§ 5.09.010. Legislative findings.

(a)

Based in part on the information contained in this section, the city council finds that the failure of tobacco retailers to comply with all tobacco control laws, particularly laws prohibiting the sale of tobacco products to minors, presents an imminent threat to the public health, safety, and welfare of the residents of the city.

(b)

The city council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the city, to protect the health, safety, and welfare of our residents.

(c)

Approximately four hundred thirty-eight thousand people die in the United States from tobacco-related diseases every year, making it the nation's leading cause of preventable death. (U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report: Annual Smoking - Attributable Mortality, Years of Potential Life Lost, and Productivity Losses - United States 1997-2001. 2005, 54(25): p. 625-628.)

(d)

The World Health Organization (WHO) estimates that by 2030, tobacco will account for 8.3 million deaths per year, killing fifty percent more people in 2015 than HIV/AIDS, and will be responsible for ten percent of all deaths worldwide. (World Health Organization. World Health Statistics 2007, Part 1: Ten Statistical Highlights in Global Public Health. 2007, p. 12.)

(e)

The California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority, as evidenced by the fact that:

(1)

The legislature has declared that smoking is the single most important source of preventable disease and premature death in California (California Health and Safety Code Section 118950).

(2)

State law prohibits the sale or furnishing of cigarettes, tobacco products, and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (California Penal Code Section 308).

(3)

State law requires that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under eighteen years of age (California Business and Professions Code Section 22956) and provides procedures for using minors to conduct onsite compliance checks of tobacco retailers (California Business and Professions Code Section 22952).

(4)

State law prohibits the sale of tobacco products and paraphernalia through self-service displays with limited exceptions for tobacco stores (California Business and Professions Code Sections 22960, 22962).

(5)

State law prohibits the sale of "bidis" (hand-rolled filter-less cigarettes imported primarily from India and Southeast Asian countries) except in adult-only establishments (California Penal Code Section 308.1).

(6)

State law prohibits the manufacture, distribution, or sale of cigarettes in packages of less than twenty and prohibits the manufacture, distribution, or sale of "roll-your-own" tobacco in packages containing less than six-tenths ounces of tobacco (California Penal Code Section 308.3).

(f)

State law requires all tobacco retailers to be licensed by the Board of Equalization primarily to curb the illegal sale and distribution of cigarettes due to tax evasion and counterfeiting (California Business and Professions Code Sections 22970.1, 22972).

(g)

State law explicitly permits cities and counties to enact local tobacco retail licensing ordinances, and allows for the suspension or revocation of a local license for a violation of any state tobacco control law (California Business and Professions Code Section 22971.3).

(h)

California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993), have affirmed the power of cities to regulate business activity in order to discourage violations of law.

(i)

Despite the state's efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the following facts:

(1)

Each day, nearly four thousand children under eighteen years of age smoke their first cigarette, and almost one thousand five hundred children under eighteen years of age begin smoking daily. (Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Results from the 2004 National Survey on Drug Use and Health: National Findings. 2005.)

(2)

More than seventy-five percent of all current smokers in 2001 began smoking before the age of eighteen. (Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. 2003 National Survey on Drug Use and Health: Results. 2003.)

(3)

Among middle school students who were current cigarette users in 2004, seventy and six-tenths percent were not asked to show proof of age when they purchased or attempted to purchase cigarettes from a store, and sixty-six and four-tenths percent were not refused purchase because of their age. (U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. Morbidity and Mortality Weekly Report: Tobacco Use, Access and Exposure to Tobacco Among Middle and High School Students, U.S., 2004. 2005, 54: p. 297-301.)

(4)

In 2002, youth smoked approximately five hundred forty million packs of cigarettes, generating nearly 1.2 billion dollars in tobacco industry revenue. (Healton C, Farrelly MC, Weitzenkamp D, et al. "Youth Smoking Prevention and Tobacco Industry Revenue." Tobacco Control, 15: 103-106, 2006.)

(j)

Research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes, as evidenced by the following:

(1)

A review of thirteen California communities with strong tobacco retailer licensing ordinances shows that the youth sales rate declined in twelve of the thirteen communities, with an average decrease of sixty-eight percent in the youth sales rate. (American Lung Association of California, Center for Tobacco Policy and Organizing. Tobacco Retail Licensing is Effective. 2007.)

(2)

A study of the effect of licensing and enforcement methods used in the Philadelphia area revealed a decrease in sales to minors from eighty-five percent in 1994 to forty-three percent in 1998. (Ma GX, Shive S and Tracy M. "The Effects of Licensing and Inspection Enforcement to Reduce Tobacco Sales to Minors in Greater Philadelphia, 1994-1998." Addictive Behaviors, 26(5): 677-87, 2001.)

(3)

A study of several Minnesota cities found that an increased licensing fee in conjunction with strict enforcement of youth access laws led to a decrease from thirty-nine and eight-tenths percent to four and nine-tenths percent in the number of youth able to purchase tobacco. (Forster JL et al. "The Effects of Community Policies to Reduce Youth Access to Tobacco." American Journal of Public Health, 88(8): 1193-1197, 1998.)

(k)

The implementation of tobacco retailer licensing requirements is supported by most Californians, as evidenced by the following:

(1)

Statewide, over eighty percent of California adults think tobacco retailers should be licensed. (Department of Health Services, Tobacco Control Section. California Tobacco Control Update. 2004.)

(2)

Similarly, in rural areas in California, seventy-eight percent of adults think tobacco retailers should be licensed, and ninety-one percent agree that a store owner who repeatedly sells cigarettes to minors should no longer have the right to sell cigarettes. (American Lung Association of California, Center for Tobacco Policy and Organizing. Survey of California Rural and Small Town Voters About Local Tobacco Retail Licensing Ordinances. 2008.)

(3)

Sixty-five percent of California's key opinion leaders surveyed support implementation of tobacco-licensing requirements. (California Department of Health Services, Tobacco Control Section. Final Report, Independent Evaluation of the California Tobacco Control Prevention and Education Program: Waves 1, 2, and 3 (1996-2000). 2003.)

(4)

Over ninety percent of enforcement agencies surveyed in 2000 rated license suspension or revocation after repeated violations as an effective strategy to reduce youth access to tobacco. (California Department of Health Services, Tobacco Control Section. Final Report, Independent Evaluation of the California Tobacco Control Prevention and Education Program: Waves 1, 2, and 3 (1996-2000). 2003.)

(l)

Approximately eighty cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop minors from smoking. (American Nonsmokers' Rights Foundation. California Municipalities With Ordinances Restricting Youth Access To Tobacco. 2008.)

(m)

California retailers continue to sell tobacco to underage consumers, evidenced by the following:

(1)

Nearly eleven percent of all tobacco retailers unlawfully sold to minors in 2007. (California Department of Health Services, Tobacco Control Section. Youth Purchase Survey, 2007: Percent of Retailers Selling Tobacco to Youth by Store Type. 2007.)

(2)

Non-traditional tobacco retailers such as deli, meat, and donut shops sold to minors in 2007 at a much higher rate than the statewide average, as high as sixteen percent. (California Department of Health Services, Tobacco Control Section. Youth Purchase Survey, 2007: Percent of Retailers Selling Tobacco to Youth by Store Type. 2007.)

(3)

Teens surveyed in 2002 say they bought their cigarettes at: gas stations (fifty-eight percent), liquor stores (forty-five percent), and supermarkets and small grocery stores (twenty-nine percent combined). (California Department of Health Services, Tobacco Control Section. Final Report, Tobacco Control Successes in California: A Focus on Young People, Results from the California Tobacco Surveys, 1990-2002. 2003, p. 11-12.)

(4)

Twenty-three "youth tobacco purchase surveys" in 2011 resulted in thirteen percent of Duarte tobacco retailers willing to sell tobacco products to minors under eighteen years of age.

(n)

A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults, but it will allow the city to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws.

(o)

The city has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in protecting children from being lured into illegal activity through the misconduct of adults.

(p)

It is the intent of the city council, in enacting the ordinance establishing this chapter, to ensure compliance with the business standards and practices of the city and to 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 minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein.

(q)

The city has a substantial interest in requiring a tobacco retailer license for the sale of electronic cigarettes and vaping devices and electronic cigarettes and vaping accessories because:

(1)

The widespread presence of electronic cigarettes and vaping devices, most of which use nicotine, in retail settings normalizes the use of nicotine products and triggers smoking urges among former smokers and those attempting to quit;

(2)

The electronic cigarettes and vaping devices can be lawfully used with nicotine derived from tobacco or other sources;

(3)

The widespread presence of electronic cigarettes and vaping devices in retail settings has similar impacts as traditional tobacco products;

(4)

The electronic cigarettes and vaping devices and electronic cigarettes and vaping accessories can be used a drug paraphernalia, because they can be customized to be used with non-nicotine products, such as synthetic drugs or dry herb products that are unlawful; and

(5)

The use of electronic cigarettes and vaping accessories in an electronic cigarette and vaping establishment similar to a tobacco smoking establishment would create a threat to public health, safety, and welfare because nicotine derived products such as e-liquids are not regulated by the state and, therefore, it would be impossible for law enforcement to monitor.

( Ord. No. 839, § 1, 5-14-2013 ; Ord. No. 853 , § 1, 8-26-2014)