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City proposal to restrict tobacco product sales draws worry about livelihoods of business owners

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APRIL 20, 2015

A proposed measure to restrict tobacco product sales near Berkeley schools and parks has inspired apprehension in some city business owners, who say a vast portion of their livelihoods relies on such sales.

The ordinance would prohibit the sale of tobacco products within a 1,000-foot buffer zone around schools and public parks and would require sellers of electronic cigarettes to obtain a tobacco retail license. Although the proposed ordinance was initially put before Berkeley City Council at its April 7 meeting, the council opted to push consideration of the issue to May after hearing concerns from several public commenters about the effect the ordinance might have on small businesses.

The ordinance follows other actions taken by the city to reduce tobacco use, such as a ban — implemented last May — on smoking in multi-unit housing.

“It’s part of a continuum of how we can continue to make tobacco less available,” said Councilmember Linda Maio.

According to Councilmember Susan Wengraf, the benefits of discouraging smoking must be weighed against the “unintended consequences” of the 1,000-foot buffer, which, according to the ordinance’s agenda item, would affect 80 percent of licensed tobacco retailers in the city.

“I’m not in favor of tobacco — tobacco’s all bad,” Wengraf said. “But I need to understand what the impacts will be to our small business owners.”

The proposed ordinance also provides a grace period of one to two years to alleviate negative financial impacts. But according to Steve Duffy, a legislative consultant for the National Association of Tobacco Outlets, Inc., the grace period does not provide sufficient leeway. He added that tobacco retailers generally have little interest in selling tobacco products to minors and that regulations already exist to prevent such sales.

“The 1000 foot distance is arbitrary and capricious, and would not pass even the low ‘rational basis’ test of judicial scrutiny,” Duffy wrote in a letter to City Council.

Councilmember Kriss Worthington, however, said he has seen the proliferation of too many smoke shops in his district, which he thinks ought to be reduced for the sake of public health.

Dan Acland, a campus assistant adjunct professor of public policy, said it seems likely that the long-term health benefits of restricting tobacco product sales would outweigh the effects on local businesses.

In regard to the part of the proposed ordinance that would require tobacco retail licenses for e-cigarette sellers, Rick Evans, the owner of Delux Vapor, emphasized that while e-cigarettes dispense nicotine, they are distinct from tobacco products.

The proposed regulations are set to return to City Council for further consideration May 12. Some council members have said that in light of the various concerns brought up about the issue, they expect a compromise to be made.

Melissa Wen is the executive news editor. Contact her at [email protected] and follow her on Twitter @melissalwen.
LAST UPDATED

APRIL 20, 2015


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