395065.3
ATTACHMENT 1
ORDINANCE NO. ___-2025
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BARSTOW ADDING CHAPTER 9.74 TO TITLE 9 OF THE BARSTOW MUNICIPAL CODE AND AMENDING SECTIONS 19.14.030, 19.16.020, AND 19.16.030 OF THE
BARSTOW MUNICIPAL CODE REGARDING
SMOKE SHOPS AND TOBACCO STORES
WHEREAS, the State Planning and Zoning Law (Government Code Sections 65000, et seq.) broadly empowers the City to plan for and regulate the use of land in order to provide for orderly development, the public health, safety, and welfare, and a balancing of property rights and the desires of the community and how its citizens envision their city; and
WHEREAS, the City adopted Ordinance No. 969-2021 – City of Barstow Smoking Pollution Control Ordinance – to prohibit smoking and consumption of any and all kinds of cigarettes, cigars, pipes, all forms of vapes (including water based), water pipes, electronic cigarettes, and any other form of smoking in the places specified therein based upon its grave concerns about use of tobacco products; and WHEREAS, California voters approved Proposition 31 at the November 2022 election, which banned most sales of flavored tobacco products and tobacco product flavor enhancers. The ban went into effect on January 1, 2023; and WHEREAS, Proposition 31 does not preempt or otherwise prohibit the adoption of a local ordinance that imposes greater restrictions on the access to tobacco products than the restrictions imposed by Proposition 31; and
WHEREAS, approximately 480,000 people die in the United States from tobacco-related diseases every year, making it the nation’s leading cause of preventable death; and WHEREAS, there are currently 11 smoke shops and tobacco stores lawfully operating within the City of Barstow, but the City has no law expressly limiting the proliferation of smoke shops and tobacco stores with the City, which said proliferation would lead to the increased potential for tobacco sales to minors, greater opportunity for the sale of illegal drug paraphernalia that is marketed as tobacco paraphernalia, and heightened risk of negative aesthetic impacts, blight, and loss of property values of residential neighborhoods and businesses in close proximity to such uses; and WHEREAS, pursuant to the City of Barstow’s police power, as granted under Article XI, section 7 of the California Constitution, the City Council of the City has the authority to enact and enforce ordinances and regulations for public health, safety, and welfare; and 5 WHEREAS, pursuant to its police powers, the City has the authority to regulate the sale of tobacco products in the City; and
WHEREAS, in order to protect public health, safety, and welfare, the City Council desires to adopt an ordinance that will regulate smoke shops and tobacco stores; NOW THEREFORE, the City Council of the City of Barstow does ordain as follows:
SECTION 1. Municipal Code Amendment. A new Chapter 9.74 titled “Smoke Shops and Tobacco Stores” is added to Title 9 of the Barstow Municipal Code to read as follows:
CHAPTER 9.74. - SMOKE SHOPS AND TOBACCO STORES
Sec. 9.74.010. - Purpose and intent.
The regulation of smoke shops and tobacco stores is necessary and in the interests of the public health, safety, and general welfare because there is the substantial likelihood of the proliferation of the establishment and operation of smoke shops and tobacco stores in the City of Barstow. The expansion of smoke shops and tobacco stores in the City would result in undesirable impacts to the community. Among these impacts are increased potential for underage tobacco sales, greater opportunity for the sale of illegal drug paraphernalia that is marketed as tobacco paraphernalia, and heightened risk of negative aesthetic impacts, blight, and loss of property values of residential neighborhoods and businesses in close proximity to such uses. This chapter is intended to be consistent with good zoning and planning practices to address such negative impacts of smoke shops and tobacco stores while providing a reasonable number of locations and zones for such shops/stores to locate within the City of Barstow.
Sec. 9.74.020. - Definitions.
The following words, terms, and phrases, whenever used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
“Ancillary sale” means where a grocery store, supermarket, convenience store, or similar market uses no more than 2 percent of its gross floor area, or 500 square feet, whichever is less, for the display, sale, distribution, delivery, offering, furnishing, or marketing of conventional cigars, cigarettes, or tobacco. For any grocery store, convenience market, retail kiosk, or similar use consisting of 300 square feet or less, “ancillary sale” shall mean where no more than 5 square feet are used for the display, sale, distribution, delivery, offering, furnishing, or marketing of conventional cigars, cigarettes, or tobacco. The display, sale, distribution, delivery, offering, furnishing, or marketing of e-cigarettes or any other tobacco products or tobacco paraphernalia, regardless of square footage used, is subject to the restrictions of this chapter and shall not constitute “ancillary sale” under any circumstances. 6 “E-cigarette” means any electronically actuated device or inhaler meant to simulate cigarette smoking that uses a heating element to vaporize a liquid solution, popularly referred to as “juice,” and that causes the user to exhale any smoke, vapor, or substance other than that produced by unenhanced human exhalation. The juice used in e-cigarettes typically contains nicotine, and for this reason e-cigarettes and their juice can be classified as both tobacco products and tobacco paraphernalia.
"Legacy smoke shop and tobacco store” means a smoke shop and tobacco store lawfully existing and operating within the City of Barstow as of the effective date of the ordinance adding this chapter to the Barstow Municipal Code. “Legacy smoke shop and tobacco store” includes a smoke shop and tobacco store lawfully existing and operating within the City of Barstow as of the effective date of the ordinance adding this chapter to the Barstow Municipal Code that lawfully changes ownership after the effective date of the ordinance adding this chapter to the Barstow Municipal Code so long as the new owner obtains a business license for the smoke shop and tobacco store within 180 days of acquiring the business.
“Smoke shop and tobacco store” means any premises dedicated to the display, sale, distribution, delivery, offering, furnishing, or marketing of tobacco, tobacco products, or tobacco paraphernalia; provided, however, that any grocery store, supermarket, convenience store or similar retail use that only sells conventional cigars, cigarettes, or tobacco as an ancillary sale shall not be defined as a “smoke shop and tobacco store” and shall not be subject to the restrictions in this chapter. “Tobacco” shall mean any preparation of the nicotine-rich leaves of the tobacco plant, which are cured by a process of drying and fermentation for use in smoking, chewing, absorbing, dissolving, inhaling, snorting, sniffing, or ingesting by any other means into the body.
“Tobacco paraphernalia” shall mean any paraphernalia, equipment, device, or instrument that is primarily designed or manufactured for the smoking, chewing, absorbing, dissolving, inhaling, snorting, sniffing, or ingesting by any other means into the body of tobacco, tobacco products, or other controlled substances as defined in California Health and Safety Code Section 11007. Items or devices classified as tobacco paraphernalia include but are not limited to the following: pipes, punctured metal bowls, bongs, water bongs, electric pipes, e-cigarettes, e-cigarette juice, buzz bombs, vaporizers, hookahs, and devices for holding burning material so it can be ingested. Lighters and matches shall be excluded from the definition of tobacco paraphernalia. “Tobacco product” shall mean any product in leaf, flake, plug, liquid, or any other form, containing nicotine derived from the tobacco plant, or otherwise derived, which is intended to enable human consumption of the tobacco or nicotine in the product, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means.
For the purposes of this chapter, the term “tobacco product” excludes any product that has been specifically approved by the United States Food and Drug Administration (FDA) for sale as a tobacco/smoking cessation product or for other medical purposes, where such product is marketed and sold solely for such an approved purpose. 7 Sec. 9.74.030. – Zoning and land use standards for smoke shops and tobacco stores.
(a) Notwithstanding any other provision of this Code to the contrary except as provided in this chapter, smoke shops and tobacco stores shall only be permitted in the following land use districts, subject to the provisions in this chapter, Title 19, and the issuance of a conditional use permit (CUP) in accordance with Barstow Municipal Code Chapter 19.30 – Conditional Uses:
(1) C (Commercial District)
(2) DU (Diverse Use District)
(b) Additional zoning and land use standards for smoke shops and tobacco stores shall be as follows:
(1) Smoke shops and tobacco stores shall not be located within 1,000 feet, measured from front door to front door, from a school (public or private), family day care home, childcare facility, youth center, community center, recreational facility, park, church or religious institution, hospital, or other similar uses where children regularly gather.
(2) Smoke shops and tobacco stores shall not be located within 1,000 feet, measured from front door to front door, from another smoke shop and tobacco store.
(3) It is unlawful for a smoke shop and tobacco store to knowingly allow or permit a minor, not accompanied by his or her parent or legal guardian, to enter or remain within any smoke shop and tobacco store.
(4) Smoke shops and tobacco stores shall post clear signage stating that minors may not enter the premises unless accompanied by a parent or legal guardian.
At least one such sign shall be placed in a conspicuous location near each public entrance to the smoke shop and tobacco store. It shall be unlawful for a smoke shop and tobacco store to fail to display and maintain, or fail to cause to be displayed or maintained, such signage.
(5) The City shall not approve any conditional use permit if there are ten or more smoke shops and tobacco stores lawfully operating within the City of Barstow, inclusive of legacy smoke shops and tobacco stores.
(c) Standard conditions of approval for any conditional use permit shall, at minimum, include the following:
(1) No consumption of tobacco shall be permitted on the premises at any time. 8 (2) No sales may be solicited or conducted on the premises by persons under age
21. (3) No use of self-service tobacco, tobacco product, or tobacco paraphernalia displays shall be permitted.
(4) The conditional use permit shall become null and void if the smoke shop and tobacco store use is discontinued for a continuous period of at least six months or if there is a lapse in the smoke shop and tobacco store’s business license for a continuous period of at least six months.
(5) No distribution of free or low-cost tobacco, tobacco products, or tobacco paraphernalia, or coupons for said items, shall be permitted.
Sec. 9.74.040. – Legacy smoke shops and tobacco stores. (a) Legacy smoke shops and tobacco stores may continue to operate as follows, subject to the limitations set forth in subsection (b) of this section:
(1) As legal nonconforming uses in accordance with Barstow Municipal Code Chapter 19.38, except as otherwise provided in this chapter; (2) Without a conditional use permit; and
(3) Without complying with Barstow Municipal Code sections 9.74.030(a),
9.74.030(b)(1), or 9.74.030(b)(2).
(b) Legacy smoke shop and tobacco store uses are subject to all of the following limitations:
(1) The use may not be expanded or extended in any way. (2) The use may not changed, except to a use that conforms to the current land use regulations of the zone and other applicable current land use regulations. (3) If the use is discontinued for a continuous period of at least six months, or there is a lapse in the smoke shop and tobacco store’s business license for a continuous period of at least six months, the use shall not be reestablished. (4) Except as provided in this section, legacy smoke shops and tobacco stores must comply with all other provisions of this chapter.
SECTION 2. Municipal Code Amendment. Section 19.14.020 of the Barstow Municipal Code, titled “Uses requiring a permit” is hereby amended to read as follows, with additions denoted in underline and deletions noted in strikethrough:
9 Sec. 19.14.030. - Uses requiring a permit.
In this district, the following uses are permitted subject to the issuance of a conditional use permit (chapter 19.30):
(1) Any use permitted in the C district pursuant to section 19.16.030.with the exception of smoke shops and tobacco stores as defined in Barstow Municipal Code section 9.74.020.
(2) Any other commercial or office use not listed within section 19.16.020 and
19.16.030 which the planning commission finds to be consistent with the purpose of the article and which will not impair the present or potential use of adjacent properties.
(3) Public and quasi-public buildings and uses of a recreational, educational, religious, or public service type.
(4) Single-room occupancy facilities pursuant to the development standards in section 19.14.110.
(5) Towing and auto repair, not including storage yard. (6) Truck repair and service centers.
(7) Shelters and provision of services for homeless, at-risk and special needs populations.
SECTION 3. Municipal Code Amendment. Section 19.16.020 of the Barstow Municipal Code, titled “Permitted uses” is hereby amended to read as follows, with additions denoted in underline and deletions noted in strikethrough:
Sec. 19.16.020. - Permitted uses.
Commercial district is intended for professional, administrative, and commercial uses. Except as specifically provided elsewhere in this title, any building or structure in the commercial district used or occupied and every building erected, constructed or established within the commercial district shall be only in accordance with the regulations set forth in this chapter.
(1) Office and professional uses, including:
a. Architects, engineers, draftsmen.
b. Art galleries; exhibit halls for commercial and industrial exhibits; provided, that there shall be no sale of stock or material; and provided, that there be no warehousing or storage either within or on the premises.
c. Attorneys at law, paralegal personnel.
d. Biological and medical laboratories, provided the floor space does not exceed 2,000 square feet in gross floor area.
e. Chiropractors, chiropodists, optometrists, dentists. f. Data retrieval firms.
g. Insurance agencies.
h. Medical offices, physicians, osteopaths.
i. Opticians, optical laboratories related and incidental to a professional 10 building and occupying no more than 1,000 square feet of floor space; provided, that no stock shall be visible from the street. j. Phone answering services.
k. Photography studio and digital photography printing. l. Prescription pharmacies; no stock shall be visible from the street. m. Private security and investigative firms.
n. Public accountants, bookkeepers.
o. Realtors, brokers.
p. Tattoo/body art studios within an enclosed building and subject to the requirements of section 119300 et seq. of the San Bernardino County Health and Safety Code.
q. Travel agencies.
(2) Commercial uses, including:
a. Animal hospitals and animal hotels that are at least 500 feet from residential uses or zoning districts.
b. Apparels and accessories, including, but not limited to, clothing stores, custom dressmaking and tailors, furriers, millinery shops and dry goods, bakery goods shop.
c. Bar or tavern, excluding dancing.
d. Barber or beauty shop.
e. Bicycle stores.
f. Blueprinting, photo-stating and photocopying.
g. Bookstores and stationers.
h. Building materials and hardware stores, including, but not limited to, glass or mirror shops, paint store, and plumbing supply stores. i. Cafe, restaurant, with or without on-sale liquor. Outdoor seating is permitted for up to ten percent of total indoor seating. Any additional outdoor seating above ten percent shall require additional parking. j. Camera and photographic supply stores.
k. Cleaning and pressing establishment; laundry, coin-operated or selfservice. l. Clothes cleaning pickup agencies (cleaning and pressing plant located elsewhere).
m. Child day care centers as defined in 19.06.120.
n. Delicatessen.
o. Department stores.
p. Drugstore.
q. Feed store.
r. Financial institutions.
s. Florist shop.
t. Frozen food lockers.
u. Furniture, floor coverings, drapery, furniture upholstery stores, miscellaneous home furnishing stores, household appliance stores and equipment stores including, but not limited to, new furniture (not 11 over 25 percent floor space used for stocking and displaying used furniture), floor coverings, and radio, television and music stores. v. Gift, novelty and souvenir shops.
w. Grocery store.
x. Jewelry stores.
y. Laundry agency (self-service only)
z. Liquor store (off-sale only)
aa. Mail order house, retail.
bb. Massage therapy conforming to the provisions set forth in section
19.06.020.
cc. Motel and hotels.
dd. Museums and galleries.
ee. Nonprofit club or lodge; fraternal or religious association. ff. Pet shops and taxidermy.
gg. Photographer.
hh. Post office.
ii. Printing, lithographing, publishing, reproduction, newspaper distributorship, including binding.
jj. Public utility offices, fire, police.
kk. Radio, television, and music stores.
ll. Retail sales of parts or goods, no installation.
mm. Secondhand, used merchandise and antique stores; no outside storage or display shall be permitted.
nn. Sporting goods stores and bicycle shops.
oo. Studio, music and/or dance. Studio-music, dance stores. pp. Supermarket and specialty markets.
qq. Theaters, excluding drive-ins.
rr. Ticket or travel agencies.
ss. Tobacco stores and Newsstands.
tt. Trunk and leather goods stores.
uu. Telephone exchanges.
vv. Trade schools.
ww. Video/pinball arcade not including adult arcades identified in chapter
19.26 (pertaining to sexually oriented businesses) and chapter 9.24 (Gambling) of this Code.
xx. Veterinarians (See animal hospitals).
yy. Wedding chapels.
SECTION 4. Municipal Code Amendment. Section 19.16.030 of the Barstow Municipal Code, titled “Uses requiring a permit” is hereby amended to read as follows, with additions denoted in underline and deletions noted in strikethrough:
Sec. 19.16.030. - Uses requiring a permit.
In the commercial district, the following uses may be permitted, subject to chapter
19.30:
12 (1) Adult bookstores, adult motion picture theaters, adult mini-motion picture theaters, and massage parlors.
(2) Animal hospitals and animal hotels that are less than 500 feet from residential uses or zoning districts.
(3) Reserved.
(4) Automobile service/fueling stations conforming to provisions set forth in section 19.06.070.
(5) Bar or tavern, dancing permitted.
(6) Biological and medical laboratories in excess of 2,000 square feet in gross floor area.
(7) Cannabis uses including—retail storefront (Type 10), indoor cultivation (Types 1-5, including processing, but excluding any outdoor cultivation), delivery (Type 9), distribution (Types 11 and 13), manufacturing (Types 6,7, N, P), testing (Type 12), and temporary cannabis events. All these uses shall be subject to section 19.27.080, Cannabis business location restrictions, and require approval of the following entitlements:
development agreement, conditional use permit, cannabis business permit, and all applicable state cannabis licenses.
(8) Commercial greenhouses.
(9) Commercial laundry, rug cleaning, dyeing, etc.
(10) Commercial recreation and amusements, such as pitch and putt golf, golf courses, athletic fields, gymnasiums, commercial swimming pools, stadiums, skating rinks (ice and roller), arenas, auditoriums, public dance halls or ballrooms, amusement parks, pool halls, billiards. (11) Drive-in restaurant.
(12) Equipment rental yards, outside storage of rental equipment permitted. (13) Furniture storage.
(14) Heating and plumbing equipment dealers, paint, glass, wallpaper, and electrical supply store (outside storage enclosed by solid fence or wall, six feet in height)
(15) Ice storage, retail, not more than five-ton capacity. (16) Lumberyards and builders' supply yard, outside storage of lumber and building materials permitted.
(17) Mechanical auto wash.
(18) Mini-warehouses.
(19) Mortuaries and funeral parlors.
(20) Public garage, auto repair shop, body shop, auto painting, providing all operations are conducted wholly within an enclosed building. If more than five vehicles are on the premises at any one time, they shall be enclosed by a six-foot fence or wall 80 percent opaque.
(21) Residential dwelling, to be limited to lot or parcel on which permitted uses are located and used exclusively by the operator of the business when approved by site review. If a separate building is used for dwelling purposes, the setback requirement of the MDR district shall apply. (22) Tattoo studio conforming to the provisions set forth in Health and Safety Code § 119300 et seq.
13 (23) Utility substations.
(24) Vehicle sales, including trailers (automobile, motorcycle, farm machinery, equipment dealers, truck or semitrailer, house trailer, boat, camper or marine sales and supplies and trailer sales lot), outside display of new and used vehicles and trailers permitted.
(25) Other uses similar to the above if it can be demonstrated that the uses are of the same general character as the above permitted uses as determined by the planning commission. Smoke shops and tobacco stores as defined in Barstow Municipal Code § 9.74.020.
(26) Other uses similar to the above if it can be demonstrated that the uses are of the same general character as the above permitted uses as determined by the planning commission.
SECTION 5. Severability. If any provision, section, subsection, paragraph, sentence, clause, or word of this Ordinance, or the application thereof to any person or circumstance, is rendered or declared invalid or unenforceable by any court of competent jurisdiction, the remaining provisions, sections, subsections paragraphs, sentences, clauses, or words of this Ordinance, and their application to other persons or circumstances, shall not be affected thereby and shall remain in full force and effect and, to that end, the provisions of this Ordinance are severable.
SECTION 6. Effective Date. This ordinance shall take effect thirty days after adoption as provided by Government Code 36937. The City Clerk shall cause this Ordinance to be published in accordance with California Government Code Section 36933.
SECTION 7. Inconsistencies. Any provision of the City’s Municipal Code or appendices thereto that are inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby modified to the extent necessary to effect the provisions of this Ordinance.
SECTION 8. CEQA. The City Council finds the adoption of this ordinance is exempt from review under the California Environmental Quality Act because it relates to an administrative matter. (CEQA Guidelines, 14 Cal. Code of Regulations, Section 15061(b)(3) and 15378(b)(5). 15061(b)(2), 15307-15308).
SECTION 9. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause this Ordinance and her certification, together with proof of publication, to be entered in the Book of Ordinances of the City Council.
PASSED, APPROVED AND ADOPTED this ____ day of _________________, 20____. ________________________________
Timothy Silva, Mayor
ATTEST:
14 ________________________________
Andrea Flores, City Clerk
APPROVED AS TO FORM:
________________________________
Matthew Summers, City Attorney
I, Andrea Flores, City Clerk for the City of Barstow, California, and ex-officio Clerk of the City Council, do hereby certify under penalty of perjury that the foregoing is a true and correct copy of Ordinance No. ___-2025, which was introduced at a regular meeting of the City Council of the City of Barstow held on the ___ day of __________________, 20____, and adopted at the regular meeting of the City Council of the City of Barstow on the ____ day of ___________20____, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
________________________________
Andrea Flores, City Clerk
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