REPORT TO THE PLANNING COMMISSION
February 19, 2025
FROM: JENNIFER K. CLARK, Director
Planning and Development Department
THROUGH: ASHLEY ATKINSON, Assistant Director
Planning and Development Department
BY: PHILLIP SIEGRIST, Planning Manager
Planning and Development Department
SUBJECT
Title
Consideration of Text Amendment Application No. P23-03410 and related Environmental Finding for Environmental Assessment No. P23-03410, amending Sections 15-2761 and 15-6802 of the Citywide Development Code, relating to Tobacco and Vapor Sales, Smoke Shops, and Definitions.
1. RECOMMEND ADOPTION (to the City Council), of a finding set forth in Environmental Assessment No. P23-03410 dated January 15, 2025, that Text Amendment Application No. P23-03410 is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the CEQA Guidelines.
2. RECOMMEND APPROVAL (to the City Council) of Text Amendment Application No. P23-03410, to amend Sections 15-2761 and 15-6802 of the Citywide Development Code, relating to Tobacco and Vapor Sales, Smoke Shops, and Definitions.
Body
EXECUTIVE SUMMARY
Current regulations for tobacco and vapor sales included in Fresno Municipal Code (FMC) Section 15-2761 only provide restrictions for signage when establishments are near sensitive uses. Specifically, any establishment located within 400 feet of a park, school (private or public), day care, or other youth-sensitive places (e.g., boys and girls club, youth activity centers) may not advertise smoking sales (such as for tobacco, vapor, or similar products) or related paraphernalia in a manner visible from the outside of the establishment, such as from a public thoroughfare, sidewalk, or parking lot.
Text Amendment Application No. P23-03410, as initiated by the Fresno City Council under Resolution No. 2022-052 (Exhibit A), pursuant to FMC Section 15-5803-A(1), proposes to amend Section 15-6802 and Section 15-2761 of the FMC relating to terms and definitions and the sale of tobacco vapor products. The purpose of the Amendment is to establish regulations for Smoke Shops, amortize Existing Smoke Shop establishments, and allow up to seven (7) establishments per City Council District. As proposed, the proposed Text Amendment includes:
I. Definitions and Applicability:
a. New Definitions: Multiple new definitions have been added to FMC Section 15-6802 to make the Ordinance cohesive with State law and provide clarity on terms.
b. Types of Smoke Shops: Definitions for “Existing Smoke Shops” versus “New Smoke Shops” and discusses how the various provisions of the Ordinance apply to each, including amortization.
c. Applicability of Location Restrictions: A clarification has been added that Existing Smoke Shops which change the nature of their business or wind down and close operations are not subject to the location restrictions.
II. Procedural Changes:
a. Permitting: Details on how New Smoke Shops may be permitted have been added, including the requirement to obtain both a Conditional Use Permit and a Business License.
b. Public Notice of Available Permits: Provisions regarding how the City is to provide notice to the public on the availability of Smoke Shop Conditional Use Permits for Council Districts are outlined. This includes sections on lottery drawings whenever the number of applications for a Conditional Use Permit exceeds the number of available Conditional Use Permits for Smoke Shops.
c. Annual Inspections: Annual inspections shall be unannounced, and the Smoke Shop Operator will be required to pay the City for the cost of said inspections.
d. Fines for Sales to Minors: The fine for sales to a minor shall be $2,500.
e. Fresno Municipal Code Citations: Includes references to FMC Sections regarding administrative and criminal citations imposed on the business owner for violations of the Fresno Municipal Code.
f. City Cost Recovery: The City shall be permitted to seek recovery of its costs for Code Enforcement and public nuisance abatement.
g. City Remedies: The City shall also be permitted to seek any and all remedies available by law or in equity against Smoke Shop Owners and Operators which violate the Ordinance or the FMC.
h. Administrative Oversight: Provisions have been added to permit the City Manager, or designee, to issue rules and regulations interpreting and enforcing the provisions of the Ordinance.
III. Substantive Changes:
a. Amortization of Existing Smoke Shops: Provisions regarding Amortization of Existing Smoke Shops have been added. Amortization gives Existing Smoke Shops up to 18 months to change the nature of their business or wind them down and close operations. Alternatively, Existing Smoke Shops may apply for a Conditional Use Permit alongside New Smoke Shops.
1. Extension of Amortization Period: The amortization section provides an opportunity for Existing Smoke Shop Owners/Operators to file a request for extension from the initial 18 months provided if they need more time to wind down their business. This request for extension will be handled via the appeals system provided in the Development Code, with Planning Commission being the initial Review Authority for the appeal. This section also provides the criteria by which the Review Authority shall make their decision regarding granting or denying the request for extension.
b. Numerical Limit on Smoke Shops: The limit on the number of Smoke Shops within any given Council District is set at 7. Thus, given the existence of 7 Council Districts, no more than 49 Smoke Shops may be permitted within the City.
1. Resolutions to Increase or Decrease Numerical Limit on Smoke Shops: A section has been added which allows individual City Councilmembers to bring forth a Resolution to City Council for approval, as a body, to increase the number of Smoke Shops permitted in their District from 7. Similarly, individual City Councilmembers would be permitted to bring forth a Resolution to City Council for approval, as a body, to decrease the number of Smoke Shops permitted in their District. However, the Ordinance does not allow the number of Smoke Shops per District to be reduced to below 7.
c. Graffiti Abatement: A graffiti abatement requirement has been added which is imposed upon Smoke Shop Operators.
d. Security Footage: Smoke Shops shall be required to maintain security systems and cameras, including a requirement to maintain security footage for longer than two weeks when a criminal offense has taken place has been added.
e. Egregious Violations: Language regarding “egregious violations” has been added. Egregious violations include problems caused by a Smoke Shop, such as illegal drug activity, smoke and vapor product sales to minors, prostitution, gambling, and other disturbances of the peace, which will subject the Smoke Shop to an immediate 30-day suspension of their right to operate. Smoke Shops which have been closed pursuant to this section will only be permitted to reopen upon a premises inspection and written permission from the City Manager. If they do not remedy the egregious violation, or a second egregious violation occurs, then the Director of Planning may pursue revocation of the Conditional Use Permit.
f. Training Deadline: A 60-day time limit to obtain requisite training in tobacco sales for owners, operators, and employees has been added.
g. Annual Training: An annual training requirement, which complies with State standards, has been added for the Smoke Shop Operator and all employees. Smoke Shops shall also be required to keep up to date records which prove all required individuals have received training, and shall furnish these records to the City during inspection and upon reasonable request.
h. Prohibited Products:
i. Multiple items have been added as prohibited for Smoke Shops to sell, including cannabis, nitrous oxide, and flavored tobacco as required by State law.
ii. The Fresno Police Department and the City’s Code Enforcement shall be vested with the authority to seize and destroy flavored tobacco products.
iii. Smoke Shops which are found to be selling cannabis or cannabinoid products, or flavored tobacco, shall immediately be subject to Conditional use Permit revocation proceedings.
i. Non-Operating Rule: A “non-operating rule” has been added. If Smoke Shops shut down voluntarily for more than one year, they must obtain a new CUP to begin operating again.
PUBLIC NOTICE AND COMMENT
A Legal Notice of this public hearing was published in the Fresno Bee on December 26, 2024, and January 29, 2025, pursuant to Fresno Municipal Code Section 15-5007(D) (See Exhibit C). In addition, the notice was posted on the City Clerk’s website and provided to the City’s distribution list for such notices.
Review by Committees and Commissions
The active Council District Plan Implementation Committees all reviewed the proposed Text Amendment, which applies Citywide. Their recommendations are listed below:
Council District 1
The item was presented on November 14, 2024. While the Committee recommended approval of the proposed Text Amendment, they did express concern for businesses closing under the proposed amortization requirements and suggested funding or incentives be available to help operators transition to a different business operation. In addition, the committee expressed concerns regarding the allowance for individual City Councilmembers to increase the number of Smoke Shops permitted in their respective Districts via Resolution.
Council District 3
The item was presented on November 26, 2024. While the committee showed support for the Text Amendment, they expressed concern for business establishments forced to close or change the nature of their businesses under the proposed amortization requirements and suggested resources be made available to aid in the transition. In addition, the committee expressed concerns regarding the allowance for individual City Councilmembers to increase the number of Smoke Shops permitted in their respective Districts via Resolution. They further suggested the Text Amendment include a limitation on increasing the number of allowable Smoke Shops within a Council District. The committee also expressed concern related to enforcement; especially after regular business hours and on weekends.
Council District 4
The item was presented on November 19, 2024. While the Committee showed support for the Text Amendment, they expressed concern for business establishments forced to close or change the nature of their businesses under the proposed amortization requirements and suggested resources be made available to aid in the transition. In addition, the committee expressed concerns regarding the allowance for individual City Councilmembers to increase the number of Smoke Shops permitted in their respective Districts via Resolution.
Council District 5
The item was presented on November 27, 2024. While the committee showed support for the Text Amendment, they suggested Smoke Shops be required to follow similar security standards that retail cannabis establishments are subject to including identification checks prior to entering an establishment. In addition, the committee recommended Community and Religious Facilities be included as a sensitive use within the applicable location restrictions. Further, the committee recommended establishments be subject to probationary periods after a fine has been imposed and implementation of a strike system used to determine when a Conditional Use Permit shall be revoked.
Council District 6
The item was presented on November 13, 2024. The Committee recommended approval of the proposed Text Amendment with a recommendation that Annual Inspections and Fines be defined more clearly.
Airport Land Use Commission
City staff consulted with ALUC staff and determined that formal ALUC review was not necessary, due to the limited scope of the Text Amendment.
Planning Commission
The Planning Commission considered this item at its regularly scheduled meeting on January 15, 2025, and continued it to allow for Staff to meet with local business owners and operators in the smoke shop industry regarding the proposed text amendment. Staff met with owners and operators on January 23, 2024. Please see Exhibit F for a summary of the meeting.
Public Comments
To date, two (2) comment letters have been received in response to the proposed Text Amendment; one (1) in support and one (1) in opposition (See Exhibit G).
ENVIRONMENTAL FINDING
An environmental assessment was prepared for this project in accordance with the requirements of the California Environmental Quality Act (CEQA) Guidelines (See Exhibit E).
CEQA Guidelines Section 15061(b)(3) states that “CEQA applies only to projects which have the potential for causing a significant effect on the environment” (the “common sense” exemption). “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 proposed Text Amendment is for the City Council to approve in order to modify the established framework for future and existing business establishments engaged in the sale of tobacco and vapor products (e.g., Smoke Shops) and does not commit the City to any specific project.
Therefore, it can be seen with certainty that there is no possibility that accepting this Text Amendment may have a significant effect on the environment and Staff has determined that the project is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3). Staff has also determined that none of the exceptions to Categorical Exemptions set forth in CEQA Guidelines Section 15300.2 apply to this project.
FRESNO MUNICIPAL CODE FINDINGS
Section 15-5811 of the Fresno Municipal Code provides that the Planning Commission shall not recommend, and the City Council shall not approve an application unless the proposed Text Amendment meets Criteria A (1 and 2) of Section 15-5811. Please see Exhibit D for the Fresno Municipal Code Findings.
CONCLUSION
The appropriateness of the proposed Text Amendment has been examined with respect to its consistency with stated goals of the Fresno General Plan; compatibility with surrounding existing and proposed uses; and avoidance or mitigation of potentially significant adverse environmental impacts. These factors have been evaluated as described above and by the accompanying environmental assessment. Based upon this evaluation, it can be concluded that Text Amendment Application No. P23-03410 is appropriate.
ATTACHMENTS:
Exhibit A Fresno City Council Resolution No. 2022-052
Exhibit B Draft Ordinance amending Sections 15-2761 & 15-6802 of the Citywide Development Code
Exhibit C Public Notice
Exhibit D Fresno Municipal Code Findings
Exhibit E Environmental Assessment No. P23-03410 [January 15, 2024]
Exhibit F Industry Meeting Summary
Exhibit G Public Comments