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STAFF REPORT |
Agenda Item #_____ |
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Project Title: |
Appeal on the Revocation of Legal-Nonconforming Status of Tobacco Retailing use for Smoke Depot in El Sobrante |
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County File Number: |
CDSE22-00009 |
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Appellants: Applicant: |
Ahmed Dubaih Ahmed Dubaih |
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Owner: |
Matthew Pourabedin |
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Zoning/General Plan: |
Planned Unit District (P-1) / Mixed-Use Low Density (MUL) |
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Site Address/Location: |
3770 San Pablo Dam Road, El Sobrante, CA 94803 APN: 420-140-035 |
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California Environmental Quality Act (CEQA) Status: |
Categorical Exemption, CEQA Guidelines Section 15321, Categorical Exemptions, Class 21: Enforcement Actions by Regulatory Agencies |
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Project Planner: |
Everett Louie, Planner III - Phone: (925) 655-2873 Email: everett.louie@dcd.cccounty.us |
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Staff Recommendation: |
Deny the Appeal (See section II for full recommendation) |
I. PROJECT SUMMARY
This is a hearing on an appeal of the Zoning Administrator’s decision to revoke the legal non-conforming status for a tobacco retailing use located at 3770 San Pablo Dam Road in El Sobrante (“Subject Property”), known as Smoke Depot. In accordance with Section 26-2.2022 of the County Ordinance Code, the causes for revocation are as follows:
(a) A failure to comply with the terms, limitations and condition of the permit;
(b) The property is being used or maintained in violation of the zoning code;
(c) The use for which the permit was granted has been so exercised as to be detrimental to the public health or safety or as to constitute a nuisance; and
(d) A license required for the conduct of the business on the premises covered by the permit has been suspended or revoked.
Revocation of the legal non-conforming status for tobacco retailing from the Subject Property would require any future tobacco retailing from the Subject Property to comply with the current provisions of the County Tobacco Retailing Businesses Ordinance (Chapter 88-26). Because the subject property is located within 500 feet from three other tobacco retailers (ARCO at 3753 San Pablo dam Road; Food Stop at 3800 San Pablo Dam Road, Suite A; Jay Vee Liquor at 3640 San Pablo Dam Road),the Subject Property does not comply with the location requirements of the Tobacco Retailing Businesses Ordinance. As a result, revocation of the legal non-conforming status would prevent Smoke Depot, or any other tobacco retailing business located at 3770 San Pablo Dam Road in El Sobrante, from obtaining zoning approval for a tobacco retailing business in accordance with the Tobacco Retailing Businesses Ordinance, and would preclude the issuance of a tobacco retailers license for this location from the County Health Department.
II. RECOMMENDATION
The Department of Conservation and Development, Community Development Division (CDD) Staff recommends that the County Planning Commission:
A. OPEN the public hearing, RECEIVE testimony, and CLOSE the public hearing.
B. DENY the appeal by Ahmed Dubaih.
C. DETERMINE that the revocation of the legal non-conforming status is categorically exempt under CEQA Guidelines Section 15321, of the CEQA Guidelines.
D. REVOKE the legal non-conforming tobacco retailing use established under County File CDSE22-00009, based on the attached Findings.
E. DIRECT the Department of Conservation and Development to file a Notice of Exemption with the County Clerk.
III. PROCEDURAL BACKGROUND
On December 9, 2022, an application was submitted to the Department of Conservation and Development for a proposed tobacco retailing business to be located at the Subject Property. In a determination letter dated January 25, 2023, the County determined that the retailing of tobacco products at the subject property was considered a legal nonconforming use under Chapter 88-26.406 of the County’s Tobacco Retailing Business Ordinance (Chapter 88-26). (See Attachment B - CDSE22-00009 Determination Letter). The legal nonconforming determination authorized the applicant to apply for a tobacco retailers license from the County Health Department, but a valid tobacco retailer’s license was never obtained nor issued. See section VI (History of Violations) below for more detail.
In conjunction with the County Health Department, the Department of Conservation and Development held a hearing on July 7, 2025, on the revocation of legal nonconforming status of tobacco retailing use previously reviewed under CDSE22-0009. At the hearing the Zoning Administrator opened the public hearing and received testimony from the property owner. The Zoning Administrator closed the public hearing and revoked the determination made in CDSE22-00009 and revoked the legal nonconforming status for the tobacco retailing use at the subject property. A statement of decision was mailed to the property owner and applicant on August 6, 2025 (See Attachment C - Zoning Administrator Statement of Decision).
Subsequent the Zoning Administrator’s decision, a letter appealing the decision was filed by Ahmed Dubaih on August 15, 2025 (See Attachment J - CDSE22-00009 Appeal Letter). Staff’s analysis and response to the appeal letter is discussed in Section VII (Appeal of Zoning Administrator’s decision) of this Staff Report.
IV. GENERAL INFORMATION
1. General Plan: The subject property land use designation is Mixed-Use Low Density (MUL) General Plan Land Use designation.
2. Zoning: The subject property is zoned an area wide Planned Unit District (P-1) Downtown El Sobrante Planned Unit Development.
3. California Environmental Quality Act (CEQA) Compliance: The revocation of the legal non-conforming status is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15321, Categorical Exemptions, Class 21: Enforcement Actions by Regulatory Agencies, of the State CEQA Guidelines, which applies to actions by regulatory agencies to revoke an entitlement for a use issued by the County. Section 15321 exempts actions by regulatory agencies to enforce or revoke a lease, permit, license, certificate, or other entitlement use issued, adopted, or prescribed by the regulatory agency or enforcement of a law, general rule, standard, or objective, administrated by the regulatory agency (County). Here, the County proposes to revoke a land use entitlement in the form of the legal non-conforming status for a tobacco retailing use at the Subject Property.
4. Previous Applications:
1) CDSE22-00009: A determination letter dated January 25, 2023, from Contra Costa County, Department of Conservation and Development determining that the retailing of tobacco products at the Subject Property is considered a legal nonconforming use under Section 88-26.406 of the County’s Tobacco Retailing Business Ordinance (Chapter 88-26). (Attachment B.)
2) CDSE24-00006: An El Sobrante Administrative Permit to replace the copy/visual image of an existing roof mounted sign for “Smoke Depot” was approved on July 23, 2024.
V. SITE/AREA DESCRIPTION
The nonconforming tobacco retailing business is located at 3770 San Pablo Dam Road in the El Sobrante area of Contra Costa County (Subject Property) and is currently being operated under the business name Smoke Depot. The building is single story retail structure located on a 0.71-acre parcel which fronts on San Pablo Dam Road. There are two other buildings located on the Subject Property including a church and restaurant. All the buildings are separated by a parking lot which provides parking for all three uses. The parcel is approximately 102 feet west of the San Pablo Dam and Hillcrest Road intersection. The parcel is located within 500 feet of three other tobacco retailers on San Pablo Dam Road.
VI. FACTUAL BACKGROUND
Jasmine Gifts and Tobacco operated continuously at the Subject Property since 1986. According to a Business Bill of Sale (Purchase Agreement) submitted with County File CDSE22-00009, the Jasmine Gifts & Tobacco business was sold on May 20, 2022 and renamed Smoke Depot. Tobacco retailer’s licenses are nontransferable. (Ordinance Code, Section 445-10.010(c).) Because tobacco retailer’s licenses are nontransferable, Smoke Depot was required to apply for and obtain a new valid tobacco retailer’s license.
On December 9, 2022, an application was submitted to the Department of Conservation and Development for a proposed tobacco retailing business to be located at the Subject Property. In a determination letter dated January 25, 2023, the County determined that the retailing of tobacco products at the subject property was considered a legal nonconforming use under Chapter 88-26.406 of the County’s Tobacco Retailing Business Ordinance (Chapter 88-26). (See Attachment B - CDSE22-00009 Determination Letter). The legal nonconforming determination authorized the applicant to apply for a tobacco retailers license from the County Health Department, but a valid tobacco retailer’s license was never obtained nor issued.
Nonetheless, Smoke Depot began to sell tobacco and tobacco products from the premises without having obtained a new and valid tobacco retailer’s license from the County Health Department. In or around November 2022, the County began receiving complaints from community members alleging illegal activities occurring at Smoke Depot, including the sale of prohibited tobacco products and unlicensed cannabis sales. To verify these complaints, the Contra Costa County Sheriff’s Department (Sheriff) conducted an inspection on November 9, 2022 and confirmed that (i) Smoke Depot was selling tobacco products despite not holding a valid County tobacco retailer’s license, and (ii) Smoke Depot was selling illegal tobacco and other products. (See Attachment F - Sheriff’s Inspection Report). Staff notes that the inspection reports incorrectly state that Smoke Depot had obtained a tobacco retailer’s license; but that is incorrect. The County Health Department has confirmed that no valid tobacco retailer’s license was ever obtained or issued for Smoke Depot at the Subject Property. (See Attachment E - Contra Costa Health Notice of Decision).
Between 2023 and 2024, the County Health Department contacted Smoke Depot numerous times advising Smoke Depot on the County’s Tobacco Retailing Ordinance and informing Smoke Depot of the need to obtain a new valid tobacco retail license. Smoke Depot applied for a tobacco retail license, but did not discontinue selling prohibited tobacco products while their application was processing. At no point did Smoke Depot receive a new valid tobacco retail license from the County Health Department. As a result of Smoke Depot’s illegal tobacco sales, the County Health Department cited Smoke Depot for operating a tobacco retail business without a valid tobacco retail license and for selling prohibited tobacco products and other illegal contraband.
On January 26, 2023, the County Health Department issued an Administrative Penalty Notice of Fine to Smoke Depot for violations including operating without a valid tobacco retailer’s license, for selling illegal tobacco products, and inadequate signage required to protect minors. See Attachment G - Administrative Notice of Penalty. The Notice of Fine became a final administrative order when it was not appealed by Smoke Depot.
On April 24, 2024, the County Health Department issued a Notice of Suspension Hearing for Smoke Depot’s pending tobacco retail license application. (Attachment D.) On June 11, 2024, Contra Costa Health Department held the Suspension Hearing. At the Suspension Hearing, Dr. Sefanit Mekuria, the Contra Costa County Medical Director and the Deputy Health Officer, determined that Smoke Depot had been operating without obtaining a new, valid tobacco retailer’s license and that illegal tobacco products were being sold from the Subject Property. As a result, the Public Health Director suspended the processing of Smoke Depot’s current tobacco retail license application and prohibited all tobacco retailing at the Subject Property. On June 26, 2024, a written Notice of Decision was sent to the Smoke Depot informing them of the decision and appeal instructions. (See Attachment E - Contra Costa Health Notice of Decision). No appeal was filed within 30 days of the Contra Costa Health Department’s decision, and the decision became final. A detailed timeline of the County Health Department’s communications with and enforcement actions related to Smoke Depot is attached as Attachment H - County Health Department Timeline.
VII. APPEAL OF ZONING ADMINISTRATOR’S AUGUST 6, 2026, STATEMENT OF DECISION
During the appeal period following the approval by the Zoning Administrator, one appeal was received from Ahmed Dubaih on August 15, 2025 (See Attachment J - Appeal Letter). The concerns raised in the appeal letter, and staff’s responses, are summarized as follows:
1. Summary of Appeal Point #1: The Zoning Administrator misapplied the zoning code in regard to revocation of a legal-nonconforming use.
Staff Response: The Contra Costa County Ordinance Code, Section 26-2.2022 (Variance, conditional uses, and special permits - modification, suspension, and revocation) allows the County to revoke a permit if certain conditions are met. The Zoning Administrator determined that the County’s determination in CDSE22-00009 and Smoke Depot’s entitlement to operate as legal nonconforming use was subject to revocation based on the following grounds:
• Failure to comply with any term, limitation or condition of the permit.
• The property or portion thereof subject to the permit is used or maintained in violation of any requirement of this code.
• The use for which the permit was granted has been so exercised as to be detrimental to the public health or safety or as to constitute a nuisance.
• A license required for the conduct of the business on the premises covered by the permit has been suspended or revoked.
The Zoning Administrator in their Statement of Decision dated August 6, 2025 determined that the operation of a tobacco retailing business in unincorporated Contra Costa County without a valid tobacco retailer’s license directly violates County ordinances enacted to project health and safety and, therefore, is detrimental to public health and safety, and is cause for revocation of the legal nonconforming status for a tobacco retailing use. A further analysis of the revocation findings can be found in Findings (Attachment A). Ordinance Code, Section 26-2.2022, allows the Zoning Administrator to revoke an entitlement so long as the appropriate findings can be made. Therefore, the Zoning Administrator did not misapply the zoning code.
2. Summary of Appeal Point #2: The Zoning Administrator did not consider corrective measures performed by the property/business owner which bring Smoke Depot in compliance with Contra Costa County Code 84-38.200 and 84-38.400.
Staff Response: The appellant states that Smoke Depot has performed corrective measures to comply with Contra Costa County Code 84-38.200 and 84-38.400. However, these two code sections do not exist within the Contra Costa County Zoning Code. County Code 84-38 regulates the A-2 General Agricultural District and is inapplicable here. Pursuant to the County’s Tobacco Retailing ordinance, which is applicable to the applicant’s use of the Subject Property, Smoke Depot is required to obtain and maintain a valid tobacco retailer’s license. (County Code, § 88-26.406.) However, based on the June 26, 2024 Notice of Decision issued by the Sefanit Mekuria, Deputy Health Officer of Contra Costa Health, Smoke Depot has been found to be operating without ever obtaining a valid tobacco retailer’s license (See Attachment E). The Zoning Administrator’s Statement of Decision also cites other violations and circumstances (e.g., the retailing of illegal products, operations resulting in a nuisance to the neighborhood) for which no corrective measures are cited. Therefore, staff does not believe that Smoke Depot has performed appropriate corrective measures, and Smoke Depot has not complied with Chapter 88-26 of the Zoning Code by obtaining a valid tobacco retailer’s license.
3. Summary of Appeal Point #3: The decision imposes penalties disproportionate to the alleged violations, contrary to fairness and administrative proportionality and negatively impacts the community and economic value.
Staff Response: As mentioned in the response to appeal point #1, County Code Section 26-6.2022 (Revocation) authorizes the County to revoke an entitlement upon making the required findings. As supported in the attachments and detailed in the Findings included as Attachment A - Revocation Findings, the legal nonconforming tobacco retailing use may be revoked on any of the following grounds:
• Failure to comply with any term, limitation or condition of the permit.
• The property or portion thereof subject to the permit is used or maintained in violation of any requirement of this code.
• The use for which the permit was granted has been so exercised as to be detrimental to the public health or safety or as to constitute a nuisance.
• A license required for the conduct of the business on the premises covered by the permit has been suspended or revoked.
As authorized by the County Ordinance Code, revocation of an entitlement is an appropriate enforcement measure upon these findings. Moreover, contrary to the appellant’s assertion, it is the operations of Smoke Depot that negatively impacts the neighborhood; not the revocation. The Zoning Administrator found, based on the evidence presented including evidence of the unlicensed sale of illegal products, that the operation of Smoke Depot has been so exercised as to be detrimental to the public health or safety or as to constitute a nuisance. Therefore, staff does not believe that revocation is disproportionate to the cited violations or that revocation will negatively affect the community.
VIII. CONCLUSION
Based on the evidence provided in this Staff Report and associated attachments, revocation findings, and evidence discovered during inspections by County Staff, the Department of Conservation and Development Staff recommends that the Contra Costa County Planning Commission deny the appeal and revoke the nonconforming tobacco retailing use located at 3770 San Pablo Dam Road in El Sobrante pursuant to the findings in Attachment A.
Attachments:
A. Attachment A- Revocation Findings
B. Attachment B - CDSE22-00009 Determination Letter
C. Attachment C - Zoning Administrator Statement of Decision
D. Attachment D - Contra Costa Health Notice of Suspension Hearing
E. Attachment E - Contra Costa Health Notice of Decision
F. Attachment F - Sheriff’s Inspection Report
G. Attachment G - County Health Department Administrative Penalty Notice of Fine
H. Attachment H - County Health Department’s detailed timeline
I. Attachment I - Zoning Administrator Staff Report
J. Attachment J - Appeal Letter
K. Attachment K - CPC Staff Presentation