Agenda packet — Orange City Council, June 10, 2025 (part 4 of 4)

The proposed project is not subject to the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15061(bX3) of the state CEQA Guidelines (Common Sense Exemption) because (l) it can be seen with certainty that there is no possibility that it would have a significant effect on the environment; and (2) Section 15378 because it will not have a direct or reasonably foreseeable indirect physical change on the environment and is not a "project." For this reason, no further CEQA documentation is required.

SECTION XI:

If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this interim Ordinance. The City Council hereby declares that it would have passed this interim Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional.

ADOPTED this _ day of 2025
Daniel R. Slater, Mayor, City of Orange
ATTEST:

Pamela Coleman, City Clerk, City of Orange

STATE OF CALIFORNIA )
cor-INTY oF ORANGE )
crrY oF ORANGE )
I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certifu that the foregoing extension of an interim Ordinance was duly passed and adopted at the regular meeting of the City Council held on the _ day of
-,2025
by the following vote, to
wit:
895
Resolution No. PC 16-24

Page 11 ends

AYES:

NOES:

ABSENT:

ABSTAIN:

COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
896
Agenda Item
Planning Commission
Item #: 4.1. 4/21/2025 File #: 25-0142
TO: Chair and Members of the Planning Commission
THRU: Anna Pehoushek, Assistant Community Development Director FROM: Arlen Beck, Associate Planner

1. SUBJECT
Public Hearing to consider an ordinance establishing Single Room Occupancy housing as a permitted land use for certain qualifying properties and finding of CEQA exemption.

2. SUMMARY
The proposed ordinance establishes standards, provisions, and limitations governing the permitting, development, siting, and management of Single Room Occupancy housing units.

3. RECOMMENDED ACTION

1. Conduct the Public Hearing.

2. Adopt Planning Commission Resolution No. 16-24 recommending the City Council adopt an Ordinance amending Title 17 of the Orange Municipal Code to allow Single-Room Occupancy housing as a permitted use in certain zoning districts and related definitions and development standards.

3. Find the ordinance categorically exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines Sections 15061(b)(3) and 15378.

4. AUTHORIZING GUIDELINES
Orange Municipal Code Section 17.08.020 authorizes the Planning Commission to review and make advisory recommendations to the City Council on Zoning Ordinance Amendments.

5. PROJECT BACKGROUND
The City of Orange General Plan 2021-2029 Housing Element was adopted by the City Council on October 30, 2023, and was certified by the California State Department of Housing and Community Development (HCD) on January 2, 2024. Government Code Section 65583 and 65583.2 require the City’s Housing Element to provide for a variety of housing types including single-room occupancy (SRO) units. Providing development opportunities for a variety of housing types promotes diversity in housing price, style, and size, and contributes to neighborhood stability by offering more affordable and move-up homes and accommodating a diverse income mix.

Included in the Housing Element is Housing Policy Action 4H which identifies the City’s intent to update the Orange Municipal Code to permit Single-Room Occupancy housing units in appropriate zoning districts, subject to requirements of state law. These requirements include implementing City of Orange Page 1 of 4 Printed on 4/17/2025
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Item #: 4.1. 4/21/2025 File #: 25-0142
zoning districts, subject to requirements of state law. These requirements include implementing standards, provisions and limitations governing the permitting, development, siting, and management of SRO units.

6. PROJECT DESCRIPTION
The proposed ordinance would allow SRO housing units only as an adaptive reuse of certain existing structures in specified zones as follows:
· Existing hotels or motels with 30 guest rooms or less. · Existing office buildings with a gross floor area of 5,000 square feet or less. · Only in the Limited Business (C-1), General Business (C-2), and Limited Business Tustin Redevelopment Project Area (C-TR) zoning districts.

All of the properties that qualify for conversion to SRO at the time of adoption of this ordinance are eligible, however, no buildings constructed after the adoption of this ordinance are eligible for SRO conversion. A map of existing hotels or motels eligible for conversion to SRO is provided as Attachment 2, and a map of eligible existing office buildings for conversion to SRO is provided as Attachment 3.

In addition to the criteria above, the proposed ordinance establishes development and operational standards for SRO units. SRO development would be subject to the following requirements:
· Conversion to SRO must be done for the entire site. No partial conversions are allowed. · Maximum occupancy of two persons per unit.
· Minimum rental term of 30 days or longer.
· Minimum unit size of 150 square feet and maximum unit size of 375 square feet. · A property management plan with an on-site 24-hour manager and separate manager’s unit. · Independent unit entrances accessible from a single main entry. · Cooking Facilities shall be either in each unit or as a community kitchen for each floor. · Bathroom facilities either contained in each unit or as a common bathroom facility with at least one full bathroom per floor and one full bathroom per four units. · A closet of at least 120 cubic feet in each unit.
· A common area for tenant social interaction and meetings at each facility. · A secured office for storage of confidential resident records at each facility. · Assigned individual mailboxes for each unit.
· Laundry facilities of at least one washer and dryer per floor and one washer and dryer shall be provided for every 10 units.
· Janitorial Storage with hot and cold running water on each floor.

All units within SRO projects shall be restricted to very low and low-income individuals as defined by City of Orange Page 2 of 4 Printed on 4/17/2025
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Item #: 4.1. 4/21/2025 File #: 25-0142
All units within SRO projects shall be restricted to very low and low-income individuals as defined by the City's housing element, with the exception of the 24-hour manager unit. The City will be able to count these units towards fulfilling our Regional Housing Needs Assessment (RHNA).

7. DISCUSSION
Loss of Transient Occupancy Tax (TOT).

The following hotels that are eligible for conversion under the SRO ordinance provisions and their associated TOT revenues are outlined in the table below:

Hotel/Motel Name Address Room
Count
Number of Calls
for Service in
2024
2024 TOT
Revenue
SKY PALM MOTEL 210 N TUSTIN ST 30 9 $ 65,910.00
ANGEL MOTEL 2330 W CHAPMAN AVE 17 8 $ 1,030.01
7 CROWNS MOTEL 528 E LINCOLN AVE 15 6 $ 12,240.00
ASPIRE INN & SUITES 428 E LINCOLN AVE 28 41 $ 63,803.51 MOTEL 6 #8738 3191 N TUSTIN ST 30 53 $ 60,887.99

NEW AMERICAN INN &
SUITES
3190 N TUSTIN ST 26 71 $ 23,102.30
CRAZY 8 MOTEL 1300 E KATELLA AVE 29 103 $ 12,439.16
Total 2024 TOT Revenue: $
239,412
.97
The total TOT revenue collected by the eligible hotels/motels, as outlined in the table above, represents approximately 4.4% of the total TOT revenue the City receives from all hotels/motels citywide.

Adaptive Reuse of Existing Buildings:

There are 28 properties identified as eligible for conversion which currently are used as office buildings of 5,000 square feet or less. The conversion of underutilized office buildings to SRO units will provide opportunities for properties to be updated to current building codes and aesthetic enhancements to building exteriors. Furthermore, conversion to SRO will allow for an on-site manager to monitor and maintain the upkeep of the buildings.

8. PUBLIC NOTICE
On March 27, 2025, a notice was published in the Orange City News newspaper for a public hearing before the Planning Commission on April 21, 2025.

9. ENVIRONMENTAL REVIEW
Categorical Exemption: The proposed project is not subject to the provisions of the California Environmental Quality Act (CEQA) pursuant to (1) Section 15061(b)(3) of the state CEQA Guidelines (Common Sense Exemption) because it can be seen with certainty that there is no possibility that it would have a significant effect on the environment; and (2) Section 15378 because it will not have a direct or reasonably foreseeable indirect physical change on the environment and is not a "project." City of Orange Page 3 of 4 Printed on 4/17/2025
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Item #: 4.1. 4/21/2025 File #: 25-0142
For this reason, no further CEQA documentation is required.

10. ADVISORY BOARD ACTION
No advisory board review was required for this ordinance.

11. ATTACHMENTS · Attachment 1 - Planning Commission Resolution No. PC 16-24 with Draft Ordinance · Attachment 2 - Map of Eligible Hotel Properties
· Attachment 3 - Map of Eligible Office Properties
· Attachment 4 - Police Department Report of Hotel Calls for Service City of Orange Page 4 of 4 Printed on 4/17/2025
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APPROVED BY THE PLANNING COMM]SSION ON MAY 5, 2425

MINUTES
City of Orange
Planning Commission
April21,2025
The Planning Commission of the City of Orange, California convened on April 21, 2025, at 5:30 p.m. in a Regular Meeting in the Council Chamber, 300 E. Chapman Avenue, Orange, California.

OPENING/CALL TO ORDER
Chair Vejar called the meeting to order at 5:35 p.m.

1.'.| PLEDGE OF ALLEGIANCE
Commissioner [/cCormack led the flag salute.

ROLL CALL

Present: Leslie, Martinez, Maldonado, McCormack, and Vejar

Absent: Vazquez, and Tucker

PUBLIC COMMENTS
None.

1.2 3. CONSENTCALENDAR
2 3.1.

3.2. All matters listed under the Consent Calendar are considered to be routine by the Planning Commission and will be enacted by one motion. There will be no separate discussion of said items unless members of the Planning Commission, staff or the public request specific items removed from the Consent Calendar for separate action.

Approval of meeting minutes of the City of Orange Planning Commission Regular Meeting held on April 7, 2025.

ACTION: Approved minutes as presented.

Time extension for Street Lights Mixed-Use Apartment Development located at 840 The City Drive South.

ACTION: Approved item as presented.

Approval of the Consent Calendar
A motion was made by Commissioner lvlartinez, seconded by Vice approve the Consent Calendar. The motion carried by the following vote:

Aves: Leslie, Martinez, Maldonado, Mccormack, and Veiar Noes: None

Absent: Vazquez, and Tucker
Chair Leslie, to

Page 1 of 3 ends

1. 901
Planning Commission Minutes Aptil21,2025

4.1. an
use
4, PUBLIC HEARINGS
Public Hearing to consider
housing as a permitted land
CEQA exemption.
ordinance establishing
for eertain qualifying
Single Room Occupancy
properties and finding of
Chair Vejar opened the public hearing at 5:42 p.m
Public Speakers:

None
Chair Vejar closed the public hearing at 5:43 p.m.

A motion was made by Commissioner Martinez, seconded by Commissioner McCormack to:
1 . Adopt Plannrng Commission Resolution No. 16-24 recommending the City Council adopt an Ordinance amending Title '17 of the Orange Municipal Code to allow Single-Room Occupancy housing as a permitted use in certain zoning distrlcts and related definitions and development standards.
2- Find the ordinance categorically exempt from the California Environmental Quality Act (CEaA) per State CEQA Guidelines Sections 15061(b)(3) and '15378.

Public S eakers:

Karen Bustamante spoke in favor of the Ordinance
Chair Vejar closed the public hearing at 5:58 p.m.

A motion was made by Commissioner Martinez, seconded by Commissioner Leslie to:

1. Adopt Planning Commission Resolution No. PC 03-25 recommending that the City Council adopt an Ordinance amending Title 17 of the Orange lvlunicipal Code to update the number of chickens permitted on residential properties and setback requirements and amended language as provided by staff.

2. Find the ordinance categorically exempt from the California Environmental Quality Act (CEaA) per State CEQA Guidelines Sections 15061(bX3) and 15378.

The motion carried by the following vote:

Ayes: Leslie, lvlartinez, Maldonado, McCormack, and Veiar Noes: None

Absent: Yazquez, and Tucker

ADJOURNMENT

Page 2 of 3 ends

The motion carried by the following vote:

Aves: Leslie, Martinez, Maldonado, Mccormack, and Veiar Noes: None

Absent: Vazquez, and Tucker

4.2. Public Hearing to consider an update to Title 17 of the Orange Municipal Code (OMC) to amend provisions relating to number of chickens allowed on residential properties and setback requirements; and finding of CEQA exemption.

Chair Vejar opened the public hearing at 5:45

5. 902
Planning Commission Minutes April 2'1,2025
There being no further business, the meeting was adjourned at 5:55 p.m The next Regular Planning Commission Meeting will be held on Monday, May 5, 2025, at 5:30 p.m., in the Council Chamber.

Ortlieb
Principal Planner

Page 3 of 3 ends

afueh"u
903
57 91
E Wagner Ave
E Cerritos Ave
E South St
Romneya Dr
E Miraloma Ave
N
Red Gum
St
N Batavia St
N Main St
S State College Blvd
E Lincoln Ave
E Katella Av e
E La Palma Ave
Anaheim Coves
W Maple Ave
W La Veta Ave
W Chapman Ave
W 17th St
River View Golf
Course
Washington
Square
Riverglen
French Park
West Floral
Park
Fisher Park
Concord
Santa Ana
Triangle
French Court
Riverview
Artesia Pilar
Santa Ana
N Shaffer St
Cer
E Heim Ave
ro Villa Dr
Valley Dr
E Serrano Ave
E Meats Ave
N
Cannon St
N Grand St
Meads
N Handy St
E Via Escola Ave
Mesa D r
E Bond Ave
N
Miller St
E Fro ntera St
E Katella Ave
N
Orange Olive Rd
E Collins Ave
E Taft Ave
N Tustin St
Villa Park Rd
E Riverdale Ave
E Nohl Ranch Rd
E S anta Ana Canyon Rd
S Imperial Hwy
E La Palma Ave
E La Palma Ave
S Imperial
Riverdale
Elementary
School Child
Care
Cerro Villa
Middle School
Villa Park
Santiago Creek
S18
La Colina Dr
Prospect Ave
E La Veta Ave
E Santa Clara Ave
E Palm Ave
E Walnut Ave E Walnut Ave
E Maple Ave
Esplanade Ave
E Palmyra Ave E Palmyra Ave
E Spring St
Skyline D r
Yorba St
Holt Ave
La Loma Dr
S Hewes St
E Almond Ave
Hewes Ave
E Chapman Ave
Newport Ave
17th St
Chapman
University
Park Santiago
Young Square
Grand Sunrise
Portola Park
Saddleback
View
Logan
North Tustin
Orange
Hillside Dr
S Fairmont Blvd
Anaheim Hills
Golf Course
Santiago Oaks
Regional Park
Oak Canyon
Nature Center
Deer Canyon
Park
241
S18
Pioneer Rd
E White Oak
Rdg
Peters Canyon
Regional Park
Santiago
Canyon College
COUNTY
ORANGE
PARK
ACRES
CITY

CITY NORTH

EL MODENA
COUNTY
COUNTY

EL MODENA
OLIVE
COUNTY
TUSTIN
TUSTIN
NAHEIM
ORANGE

SPHERE OF

INFLUENCE

ANAHEIM

SANTA ANA COUNTY

VILLA PARK
ORANGE

SPHERE OF

INFLUENCE
1 2
3 4
5 6
7 1
2 3
4 5
6 7 8
9 10
11 12
13 14
15 16
17 18 19
20 21
22 23
24 25
26 27 28
Legend
City Boundary
Eligible Hotels\Motels
1 - 7 Crowns Motel
528 E Lincoln Ave
2 - Angel Motel
2330 W Chapman Ave
3 - New American Inn & Suites
3190 N Tustin St
4 - Aspire Inn & Suites
428 E Lincoln Ave
5 - Crazy 8 Motel
1300 E Katella Ave
6 - Motel 6 #8738
3191 N Tustin St
7 - Sky Palm Motel
210 N Tustin St
Potential Office Sites
1 - Mohan K Moosad Tr Moosad Family Tr
900 E Lincoln Ave
2 - 4250 East Chapman Avenue LLC
4250 E Chapman Ave
3 - Bless Prop LLC
4750 E Chapman Ave
4 - Scenic Destiny LLC
311 N Tustin St
5 - V4Hp Properties LLC
434 S Tustin St
6 - Chapman Citrus Investment LLC
1010 W Chapman Ave
7 - Mosu Enterprise LLC
171 S Anita Dr
8 - General Truck Drivers, Office,
Food & Warehouse
2022 W Chapman Ave
9 - DMB Properties LLC
1111 W Chapman Ave
10 - 8th St Properties LLC
2745 E Chapman Ave
11 - Hoskins Land Co
2133 W Chapman Ave
12 - Laura L Jaquith Tr
The Castro-Jaquith Living Tr
13 - Horner, Jeffrey S Tr
1100 W Chapman Ave
14 - Le, Kha Tr
2006 W Chapman Ave
15 - Crawford I LLC
528 N Glassell St
16 - Allan R Stark Tr
555 N Tustin St
17 - Jerome Bauer Tr
594 N Glassell St
18 - Pyl Soe Tr Revocable Living Tr
1620 E Mayfair Ave
19 - Ramesh Kothari Tr
765 N Tustin St
20 - Nhan T Le Nguyen, Thuy Bich
775 N Tustin St
21 - Riteways Llc
536 E Lincoln Ave
22 - Washington Capital Management LLC
510 E Lincoln Ave
23 - JW&L Investments LLC
735 E Lincoln Ave
24 - Akbar Heidarinia
980 N Tustin St
25 - Elsa Adly Louka Tr, The Louka Living Tr
981 N Tustin St
26 - Chien-Ko S Wu Tr
991 N Tustin St
27 - Dimitri Grammas Tr
149 E Lincoln Ave
28 - Ana Maria Arellano Ramos
205 E Lincoln Ave
J:\GisProjects\CommunityServices\SingleRoomOccupancy\GIS\APRX\SingleRoomOccupancy\SingleRoomOccupancy.aprx\Eligible Hotels\Motels & Offices - 4/30/2025
Source: City of Orange (2024), ESRI
Exhibit 3

CITY OF ORANGE
Eligible Hotels\Motels & Offices
0 2,000 4,000
Feet
.
904
1 Arlen Beck
From: Erik Mendoza
Sent: Thursday, January 30, 2025 4:14 PM
To: Arlen Beck
Subject: RE: Single Room Occupancy Ordinance
Arlen,
Here’s the information you requested.
9 CFS
8 CFS
6 CFS
41 CFS
53 CFS
71 CFS
103 CFS
Thank you,
Erik Mendoza
Crime Prevention Specialist
Orange Police Department
1107 North Batavia Street
Orange, CA 92867-4615
O: (714) 744-7555
F: (714) 744-7321
 Please consider the environment before printing this e-mail From: Arlen Beck <[email protected]>
Sent: Thursday, January 30, 2025 16:04
To: Erik Mendoza <[email protected]>
Subject: RE: Single Room Occupancy Ordinance
Yes total CFS for each location in 2024.

Arlen Beck | Associate Planner
City of Orange
Direct: (714) 744-7272
SKY PALM MOTEL 210 N TUSTIN ST
ANGEL MOTEL 2330 W CHAPMAN AVE
7 CROWNS MOTEL 528 E LINCOLN AVE
ASPIRE INN & SUITES 428 E LINCOLN AVE
MOTEL 6 #8738 3191 N TUSTIN ST
NEW AMERICAN INN & SUITES 3190 N TUSTIN ST
CRAZY 8 MOTEL 1300 E KATELLA AVE
905
Agenda Item
City Council
Item #: 9.5. 6/10/2025 File #: 25-0290
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Public Hearing to consider introduction and First Reading of Ordinance No. 08-25 amending provisions in Title 17 of the Orange Municipal Code (Zoning Ordinance) relating to the number of chickens allowed on residential properties and setback requirements.

2. SUMMARY
The City proposes changes to update Title 17 to amend certain provisions of the OMC to increase the number of chickens allowed on residential properties, adjust coop setback requirements from property lines to structures used for human habitation, and remove the combining limit of dogs and cats with small animals such as poultry. These amendments are proposed in order to enhance Code clarity, enforcement, and flexibility while maintaining neighborhood compatibility. Staff requests a continuance of the item to the City Council meeting on June 24, 2025.

3. RECOMMENDED ACTION
Continue the Public Hearing to the June 24, 2025, Regular City Council Meeting.

4. ATTACHMENTS
· None
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Agenda Item
City Council
Item #: 9.5. 6/10/2025 File #: 25-0290
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

3. RECOMMENDED ACTION
Continue the Public Hearing to the June 24, 2025, Regular City Council Meeting.

4. ATTACHMENTS
· None
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Agenda Item
City Council
Item #: 10.1. 6/10/2025 File #: 25-0257
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director

1. SUBJECT
Introduction and first reading of Ordinance No. 10-25 containing administrative updates to various sections of Title 13 of the Orange Municipal Code.

2. SUMMARY
This proposed Ordinance contains administrative updates to various sections of Title 13 to update references to conform with current law and code provisions, principally, cross-connection regulations and notification procedures.

3. RECOMMENDED ACTION
Introduce and conduct First Reading of Ordinance No. 10-25. An Ordinance of the City Council of the City of Orange amending various sections in Title 13 of the Orange Municipal Code to update references to conform with current law and code provisions.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Not applicable.

6. DISCUSSION AND BACKGROUND
Over the past several years, there have been changes in State law impacting existing Orange Municipal Code (OMC) provisions. There have also been a number of new State laws requiring the addition of new OMC provisions. At the same time, a number of OMC provisions have been added and revised to reflect changed City policies. Not all of the changes in the OMC have been captured throughout the remaining OMC provisions, resulting in several code sections that still contain outdated, superseded, or changed references.

The proposed Ordinance makes administrative adjustments and corrects, revises and/or deletes the inaccuracies found in Title 13 of the OMC, principally, cross-connection regulations and notification procedures.

7. ATTACHMENTS
City of Orange Page 1 of 2 Printed on 6/4/2025
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Item #: 10.1. 6/10/2025 File #: 25-0257
· Ordinance No. 10-25
· OMC Title 13 Revisions REDLINED
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Agenda Item
City Council
Item #: 10.1. 6/10/2025 File #: 25-0257
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director

1. SUBJECT
Introduction and first reading of Ordinance No. 10-25 containing administrative updates to various sections of Title 13 of the Orange Municipal Code.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Not applicable.

7. ATTACHMENTS
City of Orange Page 1 of 2 Printed on 6/4/2025
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Item #: 10.1. 6/10/2025 File #: 25-0257
· Ordinance No. 10-25
· OMC Title 13 Revisions REDLINED
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ORDINANCE NO. 10-25

AN ORDINANCE OF THE CITY COUNCIL OF THE

CITY OF ORANGE AMENDING SECTIONS IN TITLE
13 OF THE ORANGE MUNICIPAL CODE TO

DELETE OUTDATED LANGUAGE, UPDATE

REFERENCES TO CONFORM WITH CURRENT

LAW AND CODE PROVISIONS, AND ACHIEVE
INTERNAL CONSISTENCY.

WHEREAS, the Orange Municipal Code requires updates, from time to time, to reflect current administrative or operational procedures adopted by the City; and WHEREAS, the changes proposed update the Code to delete outdated language, update references to conform with current law and code provisions, achieve internal consistency and otherwise capture general language clean-up.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

1. The subject Ordinance is exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines (Guidelines) Sections 15060(c)(2) and 15060(c)(3) because review and evaluation of potential impact of the Ordinance demonstrate that it will not result in a direct or reasonably foreseeable indirect physical change in the environment, and it is not a "project" as defined in Guideline 15378.

2. The subject Ordinance is exempt from CEQA per Guideline 15061(b)(3) because it can be seen with certainty, after review and evaluation of the facts regarding the Zoning Code administrative amendments, that there is substantial evidence that adoption of this Ordinance would not have a significant effect on the environment and the common sense exemption applies.

SECTION II:

Section 13.04.080 of the Orange Municipal Code, “Public Utilities – Article I Water System – General Provisions – Pressure and Supply-Liability of City,” is hereby amended to read as follows:

13.04.080 - Pressure and Supply—Liability of City.

The City assumes no responsibility for loss or damage because of high water pressure or lack of water or pressure and merely agrees to furnish such quantities and pressures as are available in its general distribution system. The service is subject to shutdowns and variations required by the operation of the system.
912
2 SECTION III:

Section 13.36.010 of the Orange Municipal Code, “Public Utilities – Article I Water System – Regulations Relating to Cross-Connections – Required,” is hereby amended to read as follows:

13.36.010 – Required.

All consumers shall comply with the regulations of the California State Water Resources Control Board pursuant to the Cross-Connection Control Management Plan.

SECTION IV:

Section 13.36.060 of the Orange Municipal Code, “Public Utilities – Article I Water System – Regulations Relating to Cross-Connections – Backflow Prevention Devices,” is hereby amended to read as follows:

13.36.60 - Backflow Prevention Devices.

A. Approved Backflow Devices

1. Only backflow prevention devices which have been approved by the City shall be acceptable for installation by a water user connected to the City's water system.

2. The City will provide, upon request, to any affected consumer a list of approved backflow prevention devices.

B. Backflow Prevention Device Installation. Backflow prevention devices shall be installed pursuant to the Cross-Connection Control Management Plan of the California State Water Resources Control Board. Location of the devices should be as close as practical to the user's connection. The City shall have the final authority in determining the required location of a backflow prevention device.

C. Backflow Prevention Device Testing and Maintenance

1. The owners of any premises on which, or on account of which, backflow prevention devices are installed, shall have the devices tested by a person who has demonstrated their competency in testing of these devices to the City. Backflow prevention devices must be tested at least annually and immediately after installation, relocation or repair.

The City may require a more frequent testing schedule if it is determined to be necessary. No device shall be placed back in service unless it is functioning as required.

A report in a form acceptable to the City shall be filed with the City each time a device is tested, relocated or repaired. These devices shall be serviced, overhauled, or replaced whenever they are found to be defective and all costs of testing, repair, and maintenance shall be borne by the water consumer.
913
3 2. The City shall supply affected consumers with a list of persons acceptable to the City to test backflow prevention devices. The City will notify affected consumers by mail when annual testing of a device is needed and also supply users with the necessary forms which must be filled out each time a device is tested or repaired.

D. Backflow Prevention Device Removal

1. Approval must be obtained from the City before a backflow prevention device is removed, relocated, or replaced.
a. Removal. The use of a device may be discontinued and the device removed from service upon presentation of sufficient evidence to the City to verify that a hazard no longer exists or is not likely to be created in the future; b. Relocation. A device may be relocated following confirmation by the City that the relocation will continue to provide the required protection and satisfy all installation requirements. A retest will be required following the relocation of the device; c. Repair. A device may be removed for repair, provided the water use is either discontinued until repair is completed and the device is returned to service, or the service connection is equipped with other backflow protection approved by the City. A retest will be required following the repair of the device; and d. Replacement. A device may be removed and replaced provided the water use is discontinued until the replacement device is installed. All replacement devices must be approved by the City and must be commensurate with the degree of hazard involved.

SECTION V:

Section 13.36.070 of the Orange Municipal Code, “Public Utilities – Article I Water System – Regulations Relating to Cross-Connections – Administrative Procedures,” is hereby amended to read as follows:

13.36.70 - Backflow Administrative Procedures.

A. Water System Survey

1. The City shall review all requests for new services to determine if backflow protection is needed. Plans and specifications must be submitted to the City upon request for review of possible cross-connection hazards as a condition of service for new service connections. If it is determined that a backflow prevention device is necessary to protect the public water system, the required device must be installed before service will be granted.
914
4 2. The City may require an on-premises inspection to evaluate cross-connection hazards.

3. The City may, at its discretion, require a reinspection for cross-connection hazards of any premises to which it serves water. The City will either verbally or in writing request an inspection appointment to each affected water user. Any consumer which cannot or will not allow an on-premises inspection of their piping system shall be required to install the backflow prevention device the City considers necessary.

B. Consumer Notification—Damaged, Missing or Improperly Installed Backflow Prevention Assemblies

1. In the event that a backflow prevention assembly is missing (or stolen), installed incorrectly, illegally modified, or tampered with, the City shall implement the following actions:
a. The City will notify the consumer of the survey findings, listing corrective action to be taken if required. A period of 60 days will be given to complete all corrective action required including installation of backflow prevention devices. b. A second notice will be sent to each consumer which does not take the required corrective action prescribed in the first notice within the 60-day period. The second notice will give the consumer a two-week period to take the required corrective action. If no action is taken within the two-week period the City may terminate water service to the affected consumer until the required corrective actions are taken.

C. Consumer Notification—Testing and Maintenance

1. The City will notify each affected consumer, mailed on the last week of the previous month, when it is time for the backflow prevention device installed on their service connection to be tested. This written notice (first letter) shall give the consumer 30 days to have the device tested and supply the consumer with the necessary form to be completed and resubmitted to the City.

2. After the 30-day expiration, there will be a 10-calendar day grace period prior to a second notice (second letter) sent to each consumer which does not have their backflow prevention device tested as prescribed in the first letter. The second notice will give the consumer 15 days to have the device tested and supply the consumer with the necessary form to be completed and resubmitted to the City.

3. After the 15-day expiration, there will be a 10-calendar day grace period prior to a third notice (final notice) sent to each consumer which does not have their backflow 915
5 prevention device tested as prescribed in the second letter. The final notice will give the consumer 5 days to have the device tested and supply the consumer with the necessary form to be completed and resubmitted to the City. If no action is taken after the final notice, the City may terminate water service to the affected consumer until the subject device is tested.

SECTION VI:

Section 13.40.110 of the Orange Municipal Code, “Public Utilities – Article I Water System – Wells – Standards for Construction, Reconstruction or Destruction,” is hereby amended to read as follows:

13.40.110 - Standards for Construction, Reconstruction or Destruction.

Standards for the construction, reconstruction or destruction of wells shall be the standards recommended in the State Department of Water Resources Bulletin No. 74, Part II and future amendments thereto. Standards for the construction, alteration, or destruction of cathodic protection wells shall be the standards recommended in the State Department of Water Resources Bulletin No. 74-1, and future amendments thereto.

SECTION VII:

If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional.

SECTION VIII:

The City Clerk is hereby directed to certify the adoption of this Ordinance and cause the same to be published as required by law. This Ordinance shall take effect thirty (30) days from and after the date of its final passage.

ADOPTED this day of , 2025.

Daniel R. Slater, Mayor, City of Orange
ATTEST:

Pamela Coleman, City Clerk, City of Orange
916
6 APPROVED AS TO FORM:

Wayne W. Winthers,
Interim City Attorney

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )
I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the ___ day of ________, 2025, and thereafter at the regular meeting of said City Council duly held on the ___ day of _______, 2025, was duly passed and adopted by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
917

13.04.080 - Pressure and Supply—Liability of City.

13.36.010 – Required.

All consumers shall comply with the regulations of the California State Department of Health Services pursuant to the State of California Code of Regulations, Title 17, "Regulations Relating to Cross-Connections," and this title of the Orange Municipal Code. All consumers shall comply with the regulations of the California State Water Resources Control Board pursuant to the Cross-Connection Control Management Plan.

13.36.060 - Backflow Prevention Devices.

A Approved Backflow Devices
1 Only backflow prevention devices which have been approved by the City shall be acceptable for installation by a water user connected to the City's water system. 2 The City will provide, upon request, to any affected consumer a list of approved backflow prevention devices.

B Backflow Prevention Device Installation. Backflow prevention devices shall be installed in a manner prescribed in Section 7603, Title 17 of the California Code of Regulations. pursuant to the Cross-Connection Control Management Plan of the California State Water Resources Control Board. Location of the devices should be as close as practical to the user's connection.

The City shall have the final authority in determining the required location of a backflow prevention device.

C Backflow Prevention Device Testing and Maintenance
1 The owners of any premises on which, or on account of which, backflow prevention devices are installed, shall have the devices tested by a person who has demonstrated their competency in testing of these devices to the City. Backflow prevention devices must be tested at least annually and immediately after installation, relocation or repair. The City may require a more frequent testing schedule if it is determined to be necessary. No device shall be placed back in service unless it is functioning as required. A report in a form acceptable to the City shall be filed with the City each time a device is tested, relocated or repaired. These devices shall be serviced, overhauled, or replaced whenever they are found to be defective and all costs of testing, repair, and maintenance shall be borne by the water consumer.
2 The City shall supply affected consumers with a list of persons acceptable to the City to test backflow prevention devices. The City will notify affected consumers by mail when annual testing of a device is needed and also supply users with the necessary forms which must be filled out each time a device is tested or repaired. 918
D Backflow Prevention Device Removal
1 Approval must be obtained from the City before a backflow prevention device is removed, relocated, or replaced.
a Removal. The use of a device may be discontinued and the device removed from service upon presentation of sufficient evidence to the City to verify that a hazard no longer exists or is not likely to be created in the future; b Relocation. A device may be relocated following confirmation by the City that the relocation will continue to provide the required protection and satisfy all installation requirements. A retest will be required following the relocation of the device; c Repair. A device may be removed for repair, provided the water use is either discontinued until repair is completed and the device is returned to service, or the service connection is equipped with other backflow protection approved by the City. A retest will be required following the repair of the device; and d Replacement. A device may be removed and replaced provided the water use is discontinued until the replacement device is installed. All replacement devices must be approved by the City and must be commensurate with the degree of hazard involved.

13.36.70 - Backflow Administrative Procedures.

A Water System Survey
1 The City shall review all requests for new services to determine if backflow protection is needed. Plans and specifications must be submitted to the City upon request for review of possible cross-connection hazards as a condition of service for new service connections. If it is determined that a backflow prevention device is necessary to protect the public water system, the required device must be installed before service will be granted. 2 The City may require an on-premises inspection to evaluate cross-connection hazards.

The City will either verbally or in writing, request an inspection appointment to each affected water user. Any consumer which cannot or will not allow an on-premises inspection of their piping system shall be required to install the backflow prevention device the City considers necessary.
3 The City may, at its discretion, require a reinspection for cross-connection hazards of any premises to which it serves water. The City will either verbally or in writing request an inspection appointment to each affected water user. Any consumer which cannot or will not allow an on-premises inspection of their piping system shall be required to install the backflow prevention device the City considers necessary.

B Consumer Notification— Device Installation Damaged, Missing or Improperly Installed Backflow Prevention Assemblies
1 In the event that a backflow prevention assembly is missing (or stolen), installed incorrectly, illegally modified, or tampered with, the City shall implement the following actions:
a The City will notify the consumer of the survey findings, listing corrective action to be taken if required. A period of 60 days will be given to complete all corrective action required including installation of backflow prevention devices. b A second notice will be sent to each consumer which does not take the required corrective action prescribed in the first notice within the 60-day period. The second notice will give the consumer a two-week period to take the required corrective action. If 919
no action is taken within the two-week period the City may terminate water service to the affected consumer until the required corrective actions are taken.

C Consumer Notification—Testing and Maintenance
1 The City will notify each affected consumer, mailed on the last week of the previous month, when it is time for the backflow prevention device installed on their service connection to be tested. This written notice (first letter) shall give the consumer 30 days to have the device tested and supply the consumer with the necessary form to be completed and resubmitted to the City.
2 A second notice will be sent to each consumer which does not take the required corrective action prescribed in the first notice within the 60-day period. The second notice will give the consumer a two-week period to take the required corrective action. If no action is taken within the two-week period the City may terminate water service to the affected consumer until the required corrective actions are taken. After the 30-day expiration, there will be a 10-calendar day grace period prior to a second notice (second letter) sent to each consumer which does not have their backflow prevention device tested as prescribed in the first letter.

The second notice will give the consumer 15 days to have the device tested and supply the consumer with the necessary form to be completed and resubmitted to the City. 3 After the 15-day expiration, there will be a 10-calendar day grace period prior to a third notice (final notice) sent to each consumer which does not have their backflow prevention device tested as prescribed in the second letter. The final notice will give the consumer 5 days to have the device tested and supply the consumer with the necessary form to be completed and resubmitted to the City. If no action is taken after the final notice, the City may terminate water service to the affected consumer until the subject device is tested.

13.40.110 - Standards for Construction, Reconstruction or Destruction.

Standards for the construction, reconstruction or destruction of wells shall be the standards recommended in the State Department of Water Resources Bulletin No. 74, Chapter Part II and future amendments thereto. Standards for the construction, alteration, or destruction of cathodic protection wells shall be the standards recommended in the State Department of Water Resources Bulletin No. 74-1, and future amendments thereto. 920
Agenda Item
City Council
Item #: 10.2. 6/10/2025 File #: 25-0276
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Introduction and First Reading of Ordinance No. 12-25, adding Chapter 5.100 to the Orange Municipal Code establishing provisions for Tobacco Retail Establishments.

2. SUMMARY
The proposed Ordinance establishes a requirement that all tobacco retailers must register with the City, comply with regulations, and obtain a specialized permit to operate. Currently, the City does not have any regulatory ordinance related to tobacco retailing in the Orange Municipal Code.

3. RECOMMENDED ACTION
Introduce and conduct First Reading of Ordinance No. 12-25: An Ordinance of the City Council of the City of Orange adding Chapter 5.100 of the Orange Municipal Code establishing Code provisions including operational standards and permitting requirements for tobacco retail establishments.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Goal 1: Maintain Strong Emergency and Safety Services

6. DISCUSSION AND BACKGROUND
Overview of Tobacco Retail Regulations and Local Enforcement in California California’s tobacco retail industry is governed by Federal and State regulations addressing licensing, sales, marketing, and distribution of tobacco products. These regulations aim to ensure lawful tobacco commerce while addressing public health concerns, such as preventing youth access, limiting flavored tobacco, and reducing the societal impacts of tobacco use. A summary of key State legislation, highlights of enforcement challenges, and local efforts to close regulatory gaps is provided below.

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State-Level Regulations and Authority
The Cigarette and Tobacco Products Licensing Act of 2003 requires all tobacco retailers to obtain a license from the California Department of Tax and Fee Administration, ensuring tax collection and regulatory oversight.

In 2016, the State of California amended the Stop Tobacco Access to Kids Enforcement Act to raise the legal purchase age to 21, strengthen enforcement by the California Department of Public Health and local authorities (police and code enforcement), require “Age of Sale Warning” signage, and allow cities to impose stricter regulations than those under State law.

Under California Business and Professions Code §22971.3, local governments can adopt additional tobacco control ordinances, providing they do not interfere with State tax collection. This includes local permitting requirements and enforcement of both State and local laws.

Flavored Tobacco Product Legislation
Effective December 21, 2022, Senate Bill 793 (California Health and Safety Code §104559.5) placed a ban on most flavored tobacco products statewide. Voters upheld the ban through the passage of Proposition 31 on November 8, 2022. The following products are banned for sale or possession in retail settings:
· Flavored e-cigarettes, vapes, pods, cartridges, and e-juices · Menthol cigarettes
· Flavored cigars, cigarillos, and blunt wraps
· Flavored smokeless tobacco
· Flavored roll-your-own tobacco
· Flavored rolling papers and flavor enhancers
Exemptions include:
· Flavored premium cigars (wholesale price of $12 or more) · Flavored loose-leaf pipe tobacco
· Flavored shisha/hookah tobacco (sold only in licensed 21+ establishments) Assembly Bill 935 (California Business and Professions Code, Section 22974.8) which took effect on January 1, 2024, imposes civil penalties on retailers selling or possessing prohibited flavored tobacco products or flavor enhancers. It mandates immediate removal of such products from retail locations.

Local Enforcement and Regulatory Challenges
Despite a strong state-level regulatory framework, local enforcement faces several challenges.

Penalties often fail to deter repeat offenders, and enforcement is resource-intensive, especially in municipalities lacking dedicated funding.

The Tobacco Grant Program, administered by the California Department of Justice (DOJ) and funded through Proposition 56, offers limited financial support for enforcement efforts. However, grants are time-limited, highly competitive, and require municipalities to meet strict eligibility and reporting City of Orange Page 2 of 6 Printed on 6/5/2025
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requirements.

To fill enforcement gaps, over 200 California cities and counties have implemented local tobacco retail licensing or permitting ordinances. These ordinances require retailers to:
· Obtain a local tobacco license or permit
· Pay fees for compliance monitoring and enforcement
· Face fines, license or permit suspension, or revocation for repeat violations These local programs enhance enforcement efforts and promote responsible retail practices.

Enforcement Landscape in Orange County
Several cities in Orange County, including Buena Park, Santa Ana, Westminster, Stanton, and Anaheim have adopted tobacco retailer licensing, or permitting ordinances to maintain local tobacco control. In addition, 12 other cities in the County have implemented some other forms of local tobacco control regulations or restrictions.

Tobacco Retailing in the City of Orange
As of 2025, approximately 104 businesses in the City of Orange sell tobacco products, including:
· Convenience stores
· Gas stations
· Supermarkets and liquor stores
· Specialty or hybrid retailers (e.g., smoke shops, cigar shops, vape stores) Currently, these businesses are only required to obtain a general City Business License and comply with basic zoning standards. The City does not mandate a specific tobacco retail permit, land-use entitlements such as a conditional use permit, or impose additional tobacco-related requirements or regulations.

Of the 104 businesses, approximately 25 are dedicated tobacco retailers such as smoke shops, cigar shops, vape stores, and hybrid establishments. (See Attachment 2 for a detailed retailer map.) Enforcement Actions in the City of Orange
The Orange Police Department and the Community Development Department’s Code Enforcement Division, through both joint and independent operations have identified over 25 businesses engaged in the sale of prohibited or regulated tobacco products. These include banned flavored tobacco items, flavor enhancers, cannabis and related accessories, disguised vaping or e-cigarette devices, nitrous oxide, and drug paraphernalia. These mitigation efforts are funded, in part, by an existing Tobacco Grant Program awarded to the Police Department.

Inspections also revealed that many retailers conceal illegal tobacco products in backrooms, hidden compartments, under counters, and behind display shelves to avoid detection but made these products available for public sale upon customer request.

Code Enforcement and Public Health and Safety Violations In addition to tobacco-related offenses, the Code Enforcement Division has documented a range of other violations during inspections, including unlicensed business operations, unpermitted interior City of Orange Page 3 of 6 Printed on 6/5/2025
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other violations during inspections, including unlicensed business operations, unpermitted interior construction, unsafe electrical systems, illegal residential occupancy, and the use of open-flame devices in commercial spaces.

The Orange Police Department has also conducted enforcement actions resulting in citations and/or arrests under State tobacco control laws.

Year Smoke Shops /
Tobacco
Retailers
Total
Operations
Attempt
Undercover
Buys
California
Health and
Safety Code
violations
Additional
enforcement
actions
2023 31 15 84 44 N/A
2024 30 (5 closed, 4
opened, 3
renamed)
10 37 13 47 retail shops
inspected/educated
2025 25 6 12 1 = seizure of
700+ banned
flavored tobacco
items)
1 psilocybin
purchase, 1 fentanylrelated arrest and 8
retailers selling
cannabis products
Without a local tobacco retail permit program or established enforcement measures, the City lacks the necessary tools to hold violators accountable. State law grants cities the authority to implement local tobacco licensing or permitting ordinances, allowing them to impose higher fines, suspend or revoke permits for repeat violations, and strengthen oversight. Establishing such a program for the City of Orange would improve compliance, enhance enforcement, and create a well-defined regulatory framework for tobacco sales. Additionally, it would enable the City to address local concerns, tailor regulations to meet community needs, and implement safeguards such as restricting sales near schools, parks, and other sensitive areas to reduce youth access to tobacco and ancillary smoking paraphernalia, cannabis products, and nitrous oxide.

Proposed Tobacco Retail Ordinance
The proposed ordinance aims to establish local tobacco control regulations within the City of Orange, drawing on State guidelines and models from other California cities. It addresses the number, location, and types of tobacco retailers, and includes the following key provisions:

1. Tobacco Retailer Permit: All tobacco retailers must obtain a permit from the City.

2. Annual Renewal: The permit must be renewed annually.

3. Non-Transferable: Permits are non-transferable.

4. Issuance: Permits will be issued by the Community Development Department’s Code Enforcement Division, in coordination with the Orange Police Department.

5. Population-Based Cap. Tobacco retailer permits are limited to one per 2,500 residents, based on the latest population data. Once the cap currently set at 55 retailers is reached, no new City of Orange Page 4 of 6 Printed on 6/5/2025
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on the latest population data. Once the cap currently set at 55 retailers is reached, no new permits will be issued.

6. Location Restrictions: New permits will not be issued for businesses located within 500 feet of schools (elementary to high school), public libraries, parks, or other sensitive uses (see Attachment 3).

7. Nonconforming Uses: Existing retailers within 500 feet of these locations will become nonconforming uses under the Orange Zoning Code (see Attachment 4).

8. Prohibited Products: Retailers cannot sell flavored tobacco, cannabis products, nitrous oxide, drug paraphernalia, or electronic smoking devices, including disguised vapes or self-serve displays.

9. Compliance: Retailers must adhere to all applicable State and Federal tobacco control laws.

Penalties and Enforcement
Violations are classified as misdemeanors, punishable by a fine of up to $1,000, county jail, or both.

The City may also issue administrative citations (impose fines) and suspend (cease tobacco product sales) or revoke permits. The proposed penalty schedule is as follows:
· No Tobacco Retailer Permit: $750 fine.
· First Violation (within 5 years): Written warning (compliance period of 72 hours) or $500 fine. · Second Violation (within 5 years): $1,000 fine and/or 30-day permit suspension. · Third Violation (within 5 years): $1,500 fine and/or 60-day permit suspension. · Fourth Violation (within 5 years): $2,000 fine and/or 90-day permit suspension. · Fifth or Subsequent Violation (within 5 years): $4,000 fine for the fifth violation; $5,000 for subsequent violations and/or 120-day permit suspension. · Revocation: After five or more violations within five years, the permit may be revoked.

Any person who receives an administrative citation imposing fines or faces suspension or revocation action may file an appeal, upon payment of the required appeal fee before an independent hearing officer to safeguard their constitutional due process rights.

Staff intend to work collaboratively with tobacco retail establishments to ensure compliance with legal tobacco retailing, emphasizing education and adherence over punitive measures. However, suspension, revocation, or other enforcement actions will be reserved for cases where there is a lack of cooperation or failure to comply with the Code.

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Next Steps:

If approved by the City Council, tobacco retailers will then have 60 days from the effective date of the Ordinance to apply for a Tobacco Retailer Permit.

To support compliance, the City will post information on its website and mail notification letters, including the ordinance and application instructions, to all known tobacco retailers. City staff also plans to host an outreach meeting to educate business owners on the new requirements and address questions.

Permit fees associated with the ordinance will be included in the City’s Master Schedule of Fees.

Fees would reflect anticipated full staff cost recovery for application processing, compliance monitoring, and enforcement. In parallel, the Code Enforcement Division is actively seeking a separate Tobacco Enforcement Grant from the California Department of Justice, distinct from the grant previously awarded to the Police Department. If awarded, the grant would fund staffing, equipment, and supplies to support the new permitting program, promote responsible retail practices, and strengthen enforcement efforts, particularly to prevent underage tobacco sales.

7. ATTACHMENTS
· Attachment 1 Ordinance No. 12-25
· Attachment 2 Detailed Map of Existing Tobacco Retailers · Attachment 3 Detailed Map of Location Buffer from Other Retailers · Attachment 4 Detailed Map of Sensitive Use Buffer from Retailers City of Orange Page 6 of 6 Printed on 6/5/2025
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Agenda Item
City Council
Item #: 10.2. 6/10/2025 File #: 25-0276
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Introduction and First Reading of Ordinance No. 12-25, adding Chapter 5.100 to the Orange Municipal Code establishing provisions for Tobacco Retail Establishments.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Goal 1: Maintain Strong Emergency and Safety Services

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Item #: 10.2. 6/10/2025 File #: 25-0276
State-Level Regulations and Authority
The Cigarette and Tobacco Products Licensing Act of 2003 requires all tobacco retailers to obtain a license from the California Department of Tax and Fee Administration, ensuring tax collection and regulatory oversight.

Local Enforcement and Regulatory Challenges
Despite a strong state-level regulatory framework, local enforcement faces several challenges.

Penalties often fail to deter repeat offenders, and enforcement is resource-intensive, especially in municipalities lacking dedicated funding.

The Tobacco Grant Program, administered by the California Department of Justice (DOJ) and funded through Proposition 56, offers limited financial support for enforcement efforts. However, grants are time-limited, highly competitive, and require municipalities to meet strict eligibility and reporting City of Orange Page 2 of 6 Printed on 6/5/2025
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requirements.

Code Enforcement and Public Health and Safety Violations In addition to tobacco-related offenses, the Code Enforcement Division has documented a range of other violations during inspections, including unlicensed business operations, unpermitted interior City of Orange Page 3 of 6 Printed on 6/5/2025
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other violations during inspections, including unlicensed business operations, unpermitted interior construction, unsafe electrical systems, illegal residential occupancy, and the use of open-flame devices in commercial spaces.

The Orange Police Department has also conducted enforcement actions resulting in citations and/or arrests under State tobacco control laws.

1. Tobacco Retailer Permit: All tobacco retailers must obtain a permit from the City.

2. Annual Renewal: The permit must be renewed annually.

3. Non-Transferable: Permits are non-transferable.

4. Issuance: Permits will be issued by the Community Development Department’s Code Enforcement Division, in coordination with the Orange Police Department.

5. Population-Based Cap. Tobacco retailer permits are limited to one per 2,500 residents, based on the latest population data. Once the cap currently set at 55 retailers is reached, no new City of Orange Page 4 of 6 Printed on 6/5/2025
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on the latest population data. Once the cap currently set at 55 retailers is reached, no new permits will be issued.

7. Nonconforming Uses: Existing retailers within 500 feet of these locations will become nonconforming uses under the Orange Zoning Code (see Attachment 4).

8. Prohibited Products: Retailers cannot sell flavored tobacco, cannabis products, nitrous oxide, drug paraphernalia, or electronic smoking devices, including disguised vapes or self-serve displays.

9. Compliance: Retailers must adhere to all applicable State and Federal tobacco control laws.

Penalties and Enforcement
Violations are classified as misdemeanors, punishable by a fine of up to $1,000, county jail, or both.

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Next Steps:

If approved by the City Council, tobacco retailers will then have 60 days from the effective date of the Ordinance to apply for a Tobacco Retailer Permit.

Permit fees associated with the ordinance will be included in the City’s Master Schedule of Fees.

AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ORANGE ADDING CHAPTER 5.100 OF

THE ORANGE MUNICIPAL CODE ESTABLISHING

A TOBACCO RETAILER PERMIT PROGRAM
WHEREAS, California Constitution, Article XI, Section 7, authorizes the City of Orange (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with general laws; and
WHEREAS, California Business and Professions Code § 22971.3 and Health and Safety Code § 104559.5(i) confirm that State law does not preempt more restrictive local tobacco regulation, except regarding State tax collection. It also allows local licensing laws to provide for the suspension or revocation of a local license for any violation of a State tobacco control law; and WHEREAS, the State of California enacted laws to limit youth access to tobacco products, including SB 7 (raising the purchase age to 21), SB 793 (prohibiting flavored tobacco), and AB 935 (enhancing enforcement); and
WHEREAS, California courts in Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, and Prime Gas v. City of Sacramento (2010) 184 Cal.App.4th 697, have affirmed the power of local jurisdictions to regulate business activity in order to discourage violations of law; and WHEREAS, on March 18, 2022, the Ninth Circuit Court of Appeals in R.J. Reynolds Tobacco Company et al v. County of Los Angeles, et al (9th Cir. 2022) 29 F.4th 542 held that the Family Smoking Prevention and Tobacco Control Act, codified at 21 USC §387 et seq., did not preempt a city from banning the sale of some or all tobacco products; and WHEREAS, the City Council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the City Council to protect the health, safety, and welfare of our residents; and WHEREAS, the City Council intends to ensure compliance with the business standards and practices of the City and encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to youth.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

1. The subject Ordinance is exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines (Guidelines) Sections 15060(c)(2) and 15060(c)(3) because review and evaluation of potential impact of the Ordinance 933
2 demonstrate that it will not result in a direct or reasonably foreseeable indirect physical change in the environment, and it is not a "project" as defined in Guideline 15378.

SECTION II:

New Chapter 5.100 of the Orange Municipal Code (Business Tax and Regulations – Tobacco Retailers) is hereby added to read as follows:

Chapter 5.100

TOBACCO RETAILERS
Sections:

5.100.010 - Purpose.

5.100.020 - Definitions.

5.100.030 - Tobacco Retailer Permit Eligibility.

5.100.040 - Tobacco Retailer Permit Applications.

5.100.050 - Issuance, Renewal, or Denial of Tobacco Retailer Permit.

5.100.060 - Prohibitions and Requirements.

5.100.070 - Compliance Monitoring and Right of Entry.

5.100.080 - Violations - Fines, Suspension, Revocation.

5.100.090 - Appeals – Denial, Suspension, Revocation.

5.100.100 - Enforcement.

5.100.010 - Purpose.

The purpose of this Chapter is to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by Federal, or State law are criminally proscribed or to alter the penalty provided for violations.

5.100.020 - Definitions.
“Ancillary tobacco retailer” means a business is a business, such as a grocery store, supermarket, convenience store, or gas station, where less than 20% of its floor or display area is dedicated to the sale or display of conventional cigars, cigarettes, or tobacco products. “Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of violations of this Chapter that occurred at the location, is presumed not to be an arm’s length transaction. 934
3 “Cannabis” means the substance defined in California Business and Professions Code Section 26001 and/or California Health and Safety Code Section 11018, as those sections may be amended from time to time.
“Characterizing flavor” means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product, as defined in California Health and Safety Code Section 104559.5(a)(1), as that section may be amended from time to time.
“Drug paraphernalia” means any instrument, device, or material used, designed for use, or intended for use in ingesting, inhaling, or preparing cannabis, hashish, hashish oil, cocaine, or other controlled substances, as defined in California Health and Safety Code Sections 11014.5, 11364.5, and 11364.7, as those sections may be amended from time to time. “Electronic smoking device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substance in aerosolized or vaporized form to a person, as well as any component, part, or accessory for the device that is used during its preparation, consumption, or operation. “Electronic smoking device” includes, but is not limited to, electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, vape pen, electronic hookahs, cartridges, cartomizers, e-liquid, smoke juice, tanks, vaporizers, tips, atomizers, device batteries, device charges, or any component, part, or accessory of such a device as contained in State law. “Electronic smoking device” does not include any product specifically approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes. “E-liquid” means any substance that is intended to be consumed in aerosolized or vaporized form using an electronic smoking device, regardless of the nicotine content or other substance. “Flavored tobacco product” means any tobacco product that contains a characterizing flavor, as defined in California Health and Safety Code Section 104559.5(a)(6), as that section may be amended from time to time.
“Hearing officer” means impartial person such as:
(1) Any administrative law judge provided by the State of California Office of Administrative Hearings pursuant to Government Code section 27727; (2) Any duly appointed individual who meets the requirements of Government Code section 27724;
(3) Any independent contractor hired from an organization that provides hearing officers; or,
(4) Any person stipulated upon by the City Manager and Appellant. “Imitation tobacco product” means any edible non-tobacco product designed to resemble a tobacco product or any non-edible non-tobacco product designed to resemble a tobacco product that is 935
4 intended to be used by children as a toy. Examples of imitation tobacco products include, but are not limited to, candy or chocolate cigarettes, bubble gum cigars, shredded bubble gum resembling spit tobacco, and shredded beef jerky in containers resembling snuff tins. “Nitrous oxide” means any of the following substances: N2O, dinitrogen monoxide, dinitrogen oxide, nitrogen oxide, or laughing gas, as defined in California Penal Code Section 381c(a) as may be amended from time to time. Nitrous oxide is a colorless nonflammable gas sometimes informally or colloquially referred to as “nitro”, “NOX”, “galaxy gas”, “whippits”, amongst other names.
“Permittee” means any proprietor who holds a valid Tobacco Retailer Permit issued pursuant to this Chapter.
“Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business, other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has, or shares, control over the day-to-day operations of a business.
“Significant tobacco retailer” means a business that derives twenty percent (20%) or more of its floor or display area dedicated to the sale or display of tobacco products or tobacco paraphernalia. “Smoking” means the act of inhaling, exhaling, burning, or carrying any lighted or heated device or substance, including tobacco, as defined in California Business and Professions Code Section 22950.5(c), as that section may be amended from time to time. “Smoking lounge” means a business establishment, or part thereof, dedicated to the smoking of tobacco products, electronic cigarettes, or other substances, including but not limited to establishments commonly known as private smoker’s lounges, cigar lounges, hookah lounges, tobacco clubs, or tobacco bars.
“Tobacco paraphernalia” means cigarette papers or wrappers, blunt wraps as defined in California Penal Code Section 308, pipes, holders of smoking materials of all types, cigarette rolling machines, or any other instruments or items designed or marketed for the consumption, preparation, storing, use, smoking or ingestion of tobacco products, as those sections may be amended from time to time.
“Tobacco product” means any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by any other means, as defined in California Business and Professions Code Section 22950.5(d), as that section may be amended from time to time. “Tobacco Product Flavor Enhancer” has the meaning set forth in Health and Safety Code Section 104559.5 (a) (18), as may be amended from time to time. “Tobacco retailer” means any person, proprietor, or any of the tobacco retailer’s agents or employees, who sells, offers for sale, exchanges, displays, or offers to exchange for any form of 936
5 consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, displayed, or offered for exchange. “Tobacco retailing” means engaging in any activities related to the sale, exchange, display, or offer for exchange of tobacco products, including operating as an ancillary tobacco retailer or a significant tobacco retailer.

5.100.030 - Tobacco Retailer Permit Eligibility.

A. Permit Requirement.

All persons intending to engage in tobacco retailing must obtain a Tobacco Retailer Permit for each business location within 60 days of the effective date of this Chapter.

B. Zoning and Land Use Restrictions.

1. Permits shall not be issued for locations that violate the City’s Zoning Code (Title 17) or are in zones designated solely for residential use.

2. Permits shall not be issued for tobacco retailing at any smoking lounge. Smoking lounges are prohibited in all zones.

C. Population-Based Cap.

1. The total number of tobacco retailer permits shall not exceed one per 2,500 residents.

2. Population shall be determined based on the most current U.S. Census Bureau or California Department of Finance data, whichever is more recent at the time of application.

3. No new permits shall be issued once the population-based cap is reached.

D. Prohibited Business Types.

1. Permits shall not be issued or renewed for tobacco retailing in pharmacies as defined by State law.

2. Permits shall not be issued or renewed for any premises licensed by the State to serve alcohol for on-site consumption, restaurants, or businesses offering food for on-site consumption.

E. Buffer Zones.

1. No permit shall be issued or renewed for a location within 500 feet of the following uses:
a. Another permitted tobacco retailer;
937
6 b. A sensitive use, including, but not limited to: schools (public or private, preschool, K–12), libraries, parks, playgrounds, recreational facilities, daycare centers (Health & Safety Code § 1596.76), healthcare facilities, elder care facilities, houses of worship, or other youth-oriented locations.

2. Distance is measured in a straight line from the nearest point on the property line of the parcel where the proprietor’s business is located to the nearest point on the property line of the parcel of another tobacco retailer or a sensitive use, without regard to intervening structures or obstacles.

F. Nonconforming Use Exception.

A retailer lawfully operating on the effective date of this ordinance may continue under the following conditions:

1. The permit is timely obtained and renewed without lapse or permanent revocation.

2. The business does not close or suspend tobacco retailing for more than 60 consecutive days.

3. No substantial change to the premises or operations occurs, including:
a. A transfer in ownership unless it is a bona fide arm’s length transaction; b. A change made primarily to evade enforcement or penalties.

4. The retailer remains compliant with all applicable laws.

If the City finds the operation has substantially changed, the retailer bears the burden of proving otherwise by a preponderance of the evidence.

G. Expiration of Legal Nonconforming Use.

Permits issued under this section shall be treated as legal nonconforming uses under Chapter 17.38 of the Zoning Code and subject to its provisions, including amortization and termination requirements.

H. Permit is Conditional.

A Tobacco Retailer Permit grants only a limited and conditional privilege to operate at the location listed on the permit. It does not confer any vested right and does not supersede any other applicable law, including:

1. The City’s zoning, building, or business license requirements;

2. Labor Code § 6404.5 regarding smoking in enclosed workplaces. 938
7 5.100.040 - Tobacco Retailer Permit Applications.

A. Permit Required.

No person shall engage in tobacco retailing within the City without first obtaining and maintaining a valid Tobacco Retailer Permit for each specific location.

B. Application Procedure.

1. Applications must be submitted on forms provided by the City and include a nonrefundable annual fee as set by City Council resolution.

2. Each application shall include, at minimum, the following:
a. Full legal name, date of birth, government-issued identification number, mailing address, phone number, and email for each proprietor; b. Business name, address, phone number, and hours of operation; c. Disclosure of any prior permit suspensions or revocations under this Chapter, including dates and reasons;
d. Proof of a valid State tobacco retailer license from the California Department of Tax and Fee Administration;
e. Any other information deemed necessary by the City Manager for the administration or enforcement purposes;
f. A signed certification by each proprietor under penalty of perjury affirming the accuracy of the information provided and compliance with this Chapter.

C. Authority to Adopt Administrative Regulations.

The City Manager may adopt and implement additional administrative regulations, consistent with this Chapter, to effectively enforce and administer local tobacco control measures. All regulations must be published in advance and filed with the City Clerk’s Office for public inspection.

D. Change of Information.

Permittee shall notify the City in writing of any changes to submitted application information within 10 calendar days. A fee as set by City Council resolution may be imposed for processing such changes.
939
8 E. Non-Transferability.

Tobacco Retailer Permits are non-transferable between persons, proprietors, or locations.

Any attempted transfer shall be null and void. A new permit application is required for any change in ownership or location, subject to all applicable conditions.

F. Effect of Prior Violations at Location.

Permit ineligibility due to prior violations at a location shall continue to apply unless:

1. The business has been transferred to a new proprietor or proprietors in a bona fide arm’s length transaction; and

2. The new proprietor submits clear and convincing evidence of such transfer to the City’s satisfaction.

5.100.050 - Issuance, Renewal, or Denial of Tobacco Retailer Permit.

A. Tobacco Retail Permit Review and Issuance.

The City Manager or designee reviews each completed Tobacco Retail Permit application and may conduct an investigation to determine compliance with this Chapter and applicable laws. A Tobacco Retail Permit may be issued or renewed unless the City Manager determines that one or more of the following conditions exist:

1. The application is materially incomplete or contains inaccurate, false, fraudulent, or misleading information;

2. The applicant seeks authorization for tobacco retailing that is prohibited, unlawful or violates this Chapter or other applicable City, County, State, or Federal law or regulation;

3. The applicant has not resolved outstanding fines, penalties, fees, or taxes owed to the City in connection with tobacco retailing activities or other applicable laws;

4. The location is currently subject to an active suspension or revocation proceeding, unless:
a. The applicant has acquired the business or premises through a good-faith, arm’s length transaction and provides satisfactory documentation; or b. At least five years have passed since the date of revocation.

B. Tobacco Retail Permit Term and Renewal.

1. A permit is valid for one year from the date of issuance and must be renewed annually to continue as a tobacco retailer.
940
9 2. To maintain continuity, renewal applications should be submitted at least 30 days before expiration.

3. Any permit not renewed by its expiration date automatically expires at midnight, with no grace period or temporary permit issued thereafter. Once a permit expires, all tobacco retailing must cease. A new application is required, subject to all applicable conditions.

4. If a permit has expired during a suspension or revocation period, the permittee may reapply after the enforcement action has concluded, subject to all applicable conditions of this Chapter.

5.100.060 - Prohibitions and Requirements.

A. Compliance with Laws.

Tobacco retailers shall operate in accordance with all applicable local, State, and Federal laws, including but not limited to zoning, building, fire, public health, safety, general welfare and tobacco control regulations.

B. Fixed Location Required.

Tobacco retailing must occur from a fixed, permanent location. Retailing from vehicles, temporary structures, or mobile operations (e.g., carts, pop-up booths) is prohibited.

C. Prohibited Products and Activities.

The following items shall not be sold, distributed, displayed, furnished, administered, exchanged, given away, or possessed with the intent to sell or offered for sale by any tobacco retailer:

1. Drug paraphernalia;

2. Nitrous oxide or any device used to dispense it as defined by State law and City Code;

3. Cannabis, cannabis products, cannabis accessories, or edible cannabis products as defined in State or Federal law;

4. Controlled substances, including marijuana where applicable, as governed by California Health and Safety Code Sections 11351, 11352, 11359, 11360, 11366, 11378, and 11379 as may be amended from time to time.

5. Flavored tobacco products and tobacco product flavor enhancer, as prohibited under State or Federal law;
941
10 6. Electronic smoking devices and related paraphernalia and accessories, effective July 1, 2026, unless preempted or otherwise limited by State or Federal law at that time;

7. Imitation tobacco products, including but not limited to candy cigarettes and bubble gum cigars;

8. Edible tobacco look-alike products, including but not limited to snacks packaged or marketed to resemble tobacco products;

9. Disguised vape or electronic smoking devices, including but not limited to those made to look like USB drives, pens, markers, phone cases, watches, lipstick, remote keys or other non-tobacco items.

10. Unlawful weapon sales, including but not limited to violations of California Penal Code sections 17235 (switchblade knives over two inches), 20410 (ballistic knives), 21810 (brass knuckles) as may be amended from time to time, and any other applicable local, State or Federal laws.

D. Self-Service Displays.

Self-service displays of tobacco products are prohibited as established by State law. All tobacco sales must be conducted by a tobacco retailer directly assisting the customer.

E. Minimum Age and Identification.

1. No person under the minimum legal age determined by the stricter of State or Federal law for purchasing or possessing tobacco products may engage in, or assist with tobacco retailing.

2. A tobacco retailer must request and check a valid, government-issued photo identification of any person who appears under thirty (30) years of age, to ensure the customer meets the minimum age to purchase and possess tobacco products as required by the stricter of State or Federal law.

F. Packaging, Labeling, and Pricing.

1. Tobacco products must be sold in the original manufacturer’s packaging, compliant with all Federal and State labeling and child-resistant packaging laws.

2. Prices must be clearly displayed on the product or nearby shelf or signage.

G. Display of Licenses and Permits.

The City-issued Tobacco Retailer Permit, business license, and all applicable State or Federal licenses must be visibly posted within 5 feet of the point-of-sale register. 942
11 H. Premises Regulations.

1. The business must maintain a clearly designated front entrance for customers. All non-emergency public access must occur through this entrance.

2. Front entrance doors must remain unlocked during regular business hours, unless temporarily secured for safety or emergency response.

3. No business shall engage in tobacco retailing between the hours of 2 o’clock a.m. and 6 o’clock a.m. of the same day, effective July 1, 2026, unless preempted or otherwise limited by State or Federal law at that time
I. Signage Compliance.

Retailers must comply with all signage requirements in Title 17 of the Orange Municipal Code and all applicable State and Federal laws related to tobacco warnings, age restrictions, and advertising.

J. Special Events and Temporary Retailing Prohibited.

Tobacco retailing at special events, outdoor markets, street fairs, or temporary setups is not permitted under this Chapter.

5.100.070 - Compliance Monitoring and Right of Entry.

The City may enter any permitted tobacco retail location during business hours to inspect for compliance with this Chapter and applicable laws. Inspections may be routine, unannounced, complaint-based, or involve youth decoy operations. Access must be granted to all areas of the premises, including but not limited to sales floors, storage rooms, offices, restrooms, cabinets, drawers, hidden compartments, safes, counters, closets. Refusal to allow entry may constitute a violation of this Chapter.

5.100.080 - Violations - Fines, Suspension, Revocation.

A. Grounds for Enforcement.

A Tobacco Retailer Permit may be subject to warnings, fines, suspension, or revocation if the permittee or their agents or employees:

1. Violate any provision of this Chapter;

2. Are found liable in court or administrative proceedings for violating applicable tobacco control laws; or

3. Admit to or plead guilty or no contest to such violations. 943
12 B. Unpermitted Tobacco Retailing.

Operating without a valid permit is a violation and may result in fines established by City Council resolution.

C. Progressive Penalties (within any 5-year period) as established by City Council resolution:

1. 1st Violation: Written warning or fine; compliance required within 72 hours.

2. 2nd Violation: Fine and/or 30-day suspension.

3. 3rd Violation: Fine and/or 60-day suspension.

4. 4th Violation: Fine and/or 90-day suspension.

5. 5th or Subsequent Violation: Fine and/or 120-day suspension.

6. Revocation: After a 5th or subsequent violation, the permit may be revoked.

D. Appeals of fines.

Administrative fines may be appealed under Chapter 1.10 of the Orange Municipal Code.

E. Conditions During Suspension or Revocation.

During a suspension or revocation period:

1. All tobacco products and related items must be removed from customer view and/or stored in a secured, non-public area.

2. A City-issued notice must be posted at all public entrances and points of sale, stating the reason and duration of the enforcement action.

Failure to comply may constitute a new violation.

5.100.090 - Appeals – Denial, Suspension, Revocation.

A. Notice of Action.

Before denying, suspending, or revoking a Tobacco Retailer Permit or following the seizure of items prohibited under this Chapter, the City Manager shall issue written notice to the permittee or applicant. The notice shall include:

1. The proposed enforcement action;

2. A brief summary of the reason(s) and applicable code section(s); 944
13 3. Instructions for requesting an administrative review.

B. Right to Request Review.

A permittee or applicant may request administrative review by submitting a written request to the City Clerk within 10 calendar days of the notice. The request must include any applicable appeal fee as set by City Council.

C. Scheduling the Review.

Upon receiving a timely request, the City shall schedule an administrative review. The review shall be conducted within a reasonable time, and notice shall be provided to the appellant at least 10 calendar days in advance.

D. Hearing Process.

1. The hearing shall be conducted by a neutral hearing officer.

2. Both parties may present evidence, provide written statements or oral testimony, and be represented by legal counsel.

3. Formal rules of evidence do not apply, but relevant and reliable evidence will be considered.

4. Hearings may be continued for good cause.

E. Burden of Proof.

The City bears the burden of proving the violation by a preponderance of the evidence.

F. Failure to Participate.

If the appellant fails to appear or otherwise participate in the hearing, the appeal will be deemed withdrawn and considered a waiver of the right to exhaust administrative remedies.

G. Final Decision.

The hearing officer shall issue a written decision within a reasonable time following the hearing. The decision shall include findings and be final upon issuance. Judicial review is available under California Code of Civil Procedure §§ 1094.5 and 1094.6.

H. Permit Ineligibility Following Revocation.

If a permit is revoked, no new or renewal permit shall be issued for the same business location for up to 5 years, unless the City determines that substantial changes in ownership or operations justify reconsideration.
945
14 5.100.100 - Enforcement.

A. The remedies provided in this Chapter are in addition to any other remedies available under local, State, or Federal law. Nothing in this Chapter limits the City’s authority to pursue any available legal remedy, including but not limited to nuisance abatement, permit or business license suspension or revocation, or enforcement under Chapters 1.08 or 1.10 of the Orange Municipal Code.

Each day a violation of this Chapter continues constitutes a separate offense. Any person who violates, aids, permits, or conceals a violation may be subject to:

1. Administrative citations and fines;

2. Civil enforcement actions with reasonable attorneys’ fees and costs;

3. Criminal prosecution as a misdemeanor; and/or

4. Public nuisance abatement under California Civil Code § 3480.

5. Tobacco products, paraphernalia, drug paraphernalia, nitrous oxide, flavored tobacco products, or other prohibited items sold, in violation of this Chapter may be seized by authorized City personnel and subject to forfeiture, unless the permittee demonstrates compliance.

Seizures may be appealed through the procedures set forth in this Chapter. If not appealed or if upheld after review, seized items shall be destroyed in accordance with Orange Police Department policy and applicable law.

B. Evidence of Violations: If a violation is partially based on the involvement of a person under the age of eighteen (18) years old, that individual is not required to appear or testify in any civil or administrative enforcement process brought to enforce this Chapter. The alleged violation will be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

SECTION III:

If any section, subdivision, paragraph, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional.
946
15 SECTION IV:

The City Clerk is hereby directed to certify the adoption of this Ordinance and cause a summary of the same to be published as required by law. This Ordinance shall take effect thirty (30) days from and after the date of its final passage.

ADOPTED this ____ day of ___________________, 2025.

Daniel R. Slater, Mayor, City of Orange
ATTEST:

Pamela Coleman, City Clerk, City of Orange
APPROVED AS TO FORM:

Wayne W. Winthers
Interim City Attorney, City of Orange

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )
I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the ___ day of _____________, 2025, and thereafter at the regular meeting of said City Council duly held on the ___ day of ____________, 2025 was duly passed and adopted by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
947
5 E Cerritos Ave
E South St
N Main St
S State College Blvd
E Lincoln Ave
S
Anaheim
Blvd
N
East St
E Katella Av e
S
East St
E La Palma Ave
Anaheim Coves
aheim
Haster St
W Chapman Ave
Garden Grove Fwy
Washington
Square
Riverglen
West Floral
Park
Fisher Park
Concord
Santa Ana
Triangle
French Court
N Shaffer St
Cerro Vi lla Dr
Valley Dr
E Serrano Ave
E Meats Ave
N
Cannon St
N Grand St
Meads
E Via Escola Ave
Mesa Dr
E Bond Ave
E Frontera St
E Katella Ave
N
Orange Olive Rd
E Collins Ave
E Taft Ave
Villa Park Rd
E Nohl R anch Rd
S Imperial Hwy
Riverdale
Elementary
School Child
Care
Villa Park
Santiago Creek
S18
E La Veta Ave
E Walnut Ave E Walnut Ave
E Palmyra Ave
Skyline Dr
E Almond Ave
Hewes Ave
E Chapman Ave
Newport Ave
17th St
Park Santiago
Grand Sunrise North Tustin
Orange
Hillside Dr
on Rd
S Fairmont Blvd
Santiago Oaks
Regional Park
Oak Canyon
Nature Center
Deer Canyon
Park Weir Can
Regional
241
Pioneer Rd
E White Oak Rdg
Peters Canyon
Regional Park
Santiago
Canyon College
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District 2 District 1
District 3
District 4
District 5
District 6
Legend
City Boundary
City Council Districts
") Tobacco Retailers
J:\GisProjects\Code_Enforcement\Tobacco_Cigarette_Retailers\GIS\APRX\Tobacco_Cigeratte_Retailers\Tobacco_Cigeratte_Retailers.aprx\Tobacco Retailers w/Council Districts 5/7/2025
Source: California Department of Tax and Fee Administration (CDTFA) (03/2025), City of Orange (2025)

CITY OF ORANGE

TOBACCO RETAILERS WITH

COUNCIL DISTRICTS
0 2,750 5,500
Feet
.
948
5 E Cerritos Ave
E South St
N Main St
S State College Blvd
E Lincoln Ave
S
Anaheim
Blvd
N
East St
E Katella Av e
S
East St
E La Palma Ave
Anaheim Coves
aheim
Haster St
W Chapman Ave
Garden Grove Fwy
Washington
Square
Riverglen
West Floral
Park
Fisher Park
Concord
Santa Ana
Triangle
French Court
N Shaffer St
Cerro Vi lla Dr
Valley Dr
E Serrano Ave
E Meats Ave
N
Cannon St
N Grand St
Meads
E Via Escola Ave
Mesa Dr
E Bond Ave
E Frontera St
E Katella Ave
N
Orange Olive Rd
E Collins Ave
E Taft Ave
Villa Park Rd
E Nohl R anch Rd
S Imperial Hwy
Riverdale
Elementary
School Child
Care
Villa Park
Santiago Creek
S18
E La Veta Ave
E Walnut Ave E Walnut Ave
E Palmyra Ave
Skyline Dr
E Almond Ave
Hewes Ave
E Chapman Ave
Newport Ave
17th St
Park Santiago
Grand Sunrise North Tustin
Orange
Hillside Dr
on Rd
S Fairmont Blvd
Santiago Oaks
Regional Park
Oak Canyon
Nature Center
Deer Canyon
Park Weir Can
Regional
241
Pioneer Rd
E White Oak Rdg
Peters Canyon
Regional Park
Santiago
Canyon College
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Legend
City Boundary ") Tobacco Retailers
Within 500-ft of another Tobacco Retailers
Not within 500-ft of another Tobacco Retailers
J:\GisProjects\Code_Enforcement\Tobacco_Cigarette_Retailers\GIS\APRX\Tobacco_Cigeratte_Retailers\Tobacco_Cigeratte_Retailers.aprx\Tobacco Retailers - 8.5x11 1 5/7/2025
Source: California Department of Tax and Fee Administration (CDTFA) (03/2025), City of Orange (2025) Exhibit 2

CITY OF ORANGE
TOBACCO RETAILERS 500-FT BUFFER 0 2,750 5,500
Feet
.
949
5 E Cerritos Ave
E South St
N Main St
S State College Blvd
E Lincoln Ave
S
Anaheim
Blvd
N
East St
E Katella Av e
S
East St
E La Palma Ave
Anaheim Coves
aheim
Haster St
W Chapman Ave
Garden Grove Fwy
Washington
Square
Riverglen
West Floral
Park
Fisher Park
Concord
Santa Ana
Triangle
French Court
N Shaffer St
Cerro Vi lla Dr
Valley Dr
E Serrano Ave
E Meats Ave
N
Cannon St
N Grand St
Meads
E Via Escola Ave
Mesa Dr
E Bond Ave
E Frontera St
E Katella Ave
N
Orange Olive Rd
E Collins Ave
E Taft Ave
Villa Park Rd
E Nohl R anch Rd
S Imperial Hwy
Riverdale
Elementary
School Child
Care
Villa Park
Santiago Creek
S18
E La Veta Ave
E Walnut Ave E Walnut Ave
E Palmyra Ave
Skyline Dr
E Almond Ave
Hewes Ave
E Chapman Ave
Newport Ave
17th St
Park Santiago
Grand Sunrise North Tustin
Orange
Hillside Dr
on Rd
S Fairmont Blvd
Santiago Oaks
Regional Park
Oak Canyon
Nature Center
Deer Canyon
Park Weir Can
Regional
241
Pioneer Rd
E White Oak Rdg
Peters Canyon
Regional Park
Santiago
Canyon College
")
")
")
")
")
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Legend
City Boundary
") Tobacco Retailers
Within 500-ft of another Tobacco
Retailer or Sensitive Receptor
Not within 500-ft of another Tobacco
Retailer or Sensitive Receptor
OUSD Schools
Care Facilities 2024 - Study
Adult Day Care Program
Large Family Day Care
Pre-School/Day Care
Residential Care Facility -
Elederly (RCFE 6)
Residential Care Facility -
Elederly (RCFE7)
House Worship
Library
Medical Facility
J:\GisProjects\Code_Enforcement\Tobacco_Cigarette_Retailers\GIS\APRX\Tobacco_Cigeratte_Retailers\Tobacco_Cigeratte_Retailers.aprx\Tobacco Retailers - Sensitive 5/7/2025
Source: California Department of Tax and Fee Administration (CDTFA) (03/2025), City of Orange (2025) Exhibit 3

CITY OF ORANGE

TOBACCO RETAILERS WITH

SENSITIVE RECEPTORS
0 2,750 5,500
Feet
.
950
Agenda Item
City Council
Item #: 10.3. 6/10/2025 File #: 25-0277
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Introduction and First Reading of Ordinance No. 09-25, adding Chapter 9.44 to the Orange Municipal Code regulating the retail sale and distribution of nitrous oxide.

2. SUMMARY
The proposed Ordinance establishes regulations prohibiting the sale and/or distribution of nitrous oxide by any person or retail establishment within the City limits. Currently, the Orange Municipal Code does not have any regulations related to nitrous oxide, yet the substance has proved to be a factor in traffic accidents, arrests for misuse and illegally sold for recreational use by local tobacco retailers.

3. RECOMMENDED ACTION
Introduce and conduct First Reading of Ordinance No. 09-25: An Ordinance of the City Council of the City of Orange adding Chapter 9.44 of the Orange Municipal Code regulating nitrous oxide.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Goal 1: Maintain Strong Emergency and Safety Services

6. DISCUSSION AND BACKGROUND
Nitrous oxide, commonly known as laughing gas, is a colorless, non-flammable gas widely used by healthcare professionals for medical and dental anesthesia. Nitrous oxide takes effect rapidly and dissipates from the human body, making it a primary choice for effective pain relief and minor medical procedures. When administered under the supervision of a licensed healthcare provider, nitrous oxide is considered safe and effective.

Beyond medical applications, nitrous oxide has various industrial and commercial uses. It can be utilized to enhance engine performance in the automotive industry and serve as a food preservative or propellant for dispensing and preserving whipped cream, as well as producing other aerated foods, desserts, or beverages. It is also frequently sold at tobacco-related establishments, including City of Orange Page 1 of 3 Printed on 6/4/2025
powered by Legistar™951
Item #: 10.3. 6/10/2025 File #: 25-0277
vape shops, cigar shops, smoke shops, and other retail outlets.

Nitrous oxide is sometimes misused as an illegal recreational substance. The availability of nitrous oxide in retail establishments can facilitate recreational misuse, making it easily accessible to youth and adults. This euphoric inhalant, often perceived as harmless, is gaining popularity at an alarming rate, particularly among college students, high schoolers, and even middle school-aged children.

Medical and public health authorities have linked the recreational misuse of nitrous oxide to serious health problems and even death.

Regulation of nitrous oxide falls under the jurisdiction of the Food and Drug Administration (FDA).

Nitrous oxide is not classified as an illegal substance in the United States due to its numerous legitimate applications. It is neither regulated by the Drug Enforcement Agency (DEA) nor controlled under the Controlled Substances Act, making its possession lawful, provided it is used for legitimate purposes. The sale or distribution of nitrous oxide for human consumption without a valid medical prescription is prohibited. Violations are classified as federal misdemeanors, carrying penalties of up to one year in federal prison and fines of up to $100,000.

Several states have enacted laws to regulate the sale and recreational misuse of nitrous oxide. In California, for instance, it’s a misdemeanor to sell, use, or possess nitrous oxide for the purpose of intoxication. The California Penal Code addresses various criminal elements and penalties pertaining to the sale, illegal use, and possession of nitrous oxide. The selling of nitrous oxide to individuals under the age of 18 is illegal in several states, including California. Additionally, several California cities have adopted ordinances prohibiting its sale or distribution.

Recently, the Orange County Board of Supervisors enacted an ordinance prohibiting the sale and distribution of nitrous oxide in unincorporated areas of Orange County and are also encouraging local municipalities to implement similar regulations.

Recreational misuse of nitrous oxide in the City of Orange has been linked to multiple documented vehicle accidents over the past few years. One incident involved a 21-year-old driver crashing into an occupied residential apartment building, resulting in litigation involving our City, Santa Ana, and private parties. Another fatal accident saw a 42-year-old driver collide with a tree in Old Towne Orange’s Plaza Park. In a separate case, an 18-year-old driver, found in possession of nitrous oxide and contributing to the delinquency of a minor, was arrested after crashing into the historic fountain just months after its restoration from a previous accident. Additionally, a 21-year-old driver lost his life after crashing into an electrical pole. Most tragically, a fiery high-speed rollover crash claimed three lives, including the 19-year-old driver, and left four others hospitalized. Police discovered a nitrous oxide tank and balloons at the scene, suspecting driver impairment.

The Orange Police Department has documented arrests associated to possession of nitrous oxide by year:

Year # of Arrests
2023 50
2024 59
2025 (January to March) 15
Total 124
The Orange Police Department and Code Enforcement Division of the Community Development City of Orange Page 2 of 3 Printed on 6/4/2025
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Item #: 10.3. 6/10/2025 File #: 25-0277
The Orange Police Department and Code Enforcement Division of the Community Development Department, through joint operations funded by a tobacco enforcement grant, have identified 20 out of 25 retail establishments including vape, cigar and smoke shops engaging in substantial sale of nitrous oxide. These products are prominently displayed in more than 20 flavors, including original, mocha, vanilla, and various fruit options. They are available in multiple forms, such as chargers, canisters, cylinders, bottles, tanks, and other devices, in varying quantities, some ranging from 8 grams to as much as 20 pounds. The widespread availability of these products is particularly concerning, as it significantly increases the risk of misuse, especially among youth, for unlawful intoxication. These tobacco retailers sell nitrous oxide products with packs of balloons, facilitating easy filling and inhalation for recreational misuse. None of the retailers indicated their sale of nitrous oxide products were intended for food preparation, either as a propellant or preservative.

Banning the sale and distribution of nitrous oxide in the City could significantly reduce its recreational misuse as an intoxicating drug, thereby promoting public health, safety, and welfare. While the California Penal Code includes provisions addressing the sale, illegal use, and possession of nitrous oxide, these regulations are not comprehensive enough to fully prevent its sale or distribution.

Implementing a citywide ordinance to prohibit its sales and distribution, with certain exceptions, could be a life-saving measure.

Proposed Ordinance
The proposed ordinance would prohibit the sale, offering, distribution, or provision of nitrous oxide, its dispensers, and any device such as cartridges or canisters containing any amount of nitrous oxide.

To accommodate legitimate legal uses of nitrous oxide, the proposed ordinance includes the following exemptions:

1. Use as a food preservative or propellant.

2. Wholesalers supplying medical and dental facilities.

3. Industrial applications for vehicle performance.

4. Medical or dental care or treatment purposes.

5. Use by licensed pharmacists, pharmacist interns, or pharmacies.

6. Industrial gas manufacturers.

7. Any individual explicitly exempted under State law.

The proposed ordinance makes the violation of its provisions a misdemeanor, punishable by county jail or by a fine of $1,000, or both. In addition, the City may issue administrative citations which carry escalating fines from $100, $200, and $500 per offense / per day.

Staff plans to collaborate with property owners and retail establishments to achieve the goal of eliminating nitrous oxide from being sold, offered, or distributed, prioritizing compliance over punitive or abatement measures. However, punitive or abatement actions will be reserved for special cases where there is a lack of cooperation or a failure to comply with the Code.

7. ATTACHMENTS
· Ordinance No. 09-25
City of Orange Page 3 of 3 Printed on 6/4/2025
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Agenda Item
City Council
Item #: 10.3. 6/10/2025 File #: 25-0277
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Introduction and First Reading of Ordinance No. 09-25, adding Chapter 9.44 to the Orange Municipal Code regulating the retail sale and distribution of nitrous oxide.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Goal 1: Maintain Strong Emergency and Safety Services

Beyond medical applications, nitrous oxide has various industrial and commercial uses. It can be utilized to enhance engine performance in the automotive industry and serve as a food preservative or propellant for dispensing and preserving whipped cream, as well as producing other aerated foods, desserts, or beverages. It is also frequently sold at tobacco-related establishments, including City of Orange Page 1 of 3 Printed on 6/4/2025
powered by Legistar™954
Item #: 10.3. 6/10/2025 File #: 25-0277
vape shops, cigar shops, smoke shops, and other retail outlets.

Medical and public health authorities have linked the recreational misuse of nitrous oxide to serious health problems and even death.

Regulation of nitrous oxide falls under the jurisdiction of the Food and Drug Administration (FDA).

The Orange Police Department has documented arrests associated to possession of nitrous oxide by year:

Year # of Arrests
2023 50
2024 59
2025 (January to March) 15
Total 124
The Orange Police Department and Code Enforcement Division of the Community Development City of Orange Page 2 of 3 Printed on 6/4/2025
powered by Legistar™955
Item #: 10.3. 6/10/2025 File #: 25-0277
The Orange Police Department and Code Enforcement Division of the Community Development Department, through joint operations funded by a tobacco enforcement grant, have identified 20 out of 25 retail establishments including vape, cigar and smoke shops engaging in substantial sale of nitrous oxide. These products are prominently displayed in more than 20 flavors, including original, mocha, vanilla, and various fruit options. They are available in multiple forms, such as chargers, canisters, cylinders, bottles, tanks, and other devices, in varying quantities, some ranging from 8 grams to as much as 20 pounds. The widespread availability of these products is particularly concerning, as it significantly increases the risk of misuse, especially among youth, for unlawful intoxication. These tobacco retailers sell nitrous oxide products with packs of balloons, facilitating easy filling and inhalation for recreational misuse. None of the retailers indicated their sale of nitrous oxide products were intended for food preparation, either as a propellant or preservative.

Implementing a citywide ordinance to prohibit its sales and distribution, with certain exceptions, could be a life-saving measure.

To accommodate legitimate legal uses of nitrous oxide, the proposed ordinance includes the following exemptions:

1. Use as a food preservative or propellant.

2. Wholesalers supplying medical and dental facilities.

3. Industrial applications for vehicle performance.

4. Medical or dental care or treatment purposes.

5. Use by licensed pharmacists, pharmacist interns, or pharmacies.

6. Industrial gas manufacturers.

7. Any individual explicitly exempted under State law.

7. ATTACHMENTS
· Ordinance No. 09-25
City of Orange Page 3 of 3 Printed on 6/4/2025
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ORDINANCE NO. 09-25

AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ORANGE ADDING CHAPTER 9.44 OF

THE ORANGE MUNICIPAL CODE REGULATING

NITROUS OXIDE
WHEREAS, California Constitution, Article XI, Section 7, authorizes the City of Orange (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with general laws; and
WHEREAS, nitrous oxide is an odorless, colorless chemical that can be inhaled for legitimate purposes associated with medical or dental procedures in a clinical setting, and is legitimately used for industrial purposes, automotive performance booster and as a propellant for food products; and
WHEREAS, nitrous oxide is also subject to recreational misuse and abuse, in part, because it is easy to purchase from retail vendors and relatively inexpensive; and WHEREAS, the recreational use of nitrous oxide as an intoxicating inhalant is an urgent public health challenge; and
WHEREAS, the City has connected the recreational use of nitrous oxide to several serious traffic accidents in recent years, which have caused property damage to an apartment building and the historic fountain in Old Towne Orange’s Plaza Park, as well as resulting in multiple injuries and fatalities; and
WHEREAS, medical authorities have linked the recreational use of nitrous oxide to serious health problems which can cause physical illness, mental illness, injury and/or even death; and
WHEREAS, although existing provisions of the California Penal Code address the sale, illegal use, and possession of nitrous oxide, they are not comprehensive enough to eliminate the uncontrolled possession, distribution, and sale of nitrous oxide in the City or County; and WHEREAS the Orange County Board of Supervisors recently adopted an ordinance to prohibit the sale or distribution of nitrous oxide in unincorporated Orange County, and encourages local municipalities to adopt similar regulations; and
WHEREAS, the City does not currently regulate the sale or distribution of nitrous oxide and finds and declares that in the absence of local regulation, nitrous oxide remains subject to significant risk of misuse and abuse through sale or distribution to individuals who intend to misuse or abuse the product; and
WHEREAS, the City desires to regulate the sale or distribution of nitrous oxide in order to preserve and protect public health and to dissuade sellers of nitrous oxide products from selling 957
2 to individuals whom they know or have reason to know intend to use the products for illegal purposes (i.e., recreational ingestion and/or inhalation); and

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

The subject Ordinance is exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines (Guidelines) Sections 15060(c)(2) and 15060(c)(3) because review and evaluation of potential impact of the Ordinance demonstrate that it will not result in a direct or reasonably foreseeable indirect physical change in the environment, and it is not a "project" as defined in Guideline 15378.

SECTION II:

New Chapter 9.44 of the Orange Municipal Code (Public Peace, Morals and Welfare – Nitrous Oxide) is hereby added to read as follows:

Chapter 9.44

NITROUS OXIDE
Sections:

9.44.010 Purpose.

9.44.020 Definitions.

9.44.030 Prohibition on Sale or Distribution of Nitrous Oxide.

9.44.040 Exceptions to Prohibition.

9.44.050 Enforcement.

9.44.010 Purpose.

This Chapter is enacted pursuant to the City’s police powers to protect the public safety, health, and welfare. The express purpose of this Chapter is to protect the public health and safety by eliminating retail access for recreational use of nitrous oxide, a very dangerous gas that is illicitly used as an intoxicant. This Chapter does not prohibit lawful use of nitrous oxide in medical, dental, or commercial applications as permitted by law.

9.44.020 Definitions.
“Device” means any cartridge, compressed gas cylinder, apparatus, container, balloon, attachment, nozzle, or other object used to contain or dispense or administer nitrous oxide. “Nitrous oxide” means any of the following substances: N2O, dinitrogen monoxide, dinitrogen oxide, nitrogen oxide, or laughing gas, as defined in California Penal Code Section 381c(a) as may be amended from time to time. Nitrous oxide is a colorless nonflammable gas sometimes 958
3 informally or colloquially referred to as “nitro”, “NOX”, “galaxy gas”, “whippits”, amongst other names.
“Wholesale capacity” means to sell nitrous oxide or a device to dispense nitrous oxide to a person that will use said product in the performance of its service or the production of its goods.

9.44.030 Prohibition on Sale or Distribution of Nitrous Oxide.

Except as otherwise allowed under this Chapter, it is unlawful for any person to sell, offer, distribute, display for sale, or otherwise provide to any person nitrous oxide, a device to dispense or administer nitrous oxide, or any device that contains any quantity of nitrous oxide.

9.44.040 Exceptions to Prohibition.

A. This Chapter does not apply to the sale, offer, distribution, display for sale, or any other manner of providing nitrous oxide, or a device containing any quantity of nitrous oxide, in the following circumstances:

1. If nitrous oxide is labeled and marketed as food-grade and is contained within a food product for use as a propellant or preservative, it must comply with City zoning laws under Title 17 when utilized in restaurants, food service establishments, retail convenience stores, grocery markets, or in houseware or grocery products.

2. If the nitrous oxide or device is being sold, offered, or distributed in a wholesale capacity. This exemption only applies provided the wholesaler does not know, nor should reasonably know, that the recipient intends to use the nitrous oxide or device in violation of section 9.44.030.

3. If the nitrous oxide or device is specifically designed, marketed, and safety-labeled for industrial use exclusively for automotive purposes, it must be utilized at a licensed automotive facility that is approved by the California Bureau of Automotive Repair and in compliance with City zoning laws under Title 17.

4. If the nitrous oxide is being administered for the purposes of medical or dental care only when prescribed, directed, or supervised by a medical or dental practitioner licensed by the State of California. The administration must adhere to all applicable laws, regulations, and standards governing the lawful prescription, order, or administration of nitrous oxide to the patient.

5. If the nitrous oxide or device is being dispensed by a pharmacist, pharmacist intern, or pharmacy as defined by California Business & Professions Code §§ 4030, 4036, and 4037, as may be amended, in the course of their duties as a pharmacist or pharmacist intern, or wholesalers licensed by the Board of Pharmacy.

6. If the nitrous oxide or device is by a manufacturer classified under Code Number 325120 (industrial gas manufacturer) or 424690 (other chemical and allied products 959
4 merchant wholesalers) by the North American Industry Classification System (NAICS) as part of a manufacturing process or industrial operation.

7. Any person that possesses or distributes nitrous oxide under an express exemption pursuant to the California Penal Code §§ 381b-e as may be amended from time to time.

8. Or any other circumstances exempted under law.

9.44.050 Enforcement.

A. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.

B. In addition to any other remedy, any person violating any provision of this Chapter shall be guilty of a misdemeanor for each day such violation continues.

C. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall constitute a violation.

D. Any violation of this Chapter may be remedied by a civil action brought by the City Attorney. The City may recover reasonable attorneys' fees and costs of suit in any civil action brought by the City Attorney to remedy any violation of this Chapter.

E. Violations of this Chapter are hereby declared to be public nuisances subject to abatement by the City.

F. Nothing in this Chapter shall limit the City from pursuing administrative, civil, or criminal citations or to abate public nuisances or violations of this Chapter in accordance with 1.08 and 1.10 of the Orange Municipal Code.

SECTION III:

SECTION IV:

Daniel R. Slater, Mayor, City of Orange
ATTEST:

Pamela Coleman, City Clerk, City of Orange
APPROVED AS TO FORM:

Wayne W. Winthers,
Interim City Attorney, City of Orange

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )
I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the ___ day of _____________, 2025, and thereafter at the regular meeting of said City Council duly held on the ___ day of ____________, 2025 was duly passed and adopted by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange
961

Page 1 of 3 ends

BROWNFIELDS ASSESSMENT COALITION MEMORANDUM OF AGREEMENT BETWEEN THE FOLLOWING PARTIES:

ORANGE COUNTY COUNCIL OF GOVERNMENTS,

NEIGHBORWORKS ORANGE COUNTY, CITY OF GARDEN GROVE,

CITY OF ORANGE, AND CITY OF SANTA ANA
This Memorandum of Agreement documents the roles and responsibilities of the parties involved in the Fiscal Year 2024 Brownfield Assessment Coalition Grant awarded by the U.S. Environmental Protection Agency (EPA) to the Coalition led by the Orange County Council of Governments (OCCOG) and supported by NeighborWorks Orange County, City of Garden Grove, City of Orange, and City of Santa Ana.

1. As the Lead Coalition Member, the OCCOG is accountable to EPA for management of the Cooperative Agreement (established between EPA and OCCOG) and compliance with the statutes, regulations, and terms and conditions of the award, and ensuring all Coalition Members comply with the terms and conditions.

2. It is the responsibility of the OCCOG to provide timely information to the Coalition Members regarding the management of the Cooperative Agreement and any changes that may be made to the Cooperative Agreement over the period of performance.

3. In addition to the OCCOG the Coalition Members include NeighborWorks Orange County, City of Garden Grove, City of Orange, and City of Santa Ana. Contact information for the lead project representative on behalf of each Coalition Member is as follows:

ORANGE COUNTY COUNCIL OF GOVERNMENTS
Name & Title: Marnie O’Brien Primmer, Executive Director Phone: 949-698-2856 | Email: [email protected]

NEIGHBORWORKS ORANGE COUNTY
Name & Title: Helen O’Sullivan, President & CEO
Phone: 714-490-1250 | Email: [email protected]

CITY OF GARDEN GROVE
Name & Title: Niki Wetzel, Community Development Director Phone: 714-741-5314 | Email: [email protected]

CITY OF ORANGE
Name & Title: Thomas Kisela, City Manager
Phone: 714-744-2222 | Email: [email protected]

CITY OF SANTA ANA
Name & Title: Alvaro Nuñez, City Manager
Phone: 714-647-5200 | Email: [email protected]

Docusign Envelope ID: 2FF2056E-53B7-411C-A038-62A2203037BA Docusign Envelope ID: 155075BC-741C-42C3-AA54-E310CF80F43A Docusign Envelope ID: 98291ADA-157D-4E05-9EF1-7E4E924FF7D6 738 962

Page 2 of 3 ends

4. Activities funded by the EPA Brownfields Assessment Coalition Grant is described in the Cooperative Agreement Work Plan (referred to as the “Work Plan”) established between EPA and OCCOG in July 2024. Project tasks outlined in the Work Plan include: 1) Project Management, Reporting and Other Eligible Activities; 2) Community Engagement and Site Inventory/Prioritization; 3) SiteSpecific Assessment and Cleanup Planning Activities; and 4) Area-Wide Planning (AWP) Activities.

5. The OCCOG was responsible for advancing a qualifications-based procurement process completed in fall 2023 to obtain the services of a consultant to assist with implementation of the EPA Brownfield Assessment Coalition Grant. Procurement was completed in accordance with 2 CFR 200.317–200.326 and the Best Practice Guide for Procuring Services Under EPA Assistance Agreements. One proposal was received from a consultant team led by Montrose Environmental Solutions, Inc. (Montrose). OCCOG staff reviewed and scored the proposal and completed a Fair and Reasonable Profit Analysis in accordance with EPA recommendations prior to entering a contract.

6. The OCCOG and its Coalition Members will work to develop a site selection process based on agreed upon factors and will ensure that a minimum of eight sites are assessed over the life of the Cooperative Agreement, including at least two sites within the jurisdiction of each Coalition Member. Selected sites will be submitted to EPA for approval to ensure eligibility prior to initiating assessment and/or cleanup/reuse planning activities. The Work Plan (established between EPA and OCCOG in July 2024) identifies the number of Phase I and II Environmental Site Assessments (ESAs), Regulated Building Materials (RBM) Surveys, Cleanup/Reuse Plans, and AWPs anticipated for the project.

7. Upon designation of the specific sites, it will be the responsibility of the OCCOG to work with the Coalition Member in whose geographic area the site is located to finalize the scope of work for the Consultant or other contractor(s). It will be the responsibility of this Coalition Member to obtain all required permits, easements, and/or access agreements as may be necessary to undertake assessments at the selected site.

8. The OCCOG is responsible for ensuring that other activities as negotiated with EPA in the Work Plan are implemented in accordance with a schedule agreed upon by the OCCOG and the Coalition Member in whose geographic area the site to be assessed is located.

9. The OCCOG is responsible for completing the project within the four-year period of performance (ending September 30, 2028) established by EPA in the Cooperative Agreement.

10.It will be the responsibility of each Coalition Member to comply with the terms of the Cooperative Agreement with EPA and respond to requests for work items and information in a timely manner to allow the OCCOG to meet EPA compliance reporting deadlines and other project deadlines.

Docusign Envelope ID: 2FF2056E-53B7-411C-A038-62A2203037BA Docusign Envelope ID: 155075BC-741C-42C3-AA54-E310CF80F43A Docusign Envelope ID: 98291ADA-157D-4E05-9EF1-7E4E924FF7D6 739 963

Page 3 of 3 ends

EFFECTIVE: OCTOBER 1, 2024
This MEMORANDUM OF AGREEMENT for the Brownfields Assessment Coalition led by the Orange County Council of Governments is agreed upon by the parties below.

ORANGE COUNTY COUNCIL OF GOVERNMENTS:

Signed by: Marnie O’Brien Primmer, Executive Director Date NEIGHBORWORKS OF ORANGE COUNTY:

Signed by: Helen O’Sullivan, President & CEO Date
CITY OF GARDEN GROVE:

Signed by: Niki Wetzel, Community Development Director Date CITY OF ORANGE:

Signed by: Thomas Kisela, City Manager Date
CITY OF SANTA ANA:

Signed by: Alvaro Nuñez, City Manager Date
10/28/2024

Lisa L. Kim, City Manager
Docusign Envelope ID: 2FF2056E-53B7-411C-A038-62A2203037BA 11/12/2024
Docusign Envelope ID: 155075BC-741C-42C3-AA54-E310CF80F43A 11/14/2024
Docusign Envelope ID: 98291ADA-157D-4E05-9EF1-7E4E924FF7D6 11/27/2024
740 964

Orange City CouncilJune 10, 2025

Orange City Council
June 10, 2025