Planning Commission Staff Report
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MEETING DATE: |
May 22, 2024 |
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REPORT DATE: |
May 15, 2024 |
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RESPONSIBLE STAFF: |
Jim Wasilak, AICP Chief of Zoning 240-314-8211 jwasilak@rockvillemd.gov |
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SUBJECT: |
Zoning Text Amendment TXT2024-00265, to Regulate Smoke Shops |
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BACKGROUND: |
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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 their 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 (see Attachment ) 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 their floor area to the sale, display or use of electronic cigarettes or other electronic smoking devices or products. Per the ordinance, such establishments are considered to be “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); day care/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.
Mayor and Council also noted that:
• Passive parks such as open space and natural areas that do not include recreational equipment do not need to be buffered from smoke shops.
• There is no need to limit the number of smoke shops in the city or their proximity to each other.
• New definitions and regulations should be clear and enforceable.
Finally, Mayor and Council requested additional information regarding:
• How neighboring municipalities are regulating vape and tobacco shops.
• How Montgomery County enforces prohibitions on distribution of vape products or flavored tobacco products within 1/2 mile of middle and high schools (i.e., as a proactive or complaint-based enforcement approach).
The Mayor and Council subsequently authorized the subject text amendment incorporating the above direction on September 18, 2023 (see Attachment), with the following changes made at the meeting:
• Increase the proposed 500-foot buffer from certain uses to 1,000 feet;
• Increase the proposed 500-foot buffer for Elementary schools and preschools to ½ mile; and
• Decrease the amount of floor area devoted to electronic cigarettes and supplies from 25% to 10%.
In response to the information requests, staff prepared a table that summarizes regulations in neighboring jurisdictions (see Attachment) and followed up with Montgomery County staff to confirm that the County employs a complaint-drive approach to enforcement of the prohibitions in the County Code.
DISCUSSION:
Vape shops and tobacco shops are considered a retail use under the current Zoning Ordinance, as tobacco and vaping supplies are categorized as “consumable goods to be used in the home,” similar to retail goods found in grocery stores, convenience stores, and boutiques. As such, they are permitted in all of the City’s mixed-use (MX) zones as a matter of right with site plan approval for retail use, with the exception of the MXT (Mixed Use Transition) Zone, where retail uses are a conditional use limited to 2,500 sq. ft. in floor area.
An internet search identified ten vape and/or tobacco shops located in the city limits, primarily along Hungerford Drive/Rockville Pike (MD 355). Staff has not verified whether these shops meet the definition of “vape shop” described in the moratorium but has included them in this analysis to determine the impacts of potential regulations on existing retailers.
In addition to dedicated vape shops, there are numerous convenience stores, grocery stores and other retailers that sell cigarettes and electronic smoking products alongside other products.
Research suggests that most underage vape/e-cigarette users do not purchase the materials from vape shops. Given the strict regulations that apply, shops are more likely to require identification for entry and/or the purchase of products. Numerous studies show that the majority of underage users purchase or borrow vape pens from friends, purchase them online, or purchase them from convenience stores or grocery stores where age verification may be more lax.
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 of the sale of tobacco products 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. Though many states, including Maryland and Virginia, permit the sale of tobacco products to active-duty military members between the ages of 18 and 20, the federal law takes precedence over those allowances.
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’s T21 law includes a military exemption for active-duty military members between 18 and 20 years old; however, as noted above, federal law takes precedence over state regulations.
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. 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 apply 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 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 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 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 business to make any needed revisions.
The draft text amendment as authorized also ties the conforming status of a smoke shop within 500 feet of a buffered use to the date that the smoke shop began legal operation. Regarding future establishment of uses that require a buffer, the draft text amendment establishes that an existing smoke shop remains a conforming use if one or more of the uses requiring a buffer are established within 500 feet of the shop after it has begun legal operation. This allows for a change of ownership and issuance of a new certificate of occupancy for a legally established business after a buffer use is established nearby.
An exception is that an existing smoke shop is proposed to become a nonconforming use if a middle school, high school, or postsecondary school is established within 1/2 mile of the shop. This is because middle schools, high schools, and colleges or universities typically require years of planning and discussion of funding, and a business owner would have ample opportunity to relocate if one of these institutions was to locate nearby if they did not wish to become nonconforming.
RECOMMENDATION:
Staff has done additional analysis of the text amendment as filed and developed recommended changes for consideration as a result. The recommended changes are intended to more closely follow the zoning restrictions as adopted in Montgomery County, while also meeting the intent of the Mayor and Council in limiting access to smoking materials to younger users. Staff therefore recommends changes to the conditional use requirements, as follows:
• Remove post-secondary school uses from the sensitive use category entirely. Students attending a post-secondary institution such as Montgomery College, have reached adulthood and are able to make decisions on the use of such products
• Remove child care centers and child care homes from the sensitive use category entirely. With access to these facilities provided by parents or caregivers, such very young children are in the company of adults
• Add public libraries to the uses requiring a .5 mile buffer. Libraries attract children of all ages, including those most vulnerable to being influenced by the presence of vape shops. This also aligns with the regulations in Montgomery County.
• Add City recreation centers to the uses requiring a .5 mile buffer. Similar to libraries, recreation centers attract children of all ages. Montgomery County also restricts sales within .5 miles of recreation and community centers operated by the County.
• Prohibit smoke shops on properties that adjoin or confront public parkland rather than requiring a 1,000 foot buffer from them. This would restrict the location of smoke shops on all properties that share a property line with public parkland, and also on properties that are across a street or public right-of-way from public parkland. This would restrict the proposed smoke shop use from properties that are frequented by young children.
• Retain the nonconformity provisions as drafted.
The final map shows the effect of the staff recommendations and illustrates the areas of the City where retailing by smoke shops would be prohibited, which includes a lesser are of the City than the amendment as filed.
Staff recommends approval of the revised text amendment, subject to any revisions that the Commission would recommend.
PUBLIC OUTREACH:
Staff mailed written notice to commercial property owners and businesses selling smoking materials to make sure they are aware of the proposed changes. Staff also sent email notice to all Rockville neighborhood associations. The notices included the announcement of the Planning Commission meeting and the Mayor and Council public hearing on June 10.
NEXT STEPS:
Staff will draft a Planning Commission recommendation memo to memorialize the Commission’s discussion as directed so that the Mayor and Council will have the benefit of the Commission’s review and discussion.