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HomeMy WebLinkAboutBackground reportBACKGROUND REPORT The project location is a commercial suite within the Bay Plaza shopping center located at 1430 E. Plaza Blvd., in the Major Mixed -Use District (MXD-2) zone. The suite is approximately 1,599 square feet in size and located adjacent to International House of Pancakes. The area is mostly adjacent to other commercial uses including Plaza Village Center to the north across Plaza, and South Bay Plaza Shopping Center to the east across N Avenue. Single-family residential uses are located to the east in the Single - Family Residential (RS-2) zone, atop a large embankment. The applicant is proposing to operate a retail business that primarily sells electronic cigarette products, such as electronic cigarettes, batteries, atomizers, and eLiquid (liquid that is vaporized for purposes of inhalation) and accessories such as lanyards, apparel, stickers, and custom wraps. The retail business would be open from 9 a.m. to 9 p.m. Monday to Friday, and 11 a.m. to 7 p.m. on weekends. This type of use is considered to be a "Tobacco specialty shop", which means any business the primary use of which is the sale of tobacco products or tobacco related paraphernalia. A business shall be determined a tobacco specialty shop when more than forty percent of its retail floor area is devoted to the display and sales of tobacco products and/or paraphernalia. The U.S. Food and Drug Administration (FDA) classifies electronic cigarettes as "other tobacco products", which also include hookahs, cigars, and pipe tobacco. Staff is of the opinion that stores meeting the above classification that sell electronic cigarettes meet the definition of tobacco specialty stores based on the spirit and intent of the Land Use Code. An interpretation of this Code section is included as a separate item on this agenda. The FDA opines that electronic cigarettes may lead young people to try other tobacco products, including conventional cigarettes, which are known to cause disease and lead to premature death. Section 18.24.050 of the National City Land Use Code allows for tobacco specialty shops with an approved Conditional Use Permit (CUP) in the MXC-2 and MXD-2 zones. Tobacco specialty shops are also regulated by Section 18.30.230 of the Code, which requires that they not be located within one thousand feet of any school, playground, recreation center or facility, childcare center, or library in the City. No such land uses are within one thousand feet of the subject property. Concerns related to tobacco specialty shops are generally related to potential health effects and secondary impacts to youth, such as sales or advertising to minors. There is also the issue of using electronic cigarettes to consume marijuana or cannabinoid- containing substances (not permitted in the City). The health effects of electronic cigarettes are also of concern to the FDA. The FDA has not evaluated any e-cigarettes for safety or effectiveness. When the FDA conducted limited laboratory studies of certain samples, they found significant quality issues that indicate that quality control processes used to manufacture these products are substandard or non-existent. The FDA found that cartridges labeled as containing no nicotine contained nicotine and that three different electronic cigarette cartridges with the same label emitted a markedly different amount of nicotine with each puff. Experts have also raised concerns that the marketing of products such as e-cigarettes can increase nicotine addiction among young people and may lead minors to try other tobacco products.' These types of conditions are very similar to those required for alcohol sales, which often have the same concerns. According to the U.S. Department of Health & Human Services, alcohol and tobacco are among the top causes of preventable deaths in the United States. Moreover, these substances often are used together: Studies have found that people who smoke are much more likely to drink, and people who drink are much more likely to smoke. Dependence on alcohol and tobacco also is correlated: People who are dependent on alcohol are three times more likely than those in the general population to be smokers, and people who are dependent on tobacco are four times more likely than the general population to be dependent on alcohol.2 Based on the concerns related to potential health impacts, conditions have been included that intend to protect from these issues. Conditions No. 8 through 11 are related to the following: • Prohibition of exterior advertising promoting or indicating the availability of electronic cigarettes. • Prohibition of products containing tetrahydrocannabinol (THC). • No sales of tobacco products or electronic cigarettes to minors. • Compliance with U.S. Food and Drug Administration requirements. The project is not subject to the California Environmental Quality Act as the proposal involves a retail use on a commercial -zoned property which allows retail uses by right. No physical or environmental impacts would occur as a result of approval of this application. A tobacco specialty store is a retail use, permitted with the issuance of a CUP in the MXC- 2 and MXD-2 zones. Concerns related to advertising and sales to minors or of incidental drug use are addressed by Conditions of Approval. The business would also be required to comply with all applicable federal government regulations. Planning Commission conducted a public hearing on May 5, 2014. Commissioners stated that they were not in favor of the business and cited concerns related to a proposed lounge and the potential for indoor use of electronic cigarettes. The Commission denied the Conditional Use Permit based on the finding contained in the attached Resolution, which was adopted on May 19, 2014. 1 U.S. Food and Drug Administration website (http://www.fda.gov/forconsumers/consumerupdates/ucm225210.htm) National Institute on Alcohol Abuse and Alcoholism website (http://pubs.niaaa.nih.gov/publications/aa71/aa71.htm) Council reviewed the Notice of Decision of the Planning Commission's denial at their meeting of June 5, 2014 and set the item for hearing in order to discuss the item. There was also a question related to existing businesses in the City. There are currently two similar businesses operating, one is a kiosk in Plaza Bonita (Vape Kingz) and the other a commercial suite located at 3400 East 8th Street (Vape Republik). Both businesses were licensed as retail stores that sold e-cigarettes as an accessory use (less than the 40% maximum that triggers the "tobacco specialty shop" classification requiring a CUP). Staff has worked extensively with Vape Kingz to ensure compliance with the 40% requirement, and is currently working with the Code Conformance Department to ensure that Vape Republik attains/maintains compliance.