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18.109.030 Prohibition and Effect on Existing Retail Sites. <br /> A. No person shall cause or permit the establishment of a new <br /> tobacco retail site within one thousand feet (1,000 ft.) of a public <br /> school, public park, or public recreation facility. <br /> B. A tobacco retail site which is within one thousand feet (1,000 ft.) <br /> of a public school, public park, or public recreation facility that is <br /> existing on the effective date of this ordinance may continue to <br /> operate, sell and display tobacco products and tobacco <br /> paraphernalia. <br /> 1. However, such pre-existing retail tobacco site shall then be <br /> subject to the nonconforming use provisions in Chapter <br /> 18.120. <br /> 2. When there is a change in ownership of such pre-existing <br /> retail tobacco site, the ability to operate, sell and display <br /> tobacco products and tobacco paraphernalia shall terminate <br /> upon change in ownership, unless otherwise required by <br /> law. <br /> 3. A retail tobacco site which qualifies under this section shall <br /> still be subject to other tobacco retail restrictions in the <br /> Municipal Code and state and federal law. <br /> Seven of the fourteen cities in Alameda County have similar buffers prohibiting new <br /> tobacco sales within specified distance of youth-serving uses. Those cities grandfather <br /> existing tobacco sales sites and allow them to continue (so long as they do not expend <br /> or change locations). Only Alameda County terminates the right to continue existing <br /> tobacco sales upon change in ownership. <br /> With the Council's action on May 5th to have grandfathering terminate upon change in <br /> ownership, the nonconforming use provisions of Chapter 18.120 will be updated to <br /> provide a grace period for such existing tobacco sites within the 1,000 foot buffer to <br /> continue to sell tobacco products and tobacco paraphernalia, but then terminate such <br /> rights when the grace period expires. <br /> Direction. The Council may provide policy direction about the duration of such a <br /> grace period. For non-confirming uses, courts have supported a <br /> minimum one (1) year grace period before removal of a legal non- <br /> conforming use. The existing code provides a grace period of up to five <br /> years for legal non-conforming structures (as structures and <br /> improvements typically have longer grace periods than just uses). <br /> Recommendation.Staffs recommendation is unchanged from May 5th, to allow <br /> existing tobacco sales within the 1,000 foot buffer to continue - <br /> "grandfathering" (and therefore delete subsection <br /> 18.109.030.6.2, above). <br /> 9 <br />