of another
tobacco or vaping shop. A tobacco or vaping shop lawfully operating on the effective date of the
ordinance, which does not conform to the provisions of the restricted areas mentioned above, shall
be considered nonconforming and must be terminated and removed within three years of the
effective date of the ordinance. The establishment may apply for up to two one-year extensions
of time within which to terminate the nonconforming use. However, the total amortization period
cannot exceed five years. The attached ordinance’s proposed changes to the AMC are set fort h
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 3 of 10
below:
88.22.065 (Allowable Uses in Neighborhoods)
(Table 2-1)
LAND USE
TYPE (1)
PERMIT REQUIRED BY ZONE Specific Use Regulations
NC NG1 NG2 NG3
L MED MOD L MED MOD L MED MOD
RETAIL SALES
General retail,
except with any
of the following
P — — — — — — — — —
[Indent]
Tobacco/Vaping
Shop
— — — — — — — — — — 88.42.240
[Insert hyperlink]
88.24.005. (Allowable Uses in Districts)
(Table 2-2)
LAND USE TYPE (1) PERMIT REQUIRED BY ZONE Specific Use
Regulations
DE DW DWL
RETAIL SALES
General retail, except with any of
the following features
P P P
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 4 of 10
[Indent] Tobacco/Vaping Shop — MUP MUP 88.42.240 [Insert
hyperlink]
88.24.005. (Allowable Land Uses and Permit Requirements for University District (DU))
(Table 2-2)
LAND USE TYPE (1) PERMIT REQUIRED BY ZONE Specific Use
Regulations
DU-MU DU-RM DU-RMO
RETAIL SALES
General retail, except with any of
the following features
P — —
[Indent] Tobacco/Vaping Shop — — — 88.42.240 [Insert
hyperlink]
88.26.005. (Allowable Uses in Corridors)
(Table 2-3)
LAND USE TYPE (1) PERMIT REQUIRED BY ZONE Specific Use
Regulations
CAZ CSG CSA CAH CFB
RETAIL SALES
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 5 of 10
General retail, except
with any of the
following features
P — P P P
[Indent]
Tobacco/Vaping
Shop
— — — — — 88.42.240 [Insert
hyperlink]
“88.42.240. – Tobacco and Vaping Shops
A. Where allowed by Article 2 (Urban Standards), a tobacco/vaping shop shall comply with the regulations
of this section.
B. Purpose. The purpose and intent of this Section is encourage responsible tobacco retailing and to
discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or
distribution of tobacco and nicotine products to youth in a manner consistent with regulations imposed
by federal or state law. As a result, this Section provides concentration, separation, spacing and
distance, and operational standards for tobacco and vaping shops in the City of Azusa in order to
maintain the City's character, the diversity and vitality of the community's commercial areas, and protect
the health, safety and welfare of Azusa’s youth, its residents and visitors.
C. Definitions. For the purposes of this section, the definitions contained herein shall govern the
meanings of the following terms, words, phrases, and their derivations:
1. “Drug Paraphernalia” has the meaning set forth in California Health and Safety Code section
11014.5, as that section may be amended from time to time.
2. “Electronic smoking device” means an electronic device that can be used to deliver an inhaled dose
of nicotine, or other substances, including any component, part or accessory of such device
whether or not sold separately. This definition includes any such device, whether manufactured,
distributed, marketed, or sold as an electronic cigarette (E-Cigarette), an electronic cigar, an
electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or destript
including any component, part or accessory of such device, whether or not sold separately.
“Electronic smoking device” does not include any product specifically approved by the United
States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease,
where such product is marketed and sold separately for such an approved purpose. .
3. Flavored tobacco product" means any tobacco product that imparts a characterizing flavor.
4. “Hookah Tobacco Lounge” shall mean a restaurant that operates within the City pursuant to a valid
City business license that also engages, as an accessory use, in the retail sale of shisha tobacco
products, Hookah, and Hookah smoking accessories. “Hookah” is defined as type of water pipe,
used to smoke shisha or other Tobacco Products, with a long flexible tube for drawing aerosol
through water. Components of a Hookah may include heads, stems, bowls, and hoses.
5. “Hookah Tobacco Retailer” shall mean a tobacco retailer that is engaged in the retail sale of shisha
tobacco products, hookah, and hookah smoking accessories.
6. “Marijuana Paraphernalia” shall mean any instrument or object intended for use or designed for
use in ingesting, inhaling, or otherwise introducing cannabis, marijuana, hashish, or hashish oil into
the human body, such as the following:
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 6 of 10
a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens,
permanent screens, hashish heads, or punctured metal bowls.
b. Water pipes.
c. Carburetion tubes and devices.
d. Smoking and carburetion masks.
e. Roach clips, meaning objects used to hold burning material, such as a cannabis cigarette that
has become too small or too short to be held in the hand.
f. Miniature cocaine spoons, and cocaine vials.
g. Chamber pipes.
h. Carburetor pipes.
i. Electric pipes.
j. Air-driven pipes.
k. Chillums.
l. Bongs.
m. Ice pipes or chillers.
7. “Tobacco” shall mean any preparation of the nicotine-rich leaves of the tobacco plant, which are
cured by a process of drying and fermentation for use in smoking, chewing, absorbing, dissolving,
inhaling, snorting, sniffing, or ingesting by any other means into the body.
8. “Tobacco Paraphernalia” shall mean any instrument or object that is designed for the smoking or
ingestion of lawful tobacco products including without limitation cigarette papers, cigarette
wrappers, cigar wrappers, blunt wraps, tobacco pipes, holders, clips, and cigarette rolling
machines. "Tobacco paraphernalia" excludes "drug paraphernalia" as that term is defined in Health
and Safety Code Section 11364.5(d), as amended from time to time.
9. “Tobacco Product” shall mean any product in leaf, flake, plug, liquid, or any other form, containing
nicotine derived from the tobacco plant, or otherwise derived, which is intended to enable human
consumption of the tobacco or nicotine in the product, whether smoked, chewed, absorbed,
dissolved, inhaled, snorted, sniffed, or ingested by any other means. For the purposes of this
chapter, the term “tobacco product” excludes any product that has been specifically approved by
the United States Food and Drug Administration (FDA) for sale as a tobacco/smoking cessation
product or for other medical purposes, where such product is marketed and sold solely for such an
approved purpose.
10. “Tobacco or Vaping Shop” means any place where a person sells, offers for sale, or does or offers
to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia,
or who distributes free or low-cost samples of tobacco products or tobacco paraphernalia.
D. Permit Requirement. No person shall cause or permit the creation, operation, or intensification of
any of any tobacco or vaping shop use without first obtaining and maintaining a minor use permit
pursuant to Chapter 88.51.040 (Use Permit and Minor Use Permit). The requirements of this section
do not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the
following conditions are met:
1. The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter
2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code.
2. The hookah tobacco retailer does not permit any person under 21 years of age to be present or
enter the premises at any time.
3. The hookah tobacco retailer shall operate in accordance with all relevant state and local laws
relating to the sale of tobacco products.
4. If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the
hookah tobacco retailer shall operate in accordance with all state and local laws relating to the
consumption of tobacco products on the premises of a tobacco retailer, including, but not limited
to, Section 6404.5 of the Labor Code.
E. Location Requirements.
1. No tobacco or vaping shop shall be established within 1,000 feet of a Youth-Populated Area as
measured by a straight line from the nearest point of the property line of the parcel on which the
Youth-Populated Area is located to the nearest point of the property line of the parcel on which the
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 7 of 10
applicant's business is located. For the purpose of this subsection , a "Youth-Populated Area"
means a parcel in the City that is occupied by any of the following:
a. A private or public preschool, kindergarten, elementary, middle, or high school,
b. A library open to the public,
c. A playground open to the public,
d. A youth center, defined as a facility where children, ages 6 to 17, inclusive, come together for
programs and activities,
e. A recreation facility open to the public, defined as an area, place, structure, or other facility that
is used either permanently or temporarily for community recreation, even though it may be used
for other purposes. "Recreation facility" includes, but is not limited to, a gymnasium, playing
court, playing field, and swimming pool,
f. An arcade open to the public,
g. A park open to the public or to all the residents of a private community, or
h. A licensed child-care facility or preschool as defined in California Health & Safety Code §
1596.78
2. No tobacco or vaping shop shall be located within 1,000 feet of another tobacco or vaping shop as
measured by a straight line from the nearest point of the property line to the nearest point of the
property line on which the applicant’s business is located.
3. No tobacco or vaping shop shall be located on the same parcel.
4. The City shall have no more than 1 tobacco/vaping shops for every 4,000 residents, to a maximum
of 14 tobacco/vaping shops, within the City’s boundaries including existing and proposed new
tobacco/vaping shops.
F. Development and Operational Standards.
1. Tobacco shops and vaping shops shall comply with all applicable local, State, and Federal laws
regarding the advertising, display, or sales of tobacco and electronic cigarette/vaping products.
2. No smoking shall be permitted on the premises at any time.
3. All electronic cigarettes/vaping products, tobacco products and tobacco paraphernalia shall be kept
and displayed in a secure and locked enclosure, which can only be accessed with the assistance
of a clerk. Self -service displays of such products is prohibited.
4. It is unlawful for a tobacco shop or vaping shop to knowingly allow or permit a minor, not
accompanied by his or her parent or legal guardian, to enter or remain within the tobacco /vaping
shop.
5. Sampling of electronic cigarettes/vaping products and tobacco products by individuals less than 18
years of age is prohibited.
6. All tobacco shops and vaping shops shall post clear signage stating that minors may not enter the
premises unless accompanied by a parent or legal guardian. At least one such sign shall be placed
in a conspicuous location near each public entrance to the shop. It shall be unlawful for a tobacco
shop/vaping shop to fail to display and maintain, or fail to cause to be displayed or maintained,
such signage.
7. It is unlawful for a tobacco shop or vaping shop to offer for sale or sell any cannabis products or
any drug/marijuana paraphernalia.
G. Revocation of a Business License and/or Minor Use Permit. In addition to any other penalty
authorized by law or the Azusa Municipal Code, the business license and minor use permit of any
business that violates any provision of this Section, the California Uniform Controlled Substances Act
(including without limitation Health and Safety Code Sections 11364 to 11376.5), as amended from
time to time, or any other local, State or Federal law or regulation may be revoked pursuant to the
procedure set forth in Chapter 88.56 (Appeals and Revocations).
H. Nonconforming Tobacco/Vaping Shops. Tobacco shops and vaping shops that are located in the
DW and DWL zones and are legally existing on the effective date of the ordinance codified in this
chapter may continue to operate as legal nonconforming uses in accordance with Chapter 88.54
(Nonconforming Uses, Structures, and Parcels) and shall not be required to obtain a minor use permit.
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 8 of 10
However, any change or expansion of the legal nonconforming use will require compliance with this
chapter and a minor use permit.
I. Amortization of Existing Nonconforming Tobacco Shops and Vaping Shops Not Located in the
DW and DWL Zones.
1. All requirements set forth in this Chapter are deemed to be necessary for the protection of the
public health, safety, and welfare and shall be applicable to and govern all existing and proposed
tobacco shops and vaping shops immediately upon the date the ordinance codified in this Chapter
becomes effective.
2. Any existing tobacco shops and vaping shops which are located within a zone in which tobacco
shops and vaping shops are not permitted which is a nonconforming use as of the effective date of
the ordinance codified in this Section shall be subject to an amortization period of three years. An
extension of time request for one year may be permitted if written documentation is provided by the
business owner that:
a. The applicant/owner has made a substantial investment (including but not limited to lease
obligations) in the property or structure on or in which the nonconforming use is conducted;
such property or structure cannot be readily converted into another use; and such
investment was made prior to the date this ordinance is adopted; and
b. The applicant/owner will be unable to recoup said investment as of the date established
for termination of the use; and
c. The applicant has made good faith efforts to recoup investment and to relocate the use to
a location in conformance with this Section.
3. No more than two, one-year time extensions may be granted. The total amortization period shall
not exceed five years.
4. Upon the conclusion of the amortization period, any tobacco shop or vaping shop which is a
nonconforming use shall cease all business operations, and all signs, advertising and displays
relating to such business shall be remov ed within 30 days thereafter.”
88.70.020. – Definitions of Specialized Terms and Phrases.
V. Definitions “V.”
Vaping Shop/Retailer. See Section 88.42.240 (Tobacco and Vaping Shop).
T. Definitions “T.”
Tobacco Shop/Retailer. See Section 88.42.240 (Tobacco and Vaping Shop).
Environmental Review
ENVIRONMENTAL DETERMINATION: No further action required.
The attached ordinance is not a project within the meaning of Section 15378 of the State of
California Environmental Quality Act (“CEQA”) Guidelin es, because it has no potential for
resulting in physical change in the environment, directly or indirectly. Furthermore, under Title
14 of the California Code of Regulations, Section 15061(b)(3), the Ordinance is exempt from the
requirements of CEQA in t hat the activity is covered by the general rule that CEQA applies only
to projects which have the potential for causing a significant effect on the environment. Where it
can be seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment, the activity is not subject to CEQA.
PUBLIC NOTICE
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 9 of 10
The item was published in the San Gabriel Tribune on November 27, 2020. Staff did not receive
any comments regarding the notice.
FINDING OF FACTS
Pursuant to Section 88.51.060 of AMC, the Planning Commission and City Council are required
to make the following findings of fact before approving a zone change or Development Code
amendment:
1. That the proposed amendment is consistent with the goals, policies, and objectives of
the general plan, any applicable specific plan, development agreement, owner
participation agreement or disposition and development agreement; and
The proposed amendment is not a part of any applicable specific plan, development
agreement, owner participation agreement or disposition and development agreement. It is,
however, consistent with the goals, policies, and objectives of the General Plan below:
Chapter 3, Land Use Goal 10:
Ensure the compatibility among various types of land uses.
By introducing a Minor Use Permit (MUP) process for tobacco/vaping shops/retailers in the
DW and DWL zones, it will allow the City to adequately protect the public safety, health,
and welfare of Azusa residents because it will provide the City with a regulatory mechanism
to ensure compatibility with these types of uses.
Chapter 3, Land Use Goal 12:
Ensure that the City’s General Plan and Development Code are updated and maintained to
increase effectiveness.
The proposed Development Code changes relating to tobacco shops and vaping shops will
ensure that the Development Code is up-to-date with respect to the City’s desire to regulate
these uses in compliance with local, state, and federal laws.
2. That a proposed zone change will not adversely affect surrounding properties.
A zone change is not proposed as a component of this Development Code amendment.
Therefore, the proposed Development Code amendment would not adversely affect
surrounding properties.
CONCLUSION
In conclusion, Staff recommends that Planning Commission open the public hearing, hear any
public comments, and approve Resolution No. 2020-PC26 (recommending that the City Council
adopt Code Amendment No. 249).
Recommend Approval to CC for Code Amendment No. 249
December 9, 2020
Page 10 of 10
EXHIBITS
Exhibit A Resolution No. 2020-PC26
Exhibit B Draft Ordinance – Code Amendment No. 249 (Attachment A of Exhibit A)
ORDINANCE NO. 2021-01
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF AZUSA, CALIFORNIA ADOPTING CODE
AMENDMENT NO. 249 ADDING SECTION 88.42.240 TO
THE AZUSA MUNICIPAL CODE AND AMENDING
SECTIONS 88.22.065, 88.24.005, 88.26.005, AND 88.70.020 TO
REGULATE TOBACCO AND VAPING SHOPS AND
DETERMINING THE ORDINANCE TO BE EXEMPT
FROM CEQA
WHEREAS, the City of Azusa, California (the “City”) is a municipal corporation, duly
organized under the constitution and laws of the State of California; and
WHEREAS, by virtue of the police powers delegated to it by the California Constitution,
the City has the authority to enact laws which promote the public health, safety, and general
welfare of its citizens; and
WHEREAS, California Government Code, Section 65800 et seq. authorizes the adoption
and administration of zoning laws, ordinances, rules and regulations by cities as a means of
implementing the General Plan; and
WHEREAS, on February 22, 2005, the City Council of the City of Azusa (the “City
Council”) adopted the new Development Code (Chapter 88 of the Azusa Municipal Code) with
the understanding that the new format included wholesale changes to the prior Code, and that
revisions would be necessary after the new Code was implemented; and
WHEREAS, requiring tobacco shops and vaping shops to obtain a Minor Use Permit
will not unduly burden legitimate business activities of retailers who sell tobacco products to
adults, but will allow the City to regulate the operation of lawful businesses and to discourage
violations of federal, state, and local tobacco control and youth tobacco access laws; and
WHEREAS, the City has a substantial interest in protecting the health, safety, and
welfare of its residents and visitors by promoting compliance with local, state and federal
tobacco control and youth tobacco access laws; and
WHEREAS, on December 9, 2020, the Planning Commission conducted a public
hearing on the proposed Development Code Amendment No. 249 at a regular meeting, and
recommended that the City Council approve this Ordinance.
WHEREAS, all other legal prerequisites to the adoption of this Ordinance have
occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA,
CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
Attachment 2
SECTION 1. Incorporation of Recitals. The above recitals are true and correct and are
incorporated herein by this reference.
SECTION 2. Additions to the Azusa Municipal code are shown in underlined and the
deletions are denoted by strikethrough. Text underlined in blue font represent hyperlinks.
SECTION 3. The tables shown in Sections 88.22.065, 88.24.005 and 88.26.005 of the
Azusa Municipal Code are hereby amended as shown below:
“88.22.065 (Allowable Uses in Neighborhoods)
(Table 2-1)
LAND USE
TYPE (1)
PERMIT REQUIRED BY ZONE Specific Use
Regulations
NC NG1 NG2 NG3
L MED MOD L MED MOD L MED MOD
RETAIL SALES
General retail,
except with any
of the following
P — — — — — — — — —
[Indent]
Tobacco/Vaping
Shop
— — — — — — — — — — 88.42.240
[Insert hyperlink]
88.24.005. (Allowable Uses in Districts)
(Table 2-2)
LAND USE TYPE (1) PERMIT REQUIRED BY ZONE Specific Use
Regulations
DE DW DWL
RETAIL SALES
General retail, except with any
of the following features
P P P
[Indent] Tobacco/Vaping Shop — MUP MUP 88.42.240 [Insert
hyperlink]
88.24.005. (Allowable Land Uses and Permit Requirements for University District
(DU))
(Table 2-2)
LAND USE TYPE (1) PERMIT REQUIRED BY ZONE Specific Use
Regulations
DU-MU DU-RM DU-RMO
RETAIL SALES
General retail, except with any
of the following features
P — —
[Indent] Tobacco/Vaping Shop — — — 88.42.240 [Insert
hyperlink]
88.26.005. (Allowable Uses in Corridors)
(Table 2-3)
LAND USE TYPE
(1)
PERMIT REQUIRED BY ZONE Specific Use
Regulations
CAZ CSG CSA CAH CFB
RETAIL SALES
General retail,
except with any of
the following
features
P — P P P
[Indent]
Tobacco/Vaping
Shop
— — — — — 88.42.240 [Insert
hyperlink]
SECTION 4. Section 88.22.240 is hereby added to the Azusa Municipal Code to read as
follows:
“88.42.240. – Tobacco and Vaping Shops
A. Where allowed by Article 2 (Urban Standards), a tobacco/vaping shop shall comply with the
regulations of this section.
B. Purpose. The purpose and intent of this Section is encourage responsible tobacco retailing
and to discourage violations of tobacco-related laws, especially those which prohibit or
discourage the sale or distribution of tobacco and nicotine products to youth in a manner
consistent with regulations imposed by federal or state law. As a result, this Section
provides concentration, separation, spacing and distance, and operational standards for
tobacco and vaping shops in the City of Azusa in order to maintain the City's character, the
diversity and vitality of the community's commercial areas, and protect the health, safety and
welfare of Azusa’s youth, its residents and visitors.
C. Definitions. For the purposes of this section, the definitions contained herein shall govern
the meanings of the following terms, words, phrases, and their derivations:
1. “Drug Paraphernalia” has the meaning set forth in California Health and Safety Code
section 11014.5, as that section may be amended from time to time.
2. “Electronic smoking device” means an electronic device that can be used to deliver an
inhaled dose of nicotine, or other substances, including any component, part or accessory
of such device whether or not sold separately. This definition includes any such device,
whether manufactured, distributed, marketed, or sold as an electronic cigarette (E-
Cigarette), an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic
hookah, or any other product name or destript including any component, part or
accessory of such device, whether or not sold separately. “Electronic smoking device”
does not include any product specifically approved by the United States Food and Drug
Administration for use in the mitigation, treatment, or prevention of disease, where such
product is marketed and sold separately for such an approved purpose.
3. Flavored tobacco product" means any tobacco product that imparts a characterizing
flavor.
4. “Hookah Tobacco Lounge” shall mean a restaurant that operates within the City pursuant
to a valid City business license that also engages, as an accessory use, in the retail sale of
shisha tobacco products, Hookah, and Hookah smoking accessories. “Hookah” is defined
as type of water pipe, used to smoke shisha or other Tobacco Products, with a long
flexible tube for drawing aerosol through water. Components of a Hookah may include
heads, stems, bowls, and hoses.
5. “Hookah Tobacco Retailer” shall mean a tobacco retailer that is engaged in the retail sale
of shisha tobacco products, hookah, and hookah smoking accessories.
6. “Marijuana Paraphernalia” shall mean any instrument or object intended for use or
designed for use in ingesting, inhaling, or otherwise introducing cannabis, marijuana,
hashish, or hashish oil into the human body, such as the following:
a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens,
permanent screens, hashish heads, or punctured metal bowls.
b. Water pipes.
c. Carburetion tubes and devices.
d. Smoking and carburetion masks.
e. Roach clips, meaning objects used to hold burning material, such as a cannabis
cigarette that has become too small or too short to be held in the hand.
f. Miniature cocaine spoons, and cocaine vials.
g. Chamber pipes.
h. Carburetor pipes.
i. Electric pipes.
j. Air-driven pipes.
k. Chillums.
l. Bongs.
m. Ice pipes or chillers.
7. “Tobacco” shall mean any preparation of the nicotine-rich leaves of the tobacco plant,
which are cured by a process of drying and fermentation for use in smoking, chewing,
absorbing, dissolving, inhaling, snorting, sniffing, or ingesting by any other means into
the body.
8. “Tobacco Paraphernalia” shall mean any instrument or object that is designed for the
smoking or ingestion of lawful tobacco products including without limitation cigarette
papers, cigarette wrappers, cigar wrappers, blunt wraps, tobacco pipes, holders, clips, and
cigarette rolling machines. "Tobacco paraphernalia" excludes "drug paraphernalia" as
that term is defined in Health and Safety Code Section 11364.5(d), as amended from time
to time.
9. “Tobacco Product” shall mean any product in leaf, flake, plug, liquid, or any other form,
containing nicotine derived from the tobacco plant, or otherwise derived, which is
intended to enable human consumption of the tobacco or nicotine in the product, whether
smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other
means. For the purposes of this chapter, the term “tobacco product” excludes any product
that has been specifically approved by the United States Food and Drug Administration
(FDA) for sale as a tobacco/smoking cessation product or for other medical purposes,
where such product is marketed and sold solely for such an approved purpose.
10. “Tobacco or Vaping Shop” means any place where a person sells, offers for sale, or does
or offers to exchange for any form of consideration, tobacco, tobacco products, or
tobacco paraphernalia, or who distributes free or low-cost samples of tobacco products or
tobacco paraphernalia.
D. Permit Requirement. No person shall cause or permit the creation, operation, or
intensification of any tobacco or vaping shop use without first obtaining and maintaining a
minor use permit pursuant to Chapter 88.51.040 (Use Permit and Minor Use Permit). The
requirements of this section do not apply to the sale of flavored shisha tobacco products by a
hookah tobacco retailer if all of the following conditions are met:
1. The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to
Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and
Professions Code.
2. The hookah tobacco retailer does not permit any person under 21 years of age to be
present or enter the premises at any time.
3. The hookah tobacco retailer shall operate in accordance with all relevant state and local
laws relating to the sale of tobacco products.
4. If consumption of tobacco products is allowed on the premises of the hookah tobacco
retailer, the hookah tobacco retailer shall operate in accordance with all state and local
laws relating to the consumption of tobacco products on the premises of a tobacco
retailer, including, but not limited to, Section 6404.5 of the Labor Code.
E. Location Requirements.
1. No tobacco or vaping shop shall be established within 1,000 feet of a Youth-Populated
Area as measured by a straight line from the nearest point of the property line of the
parcel on which the Youth-Populated Area is located to the nearest point of the property
line of the parcel on which the applicant's business is located. For the purpose of this
subsection , a "Youth-Populated Area" means a parcel in the City that is occupied by any
of the following:
a. A private or public preschool, kindergarten, elementary, middle, or high school,
b. A library open to the public,
c. A playground open to the public,
d. A youth center, defined as a facility where children, ages 6 to 17, inclusive, come
together for programs and activities,
e. A recreation facility open to the public, defined as an area, place, structure, or other
facility that is used either permanently or temporarily for community recreation, even
though it may be used for other purposes. "Recreation facility" includes, but is not
limited to, a gymnasium, playing court, playing field, and swimming pool,
f. An arcade open to the public,
g. A park open to the public or to all the residents of a private community, or
h. A licensed child-care facility or preschool as defined in California Health & Safety
Code § 1596.78
2. No tobacco or vaping shop shall be located within 1,000 feet of another tobacco or
vaping shop as measured by a straight line from the nearest point of the property line to
the nearest point of the property line on which the applicant’s business is located.
3. No tobacco or vaping shop shall be located on the same parcel.
4. The City shall have no more than 1 tobacco/vaping shops for every 8,000 residents, to a
maximum of 7 tobacco/vaping shops, within the City’s boundaries including existing and
proposed new tobacco/vaping shops.
F. Development and Operational Standards.
1. Tobacco shops and vaping shops shall comply with all applicable local, State, and
Federal laws regarding the advertising, display, or sales of tobacco and electronic
cigarette/vaping products.
2. No smoking shall be permitted on the premises at any time.
3. All electronic cigarettes/vaping products, tobacco products and tobacco paraphernalia
shall be kept and displayed in a secure and locked enclosure, which can only be accessed
with the assistance of a clerk. Self-service displays of such products is prohibited.
4. It is unlawful for a tobacco shop or vaping shop to knowingly allow or permit a minor,
not accompanied by his or her parent or legal guardian, to enter or remain within the
tobacco /vaping shop.
5. Sampling of electronic cigarettes/vaping products and tobacco products by individuals
less than 21 years of age is prohibited.
6. All tobacco shops and vaping shops shall post clear signage stating that minors may not
enter the premises unless accompanied by a parent or legal guardian. At least one such
sign shall be placed in a conspicuous location near each public entrance to the shop. It
shall be unlawful for a tobacco shop/vaping shop to fail to display and maintain, or fail to
cause to be displayed or maintained, such signage.
7. It is unlawful for a tobacco shop or vaping shop to offer for sale or sell any cannabis
products or any drug/marijuana paraphernalia.
G. Revocation of a Business License and/or Minor Use Permit. In addition to any other
penalty authorized by law or the Azusa Municipal Code, the business license and minor use
permit of any business that violates any provision of this Section, the California Uniform
Controlled Substances Act (including without limitation Health and Safety Code Sections
11364 to 11376.5), as amended from time to time, or any other local, State or Federal law or
regulation may be revoked pursuant to the procedure set forth in Chapter 88.56 (Appeals and
Revocations).
H. Nonconforming Tobacco/Vaping Shops. Tobacco shops and vaping shops that are located
in the DW and DWL zones and are legally existing on the effective date of the ordinance
codified in this chapter may continue to operate as legal nonconforming uses in accordance
with Chapter 88.54 (Nonconforming Uses, Structures, and Parcels) and shall not be required
to obtain a minor use permit.
I. Amortization of Existing Nonconforming Tobacco Shops and Vaping Shops Not
Located in the DW and DWL Zones.
1. All requirements set forth in this Chapter are deemed to be necessary for the protection of
the public health, safety, and welfare and shall be applicable to and govern all existing
and proposed tobacco shops and vaping shops immediately upon the date the ordinance
codified in this Chapter becomes effective.
2. Any existing tobacco shops and vaping shops which are located within a zone in which
tobacco shops and vaping shops are not permitted which is a nonconforming use as of the
effective date of the ordinance codified in this Section shall be subject to an amortization
period of three years. An extension of time request for one year may be permitted if
written documentation is provided by the business owner that:
a. The applicant/owner has made a substantial investment (including but not limited
to lease obligations) in the property or structure on or in which the nonconforming
use is conducted; such property or structure cannot be readily converted into
another use; and such investment was made prior to the date this ordinance is
adopted; and
b. The applicant/owner will be unable to recoup said investment as of the date
established for termination of the use; and
c. The applicant has made good faith efforts to recoup investment and to relocate the
use to a location in conformance with this Section.
3. No more than two, one-year time extensions may be granted. The total amortization
period shall not exceed five years.
4. For existing tobacco or vaping shops that seek to relocate within the DW or DWL zone,
their MUP applications will be reviewed on a first-come, first-serve basis until the
maximum of 7 tobacco/vaping shops has been reached.
5. Upon the conclusion of the amortization period, any tobacco shop or vaping shop which
is a nonconforming use shall cease all business operations, and all signs, advertising and
displays relating to such business shall be removed within 30 days thereafter.”
SECTION 5. Section 88.70.020 of the Azusa Municipal Code is hereby amended to
read as follows:
“88.70.020. – Definitions of Specialized Terms and Phrases.
V. Definitions “V.”
Vaping Shop/Retailer. See Section 88.42.240 (Tobacco and Vaping Shop).
T. Definitions “T.”
Tobacco Shop/Retailer. See Section 88.42.240 (Tobacco and Vaping Shop).
SECTION 6. In accordance with Section 88.51.060 of the Azusa Municipal Code, the
City Council approves said Code Amendment No. 249 based on the following findings:
1. That the proposed amendment is consistent with the goals, policies, and objectives of
the general plan, any applicable specific plan, development agreement, owner
participation agreement or disposition and development agreement; and
The proposed amendment is not a part of any applicable specific plan, development
agreement, owner participation agreement or disposition and development agreement. It
is, however, consistent with the goals, policies, and objectives of the General Plan below:
Chapter 3, Land Use Goal 10:
Ensure the compatibility among various types of land uses.
By introducing a Minor Use Permit (MUP) process for tobacco/vaping shops/retailers in
the DW and DWL zones, it will allow the City to adequately protect the public safety,
health, and welfare of Azusa residents because it will provide the City with a regulatory
mechanism to ensure compatibility with these types of uses.
Chapter 3, Land Use Goal 12:
Ensure that the City’s General Plan and Development Code are updated and maintained
to increase effectiveness.
The proposed Development Code changes relating to tobacco shops and vaping shops,
will ensure that the Development Code is up-to-date with respect to the City’s desire to
regulate these uses in compliance with local, state, and federal laws.
2. That a proposed zone change will not adversely affect surrounding properties.
A zone change is not proposed as a component of this Development Code amendment.
Therefore, the proposed Development Code amendment would not adversely affect
surrounding properties.
SECTION 7. CEQA. This Ordinance is not a project within the meaning of Section
15378 of the State of California Environmental Quality Act (“CEQA”) Guidelines, because it has
no potential for resulting in physical change in the environment, directly or indirectly. The City
Council further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3),
that this Ordinance is nonetheless exempt from the requirements of CEQA in that the activity is
covered by the general rule that CEQA applies only to projects which have the potential for
causing a significant effect on the environment. Where it can be seen with certainty that there is
no possibility that the activity in question may have a significant effect on the environment, the
activity is not subject to CEQA. The City Council, therefore, directs that a Notice of Exemption
be filed with the County Clerk of the County of Los Angeles in accordance with CEQA
Guidelines.
SECTION 8. Custodian of Records. The documents and materials that constitute the
record of proceedings on which this Ordinance is based are located at the City Clerk’s office
located at 213 E. Foothill Blvd., Azusa, CA 91702. The custodian of these records is the City
Clerk.
SECTION 9. Severability. If any section, sentence, clause or phrase of this Ordinance
or the application thereof to any entity, person or circumstance is held for any reason to be
invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions
or applications of this Ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this Ordinance are severable. The City Council of
the City of Azusa hereby declares that it would have adopted this Ordinance and each section,
sentence, clause or phrase thereof, irrespective of the fact that any one or more section,
subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
SECTION 10. Effective Date. This Ordinance shall become effective thirty (30)
days following its adoption.
SECTION 11. Publication. The City Clerk shall certify to the adoption of this
Ordinance. Not later than fifteen (15) days following the passage of this Ordinance, the
Ordinance, or a summary thereof, along with the names of the City Council members voting for
and against the Ordinance, shall be published in a newspaper of general circulation in the City of
Azusa.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Azusa,
California, at a regular meeting of the City Council held on the ____ day of
___________________, 20___, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
City of Azusa
________________________________
Robert Gonzales, Mayor
ATTEST:
________________________________
Jeffrey Cornejo, City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
_______________________________
Marco A. Martinez, City Attorney
CERTIFICATION
I, Jeffrey Cornejo, City Clerk of the City of Azusa, do hereby certify that the foregoing
Ordinance No. ____ is the actual Ordinance No. ____ that was introduced at a regular meeting of
said City Council on the _____ day of _______________, 20___ and was finally passed and
adopted not less than five (5) days thereafter on the ____ day of _____________, 20___ by the
following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Jeffrey Cornejo, City Clerk