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BEFORE THE BOARD OF SUPERVISORS OF THE COUNTY OF SAN JOAQUIN,
STATE OF CALIFORNIA
ORDINANCE NO.
Uncodified Urgency Ordinance Pursuant to Government Code Section 25123(D) to Establish a Temporary Moratorium on the Establishment of New and Relocation or Expansion of Existing Tobacco Retailer/Smoke Shop Businesses Within the Unincorporated Areas of the County
The Board of Supervisors of the County of San Joaquin ordains as follows:
Section 1. PURPOSE AND AUTHORITY.
The purpose of this Ordinance is as an urgency measure to protect the public peace, health, and safety, adopted pursuant to Government Code Section 25123(d) by placing a temporary moratorium on the establishment of new and relocation or expansion of existing tobacco retailer/smoke shop businesses in the unincorporated County.
The Board of Supervisors has the authority to adopt this Ordinance pursuant to the California Constitution Article XI, Section 7 and Government Code Section 65858 as an urgency measure prohibiting any use that may conflict with a contemplated general plan, specific plan, or zoning proposal that the County is considering or studying.
Section 2. FINDINGS.
The Board of Supervisors of the County of San Joaquin hereby finds and determines that the proliferation of tobacco retailer/smoke shop businesses, including the establishment of new, relocated, or expansion of existing tobacco retailer/smoke shop businesses, constitutes an immediate threat to the public health, safety, and welfare to the residents of the County. The adoption of this Urgency Ordinance is therefore necessary for the immediate protection of public health, safety, and welfare. The Board of Supervisors makes its findings in support of the immediate adoption and application of this urgency ordinance based on the following:
A. The County protects the public health, safety, and welfare of the community through numerous avenues, including health and safety regulations on specified commercial activities.
B. Government Code Section 65858, subdivision (a) provides that the legislative body of a county may, to protect the public safety, health, and welfare, adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal the Board of Supervisors is considering or studying or intends to study.
C. The County has seen a proliferation of tobacco retailer businesses, also known as smoke shops, within the County, including the unincorporated areas and cities, as well as surrounding jurisdictions.
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D. Tobacco retailer/smoke shop businesses are any business that sells tobacco products or paraphernalia, including any device that delivers tobacco products.
E. There are currently at least eight known tobacco retailer/smoke shop businesses in the unincorporated County and the Sheriff’s Department is currently assessing whether there are additional tobacco retailer/smoke shop businesses operating without a business license in the unincorporated County.
F. Within the last year, the County Sheriff’s Office conducted operations at tobacco retailer/smoke shop businesses throughout the County and found evidence that tobacco retailer/smoke shop businesses are often a front for criminal activities, including the sale of cannabis, cannabis infused items, and hemp products containing tetrahydrocannabinol (“THC”) without the required permits and licenses, illicit drugs, flavored tobacco products that are particularly attractive to youth, and illegal gambling machines.
G. The Sheriff’s Office determined, based on their operations, that the legal items sold at such businesses sold in combination with the illegal items further encourage criminal activity.
H. The Sheriff’s Office additionally found that as a result, tobacco retailer/smoke shop businesses are a target for theft, vandalism, and loitering.
I. If the proliferation of tobacco retailer/smoke shop businesses is not curtailed, then the increased criminal activity presents an immediate threat to the public health, safety, and welfare.
J. On September 23, 2024, the California Department of Public Health (“CDPH”) promulgated emergency regulations related to industrial hemp and the threat to public health, safety, and welfare, particularly to minors.
K. The CDPH regulations came after California Governor Gavin Newsom directed the CDPH to draft emergency regulations, citing the increasing amounts of safety concerns from the adverse health effects of intoxicating hemp food and beverage products.
L. The CDPH emergency regulations aim to combat intoxicating hemp products containing THC that skirt the age and sale restrictions that have been placed on legal cannabis sold through licensed and regulated retailers.
M. The CDPH found that intoxicating hemp products have been found to be sold in tobacco retailer/smoke shop businesses with marketing aimed toward children featuring colorful packaging designs and sweet candy flavors.
N. As currently defined under state law, “industrial hemp” is permitted to contain a delta-9 THC concentration of no more than 0.3 percent on a dry weight basis; however, the emergency regulations prohibit industrial hemp final form food and beverage products, specifically, from containing any detectable level of THC.
O. The CDPH emergency regulations expand on the number of psychoactive cannabinoids that will need to be undetectable in industrial hemp final food form products, including edibles such as gummies, other candies and drinks as well as restricting the serving sizes
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such products contain to five servings or less and limiting sales of the products to consumers who are at least 21 years of age.
P. Aside from new regulations related to hemp, many state laws have been adopted, which acknowledge the public health impacts of tobacco, especially flavored tobacco products, and its effect on minors. For example, the state Education Code prohibits public school students from smoking or using tobacco products while on campus, while attending school sponsored activities, or while under the supervision or control of school district employees.
The Health and Safety Code also prohibits smoking in playgrounds. State law also prohibits smoking within 20 feet of the main entrances and exits of public buildings.
Q. On November 8, 2022, California voters upheld the state law SB 793 prohibiting 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, most flavored tobacco products including flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers in retail locations.
R. On October 7, 2023, Governor Newsom signed into law AB 935, strengthening the enforcement of the flavored tobacco retail law and broadening the definition of retail location.
S. Government Code Section 25123(d) authorizes the Board of Supervisors to adopt an urgency ordinance for the immediate preservation of the public peace, health, or safety.
T. Government Code Section 65858 provides that to protect against any current and immediate threats to public health, safety, or welfare, the Board of Supervisors may adopt, as an urgency measure, an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the County plans to study.
U. This temporary moratorium will provide the County the opportunity to study the various options to regulate tobacco retailer/smoke shop businesses including but not limited to amendments to Title 7 Business Regulations and Title 9 Development Title.
Section 3. DEFINITIONS.
A. “Tobacco Paraphernalia” means any device, product, equipment, or material of any kind that is intended or designed for use for smoking, inhaling, or ingesting tobacco or cannabis, notwithstanding that the device, product, equipment, or material may also be used for smoking, inhaling, or ingesting any controlled substance. Tobacco paraphernalia includes, but is not limited to, all of the following: (i) metal, ivory, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured bowls; (ii) water pipes; (iii) bongs; (iv) chillums; (v) ice pipes or chillers; (vi) cigarette papers or wrappers; (vii) cigarette rolling machines; (viii) blunt wraps, as defined in Section 308 of the Penal Code; (ix) hookahs and similar devices constructed with a receptacle or container in which water or some other liquid may be placed into which smoke passes and is cooled in the process of being inhaled or ingested; and (x) any electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.
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Tobacco Paraphernalia shall include any component, part, or accessory of the foregoing, whether or not sold separately.
B. “Tobacco Product” means any product containing, made, or derived from tobacco or nicotine 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, e-cigarettes (with or without flavoring), cigars, little cigars, chewing tobacco, pipe tobacco, or snuff, or vaping accessories. Tobacco Product shall include any component, part, or accessory of the foregoing, whether or not sold separately.
Tobacco Product does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.
C. “Tobacco retailer/smoke shop businesses” means a retailer or wholesale business or any person that sells, offers for sale, or offers to exchange for any form of consideration, tobacco, Tobacco Products, or Tobacco Paraphernalia, and hemp products; However, excluded from this definition is any business (1) grocery store occupying in excess of 10,000 square feet of a facility; (2) a gas station selling gasoline or diesel fuel; or 3) a liquor store holding a valid liquor license.
Section 4. MORATORIUM.
A. Effective immediately, the establishment, relocation, or expansion of a Tobacco retailer/smoke shop business is hereby expressly prohibited in the unincorporated County.
B. No business license shall be approved or issued by the County for the establishment of a Tobacco retailer/smoke shop business. In order to effectuate this moratorium, so long as it is in effect, an application for a new business license shall include the question of whether the business will be one that sells, offers for sale, or offers to exchange for any form of consideration, tobacco, Tobacco Products, or Tobacco Paraphernalia, and hemp products, and, if so, whether the business will occupy in excess of 4,000 square feet of a facility or be a gas station selling gasoline or diesel fuel.
C. This Ordinance shall not prohibit the renewal of a business license for an existing Tobacco retailer/smoke shop business, provided that the Tobacco retailer/smoke shop business is operating in a manner, and housed within a building, which complies with all applicable County, State, and Federal codes, rules, regulations, or laws.
Section 5. VIOLATION.
A violation of this Ordinance by the establishment, a Tobacco retailer/smoke shop business in the unincorporated County, is declared to be a public nuisance and an infraction. The violation of this Ordinance may be prosecuted by County authorities in the name of The People of the State of California or redressed by civil action including, but not limited to, fines, injunctions, administrative or criminal penalties, or any applicable laws or ordinances.
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Section 6. TERM OF ORDINANCE.
Pursuant to Government Code Section 65858, this Ordinance shall be in effect from the date of adoption for a period of forty-five (45) days, unless it is extended by the Board of Supervisors. The Board may only extend this Ordinance first for 10 months and 15 days and then for 1 year pursuant to a 4/5ths vote.
Section 7. JURISDICTION.
This Ordinance shall apply in the unincorporated area of the County.
Section 8. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) NOT APPLICABLE.
This Ordinance is not subject to CEQA, pursuant to CEQA Guidelines Sections 15378 and 15060(c)(2), as this Ordinance maintains the status quo and so it will not cause a direct physical change in the environment, nor a reasonably foreseeable indirect physical change in the environment. Therefore, the adoption of this Ordinance does not constitute the approval of a project under CEQA and it is exempt from CEQA.
Section 9. SEVERABILITY.
If any provision of this Ordinance is declared invalid or unconstitutional by a court of competent jurisdiction, it is the intent of the Board that the invalid or unconstitutional provision be severed from this Ordinance and the balance of the Ordinance be enforced.
Section 10. EFFECTIVE DATE.
Based on the findings by the Board and the required 4/5ths vote, this Ordinance is adopted consistent with Government Code Sections 25123(d) and 65858 and is necessary for the protection of the public peace, health, safety, and welfare and shall take effect immediately upon adoption.
Section 11. PUBLICATION.
Pursuant to Government Code Section 25131, within 15 days after the adoption of this Ordinance, the Ordinance shall be published in The Record, a newspaper of general circulation, which is published in the County of San Joaquin, State of California, with the names of members of the Board of Supervisors voting for and against it.
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PASSED AND ADOPTED at a regular meeting of the Board of Supervisors of the County of San Joaquin, State of California, on this of to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________
PAUL CANEPA
Chair, Board of Supervisors
County of San Joaquin
State of California
ATTEST: RACHÉL DeBORD
Clerk of the Board of Supervisors
County of San Joaquin
State of California
By: __________________
Deputy Clerk
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