Subject
title
Discussion and Instructions to Staff on a Zoning Text Amendment TXT2024-00265, to Regulate
Vape and Tobacco (Smoke) Shops; Mayor and Council of Rockville, Applicants.
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Department
CPDS - Zoning Review & Other
Recommendation
Staff recommends that the Mayor and Council discuss the proposed amendment and provide direction to staff on the preferred approach to regulate smoke shops.
Change in Law or Policy
The proposed text amendment will regulate retail establishments that qualify as smoke shops.
Discussion
Background
In 2023, the Mayor and Council expressed concern about the regulation of electronic cigarettes and vaping supplies at retail establishments in the City, particularly for underage users. After discussing the issue, the Mayor and Council approved a moratorium on the acceptance or issuance of any permits for an establishment that devotes at least 25% of its floor area to the sale, display, or use of electronic cigarettes or other electronic smoking devices or products on March 27, 2023.
On July 31, 2023, the Mayor and Council had a work session on the topic and extended the moratorium until August 31, 2024. The extended moratorium differs from the initial moratorium in that the revised moratorium applies to the acceptance or issuance of any permits for an establishment that devotes at least 10% of its floor area to the sale, display, or use of electronic cigarettes or other electronic smoking devices or products. Per the ordinance, such establishments are “vape shops”.
The Mayor and Council further directed staff to prepare a draft zoning text amendment that achieves the following:
• Regulates both vape shops and tobacco shops (collectively, “smoke shops”).
• Restricts the location of smoke shops in locations near public and private schools (pre-K through post-secondary); daycare/childcare centers; and public recreational facilities that serve children including playfields, playgrounds, tennis courts, community centers, and recreation centers.
• Includes a setback from certain recreational facilities.
The Mayor and Council subsequently authorized the subject text amendment incorporating the above direction on September 18, 2023 (see Attachment), with additional changes made at the meeting.
The Mayor and Council held a public hearing on June 10, 2024. Several residents of the Woodley Gardens and College Gardens neighborhoods spoke in support of not permitting smoke shops near residential neighborhoods.
Discussion:
Vape shops and tobacco shops are considered retail use under the current Zoning Ordinance, as tobacco and vaping supplies are categorized as “consumable goods to be used in the home,” like retail goods found in grocery stores, convenience stores, and boutiques. As such, they are permitted in all the City’s mixed-use (MX) zones as a matter of right with site plan approval for retail use, except for the MXT (Mixed Use Transition) Zone, where retail uses are a conditional use limited to 2,500 sq. ft. in floor area.
Staff Recommendation
The initial draft of the text amendment resulted in a complex regulatory scheme for smoke shops that is difficult to understand, administer, and enforce, in addition to resulting in a prohibition of such uses in most of the city. Staff therefore recommends that the Mayor and Council consider a simplified version of the zoning change that would achieve the objective of not permitting smoke shops in or near residential areas. Also, staff believes this proposal will address many of the concerns received from the public.
As discussed briefly at the public hearing, staff believe that smoke shops should be regulated by zone rather than by requiring extensive buffer requirements as included in the initial draft. Smoke shops could be “not permitted” in zones that allow retail use and are near or within existing residential neighborhoods. The recommended zones that would prohibit smoke shops would be the MXC (Mixed Use Commercial), Mixed Use Transition (MXT), and Mixed Use Neighborhood Center zones, and properties in these equivalent zones within Planned Developments (PDs). The remaining mixed-use zones - Mixed Use Business (MXB), Mixed Use Commercial Transition (MXCT), Mixed Use Corridor District (MXCD), Mixed Use Employment (MXE), and Mixed Use Transit District (MXTD) as well as the Light Industrial (IL) Zone - would allow smoke shops as a permitted use.
The attached map shows how this scheme would function, with smoke shops prohibited from properties such as the Woodley Gardens Shopping Center, Maryvale Shopping Center, Twinbrook Shopping Center, and the King Farm Village Center. Smoke shops would be permitted in the Rockville Pike corridor, in Town Center, and other areas where retail is permitted but not in or near residential neighborhoods.
As recommended, there would not be any buffers for sensitive uses. Such buffers become variable, as the buffer scheme would result in existing smoke shops becoming nonconforming by virtue of a sensitive use such as a childcare center located nearby. With the zoned-based solution, the status of existing smoke shop uses would be clear and consistent.
Staff recommends that the Mayor and Council consider this option as a preferred alternative for the regulation of smoke shops.
Note: the following text duplicates the public hearing staff report and is provided as information.
Federal Regulations
The federal government adopted legislation amending the Federal Food, Drug, and Cosmetic Act on December 20, 2019. This legislation, known as “Tobacco 21” or “T21,” increased the minimum age for the sale of tobacco products, including electronic nicotine delivery systems, from 18 to 21 years old. The law also requires that retailers ask for photo ID from everyone under 27 years of age. The federal law does not include an exemption for military personnel between the ages of 18 and 20.
There are no federal laws establishing age verification requirements for internet purchases of tobacco products. As a result, research shows that many underage e-cigarette users purchase them online rather than from vape shops or other brick-and-mortar retailers.
State of Maryland Regulations
The State of Maryland adopted its own T21 regulations that became effective on October 1, 2019. T21 increased the minimum age for sales of all tobacco products in Maryland from 18 to 21. This includes sales of all electronic smoking devices, component parts, and accessories. The Maryland Department of Health, local health departments, and local law enforcement agencies are authorized to enforce the law.
Maryland defines “tobacco products” and “electronic smoking devices” (ESDs) separately and considers non-nicotine e-cigarettes and e-liquids to be tobacco products. Maryland is one of eight states that prohibit the sale of all flavored cartridge-based and disposable e-cigarettes except for menthol.
To comply with Maryland’s T21 law, retailers need to: (1) post an age of sale sign compliant with the law in a clearly visible location; (2) use a driver’s license or government-issued ID to verify customer age; and (3) provide staff training.
The Comptroller’s Field Enforcement Division is charged with reviewing license checks and product compliance.
Montgomery County Regulations
The Montgomery County Council adopted Ordinance No. 19-10, which became effective on June 29, 2020. This ordinance amended Chapter 59, Zoning, of the Montgomery County Code to add “Vape Shop” as an allowed use in certain zones and establish standards for Vape Shops where permitted.
Key components of the County’s zoning regulations are:
• Vape shops are permitted as a limited use in any Commercial/Residential (CR) zone, Employment zone, Industrial zone, and the R-10 Zone.
• Vape shops are defined as any Retail or Service Establishment that devotes at least 51% of its floor area to the sale and display of electronic cigarettes or allows vaping on site.
• Explicitly excludes retailers that sell electronic cigarettes in an area of the store (such as convenience or grocery stores).
• Access to vape shops is prohibited to any person under the age of 21 years old.
• Vape shops are prohibited within 1/2 mile of a property where a middle or high school is the principal use.
• No limitations on proximity to parks, libraries, or community centers.
In addition to the zoning regulations, the County also regulates e-cigarettes through Chapter 24, Health and Sanitation, of the County Code:
• Bill 29-19 and implementing regulation prohibits e-cigarette manufacturers from distributing all e-cigarettes to retail stores within 1/2 mile of a middle or high school.
• Bill 32-19 and implementing regulation prohibits e-cigarette manufacturers from distributing flavored e-cigarettes to retail stores within 1/2 mile of any elementary, middle, or high school; library; or recreational facility. “Recreational facilities” are not defined within the bill or elsewhere in the County’s code of ordinances.
These regulations work together with the county zoning ordinance to establish limitations on the location and operation of vape shops. These bills were enacted as Bill No. 29-19 and 39-19 by the County Council, sitting as the Board of Health. Per Section 1-8(c) of the City Code, these County regulations also apply in Rockville. These regulations are implemented and enforced by the Montgomery County Department of Liquor Control. Electronic Smoking Devices Retailer or Vape Shop Vendor licenses are issued by Montgomery County Circuit Court.
City of Rockville Current Regulations
Per Section 1-8(b) of the Rockville City Code, specific provisions of the Montgomery County Code apply within the city. This includes Chapter 24, Section 24-9 (smoking prohibitions and restrictions), and, Section 24-9D (tobacco products-placement). As a result, the Montgomery County regulations in Chapter 24 related to smoking prohibitions and the sale of tobacco products apply within city limits. As noted above, even though not specifically identified in Section 1-8(b), per Section 1-8(c) legislation adopted by the County Council sitting as the Board of Health related to sales of e-cigarettes and flavored tobacco applies within the city.
In addition to the Montgomery County regulations noted above, Sec. 13-21 of the Rockville municipal code includes prohibitions on smoking and vaping in outdoor serving areas of eating and drinking establishments. This prohibition includes outdoor areas of cafes, coffee shops, restaurants, and similar.
Draft Text Amendment
The draft zoning text amendment as filed includes references to currently defined use categories (for example, the draft ordinance references child care center or child care home, which are terms that are defined in the Zoning Ordinance, rather than just child care center, which is the term used by the State) and includes new definitions for “smoke shop” and “tobacco product” and cross-references to the definitions of “electronic smoking device,” “smoke,” and “vape” already contained in City Code Chapter 13, Miscellaneous Provisions.
The draft ordinance as authorized for filing for the Mayor and Council, included several key components:
• A new use called a “smoke shop” would be added to the Zoning Ordinance.
• Smoke shops would be listed as a use type and are proposed to be allowed as a conditional use in the Light Industrial (IL), Mixed-Use Transit District (MXTD), Mixed-Use Corridor District (MXCD), Mixed-Use Employment (MXE), Mixed-Use Corridor Transition (MXCT), Mixed Use Neighborhood Commercial (MXNC), Mixed-Use Commercial (MXC) and Mixed-Use Transition (MXT) zones. Conditional uses are permitted provided they meet the conditional use standards for that use.
• Smoke shops would be prohibited in all other zones.
• Where allowed as a conditional use, smoke shops must meet new conditional use standards, and are not allowed:
o Within 1,000 ft. of a parcel that contains a child care center or child care home; a Destination Park, City Wide Park, or Neighborhood Park; or a Public Library. This distance reflects the buffer recently adopted by the State of Maryland for the location of cannabis shops to restrict sales near schools and youth-serving locations. This distance is intended to keep these uses from the view of facilities serving young children.
o Within 1/2 mile of private or public elementary/primary schools; public and private middle and high schools or post-secondary schools (such as colleges). This buffer is similar to the provisions of the Montgomery County zoning code as well as the Montgomery County Code Sec. 24-15(b) and Sec. 24.16(b) prohibitions on the distribution of electronic cigarettes and flavored electronic cigarettes near specific schools and uses, although the proposed ordinance for the City adds elementary schools and preschools.
• Existing retailers meeting the definition of “smoke shop” within these buffers would be deemed nonconforming uses. This status is described in more detail below.
The attached map demonstrates the effect of the text amendment as drafted, with the limited land area available and zoned for retail use to locate smoke shops where they would be permitted by right.
Nonconforming Uses
If a use met the standards in place at the time of establishment, and those standards have since changed, the use can continue as a nonconforming use in its current state. Therefore, if the proposed regulations are adopted, existing businesses within the proposed buffer areas as noted above would be rendered nonconforming.
As a nonconforming use, any revisions to the use, building, or site are subject to the provisions of Sec. 25.08.05 and require review and nonconforming alteration approval by either the Chief of Zoning (through a Level 1 Site Plan process) or the Planning Commission (through a Level 2 Site Plan process) per Sec. 25.08.08.
The draft zoning text amendment does not include an amortization period, or “grace period,” for existing businesses that meet the definition of “smoke shop” and are located within the proposed buffers to come into compliance. Existing retailers that meet the definition of “smoke shop” and can meet the proposed conditional use criteria are deemed conforming; those that are not able to meet the proposed conditional use criteria are deemed nonconforming. In lieu of an amortization period, the Mayor and Council may wish to adopt regulations and set an effective date at some point in the future (for example, six months) to allow City staff to establish an inspection process and allow existing businesses to make any needed revisions.
Mayor and Council History
Mayor and Council adopted Ordinance No. 05-23 on March 27, 2023. This ordinance established a six-month moratorium of the establishment on vape shops in the city.
Staff presented a revised and extended vape shop moratorium ordinance to the Mayor and Council on July 31, 2023. This ordinance extended the moratorium to August 31, 2024, reduced the floor area that could be dedicated to the sale or display of e-cigarettes or supplies (“vape shops”) from 25% to 10%, and clarified the definition of the terms in the ordinance. The Mayor and Council adopted the revised moratorium ordinance unanimously and it became effective immediately as Ordinance No. 14-23.
The Mayor and Council authorized the filing of this zoning text amendment on September 18, 2023, and in doing so modified the staff-recommended version. The Mayor and Council conducted a public hearing on the zoning text amendment on June 10, 2024. Several members of the public addressed the Mayor and Council in support of regulation to limit smoke shops near residential areas. In addition, written testimony has also been submitted (see Attachment).
Public Notification and Engagement
Written notification with details of the Mayor and Council public hearing, the Planning Commission meeting, and an online public information session were mailed to all businesses that might qualify for the definition of the smoke shop, as well as all property owners with approved retail use.
In addition, the public information office undertook the standard public hearing notice via the city’s media channels. As required by the code, the public hearing was also advertised in the Washington Post.
Boards and Commissions Review
The Planning Commission received a briefing on the Text Amendment on March 27, 2024, and discussed the amendment at its meeting on May 22. The Commission recommends against adopting the Text Amendment and further recommends that the Mayor and Council revisit the intent of the Text Amendment to address the concerns raised by the Commission. These include whether there should be further restrictions on the use of vaping and smoking materials, such as in public parks; the negative impact of the regulations on existing businesses and the economy of the city; and whether the draft text amendment addresses the intent of the Mayor and Council. The Commission’s recommendation memo is attached to this report.
Fiscal Impact
It is expected that there may be additional inspection work for the Community Enhancement Code Enforcement staff in responding to complaints and violations of these regulations.
Next Steps
It is expected that the Mayor and Council will provide direction on the preferred approach to regulating smoke shops at this meeting. If the Mayor and Council wish to proceed to adoption, the ordinance must be introduced and adopted at a subsequent meeting.