Body
Department of Community Development
Reference: Electronic Cigarettes and Vaporizers
To: Mayor Richard N. McLean and Members of City Council
Through: Manuel Esquibel, City Manager
Marv Falconburg, Assistant City Manager, AICP
Holly Prather, Community Development Director, AICP
Jason Bradford, Planning Manager, AICP
Prepared By: Aja Tibbs, Long Range and Historic Preservation Planner
Date Prepared: October 31, 2014
PURPOSE
To first amend article 8-44 of the Municipal Code in order to include electronic cigarettes and vaporizers into the existing smoking prohibited regulations. Secondly, to amend the Land Use and Development Code in order to adopt a definition of "tobacco sales," which will reference the amendment of the Brighton Municipal Code.
BACKGROUND
Electronic cigarettes are a new use which has grown in popularity over the last year. Because it is a new use, there is nothing in the current land use code to address how it will be regulated. In the interim, staff has interpreted the use to be similar to tobacco sales. However, the code should be revised to specifically address the use of electronic cigarettes in public places.
Electronic cigarettes are devices that simulate the act of smoking by vaporizing a liquid that is then inhaled. Examples of electronic vaporizers include, but are not limited to, electronic cigarettes, electronic cigars, and personal vaporizers. The liquid cartridges may contain a variety of contents. There are liquids which contain nicotine or THC (chemical compound found in marijuana), but also liquids without either one (just flavored).
The Centers for Disease Control (CDC) recently reported significant increases in calls to poison centers related to e-cigarettes and the U.S. Federal Drug Administration (FDA) has begun the process of writing new regulations governing the fast-growing e-cigarette industry. These new rules are expected to regulate e-cigarettes as tobacco products, placing them under the same requirements as cigarettes. The director of the FDA's Center for Tobacco Products was recently quoted as saying, "When finalized [the proposed regulations] would result in significant public health benefits, including through reducing sales to youth, helping to correct consumer misperceptions, preventing misleading health claims and preventing new products from entering the market without scientific review by FDA."
Other municipalities in the area are following suit. Lakewood and Fort Collins have both adapted regulations to incorporate electronic cigarettes into their existing smoking and tobacco regulations. Communities such as Louisville, Golden, and Commerce City are reportedly doing the same. Reasons provided for the restrictions include, but are not limited to, the following:
1) The use of electronic cigarettes mimics or copies the act of traditional tobacco cigarettes, and their use in the public should be prohibited to eliminate confusion or misconceptions to the general public.
2) The use and practice of electronic cigarettes in the public creates the appearance of a social norm and influences the potential increase in smoking habits in minors and future generations. Such practice reverses the intentional progress made with the Colorado Clean Air Act and its general prohibition of tobacco use in areas of possible secondhand exposure.
3) Vapor released into the air from the user can contain nicotine, lead, nickel, and chromium, and no research or evidence exists to indicate the harm these toxins may cause to nearby persons.
4) The FDA does not yet regulate these materials, so their levels of toxicity and the danger they pose to the user and surrounding persons is still unknown. Restricting any negative effects to non-users is protecting the health, safety, and welfare of the community. Note: The FDA rule-making process will take some time to complete. When those regulations are finally adopted, staff will review them and make recommendations for additional changes to the code, if warranted.
Certain code amendments would need to be made in order to enact regulations which would regulate electronic cigarettes in the same manner as smoking in public. The first code amendment proposed is to Article 8-44. Smoking Prohibited of the Municipal Code to address electronic cigarettes. Currently, Article 8-44 prohibits smoking in any building or indoor area except the following:
1) Private dwelling that is not used for a public business (such as a daycare or healthcare facility);
2) A place of employment with three or fewer employees who have consented to the smoking;
3) Up to 25% of designated hotel guestrooms;
4) The outdoor area of any business (subject to perimeter provisions);
5) A private non-residential farm (further defined in regulations);
6) A pre-existing tobacco store or cigar bar that meets non-conforming regulations.
Article 8-44 also includes definitions of "smoke or smoking" and "tobacco" to clarify what applies to the regulations. The drafted amendment modifies the current regulations to include the use of electronic vaporizers and their related products in the same manner.
Secondarily, an amendment has been proposed for the definitions section of the Land Use and Development Code to address the use of "tobacco sales." The new definition would be added to reference the previously described Municipal Code amendment to Article 8-44. Said definition would clarify that electronic cigarettes and their associated materials and products could be sold as a primary use in the same zone districts which currently permit tobacco sales uses. Currently, "tobacco sales" are an allowed use in the General Retail and Sales Services (C-3) zone district, and are a conditional use in the Restricted Retail and Services (C-2), Downtown (DT), Mixed Use Neighborhood Center (MUNC) and the Mixed Use Commercial Center (MUCC) zone districts, which requires approval by the City Council. The proposed reference in the land use code would be written as follows:
Tobacco Sales: shall be as defined in Section 8-44-20 of the Brighton Municipal Code, as the same may be amended from time to time.
Instead of adding a unique definition to this section in the Land Use and Development Code, the reference to the definition in the Municipal Code, will ensure consistency between both sections of Brighton's code.
PUBLIC COMMENT
Public notice of the City Council public hearing was published in the Brighton Banner for not less than 15 days before the City Council meeting (published October 30, 2014). No public comment has been received as of this day, November 12, 2014.
PLANNING COMMISSION
The Planning Commission held a public hearing regarding the proposed Land Use and Development Code amendment on October 14th. At said meeting, the commission reviewed the draft proposal and continued their recommendation to November 10th, in order to additionally consider the proposed amendment. At the November 10th meeting the Commission voted to make a recommendation to the City Council for denial of the proposed Land Use and Development Code amendment. A copy of the Resolution which provides their recommendation and justification for denial has been attached for review. Amendments to the Municipal Code do not appear before the Planning Commission, so their recommendation is exclusively drafted in response to the Land Use and Development Code amendment.
STAFF RECOMMENDATION
Staff is recommending approval of the proposed code amendments with input/revisions from the City Council and public.
OPTIONS FOR COUNCIL CONSIDERATION
· approve the code amendment as drafted; or
· Approve the code amendment with specific revisions and changes; or
· Deny the code amendment.
Attachments
· Ordinance (Draft) with Exhibits
· Planning Commission Resolution