HomeMy WebLinkAbout2020-09-22 - AGENDA REPORTS - CONSIDERATION OF AN URGENCY ORD OF SCV EXTENDING A (2)O
Agenda Item: 8
P
CITY OF SANTA CLARITA AGENDA REPORT
PUBLIC HEARINGS
CITY MANAGER APPROVAL:1
DATE: September 22, 2020
SUBJECT: CONSIDERATION OF AN URGENCY ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA,
EXTENDING A MORATORIUM ON THE ESTABLISHMENT OF
NEW TOBACCO RETAILERS WHO SELL FLAVORED TOBACCO
PRODUCTS FOR AN ADDITIONAL 12 MONTHS OR UNTIL SB 793
TAKES EFFECT, WHICHEVER IS SOONER
DEPARTMENT: City Manager's Office
PRESENTER: Joseph Montes
RECOMMENDED ACTION
City Council:
1. Conduct a public hearing.
2. Consider adoption of an urgency ordinance entitled, "AN URGENCY ORDINANCE
OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA,
EXTENDING A MORATORIUM ON THE ESTABLISHMENT OF NEW
TOBACCO RETAILERS WHO SELL FLAVORED TOBACCO PRODUCTS FOR
AN ADDITIONAL 12 MONTHS OR UNTIL SB 793 TAKES EFFECT,
WHICHEVER IS SOONER."
BACKGROUND
On August 28, 2020, Governor Newsom signed SB 793, which prohibits the sale of flavored
tobacco products. SB 793 includes certain exceptions for specific hookah, cigar, and loose-leaf
tobacco products. (A copy of SB 793 is attached.) SB 793 goes into effect on January 1, 2021.
On October 8, 2019, the City Council adopted an urgency ordinance that imposed a moratorium
on the establishment of new tobacco retailers that sell flavored tobacco. That ordinance was
extended through October 7, 2020. Per the terms of Government Code Section 65858, that
ordinance can be extended for an additional 12 months, after the conduct of a public hearing.
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As an urgency ordinance, this ordinance will require adoption by a 4/5 vote of the City Council
and will extend the current moratorium by an additional 12 months, or until SB 793 goes into
effect, whichever is sooner. SB 793 is expected to go into effect on January 1, 2021, unless
legally challenged and enjoined.
Adoption of this ordinance extending the moratorium is necessary to address the issues raised in
connection with the original adoption of the moratorium and to ensure that those protections
remain in effect until superseded by State law.
The report required by Government Code Section 65858(d) was made available at the City
Clerk's office starting September 11, 2020, and is attached for the Council's reference.
ALTERNATIVE ACTION
Other action as determined by the City Council.
FISCAL IMPACT
No fiscal impact.
ATTACHMENTS
Public Hearing Notice
Ordinance
SB 793
10-Day Report
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NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City of Santa Clarita will
conduct a public hearing on Tuesday, September 22, 2020, at 6.00 p.m., in the Council
Chambers, located at 23920 Valencia Blvd., Santa Clarita, California, to consider the
following:
ADOPTION OF AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF SANTA CLARITA, CALIFORNIA, EXTENDING A
MORATORIUM ON THE ESTABLISHMENT OF NEW TOBACCO
RETAILERS WHO SELL FLAVORED TOBACCO PRODUCTS FOR AN
ADDITIONAL 12 MONTHS, OR UNTIL SB 793 TAKES EFFECT,
WHICHEVER IS SOONER
On October 8, 2019, the City of Santa Clarita City Council considered and adopted by
4/5 vote an interim urgency ordinance imposing a moratorium on the establishment of
new tobacco retailers who sell flavored tobacco products ("Moratorium"). That
Moratorium was extended by the City Council through and including October 8, 2020. At
the public hearing, the City Council will consider information provided by City staff as well
as any information provided by the public and determine whether to extend the
Moratorium for a period of 12 additional months, under Government Code section
65858(a), or until SB 793 takes effect, whichever is sooner. SB 793 prohibits the retail
sale of flavored tobacco products and is scheduled to go into effect January 1, 2021.
The proposed ordinance is exempt from the California Environmental Quality Act under
State CEQA Guidelines sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment), 15060(c)(3) (the
activity is not a project as defined in Section 15378), and 15061(b)(3), because the
proposed ordinance will have no potential for resulting in any significant physical change
to the environment, either directly or indirectly.
For further information regarding this ordinance, you may contact Michael Villegas,
Interim Community Preservation Manager, at (661) 255-4960. Copies of the agenda
report including the proposed ordinance will be available for review prior to the public
hearing on the City's website at www.santa-clarita.com and at the City Clerk's Office at
Santa Clarita City Hall located at 23920 Valencia Blvd., Suite 120, Santa Clarita,
California.
Any person interested in these matters is invited to attend, according to the instructions
for participation that will be included in the posted City Council meeting agenda, and
present testimony either for or against the above item. If you challenge the proposed
action in court, you may be limited to raising only those issues you or someone else
raised at the public hearing described in this notice or in written correspondence
delivered to the City Council at or prior to the public hearing.
Mary Cusick, MMC
City Clerk
Publish Date: September 11, 2020
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ORDINANCE NO. 20-
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA CLARITA, CALIFORNIA, EXTENDING A MORATORIUM ON THE
ESTABLISHMENT OF NEW TOBACCO RETAILERS WHO SELL
FLAVORED TOBACCO PRODUCTS FOR AN ADDITIONAL 12 MONTHS
OR UNTIL SB 793 TAKES EFFECT, WHICHEVER IS SOONER
THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, DOES
ORDAIN AS FOLLOWS:
SECTION 1. Findings.
A. On August 28, 2020, Governor Newsom signed SB 793, which prohibits the sale of flavored
tobacco products. SB 793 goes into effect on January 1, 2021.
B. On October 8, 2019, the City Council adopted an urgency ordinance that imposed a
moratorium on the establishment of new tobacco retailers that sell flavored tobacco. That
ordinance was extended through October 7, 2020. Per the terms of Government Code
Section 65858, that ordinance can be extended for an additional 12 months, after the conduct
of a public hearing.
C. As an urgency ordinance, this ordinance will require adoption by a 4/5 vote of the City W
Council and will extend the current moratorium by an additional 12 months, or until SB 793 0
goes into effect, whichever is sooner. SB 793 is expected to go into effect on January 1,
2021, unless legally challenged and enjoined.
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D. As required by Government Code section 65858, a report as to Staffs activities in
furtherance of this ordinance was made available at the City Clerk's office beginning
September 11, 2020. 0
E. Adoption of this ordinance extending the moratorium is necessary to address the issues raised E
in connection with the original adoption of the moratorium and to ensure that those
protections remain in effect until superseded by State law.
F. Notice of a public hearing to consider this ordinance was published as required by law, and
such public hearing was conducted by the City Council.
SECTION 2. Environmental Findings. The City Council exercises its independent
judgment and finds that this ordinance is not subject to the California Environmental Quality Act
(CEQA) pursuant to the State CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, sections: 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment); 15060(c)(3) (the activity is not a project as defined
in Section 15378); and 15061(b)(3), because the activity is covered by the general rule that
CEQA applies only to projects which have the potential for causing a significant effect on the
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environment. The proposed ordinance maintains the status quo and prevents changes in the
environment pending the completion of the contemplated municipal code review. Because there
is no possibility that this ordinance may have a significant adverse effect on the environment, the
adoption of this ordinance is exempt from CEQA.
SECTION 3. Extension of the Moratorium. In accordance with Government Code
section 65858(a), and pursuant to the findings stated herein, the City Council hereby: (1) finds
that there exists a current and immediate threat to the public health, safety, and welfare requiring
this interim Urgency Ordinance; (2) finds that this ordinance is necessary for the immediate
preservation of the public peace, health, and safety as set forth herein; and (3) declares and
imposes a temporary moratorium for the immediate preservation of the public health, safety, and
welfare as set forth below:
A. For a period of 12 months from the expiration of the moratorium imposed by Ordinance
No. 19-7, (extending to and through October 7, 2021) no retail sale of flavored tobacco
products may be commenced within the City limits by any tobacco retailer not currently
selling same on October 8, 2019, and City staff is directed not to issue any permits or
entitlements that would facilitate commencement of such uses. Should SB 793 go into
effect prior to October 7, 2021, this moratorium shall expire on such effective date.
B. For purposes of this ordinance, in addition to the relevant definitions in Santa Clarita
Municipal Code Chapter 9.50 (Tobacco Control), the following definitions apply:
"Tobacco retailer" means any person who sells, offers for sale or distribution, exchanges,
or offers to exchange for any form of consideration, tobacco, tobacco products, or
tobacco paraphernalia without regard to the quantity sold, distributed, exchanged, or
offered for exchange.
"Flavored tobacco product" means any tobacco product which imparts a characterizing
flavor.
"Tobacco product" means the following:
1. Any product containing, made, or derived from tobacco or nicotine, whether
natural or synthetic, that is intended for human consumption, whether smoked,
heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by
any other means, including, but not limited to cigarettes, cigars, little cigars
(including, but not limited to small cigars and cigarillos), chewing tobacco,
pipe tobacco, and snuff, or
2. Any electronic smoking device that delivers nicotine or other substances,
whether natural or synthetic, to the person inhaling from the device, including,
but not limited to, an electronic cigarette, electronic cigar, electronic pipe,
electronic hookah, or vaping device.
3. Notwithstanding any provision of subsections (1) and (2) to the contrary,
"tobacco product" includes any component, part, or accessory intended or
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reasonably expected to be used with a tobacco product, whether or not sold
separately.
4. "Tobacco product" does not include drugs, devices, or combination products
authorized for sale by the United States Food and Drug Administration, as
those terms are defined in the Federal Food, Drug and Cosmetic Act.
"Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco,
imparted either prior to or during consumption of a tobacco product or any byproduct
produced by the tobacco product, including, but not limited to, tastes or aromas relating
to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert,
alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form,
mixed with or otherwise added to any tobacco product or nicotine delivery device,
including electronic smoking devices.
"Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking
materials of all types, cigarette rolling machines, characterizing flavors in any form,
mixed with or otherwise added to any tobacco product or nicotine delivery device,
including electronic smoking devices, and any other item designed or used for the
smoking or ingestion of tobacco products.
C. A violation of this ordinance is a public nuisance per se, enforceable through any civil,
criminal, or equitable remedy, including, but not limited to, civil actions, injunctions,
administrative citations, or criminal penalties.
SECTION 4. Severability. If any section, subsection, sentence, clause, or phrase of this
ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of
competent jurisdiction, such decision will not affect the validity of the remaining portions of this
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ordinance. The City Council declares that it would have passed this ordinance and each and
every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional
without regard to whether any portion of the ordinance would be subsequently declared invalid
or unconstitutional_ 0
SECTION 5. Effective Date and Duration. This ordinance is an urgency ordinance E
enacted under Government Code section 65858(a). This urgency ordinance will take effect upon
adoption by a four -fifths (4/5) vote of the City Council and extends the moratorium originally <
imposed on October 8, 2019, by Ordinance No. 19-7 to and through October 7, 2021, or until SB
793 takes effect, whichever is sooner.
SECTION 6. Publication. The City Clerk is directed to certify this ordinance and cause
it to be published in the manner required by law.
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PASSED, APPROVED, AND ADOPTED this 22nd day of September, 2020.
MAYOR
ATTEST:
CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF SANTA CLARITA )
I, Mary Cusick, City Clerk of the City of Santa Clarita, do hereby certify that the
foregoing Ordinance No. 20- was introduced and adopted as an urgency measure pursuant to
the terms of California Government Code Section 65858 and 36937(b) at a regular meeting of
the City Council on the 22nd day of September 2020, by the following vote, to wit:
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AYES: COUNCIL,MEMBERS:
NOES: COUNCIL,MEMBERS:
0
ABSENT: COUNCIL,MEMBERS:
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AND I FURTHER CERTIFY that the foregoing is the original of Ordinance No. 20
and was published in The Signal newspaper in accordance with State Law (G.C. 40806).
CITY CLERK
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AUTHENTICATED
ELECTRONIC LEGAL MATERIAL
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Senate Bill No. 793
CHAPTER 34
An act to add Article 5 (commencing with Section 104559.5) to Chapter
1 of Part 3 of Division 103 of the Health and Safety Code, relating to tobacco
products.
[Approved by Governor August 28, 2020. Filed with Secretary
of State August 28, 2020.]
LEGISLATIVE COUNSEL'S DIGEST
SB 793, Hill. Flavored tobacco products.
Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE)
Act, prohibits a person from selling or otherwise furnishing tobacco products,
as defined, to a person under 21 years of age. Existing law also prohibits
the use of tobacco products in county offices of education, on charter school
or school district property, or near a playground or youth sports event, as
specified.
This bill would prohibit a tobacco retailer, or any of the tobacco retailer's
agents or employees, from selling, offering for sale, or possessing with the
intent to sell or offer for sale, a flavored tobacco product or a tobacco product
flavor enhancer, as those terms are defined, except as specified. The bill
would make a violation of this prohibition an infraction punishable by a
fine of $250 for each violation. The bill would state the intent of the
Legislature that these provisions do not preempt or prohibit the adoption
and implementation of local ordinances that impose greater restrictions on
the access to tobacco products than the restrictions imposed by the bill, as
specified. The bill would state that its provisions are severable. By creating
a new crime, the bill would impose a state -mandated local program.
The California Constitution requires the state to reimburse local agencies
and school districts for certain costs mandated by the state. Statutory
provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for
a specified reason.
The people of the State of California do enact as follows:
SECTION 1. Article 5 (commencing with Section 104559.5) is added
to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, to
read:
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Article 5. Tobacco Sale Prohibition
104559.5. (a) For purposes of this section, the following definitions
apply:
(1) "Characterizing flavor" means a distinguishable taste or aroma, or
both, other than the taste or aroma of tobacco, imparted by a tobacco product
or any byproduct produced by the tobacco product. Characterizing flavors
include, but are not limited to, tastes or aromas relating to any fruit,
chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol,
mint, wintergreen, herb, or spice. A tobacco product shall not be determined
to have a characterizing flavor solely because of the use of additives or
flavorings or the provision of ingredient information. Rather, it is the
presence of a distinguishable taste or aroma, or both, as described in the
first sentence of this definition, that constitutes a characterizing flavor.
(2) "Constituent" means any ingredient, substance, chemical, or
compound, other than tobacco, water, or reconstituted tobacco sheet, that
is added by the manufacturer to a tobacco product during the processing,
manufacture, or packing of the tobacco product.
(3) "Flavored shisha tobacco product" means any shisha tobacco product
that contains a constituent that imparts a characterizing flavor.
(4) "Flavored tobacco product" means any tobacco product that contains
a constituent that imparts a characterizing flavor.
(5) "Hookah" means a type of waterpipe, used to smoke shisha or other
tobacco products, with a long flexible tube for drawing aerosol through
water. Components of a hookah may include heads, stems, bowls, and hoses.
(6) "Hookah tobacco retailer" means a tobacco retailer that is engaged
in the retail sale of shisha tobacco products, hookah, and hookah smoking
accessories.
(7) "Labeling" means written, printed, pictorial, or graphic matter upon
a tobacco product or any of its packaging.
(8) "Loose leaf tobacco' consists of cut or shredded pipe tobacco, usually
sold in pouches, excluding any tobacco product which, because of its
appearance, type, packaging, or labeling, is suitable for use and likely to be
offered to, or purchased by, consumers as tobacco for malting cigarettes,
including roll -your -own cigarettes.
(9) "Packaging" means a pack, box, carton, or container of any kind, or,
if no other container, any wrapping, including cellophane, in which a tobacco
product is sold or offered for sale to a consumer.
(10) "Premium cigar" means any cigar that is handmade, is not mass
produced by use of mechanization, has a wrapper that is made entirely from
whole tobacco leaf, and has a wholesale price of no less than twelve dollars
($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece
and is capped by hand.
(11) "Retail location" means both of the following:
(A) A building from which tobacco products are sold at retail.
(B) A vending machine.
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(12) "Sale" or "sold" means a sale as that term is defined in Section
30006 of the Revenue and Taxation Code.
(13) "Shisha tobacco product" means a tobacco product smoked or
intended to be smoked in a hookah. "Shisha tobacco product" includes, and
may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile,
and argileh. "Shisha tobacco product" does not include any electronic
devices, such as an electronic hookah, electronic cigarette, or electronic
tobacco product.
(14) "Tobacco product" means a tobacco product as defined in paragraph
(8) of subdivision (a) of Section 104495, as that provision may be amended
from time to time.
(15) "Tobacco product flavor enhancer" means a product designed,
manufactured, produced, marketed, or sold to produce a characterizing
flavor when added to a tobacco product.
(16) "Tobacco retailer" means a person who engages in this state in the
sale of tobacco products directly to the public from a retail location.
"Tobacco retailer" includes a person who operates vending machines from
which tobacco products are sold in this state.
(b) (1) A tobacco retailer, or any of the tobacco retailer's agents or
employees, shall not sell, offer for sale, or possess with the intent to sell or
offer for sale, a flavored tobacco product or a tobacco product flavor
enhancer.
(2) There is a rebuttable presumption that a tobacco product is a flavored
tobacco product if a manufacturer or any of the manufacturer's agents or
employees, in the course of their agency or employment, has made a
statement or claim directed to consumers or to the public that the tobacco
product has or produces a characterizing flavor, including, but not limited
to, text, color, images, or all, on the product's labeling or packaging that
are used to explicitly or implicitly communicate that the tobacco product
has a characterizing flavor.
(c) Subdivision (b) does not apply to the sale of flavored shisha tobacco
products by a hookah tobacco retailer if all of the following conditions are
met:
(1) The hookah tobacco retailer has avalid license to sell tobacco products
issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division
8.6 of the Business and Professions Code.
(2) The hookah tobacco retailer does not permit any person under 21
years of age to be present or enter the premises at any time.
(3) The hookah tobacco retailer shall operate in accordance with all
relevant state and local laws relating to the sale of tobacco products.
(4) If consumption of tobacco products is allowed on the premises of the
hookah tobacco retailer, the hookah tobacco retailer shall operate in
accordance with all state and local laws relating to the consumption of
tobacco products on the premises of a tobacco retailer, including, but not
limited to, Section 6404.5 of the Labor Code.
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(d) Subdivision (b) does not apply to sales of premium cigars sold in
cigar lounges where products are purchased and consumed only on the
premises.
(e) Subdivision (b) does not apply to loose leaf tobacco or premium
cigars.
(f) A tobacco retailer, or agent or employee of a tobacco retailer, who
violates this section is guilty of an infraction and shall be punished by a fine
of two hundred fifty dollars ($250) for each violation of this section.
(g) This section does not preempt or otherwise prohibit the adoption of
a local standard that imposes greater restrictions on the access to tobacco
products than the restrictions imposed by this section. To the extent that
there is an inconsistency between this section and a local standard that
imposes greater restrictions on the access to tobacco products, the greater
restriction on the access to tobacco products in the local standard shall
prevail.
SEC. 2. The provisions of this act are severable. If any provision of this
act or its application is held invalid, that invalidity shall not affect other
provisions or applications that can be given effect without the invalid
provision or application.
SEC. 3. No reimbursement is required by this act pursuant to Section 6
of Article XIII B of the California Constitution because the only costs that
may be incurred by a local agency or school district will be incurred because
this act creates a new crime or infraction, eliminates a crime or infraction,
or changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
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8.d
10-DAY REPORT ON THE CITY OF SANTA CLARITA'S MORATORIUM ON
ESTABLISHMENT OF NEW TOBACCO RETAILERS SELLING FLAVORED
TOBACCO
BACKGROUND
On October 8, 2019, pursuant to Government Code section 65858, the City Council of the City
of Santa Clarita enacted Ordinance No. 19-7 as an urgency measure imposing a 45-day
moratorium on the establishment of new tobacco retailers selling flavored tobacco products.
The ordinance was adopted in response to the County of Los Angeles adopting an ordinance on
October 1, 2019, that prohibited the retail sales of flavored tobacco products in County
unincorporated areas, based upon health concerns impacting youth utilizing such products. That
moratorium was extended to and through October 7, 2020.
The moratorium was intended to prevent a proliferation of businesses that may wish to relocate
to the City from the County as a result of the County's regulation.
Government Code section 65858 allows an initial 45-day moratorium to be extended for up to 10
months and 15 days after a noticed public hearing is held. If so extended, Government Code
section 65858 allows for an additional extension of up to 12 months, after a further public
hearing.
UPDATE ON THE MEASURES TAKEN TO ALLEVIATE THE CONDITIONS THAT LED
TO THE ADOPTION OF THE URGENCY ORDINANCE
City staff originally made outreach to the LA County Sheriff's concerning the prevalence of
vaping by youth in Santa Clarita. City staff was also making outreach to other communities
concerning their legislative efforts. However, City staff s efforts concerning local legislative
action were put on hold in light of efforts undertaken at both the Federal and State levels to
regulate flavored tobacco. Thus, since last November, City staff has focused primarily on
monitoring Federal and State legislative efforts to regulate flavored tobacco.
On August 23, 2020, Governor Newsom signed SB 793, which prohibits the retail sale of
flavored tobacco products. SB 793 makes exceptions for certain hookah, cigar, and leaf tobacco
products. SB 793 goes into effect on January 1, 2021.
SB 793 would supersede the City's moratorium ordinance. Thus, once SB 793 goes into effect,
the proposed moratorium would expire. Even though SB 793 is set to take effect on January 1,
2021, the proposed extension is for the maximum 12 months allowed by Government Code
section 65858, or until SB 793 takes effect, whichever is sooner, in case SB 793 is legally
challenged and enjoined.
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