At its April 30 meeting, the Brentwood City Council crafted out a new tobacco ordinance in an effort to keep it out of the hands of youth.
In a 4-1 vote, with Councilmember Tony Oerlemans dissenting, the council agreed to limit the number of licenses at 42 throughout the city of who could sell tobacco, while creating a buffer zone of 500-ft around schools/youth-oriented facility, created a revocation process with penalties and gives businesses 1-year to sell their products. After a year, some businesses will be forced to stop selling tobacco altogether, which means many be forced to change their business model, shut down or move to another part of the city. The ordinance would also ban tobacco sales at all pharmacies, address the minimum cost of a package of cigarettes ($10) for a 20 pack, prohibit coupons and discounts, and address signage. The city will also perform at least 2 decoy operations per year.
The item will come back for final approval at a future date and businesses impacted will be noticed.
The ordinance was originally discussed in March at the Land Use and Development Committee (LUD) who made suggestions, however, the full council opted to make some adjustments (see chart below). But a tobacco ordinance dates back to August 2023 when the council directed staff to focus on 16-items related to a new tobacco ordinance. The city is currently operating under a moratorium of new smoke shops which expires Sept. 2024.
Staff offered three suggestions for council to consider:
- Grace Period – for existing retailers. Allows existing tobacco retailers that would be out of compliance with the new ordinance to apply for and receive a one-time, non-renewable license for the location. The length of the grace period would be at the council’s discretion
- Grandfather existing retailers – would exempt existing retailers from ordinances new requirements, such as the separation requirements, that might otherwise prevent them from qualifying for a license. Would create different standards for existing and new retailers.
- Cap & Winnow existing retailers: if a cap on licenses were implemented, this option would gradually reduce the number of tobacco retailers if cap is less than existing number of retailers. Existing retailers could be licensed under cap and winnow approach, but would eventually be reduced over time through attrition.
According to the Staff Report, Tobacco is the leading cause of preventable death in the United States and in California. Approximately 40,000 Californians and nearly a half a million in the United States die each year. The Centers for Disease Control and Prevention suggests that 441,000 Californians under 18 today will die from tobacco-related diseases.
Prior to running down the list of 16-items at the April 30 meeting, Councilmember Tony Oerlemans said he was all for creating the ordinance, but had concerns it would actually kill business.
“I am 100% on board with creating a tobacco retail licensing ordinance in Brentwood and I truly believe our schools and our parents need help in preventing or keeping tobacco product away from our kids. I am concerned about some of the distances and the regulations within what I was reading, “ explained Oerlemans. “The city of Brentwood has done a lot of work recruiting business to come to Brentwood. Some of those businesses sell tobacco products with the regulations or restrictions that some of the recommendations from LUD, almost all of those businesses would be in jeopardy. I am kind of uncomfortable turning our backs on small business that we have recruited to come to Brentwood.”
He questioned the “youth-oriented facilities”, such as parks noting that the city has 100 parks and this ordinance will keep many retailers out—a lot of the businesses are clustered together because those were the business districts which allowed them to get licenses.
“If we allow them to be 1,000 feet away from each other, it’s going to put that much strain on those small businesses that we have recruited to come to Brentwood,” said Oerlemans. “I am 100% behind this, I want this to pass, I want the TRL to exist, I am just concerned over the distances and definitions.”
Oerlemans understood the point was to keep away from schools and the kids, but questioned keeping it away from parks as the city had 100 of them.
“We are essentially going to create our own ban on tobacco products in Brentwood,” explained Oerlemans noting adults can legally use the products but was all for preventing the youth from getting the products. “But we also have to take care of the businesses, small businesses, and adults who use some of these products.”
Councilmember Pa’Tanisha Pierson shared she believed the point of a TRL was not to eliminate or effect, or get rid of certain businesses coming or current here.
“Its to enforce regulations that are for the safety, health and welfare,” said Pierson who added that many bathrooms at the schools have become smoke hubs instead of bathrooms. Many schools are closing their bathrooms. ”
She added that if people look at the map, whether they admit it or not, smoking retailers are in the area where there was a lower social economic class and a high population of color.
“I do think enforcement and regulation is necessary, its just how we do it,” stated Pierson. “Of course, we don’t sit here on the dais to just eradicate and get rid of business.”
Pierson stated she also believed on top of fines, they also offer a suspension to sell products—for example, a $1,000 fine + 30 days suspension of their license. She also wanted the fine going to the owner versus the clerk.
Mendoza stated she was fine with getting rid of business.
“If we are going to get rid of all those ones in pink, which I am fine with, because they are near parks or schools, or youth centers, are we saying the max is 42 licenses, you know what is going to happen is they are going to indicate other parts of town,” stated Mendoza. “If the maximum is 42 business, we are just going to move them somewhere else and is that what we want?”
Oerlemans understood what Mendoza had asked by limiting the 42 and they move to different parts of Brentwood, he suggested they grandfather the current businesses to keep their licenses.
“Then we are not beating up the business we currently have, that we have actually recruited and asked to come to Brentwood” stated Oerlemans. “Then we are not worrying about our 42 licenses going to other parts of Brentwood.”
Oerlemans said under the ordinance, 13 each would be impacted in his and Pierson’s Districts along with 5 in another District.
“Its not that its spread out to one side of town, this could cause it to spread all across town,” said Oerlemans.
Pierson took issue with Oerlemans saying they actively recruit and ask businesses to come to Brentwood stating she hoped they would be recruiting businesses that do not sell tobacco. Pierson had concerns over grandfathering and preferred Cap and winnows better due. She also did not mind if a business moved and sold their tobacco at another location in Brentowod.
“This is not an attack on businesses that sell tobacco, its about keeping it away from our kids,” explained Pierson. “If they did move around town and a 1,000 ft away, I don’t have a problem with it. Talking about the grandfather, if a business is having to have to shut down, and they need to move, they should get first opportunity to a licenses out of the 42 rather than a new business.”
Mendoza highlighted if keeping it at 42 licenses and a 1,000 feet away from schools, there is very limited options for businesses to go.
“The pink ones go away in a year, we are giving them a chance to sell their inventory,” said Mendoza.
Vice Mayor Susannah Meyer said she was okay with the proposal.
“I remember when we first heard about the number we had in Brentwood and I was absolutely shocked. I am sorry to see the impact on mom and pop owned, but we have to take a stand because clearly nothing is working so far,” said Meyer.
Pierson suggested they remove parks from the discussion because 1,000 feet from parks would eliminate all of Brentwood noting the city has 168 parks.
The council then debated the definition of “Youth-Oriented facility” of what should and should not be included—which they removed playground open to the public, parks and licensed child-care facility or preschool.
Mayor Joel Bryant stated he agreed with the changes to the list but believed the city could increase its own inspections if people complain/report seeing a violation. Meanwhile, he also suggested there is better compliance with immediate application of extreme consequence when it comes to violations.
Bryant added he was not in favor of grandfathering in businesses but suggested a year may not be long enough because he didn’t want to hurt small business, he suggested they give more than a year.
“If its going to be 1,000 feet, we need to figure out a way to give them a little more time to either find another location or figure something out yet,” stated Bryant.
Mendoza immediately shot back that a year was plenty of time stating they talked about it during the LUD meeting.
“I feel good about 1,000 feet and 1-year,” said Mendoza.
Pierson questioned if they moved forward would they create a situation where businesses now become in violation of their lease—meaning now they have to leave but have more time on their lease.
“I know we considered the 1,000 feet and I know on LUD it was two of us, but there are five of us up here making decision… how would you all feel about a 500 ft distance with an 18-month time frame to sell inventory and look for a new place and prepare for a move and figure out legally to break leases,” said Pierson. “The time period should probably be different.”
Oerlemans admitted he never thought of the leases either, but agreed with more time even up to 2-years.
Mendoza said the 500-ft and 18-months was fine and they could always do more to adjust this in the future.
Staff urged the council to decide on an annual basis (12 month, 24 month or 36-month) timeline.
“I would love to see it sooner because of what we are seeing in the schools… the bathrooms are locked its so bad, so this means two more school years is what we are talking about with locked bathrooms and issues,” stated Mendoza. “I get it, there is a business side, but I worry more about the children’s health than I do the business side.”
Meyer said she was okay with the 500-feet but had questions on the timeline.
Mendoza said, “not one business or retailer has come here and said this would be detrimental to their business. If it was, they know we are here. At LUD, not one person showed up from a retailer perspective. If it was going to be that hard, y’all know this room would be packed to the hills.”
Staff replied they have not reached out to any businesses regarding the ordinance because it was not a public hearing and no notice—the plan was once the council crafted an ordinance, they would begin to do the outreach to the business community while stating there is no notice on this type of particular meeting.
Council agreed to one year with the business able to apply for an extra year due to a “hardship”—staff would help craft and define what a hardship would include.
Rundown of Actions by Council on the Ordinance:
| # | Information Requested by City Council | 1. Staff Recommendation | 2. LUD Recommendation | 3. City Council Direction |
| 1 | Implementing a local tobacco retail license (TRL) system, including maximum amount that can be charged, and how those fees will be spent | If TRL is implemented, require two annual inspections of licensees-one inspection for compliance and one decoy operation. Utilize outside counsel to draft new ordinance. | Yes, fee to cover implementation, 3 compliance checks and 1 decoy, revocation after 3 violations. | Implement a local TRL, which includes (a) a system of 2 compliance checks plus one decoy within each 12 month period, (b) revocation on the third violation within five year period, (c) imposition of fines at the highest level allowed by law, (d) suspension periods for violations consistent with model ordinance’s first two violations |
| 2 | 100% flavor ban on tobacco sales | If TRL is implemented, incorporate language suggested by Model Ordinance (p. 10) | Yes, include in TRL | Yes, include in TRL, as set out in state law |
| 3 | Prohibiting vaping product sales | The Model Ordinance does not prohibit sales of ESDs. If Council would like to prohibit ESDs, staff recommends including the prohibition in a TRL ordinance drafted by outside counsel. Include a minimum one year phase out period. | Yes | Refine definition of ‘tobacco retailer’ to clarify that this pertains to businesses operating in a physical location. Yes, prohibit vaping product sales. |
| 4 | Maximum distance between tobacco retailers and schools that’s allowed by law | Include a maximum 1,000 ft. buffer in a new TRL ordinance. Expand the separation requirements to other “youth-oriented facility” in addition to schools per the suggestions in model ordinance (p. 12). | 1,000 ft. separation and no renewal of license after one year if business is non-compliant with new regulations. | Require at least 500 feet between tobacco retailers and youth-oriented facilities. No TRL shall be renewed if business is noncompliant with new regulations after one year (with possibility of one year longer with demonstration of hardship). Modify ‘youth-oriented facilities’ definition to (a) remove kindergarten, playground open to public, recreation facility open to the public, parks, childcare facilities/preschools; (b) change youth center ages to 11-17. |
| 5 | Minimum sales sizes (e.g. pack/carton) | Incorporate minimum pack sizes suggested by Model Ordinance (p. 10). | Require minimum pack size of 20 cigars/cigarettes. | Require minimum pack size as set out in model ordinance. |
| 6 | Strictest laws for proximity between retailers | Incorporate maximum 1,000 ft. proximity regulations between retailers and add policies for existing retailers, to be drafted by outside counsel based on Council direction. | 1,000 ft. separation and no renewal of license after one year if business is non-compliant with new regulations. | Copy item number 4. Staff to research various methodologies (e.g., scorecard, lottery, other system used by other cities) for Council to consider to choose amongst retailers located within 500′ of each other. |
| 7 | All tobacco sales banned at pharmacies | IF TRL is implemented, include prohibition of sales at pharmacies suggested by Model TRL Ordinance (p. 11). | Yes, ban tobacco sales at all pharmacies. | Yes, ban tobacco sales at all pharmacies. |
| 8 | Working with law enforcement on decoy purchasers | If TRL is implemented, recommend 1 annual inspection for compliance with license requirements and 1 additional annual compliance check related to underage sales. | TRL should include 3 compliance checks and a minimum of 1 decoy operation per year. | Implement compliance checks (two per year) and a decoy operation involving law enforcement. |
| 9 | Any way to retroactively revoke licenses (if applicable) | The City does not currently have tobacco licenses it can revoke. If TRL is implemented, staff recommends revocation provisions suggested by Model TRL Ordinance (p. 17) | TRL should include a limit of 3 violations before a license is revoked. | Since the City currently has no TRL, this is not applicable. |
| 10 | Minimum prices on tobacco | Include minimum price regulations suggested by Model TRL Ordinance. Staff recommends working with Contra Costa Health’s Tobacco Prevention program to determine a minimum price that is consistent with others in the County and escalates by Consumer Price Index (CPI). | Require a minimum price of $10.00 and add language to escalate the price annually per the CPI. | $10 per package of 20 cigarettes, package of little cigars, and per cigar. |
| 11 | Prohibit coupons/discounts | IF TRL is implemented, include suggested discount prohibition in the Model TRL Ordinance (p. 10). | Yes, prohibit coupons/discounts in TRL Ordinance. | Yes, prohibit coupons and discounts in TRL ordinance. |
| 12 | Cap on smoke shops and tobacco retailers in total | IF TRL is implemented, implement a cap on total number of tobacco retailers/ licenses with requirements for existing retailers. | Cap and winnow-no more than current 42 licenses should be issued; licenses should be non-transferrable; include a 1 year grace period for non-compliant businesses. | No more than 42 licenses shall be issued. |
| 13 | DOJ grants to support code enforcement | Staff will apply for future DOJ grants if the program is funded. Funds could be used for enforcement whether or not the City has a TRL. | Yes, staff should apply for DOJ grants. | Staff is directed to research and apply for applicable grants. |
| 14 | Require CUP for tobacco sales | Do not require a CUP, only a TRL. A TRL has strict operating standards and can be more easily revoked than a CUP. | No separate CUP requirement. Implement TRL instead. | No CUP to be required; TRL will be regulatory method. |
| 15 | Potential penalties available | Adoption of any new ordinances as detailed above would include language related to license suspension, seizure of products, penalties, fines etc. as appropriate. | Fines should be as high as possible. Research if it is possible to repurpose fines for education or alternative purposes. | Penalties will include fines and possibility of suspension and/or revocation of TRL license for violations. Fines shall be set in an amount sufficient to cover staff time. Fines may be used for educational purposes and/or additional enforcement. Staff to research how partnering with third parties to complete inspections may be feasible. |
| 16 | Bring other best practices from other cities for Council consideration | Only as directed above. | ||
| ADDITIONAL INFORMATION REQUESTED BY LUD ON 3/18 | ||||
| 17 | N/A | Utilize outside legal to draft a TRL ordinance and update applicable sign regulations. | Provide recommendations on how to regulate sign content within the law. Prohibit the sale of drug paraphernalia in TRL. | (1) Use outside counsel to draft TRL ordinance, (2) prohibit the sale of drug paraphernalia |
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