HomeMy WebLinkAboutOrd 2036
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ORDINANCE NO 2036
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BURLINGAME
AMENDING CHAPTER 8.19 OF TITLE 8 OF THE BURLINGAME MUNICIPAL CODE
TO ALLOW EXISTING TOBACCO RETAILER PERMIT HOLDERS AN EXEMPTION
FROM CERTAIN RELOCATION DISTANCE REQUIREMENTS FOR A PERIOD OF
TWO YEARS, ELIMINATING CERTAIN RESTRICTIONS ON RETAILER PERMIT
TRANSFERS AND DISCONTINUING THE ISSUANCE OF NEW TOBACCO RETAILER
PERMITS; CEQA DETERMINATION: EXEMPT PURSUANT TO STATE CEQA
GUIDELINES SECTION 15378 AND 15061(b)(3)
WHEREAS, the U.S. Center for Disease Control and Prevention (“CDC”) and the
U.S. Public Health Service estimates that exposure to secondhand smoke causes an
estimated 41,000 deaths each year1; and
WHEREAS, the U.S. Environmental Protection Agency (“EPA”) has stated that the
adverse health effects of second-hand smoke remain the same regardless of whether the
exposure occurs indoors or outdoors, and that outdoor secondhand smoke inhalation poses
health risks to children2; and
WHEREAS, the California Department of Public Health (“CDPH”) has found that as
of 2019, only 6.9% of Californians currently smoke cigarettes3; and
WHEREAS, the Burlingame Municipal Code currently prohibits smoking in various
portions of the City, including (but not limited to) buildings, restaurants, sports fields, and
within 25 feet of most city-owned parks and facilities; and
WHEREAS, an updated Tobacco Retailer Permit Program was recently adopted by
San Mateo County to combat youth tobacco sales through tougher enforcement measures;
and;
WHEREAS, the County had encouraged its municipalities to adopt an identical
program, and has incentivized adoption by offering to perform the administration of any
identical program; and
1 U.S. Department of Health and Human Services. The Health Consequences of Smoking: 50 Years of
Progress. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services,
Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health
Promotion, Office on Smoking and Health, 2014. Printed with corrections, January 2014.
2 U.S. Environmental Protection Agency, Is outdoor exposure to secondhand smoke comparable to indoors?
Accessed 10 March 2023. www.epa.gov/indoor-air-quality-iaq/outdoor-exposure-secondhand-smoke-
comparable-indoors
3 California Department of Public Health, California Tobacco Control Program. California Tobacco Facts and
Figures 2021. Sacramento, CA: California Department of Public Health; November 2021.
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WHEREAS, pursuant to Ordinance No. 2026, adopted March 18, 2024, the City
Council did establish a Tobacco Retailer Permit Program, codified in Chapter 18.19,
“Tobacco Retailer Permit,” of Title 8 of the Burlingame Municipal Code, which regulates the
sale of tobacco in the City limits; and
WHEREAS, the City’s Tobacco Retailer Permit Program provided certain
exemptions for on-site hookah consumption, thereby requiring the City to manage
administration of the program through the Burlingame Police Department; and
WHEREAS, among other restrictions, the City’s Tobacco Retailer Permit Program
established limitations on transfers of tobacco permits, and does not allow new tobacco
retailers to be located within 500 feet of an existing tob acco retailer, or within 1,000 feet of
a “youth populated area,” as defined by Ordinance No. 2026; and
WHEREAS, City staff has received feedback from members of the public that
Ordinance No. 2026’s distance and transfer requirements have created a hardship for
existing tobacco retailers who had been considering the movement or sale of their business;
and
WHEREAS, the Economic Development Subcommittee considered public feedback
at their meeting on October 16, 2024, and directed staff to prepare amendments to
Ordinance No. 2026; and
WHEREAS, the City Council discussed the transferability of Tobacco Retailer
Permits at their November 18, 2024 Regular Meeting, and directed Staff to draft an
Ordinance allowing a short period of time for existing tobacco retailers to relocate their
business, eliminating certain restrictions on the transfer or sale of their business of a
business, and halting the issuance of new Tobacco Retailer Permits within the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME
DOES ORDAIN AS FOLLOWS:
Section 1. The recitals set forth above are true and correct, and are hereby
incorporated herein by this reference as if fully set forth in their entirety.
Section 2. The City Council hereby finds that this Ordinance is in the public
interest.
Section 3. The Ordinance is not a project within the meaning of Section 15378 of
the CEQA Guidelines because it is not a “project” and has no potential for resulting in
physical change in the environment, either direc tly or ultimately. In the event that this
Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption
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contained in CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty
to have no possibility of a significant effect on the environment.
Section 4. If any section, subsection, clause or phrase of this Ordinance is for any
reason held to be invalid, such decision shall not affect the validity of the remaining portion
or sections of the Ordinance. The City Council of the City of Burlingame hereby declares
that it would have adopted the Ordinance and each section, subsection, sentence, clause
or phrase thereof irrespective of the fact that any one or more sections, subsections,
sentences, clauses or phrases be declared unconstitutional.
Section 5. Chapter 8.19 of Title 8 of the Burlingame Municipal Code is amended
as reflected in Exhibit A, attached hereto and incorporated herein by reference. Exhibit A
shows additions with underlined text and deletions with strike out text. The Sections of
the Chapter which do not include amendments are not shown in this exhibit, and remain
unchanged.
Section 6. This Ordinance shall go into effect 30 days following its adoption.
Section 7. The City Clerk is directed to publish this ordinance in a manner
required by law.
Donna Colson, Mayor
I, MEAGHAN HASSEL-SHEARER, City Clerk of the City of Burlingame, certify that
the foregoing ordinance was introduced at a regular meeting of the City Council held on
2nd day of December 2024 and adopted thereafter at a regular meeting of the City Council
held on the 16 day of December by the following votes:
AYES: COUNCILMEMBERS: BROWNRIGG, COLSON, LEE, PAPAJOHN, STEVENSON
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
ATTEST: ___________________________________
Meaghan Hassel - Shearer, City Clerk
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EXHIBIT A
Chapter 8.19 - TOBACCO RETAILER PERMIT
8.19.110 – Requirement for a permit.
(a) No tobacco retailer or other person shall sell or offer for sale any tobacco product
without a current and valid tobacco retailer permit from the city of Burlingame for
each location where such activities are conducted.
(b) Permits are valid for one year and must be renewed annually by the permit holder in
order to continue to sell or offer for sale any tobacco product. A retailer must obtain
a separate permit for each location at which any tobacco product will be sold, offered
for sale or distributed. A permit shall expire at the end of its term, unless renewed
prior to its expiration, and the tobacco retailer must obtain a new permit prior to any
further sale, offer for sale, or distribution of any tobacco product.
(1) The city will permit no more than two hookah tobacco retailers within the city
limits. To become a hookah tobacco retailer, the applicant must specifically
note this request upon their tobacco retailer permit application, and must
otherwise comply with all other requirements of this chapter. This includes,
but is not limited to, the additional requirements for the sale of hookah tobacco
located in Section 8.19.160.
(i) A hookah tobacco retailer is also required to offer customers at
least one non-tobacco, non-nicotine hookah alternative.
(2) The city will not issue any new Tobacco Retailer Permits after the effective
date of this Ordinance. This prohibition shall include the issuance of any new
Hookah Tobacco Retailer Permits. All transfers of permits must be done in
accordance with Section 8.19.120 below.
(c) No tobacco retailer shall violate, or cause or allow the tobacco retailer's agents or
employees to violate, any provision of this chapter or any other local, state, or federal
law applicable to tobacco products or tobacco retailing.
(d) Tobacco retailers are responsible for the actions of their employees and agents
relating to the sale, offer to sell, and furnishing of tobacco products at the retail
location. The sale of any tobacco product by a tobacco retailer employee shall be
considered an act of the tobacco retailer, and the permit holder shall be responsible
for any and all penalties levied.
(e) Nothing in this chapter shall be construed to penalize the purchase, use, or
possession of a tobacco product by any person not engaged in tobacco retailing.
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8.19.120 - Permit is Nontransferable.
(a) Tobacco Retailer Permits are nontransferable as between Persons, locations, or
otherwise except as noted in this Section. Any attempted transfer other than those
noted below shall render the Permit null and void.
(b) Notwithstanding any other provision of this Chapter, prior violations of this Chapter
at a location shall continue to be counted against that location and Permit ineligibility
and suspension periods shall continue to apply to that location unless:
(1) One hundred percent of the interest in the stock, assets, or income of the
business, other than a security interest for the repayment of debt, has been
transferred to the new owner(s); and
(2) The City is provided with clear and convincing evidence, including an
affidavit, that the business has been acquired in an Arm's Length Transaction.
An Arm’s Length Transaction, for the purposes of this section, means a
transaction in which two or more unrelated and unaffiliated parties agree on the
transfer in question; the parties act independently and in their own self -interest;
and the parties have equal bargaining power and symmetric information,
leading the parties to agree upon fair-market terms.
(b) Notwithstanding any other provision of this Chapter, an existing Tobacco Retailer
Permit Holder may transfer their Permit to a Transferee at the same physical location
under the following circumstances:
(1) One hundred percent of the interest in the stock, assets, or income of the
business, other than a security interest for the repayment of debt, has been
transferred to the new owner(s); and
(2) The City is provided with clear and convincing evidence, including an
affidavit, that the business has been acquired in an Arm's Length Transaction.
An Arm’s Length Transaction, for the purposes of this Section, means a
transaction in which two or more unrelated and unaffiliated parties agree on the
transfer in question; the parties act independently and in their own self-interest;
and the parties have equal bargaining power and symmetric information,
leading the parties to agree upon fair-market terms; and
(3) The transferring Tobacco Retailer had obtained a valid Tobacco Retailer
Permit from the City prior to the effective date of this Ordinance.
(c) Notwithstanding any other provision of this Chapter, an existing Tobacco Retailer
Permit Holder may transfer the location of their permit and not be subject to the
distance limits set forth in Section 8.19.230(c) and Section 8.19.230(d) under the
following circumstances:
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(1) Other than the change in location, there are no additional changes made to
the existing Tobacco Retailer Permit, including (but not limited) changes to
persons or owners; and
(2) The new location is not located within 250 feet of a Youth-Populated Area;
and
(3) The sale of tobacco at the new location complies with all other applicable
local, state and federal laws and regulations, including (but not limited to) the
City’s Zoning Code; and
(4) The Tobacco Retailer had obtained a valid Tobacco Retailer Permit from the
City prior to the effective date of this Ordinance; and
(5) The City is provided clear and convincing evidence that the Tobacco Retailer
Permit Holder has executed a lease or purchase agreement for the new retail
location, and that occupancy of the new location by the Tobacco Retailer Permit
Holder will occur prior to January 16, 2027.
(d) If a transfer of a Tobacco Retailer Permit is completed pursuant to Paragraphs (b)
or (c) above, prior violations of this Chapter by the former owner or location shall
continue to be counted against the Transferee or location, respectively, and Permit
ineligibility and suspension periods shall continue to apply.
(e) The exemption to Tobacco Retailer Permit Transfers found in Paragraph (c) of this
Section shall expire at midnight on January 16, 2027.
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