Palm Desert City Council
February 26, 2026

Public Works Collaboration – Bike Route Connectivity
The three cities have a strong history of partnering on roadway projects that cross city boundaries, including improvements along Highway 111, Monterey Avenue, and Fred Waring Drive. A newly identified opportunity is enhanced coordination of bike lane additions and connectivity to create a more seamless network for residents traveling across city boundaries.

Public Works and Capital Projects staff from the three cities will incorporate bike route connectivity into ongoing and future capital project coordination efforts.

Emergency Preparedness
The three cities have formalized a mutual partnership for emergency management. Under this agreement, each city has committed to:
 Sharing space, shelter, technology, and personnel during emergencies  Providing limited staff support (up to 80 hours) when not managing its own emergency  Retaining full control over its own operations
 Prioritizing its own emergency response needs first
While the cities have historically supported one another through informal coordination, this agreement formalizes a framework for disaster assistance while ensuring each city maintains operational autonomy. Additional collaborative efforts include joint training and coordination of Community Emergency Response Team (CERT) programs.

National Night Out
National Night Out is an annual nationwide campaign that promotes police-community partnerships and public safety awareness. Although traditionally held on the first Tuesday in August, the event is typically moved to early October in the Coachella Valley due to extreme summer heat.

For the past two years, Rancho Mirage has hosted the regional event at the Community Park and Amphitheater, most recently on October 4, 2025. The event has grown into a significant regional public safety outreach effort, featuring law enforcement and fire/EMS demonstrations, specialized equipment displays, family activities, and participation from 39 vendors.

Given that the event serves residents across all three Cove communities and involves regional public safety agencies, staff recommends formalizing National Night Out as a jointly supported and funded regional initiative moving forward.
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City of Palm Desert
Cove Communities Services Commission Collaboration

Additional Regional Public Safety Initiative
Separate from this list, the three cities are evaluating participation in a Drone as First Responder (DFR) program through the Riverside County Sheriff’s Department. Because all three cities share the Palm Desert Sheriff’s Station, the Sheriff’s Department and city staff are jointly evaluating vendors that deploy public safety drones, as well as exploring the development of a Real-Time Crime Center at the Palm Desert Station.

The collaborative efforts outlined above are intended to inform the City Council of current and potential areas of enhanced regional coordination among the Cove communities. These initiatives reflect a continued commitment to responsible governance, operational efficiency, and improved service delivery for residents across all three cities.

Staff will continue refining these concepts and evaluating implementation pathways, including cost-sharing frameworks, governance structures where applicable, and policy considerations.

Additional updates and formal recommendations will be brought forward as next steps are developed for Commission and City Council consideration.

Legal Review:

This report has been reviewed by the City Attorney’s Office.

FINANCIAL IMPACT:

None at this time.

CONFLICT OF INTEREST AWARENESS CHECKLIST:
☐ Site-Specific Property Interest – Councilmembers should check if they own or lease real property within 1,000 feet of the project site (Gov. Code § 87103(b); FPPC Reg. 18702.2). ☐ SB 1439 Applicability (Campaign Contributions) – Applies to licenses, permits, or other entitlements for use, and to contracts or franchise agreements other than competitively bid, labor, or personal employment contracts.

Applicant(s)/Appellant(s): Not Applicable
Councilmembers should review any campaign contributions received within the last 12 months from parties or participants to the proceeding and must not accept contributions over $500 from those parties for 12 months following the final decision (Gov. Code § 84308).

Note: These indicators are informational and do not constitute a legal determination. Each Councilmember is responsible for identifying and disclosing any disqualifying interests in accordance with the Political Reform Act and FPPC regulations. 213
214

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: February 26, 2026
PREPARED BY: Pedro Rodriguez, Code Compliance & Support Services Manager SUBJECT: INTRODUCTION OF AN ORDINANCE AMENDING CHAPTERS 8.34 AND

8.36 OF THE PALM DESERT MUNICIPAL CODE RELATING TO

TOBACCO RETAILER LICENSING, SMOKING REGULATIONS AND
REGULATION OF KRATOM SALES AND POSSESSION.

RECOMMENDATION:

Hold a public hearing and introduce an Ordinance entitled “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING CHAPTERS 8.34 AND 8.36 OF THE PALM DESERT MUNICIPAL CODE RELATING TO TOBACCO RETAILER

LICENSING, SMOKING REGULATIONS, AND REGULATION OF KRATOM SALES AND

POSSESSION AND MAKING A FINDING OF EXEMPTION UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT.”
BACKGROUND/ANALYSIS:

In December 2009, the City Council adopted Ordinance No. 1200, which revised PDMC Chapter

8.36 concerning the regulation and prohibition of smoking. Since that time, smoking products and practices have evolved significantly, including the widespread use of electronic smoking devices and the introduction of substances beyond traditional tobacco. This item was initially brought forward to City Council at the August 22, 2024, study session. Staff has been working on a comprehensive cleanup of the chapter and addressing new legislation and products, including Kratom.

The proposed amendments to PDMC Chapters 8.34 and 8.36 are intended to modernize the Municipal Code, close regulatory gaps, clarify enforcement authority, and align local regulations with current public health objectives. Key components of the amendments include updated definitions, new licensing and sales prohibitions, regulation of kratom products, enhanced enforcement measures, and clarification of smoking restrictions within private country club communities.

PDMC Chapter 8.36 regulates smoking in public places, places of employment, and other specified locations to protect public health and reduce exposure to secondhand smoke. PDMC Chapter 8.34 establishes licensing requirements and operational standards for tobacco retailers.

Since the adoption of Ordinance No. 1200 in 2009, new smoking technologies and products such as electronic smoking devices and non-tobacco substances have emerged. Additionally, enforcement experience has identified ambiguities within the code, particularly regarding applicability to private country clubs and the sale of emerging substances such as kratom. 215
City of Palm Desert
Tobacco Retailer License and Smoking Regulations

At that 2024 study session, staff requested direction on the intent of the smoking ordinance following a Code Compliance complaint related to smoking outside a restaurant located within a private country club community. Staff’s review identified a potential conflict between the smoking prohibitions and the exclusion of private country clubs from the definition of “public place.” As a result of the direction received by City Council, the amendments are being proposed to Chapter

8.34 and Chapter 8.36.

At the February 11, 2026, study session, the prohibition and regulation of kratom products were discussed. This amendment incorporated the prohibition of high-risk synthetic kratom products into Chapter 8.36.

Amendments to Chapter 8.34 – Tobacco Retailer License
General Cleanup
 Revise language throughout the chapter to improve clarity, consistency, and precision.  Update terminology to reflect current usage and remove outdated or redundant provisions.

Amended Definitions
 Update definitions to encompass electronic smoking devices and non-tobacco substances.
 Add definitions and regulatory language related to kratom products.

Licensing Requirements and Prohibitions
 Prohibit the sale of electronic smoking devices.
 Prohibit the sale of flavored tobacco products.
 Prohibit the sale of tobacco products at pharmacies.

Kratom Regulations
 Prohibit the sale and possession of high-risk synthetic kratom products.  Aligns clear enforcement standards for kratom retailers with existing tobacco laws.  Establish clear authority for enforcement related to kratom violations and penalties.  Aligns with regional public health concerns and regulatory enforcement practices across multiple valley cities.

Inspections and Enforcement
 Enhance enforcement provisions by allowing more frequent compliance monitoring.  Increase penalties for operational violations.
 Authorize revocation of a tobacco retailer license for illegal kratom sales.

Amendments to Chapter 8.36 – Regulation and Prohibition of Smoking General Cleanup and Definitions
 Revise ordinance language for clarity and consistency.  Update definitions to include electronic smoking devices and non-tobacco substances. 216
City of Palm Desert
Tobacco Retailer License and Smoking Regulations

Clarification of Smoking Restrictions
PDMC Chapter 8.36 currently prohibits smoking in unenclosed areas of:
 Public places, including within 20 feet of primary entrances to privately owned commercial, industrial, institutional, or professional office buildings.  Places of employment.
 Businesses, including within 20 feet of dining area entrances.  Common areas of multifamily residential properties owned by the City.

While smoking is prohibited in these locations, a private country club was previously excluded from the definition of “public place,” creating ambiguity in enforcement.

Private Country Clubs
 Amend the code to define a private country club as a “public place” for purposes of smoking regulation.
 Retain exceptions specifying that the following are not public places:
o A private residence within a private country club.
o The fairway or putting green of a golf course located within a private country club.

This clarification ensures consistent application of smoking regulations and aligns with the public health intent of the ordinance.

The amendments set forth in these two chapters are a reasonable and necessary exercise of the City’s police power to protect public health, safety, and welfare. Additionally, these amendments modernize the City’s smoking and tobacco retailer regulations, address emerging products and substances, and enhance enforcement authority.

Legal Review:

This report has been reviewed by the City Attorney’s Office.

FINANCIAL IMPACT:

There is no fiscal impact related to this item.

ATTACHMENTS:

1. Chapter 8.34 (w/ Kratom prohibition)

2. Draft Chapter 8.34 (w/ Kratom prohibition)

3. Chapter 8.36

4. Draft Chapter 8.36

5. Tobacco Retailer and Smoking Ordinance (w/ Kratom prohibition)

6. Presentation – will be provided prior to the meeting 217
City of Palm Desert
Tobacco Retailer License and Smoking Regulations

CONFLICT OF INTEREST AWARENESS CHECKLIST:
☐ Site-Specific Property Interest – Councilmembers should check if they own or lease real property within 1,000 feet of the project site (Gov. Code § 87103(b); FPPC Reg. 18702.2). ☐ SB 1439 Applicability (Campaign Contributions) – Applies to licenses, permits, or other entitlements for use, and to contracts or franchise agreements other than competitively bid, labor, or personal employment contracts.

Applicant(s)/Appellant(s): Not Applicable
Councilmembers should review any campaign contributions received within the last 12 months from parties or participants to the proceeding and must not accept contributions over $500 from those parties for 12 months following the final decision (Gov. Code § 84308).

Note: These indicators are informational and do not constitute a legal determination. Each Councilmember is responsible for identifying and disclosing any disqualifying interests in accordance with the Political Reform Act and FPPC regulations. 218
Chapter 8.34 TOBACCO RETAILER LICENSE
§ 8.34.010 Definitions.

The following words and phrases, whenever used in this chapter, shall have the meaning defined in this section unless the context clearly requires otherwise:
“Characterizing flavor” means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, that constitutes a characterizing flavor. “City” means the City of Palm Desert
“Constituent” means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
“Consumer” means a person who purchases a tobacco product for consumption. “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.
“Department” means the Development Services Department of the city. “Electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, and whether natural or synthetic. Electronic smoking device does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
“Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor, as defined in California Health and Safety Code Section 104559.5(a)(1), or any tobacco product, other than looseleaf tobacco, a premium cigar, or a shisha tobacco product, that is not listed on the 219
Unflavored Tobacco List established by the California Attorney General pursuant to California Health and Safety Code Section 104559.1.
“Full retail price” means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.
“Kratom” means the plant Mitragyna speciosa, whether growing or not, and any compound, manufacture, salt, derivative, mixture, or preparation of that plant, including its leaves, and any product containing mitragynine, speciociliatine, speciogynine, paynantheine, or 7-hydroxymitragynine (also known as 7-OH), whether natural or synthesized.
“Kratom leaf” means the leaf of the kratom plant, also known as Mitragyna speciosa, in any form, but without chemical alternation beyond traditional drying or grinding.
“Kratom leaf extract” means the material obtained by extraction of kratom leaves by any means, provided that the extraction process does not introduce synthetic or chemically altered kratom alkaloids.
“Kratom product” means a product consisting of kratom leaf, kratom leaf extract, or both; any part of a leaf of the plant Mitragyna speciosa in fresh, dehydrated or dried form or a kratom extract or any product that contains any kratom alkaloid or metabolite. “Labeling” means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.
“License” means a valid tobacco retailer’s license issued by the department to a person to act as a tobacco retailer.
“Looseleaf tobacco” consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes. “Natural kratom leaf product” consisting of kratom leaf, kratom leaf extract, or both, that has not been chemically altered or adulterated with synthetic or concentrated kratom alkaloids or derivatives, including, but not limited to 7-hydroxymitragynine in concentrations exceeding levels that occur naturally in kratom leaf. “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold, or offered for sale, to a consumer.
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“Person” means any natural person partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or any other legal entity.
“Pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
“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 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 can or does have, or can or does share, ultimate control over the day-to-day operations of a business.
“Tobacco product” means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco.
“Self-service display” means the open display or storage of tobacco products in a manner that is physically accessible to the general public without the assistance of the retailer or employee of the retailer and a direct face-to-face transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
“Shisha tobacco product” means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
“Synthesized” means an alkaloid or alkaloid derivative that has been created by chemical synthesis or biosynthetic means (include but not limited to: fermentation, recombinant techniques, yeast derived enzymatic techniques) rather than traditional food preparation techniques such as heating or extracting. It also includes alkaloids that have been further exposed to chemicals or processes that would confer a structural change in the alkaloids contained within the extract.
“Synthetic kratom alkaloid” means any kratom alkaloid or derivative that has been created, isolated, increased, or modified through chemical synthesis, biosynthesis, fermentation, recombinant techniques, enzymatic processing, or other processes that materially alter the naturally occurring alkaloid profile. “Synthetic kratom product” means any product containing a synthetic kratom alkaloid, including synthesized or chemically altered 7-hydroxymitragynine (7-OH), regardless of labeling or marketing.
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“Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of or marketed for the consumption, use, or preparation of tobacco products, as defined in California Health and Safety Code Section 104559.5(a)(17)(A)(iii).
“Tobacco product” means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco product as defined in California Health and Safety Code Section 104559.5(a)(17), including, but not limited to, any product containing, made, or derived from tobacco or nicotine intended for human consumption, electronic devices that deliver nicotine or other vaporized liquids, and any component, part, or accessory of a tobacco product. Tobacco product does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
“Tobacco product flavor enhancer” means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product, as defined in California Health and Safety Code Section 104559.5(a)(18). “Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. § 8.34.020 Requirements.

A. It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this chapter for each location at which that activity is to occur. No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited. No license may be issued to authorize sales of tobacco products at a temporary event, such as a festival or farmers’ market.

B. The payment of the license fee designated in Section 8.34.060 confers paid status upon a license for a term of one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license no later than thirty (30) days prior to expiration of the payment term. A license that is not renewed in a timely manner shall expire at the end of its term, and the tobacco retailer must obtain a new license prior to any further sale, offer for sale, or distribution of any tobacco product.

C. Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the right to act as a tobacco retailer at the location in the city identified on the face of the permit. For 222
example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code Section 6404.5 or the prohibition on the sale of flavored tobacco products and tobacco product flavor enhancers under California Health and Safety Code Section 104559.5. All licenses are issued subject to the city’s right to amend this chapter from time to time, and tobacco retailers shall comply with all provisions of this chapter, as amended.

D. It is unlawful for any person to sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer, except as permitted under California Health and Safety Code Section 104559.5(c), (d), and (e) for flavored shisha tobacco products, premium cigars sold in cigar lounges, and looseleaf tobacco. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, and/or images on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

E. A tobacco retailer’s permit issued to a hookah tobacco retailer shall only authorize the sale of flavored shisha tobacco products if the retailer complies with all conditions set forth in California Health and Safety Code Section 104559.5(c), including maintaining a valid state cigarette and tobacco products retailer license issued by the California Department of Tax and Fee Administration, prohibiting persons under 21 years of age from entering the premises at any time, and operating in accordance with all state and local laws related to tobacco sales and consumption, including, but not limited to, California Labor Code Section 6404.5.

F. No tobacco retailer shall violate, or cause or allow the tobacco retailer’s agents or employees to violate, any provision of this chapter or any other local, state, or federal law applicable to tobacco products or tobacco retailing.

G. Tobacco retailers are responsible for the actions of their employees and agents relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee shall be considered an act of the tobacco retailer, and the license holder shall be responsible for any monetary penalties levied.

H. Nothing in this chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.

I. No tobacco retailer shall do any of the following: (1) Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than full retail price; (2) Sell any tobacco product to a consumer through a multiple package discount or otherwise provide any such product to a consumer for less 223
than the full retail price in consideration for the purchase of any tobacco product or any other item; or (3) Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.

J. No person or tobacco retailer shall sell or offer to sell any electronic smoking device that delivers natural or synthetic nicotine or any other substance(s) to the person inhaling from the device. This includes any component, part, or accessory intended or reasonably expected to be used with the electronic smoking device, whether or not sold separately.

K. No pharmacy or pharmacy employee or agent shall sell or offer to sell any tobacco product. The department shall not issue any new, or renew any existing, license for any pharmacy.

L. No tobacco retailer or other person shall sell or offer for sale any tobacco product to any consumer unless the tobacco product: (1) is sold in the original manufacturer’s packaging intended for sale to consumers; (2) conforms to all applicable federal labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.

M. Tobacco retailing by means of a self-service display is prohibited. All sales of tobacco products and tobacco paraphernalia shall be conducted in person, over the counter, at the permitted location.

N. Tobacco retailers shall post conspicuously, at each point of purchase, a notice stating that selling tobacco products to anyone under 21 years of age is illegal and subject to penalties. The form and content of such notice shall be subject to the approval of the department.

O. No tobacco retailer or other person shall sell or offer to sell a tobacco product to another person without first verifying by means of government-issued photographic identification that the recipient is at least 21 years of age.

P. No tobacco retailer shall allow, at its retail location, any individual who is younger than 21 years of age to sell or offer to sell tobacco products.

Q. Kratom Regulations

1. No person or business shall sell, offer for sale, or distribute any synthetic kratom product within the City.

2. This chapter shall not prohibit the sale or distribution of natural kratom leaf products that do not contain synthetic or chemically altered kratom alkaloids.

3. No person under twenty-one (21) years of age shall possess any kratom or kratom product within the City.

4. This chapter shall not apply to possession of kratom or kratom products by persons twenty-one (21) years of age or older, provided such products are otherwise lawful under this chapter.
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5. There shall be a rebuttable presumption that a product is a synthetic kratom product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the product has or produces effects similar to a synthetic kratom product, including, but not limited to, text, color, and/or images on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the product is a synthetic kratom product.

R. It is unlawful for any person to sell, offer for sale, or distribute any kratom product to a person under twenty-one (21) years of age.

S. No person or tobacco retailer shall sell or offer for sale any natural kratom leaf product unless it is: (1) is sold in the original manufacturer’s packaging intended for sale to consumers; (2) conforms to all applicable federal labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.

T. Natural kratom leaf product retailing by means of a self-service display is prohibited. All sales of natural kratom leaf products shall be conducted in person, over the counter.

U. Retailers selling natural kratom leaf products shall post conspicuously, at each point of purchase a notice stating that selling kratom products to anyone under 21 years of age is illegal and subject to penalties. The form and content of such notice shall be subject to the approval of the department.

V. No retailer or other person shall sell or offer to sell a natural kratom leaf product to another person without first verifying by means of government-issued photographic identification that the recipient is at least twenty-one (21) years of age.

§ 8.34.030 Application procedure.

Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. It is the responsibility of each proprietor to be informed of the laws affecting the issuance of a tobacco retailer’s license, including, but not limited to, California Health and Safety Code Section 104559.5 prohibiting the sale of flavored tobacco products and tobacco product flavor enhancers and the kratom regulations under this chapter. A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section

8.34.090 of this chapter. No license holder may rely on the issuance of a license as a determination by the City that the license holder has complied with all laws applicable to tobacco retailing. All applications shall be submitted on a form supplied by the department and shall contain the following information:

A. The name, address, and telephone number of each proprietor; 225
B. The business name, address, and telephone number of the single fixed location for which a tobacco retailer’s license is sought; C. The name and mailing address authorized by each proprietor to receive all license-related communications and notices (the “authorized address”). If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (B) of this section; D. Whether or not any proprietor has previously been issued a license pursuant to this chapter that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation; E. A statement signed by each proprietor affirming that the business will comply with all state and local laws related to the sale of tobacco products, including the prohibition on flavored tobacco products and tobacco product flavor enhancers under California Health and Safety Code Section 104559.5 and the kratom regulations under this chapter;
F. For applications by hookah tobacco retailers intending to sell flavored shisha tobacco products, a certification that the business meets all conditions set forth in California Health and Safety Code Section 104559.5(c); G. Proof that the location for which a license is sought has been issued a valid state license for the sale of tobacco products, if the tobacco retailer sells products that require such license;
H. A statement whether or not the tobacco retailer or any agent of the tobacco retailer has been found to have violated this chapter or other applicable law governing tobacco products or tobacco retailing and, if so, the dates and locations of all such violations within the previous five (5) years;
I. An application for a new or renewal license will be denied if there are any outstanding fines or late fees issued by the department, or during any period of suspension; and
J. Such other information as the department deems necessary for the administration or enforcement of this chapter.
§ 8.34.040 Issuance of license.

Upon the receipt of an application for a tobacco retailer’s license and the license fee, the department shall issue a license unless substantial record evidence demonstrates one of the following bases for denial:

A. The application is incomplete or inaccurate; or
B. The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect pursuant to Section 8.34.080 of this chapter; or 226
by a proprietor which or who has had a license revoked pursuant to Section 8.34.090 of this chapter; or
C. The application seeks authorization for tobacco or kratom retailing that is prohibited pursuant to Section 8.34.020 of this chapter (e.g., mobile vending), that is unlawful pursuant to this Palm Desert code (e.g., the zoning code), or that is unlawful pursuant to any other local, state or federal law, including, but not limited to, the prohibition on the sale of flavored tobacco products and tobacco product flavor enhancers under California Health and Safety Code Section 104559.5.

D. For applications by hookah tobacco retailers intending to sell flavored shisha tobacco products, the application fails to demonstrate compliance with all conditions set forth in California Health and Safety Code Section 104559.5(c).

E. The sale of tobacco products and accessories is prohibited in City-owned structures and in any area of a structure leased by the City. § 8.34.050 Display of license.

Each license shall be prominently displayed in a publicly visible location at the licensed premises.
§ 8.34.060 Fees for license.

The fee to issue or to renew a tobacco retailer’s license shall be established by resolution of the city council of Palm Desert, California. The fee shall be calculated so as to recover no more than the total cost of license administration and enforcement, including, for example, but not limited to, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators. Fees are nonrefundable except as may be required by law.
§ 8.34.070 Licenses nontransferable.

A tobacco retailer’s license is nontransferable. If the information required in the license application pursuant to Section 8.34.030, subsections (A) through (C), changes a new tobacco retailer’s license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. Or if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer. Any attempted transfer shall render the license null and void. Notwithstanding any other provision of this chapter, prior violations of this chapter at a location shall continue to be counted against that location and license ineligibility and suspension periods shall continue to apply to that location unless: (1) One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to the new owner(s); and (2) the City is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in 227
an Arm’s Length Transaction. An Arm’s Length Transaction, for the purposes of this section, means a transaction in which two or more unrelated and unaffiliated parties agree on the transfer in question; the parties act independently and in their own selfinterest; and the parties have equal bargaining power and symmetric information, leading the parties to agree upon fair-market terms.
§ 8.34.080 License violation.

A. Violation of Tobacco and Kratom-Related Laws. It is a violation of this chapter for a person, licensee, or his or her agent or employee to violate any local, state, or federal tobacco-related law, including, but not limited to, the prohibition on the sale, offer for sale, or possession with intent to sell flavored tobacco products or tobacco product flavor enhancers under California Health and Safety Code Section 104559.5 or the kratom regulations in this chapter
B. License Compliance Monitoring. Compliance with this chapter shall be monitored by the code compliance division. The city council anticipates that compliance checks of a sample of tobacco retailers selected or based on complaints will be conducted as necessary during each twelve-month period. Compliance checks shall take place during normal business hours, with or without notice. If a violation has occurred, the tobacco retailer shall be inspected as needed to ensure compliance. All permitted premises must be open to inspection by the department during regular business hours and may include the use of audio or video recording equipment to document illegal sales or attempted sales. The department shall coordinate with the California Department of Public Health and the California Department of Tax and Fee Administration to ensure compliance with state tobacco laws, including the flavored tobacco sales restrictions under California Health and Safety Code Section 104559.5. § 8.34.090 Suspension, expiration, or revocation of license.

A. Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer’s license shall be suspended or revoked if the department finds, after notice to the licensee and opportunity to be heard, that the licensee or his or her agents or employees has or have violated the requirements of this chapter or other conditions of the license imposed pursuant to Section 8.34.080.

1. Upon a finding by the department of a first license violation within any sixty-month period, the license shall be suspended for thirty (30) days.

2. Upon a finding by the department of a second license violation within any sixty-month period, the license shall be suspended for ninety (90) days.

3. Upon a finding by the department of a third license violation within any sixty-month period, the license shall be suspended for one (1) year.

4. Upon a finding by the department of a fourth license violation within any sixty-month period, the license shall be revoked and the proprietor or proprietors who had been issued the license shall never again be issued a tobacco retailer’s license pursuant to this chapter.
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B. Expiration of License for Failure to Pay Renewal Fee. A tobacco retailer’s license that is not timely renewed pursuant to Section 8.34.020(B) shall automatically expire at the end of its term, and the tobacco retailer must obtain a new license prior to any further sale, offer for sale, or distribution of any tobacco product.

C. Revocation of License Issued in Error. A tobacco retailer’s license shall be revoked if the department finds, after notice and opportunity to be heard, that one or more of the bases for denial of a license under Section 8.34.040 existed at the time application was made or at any time before the license issued. The revocation shall be without prejudice to the filing of a new application for a license.

D. Appeal of Suspension or Revocation. A decision of the department to revoke or suspend a license is appealable to the city council and must be filed with the city clerk within ten (10) days of mailing of the department’s decision. An appeal shall stay all proceedings in furtherance of the appealed action. A suspension or revocation pursuant to subsection (B) is not subject to appeal.

E. Coordination with State Penalties. In addition to the penalties described in this section, violations of California Health and Safety Code Section 104559.5, including the sale of flavored tobacco products or tobacco product flavor enhancers, may result in civil penalties and license suspension or revocation by the California Department of Tax and Fee Administration as prescribed in California Business and Professions Code Sections 22974.2 and 22958.
§ 8.34.100 Administrative fine.

A. Grounds for Fine. If the department finds, based on substantial evidence, that (1) any unlicensed person, including a person named on a revoked or suspended license, has engaged in tobacco retailing in violation of Section 8.34.020 of this chapter; or (2) that any person has violated the kratom regulations in Section 8.34.020 of this chapter, the department shall fine that person as follows:

1. A fine not exceeding one hundred dollars ($100) for a first violation in any twelve-month period;

2. A fine not exceeding two hundred dollars ($200) for a second violation in any twelve-month period; or

3. A fine not exceeding five hundred dollars ($500) for a third or subsequent violation in any twelve-month period.

Each day that such a person engages in tobacco retailing or unlawful sale of kratom shall constitute a separate violation. A fine shall be imposed in the amounts set forth in this subsection upon findings made by the department that the person, or any agent or employee of the person, has violated any provision of this chapter. Any administrative fine shall be imposed solely against the tobacco retailer and/or seller of kratom, not the tobacco retailer’s or seller of kratom’s employees or agents. 229
B. Notice of Violation. A notice of violation and of intent to impose a fine shall be personally served on, or sent by certified mail to, the person or persons subject to the fine. The notice shall contain a description of the facts upon which the asserted violation is based and include an advisement of the right to request a hearing to contest the fine. Any request for a hearing must be in writing and must be received by the department within ten (10) calendar days of personal service of the notice on the person or persons subject to a fine or within fifteen (15) calendar days if the person or persons subject to a fine are served by mail.

C. Imposition of Fine. If no request for a hearing is timely received, the department’s determination on the violation and the imposition of a fine shall be final and payment shall be made within thirty (30) calendar days of written demand made in the manner specified above for a notice of violation. If the fine is not paid within that time, the fine may be collected, along with interest at the legal rate, in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the person or persons subject to the fine shall also be liable for the costs of the suit and attorney’s fees incurred by the city in collecting the fine.

D. Notice of Hearing. If a hearing is requested pursuant to subsection (B) of this section, the department shall provide written notice, within forty-five (45) calendar days of its receipt of the hearing request, to the person or persons subject to a fine of the date, time, and place of the hearing in the manner specified above for a notice of violation.

E. Hearing Decision. The hearing officer shall render a written decision and findings within twenty (20) working days of the hearing. Copies of the decision and findings shall be provided to the person or persons subject to a fine in the manner specified above for a notice of violation.

F. Finality of the Hearing Officer’s Decision. The decision of the hearing officer shall be the final decision of the city.

G. Appeal to Superior Court of Limited Jurisdiction. Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, within twenty (20) days after personal service of the hearing officer’s decision and findings, or within twenty-five (25) days if served by mail, any person subject to a fine may seek review of the hearing officer’s decision and findings by the superior court of limited jurisdiction. A copy of the notice of appeal to the superior court shall be timely served in person or by first-class mail upon the department by the contestant. The appeal shall be heard de novo, except that the contents of the department’s file in the case shall be received in evidence. A copy of the records of the department of the notices of the violation and of the hearing officer’s decision and findings shall be admitted into evidence as prima facie evidence of the facts stated therein.

H. Failure to Pay Fine. If no timely notice of appeal to the superior court is filed, or the department is not timely served with a copy of a notice of appeal, the 230
hearing officer’s decision and findings shall be deemed confirmed and the fine shall be collected pursuant to subsection (C) of this section.

I. A tobacco retailer without a current valid license shall: (1) Keep all tobacco and/or natural kratom leaf products out of public view. The public display of tobacco products in violation of this provision shall constitute tobacco retailing without a license; and (2) Not display any advertisement relating to tobacco products that offers the sale of such products from the tobacco retailer’s location.

J. State Penalties. Administrative fines imposed under this section are in addition to any civil penalties or license suspension or revocation imposed by the California Department of Public Health, the California Department of Tax and Fee Administration, or other enforcing agencies under California Health and Safety Code Section 104559.5 or Business and Professions Code Sections 22974.2 and 22958 for violations of state tobacco laws, including the sale of flavored tobacco products or tobacco product flavor enhancers.

K. Infraction. The city may issue an infraction citation to any property owner, manager, agent, employee or operator, pursuant to the provisions set forth in Chapter 1.08, Citations for Code Violations, including, but not limited to, the imposition of any and all criminal penalties set forth therein if there is any violation of this chapter committed, caused or maintained by any of the above parties. Unless otherwise provided herein, any person convicted of an infraction shall, for each separate violation of this chapter be subject to:
(1) a fine in an amount not to exceed one hundred dollars ($100) for a first conviction of an offense;
(2) a fine in an amount not to exceed two hundred dollars ($200) for a second conviction of the same offense within a twelve-month period of the date of the first offense; and
(3) a fine in an amount not to exceed five hundred dollars ($500) for the third conviction of the same offense within a twelve-month period of the date of the first offense.
§ 8.34.110 Enforcement.

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

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

B. In addition to the administrative enforcement procedures provided by Section 8.34.090 of this chapter, violations of this chapter may, in the discretion of the 231
prosecutor, be prosecuted as infractions or as otherwise provided by state law, including California Health and Safety Code Section 104559.5 and Business and Professions Code Sections 22974.2 and 22958.

C. Violations of this chapter are declared to be public nuisances, subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures contained in this Municipal Code and state law, including, but not limited to, an action for abatement or injunctive relief.

D. Violations of this chapter are hereby declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates.

E. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings and suits for injunctive relief.

F. Any person acting for the interests of itself, its members or the general public may bring an action for injunctive relief to prevent future such violations or to recover such actual damages as he or she may prove.

G. The department shall coordinate with the California Department of Public Health, the California Department of Tax and Fee Administration, and other state or local enforcing agencies to report suspected violations of state tobacco laws, including the sale of flavored tobacco products or tobacco product flavor enhancers, and to facilitate the seizure of illegal products as authorized by California Business and Professions Code Section 22974.2.
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1 Attachment A
2 Chapter 8.34 TOBACCO RETAILER LICENSE
3 § 8.34.010 Definitions.
4 The following words and phrases, whenever used in this chapter, shall have the 5 meaning defined in this section unless the context clearly requires otherwise:
6 “Characterizing flavor” means a distinguishable taste or aroma, or both, other 7 than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct 8 produced by the tobacco product. Characterizing flavors include, but are not limited to, 9 tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, 10 alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall 11 not be determined to have a characterizing flavor solely because of the use of additives 12 or flavorings or the provision of ingredient information. Rather, it is the presence of a 13 distinguishable taste or aroma, or both, that constitutes a characterizing flavor. 14 “City” means the City of Palm Desert.
15 “Constituent” means any ingredient, substance, chemical, or compound, other 16 than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer 17 to a tobacco product during the processing, manufacture, or packing of the tobacco 18 product.
19 “Consumer” means a person who purchases a tobacco product for consumption. 20 “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, 21 image, or other issue, whether in paper, digital, or other form, used for commercial 22 purposes to obtain an article, product, service, or accommodation without charge or at a 23 discounted price.
24 “Department” means the Development Services Department of the city. 25 “Electronic smoking device” means any device that may be used to deliver any 26 aerosolized or vaporized substance to the person inhaling from the device, including, 27 but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic 28 smoking device includes any component, part, or accessory of the device, and also 29 includes any substance that may be aerosolized or vaporized by such device, whether 30 or not the substance contains nicotine, and whether natural or synthetic. Electronic 31 smoking device does not include any product that has been approved by the United 32 States Food and Drug Administration for sale as a tobacco cessation product or for 33 other therapeutic purposes where such product is marketed and sold solely for such an 34 approved purpose.
35 “Flavored tobacco product” means any tobacco product that contains a 36 constituent that imparts a characterizing flavor, as defined in California Health and 37 Safety Code Section 104559.5(a)(1), or any tobacco product, other than looseleaf 233
1 tobacco, a premium cigar, or a shisha tobacco product, that is not listed on the 2 Unflavored Tobacco List established by the California Attorney General pursuant to 3 California Health and Safety Code Section 104559.1.
4 “Full retail price” means the price listed for a tobacco product on its packaging or 5 on any related shelving, advertising, or display where the tobacco product is sold or 6 offered for sale, plus all applicable taxes and fees if such taxes and fees are not 7 included in the listed price.
8 “Kratom” means the plant Mitragyna speciosa, whether growing or not, and any 9 compound, manufacture, salt, derivative, mixture, or preparation of that plant, including 10 its leaves, and any product containing mitragynine, speciociliatine, speciogynine, 11 paynantheine, or 7-hydroxymitragynine (also known as 7-OH), whether natural or 12 synthesized.
13 “Kratom leaf” means the leaf of the kratom plant, also known as Mitragyna 14 speciosa, in any form, but without chemical alternation beyond traditional drying or 15 grinding.
16 “Kratom leaf extract” means the material obtained by extraction of kratom leaves 17 by any means, provided that the extraction process does not introduce synthetic or 18 chemically altered kratom alkaloids.
19 “Kratom product” means a product consisting of kratom leaf, kratom leaf extract, 20 or both; any part of a leaf of the plant Mitragyna speciosa in fresh, dehydrated or dried 21 form or a kratom extract or any product that contains any kratom alkaloid or metabolite. 22 “Labeling” means written, printed, pictorial, or graphic matter upon any tobacco 23 product or any of its packaging.
24 “License” means a valid tobacco retailer’s license issued by the department to a 25 person to act as a tobacco retailer.
26 “Looseleaf tobacco” consists of cut or shredded pipe tobacco, usually sold in 27 pouches, excluding any tobacco product which, because of its appearance, type, 28 packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, 29 consumers as tobacco for making cigarettes, including roll-your-own cigarettes. 30 “Natural kratom leaf product” consisting of kratom leaf, kratom leaf extract, or 31 both, that has not been chemically altered or adulterated with synthetic or concentrated 32 kratom alkaloids or derivatives, including, but not limited to 7-hydroxymitragynine in 33 concentrations exceeding levels that occur naturally in kratom leaf. 34 “Packaging” means a pack, box, carton, or container of any kind or, if no other 35 container, any wrapping (including cellophane) in which a tobacco product is sold, or 36 offered for sale, to a consumer.
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1 “Person” means any natural person partnership, cooperative association, private 2 corporation, personal representative, receiver, trustee, assignee or any other legal 3 entity.
4 “Pharmacy” means any retail establishment in which the profession of pharmacy 5 is practiced by a pharmacist licensed by the State of California in accordance with the 6 Business and Professions Code and where prescription pharmaceuticals are offered for 7 sale, regardless of whether the retail establishment sells other retail goods in addition to 8 prescription pharmaceuticals.
9 “Proprietor” means a person with an ownership or managerial interest in a 10 business. An ownership interest shall be deemed to exist when a person has a ten 11 percent or greater interest in the stock, assets, or income of a business other than the 12 sole interest of security for debt. A managerial interest shall be deemed to exist when a 13 person can or does have, or can or does share, ultimate control over the day-to-day 14 operations of a business.
15 “Tobacco product” means any substance containing tobacco leaf, including, but 16 not limited to, cigarettes, cigars, pipe tobacco, snuff chewing tobacco, dipping tobacco, 17 bidis, or any other preparation of tobacco.
18 “Self-service display” means the open display or storage of tobacco products in a 19 manner that is physically accessible to the general public without the assistance of the 20 retailer or employee of the retailer and a direct face-to-face transfer between the 21 purchaser and the retailer or employee of the retailer. A vending machine is a form of 22 self-service display.
23 “Shisha tobacco product” means a tobacco product smoked or intended to be 24 smoked in a hookah. Shisha tobacco product includes, and may be referred to as, 25 hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco 26 product does not include any electronic devices, such as an electronic hookah, 27 electronic cigarette, or electronic tobacco product. 28 “Synthesized” means an alkaloid or alkaloid derivative that has been created by 29 chemical synthesis or biosynthetic means (include but not limited to: fermentation, 30 recombinant techniques, yeast derived enzymatic techniques) rather than traditional 31 food preparation techniques such as heating or extracting. It also includes alkaloids that 32 have been further exposed to chemicals or processes that would confer a structural 33 change in the alkaloids contained within the extract. 34 “Synthetic kratom alkaloid” means any kratom alkaloid or derivative that has 35 been created, isolated, increased, or modified through chemical synthesis, biosynthesis, 36 fermentation, recombinant techniques, enzymatic processing, or other processes that 37 materially alter the naturally occurring alkaloid profile. 38 “Synthetic kratom product” means any product containing a synthetic kratom 39 alkaloid, including synthesized or chemically altered 7-hydroxymitragynine (7-OH), 40 regardless of labeling or marketing.
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1 “Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of 2 smoking materials of all types, cigarette rolling machines, and any other item designed 3 for the smoking or ingestion of or marketed for the consumption, use, or preparation of 4 tobacco products, as defined in California Health and Safety Code Section 5 104559.5(a)(17)(A)(iii).
6 “Tobacco product” means any substance containing tobacco leaf, including, but 7 not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, 8 bidis, or any other preparation of tobacco product as defined in California Health and 9 Safety Code Section 104559.5(a)(17), including, but not limited to, any product 10 containing, made, or derived from tobacco or nicotine intended for human consumption, 11 electronic devices that deliver nicotine or other vaporized liquids, and any component, 12 part, or accessory of a tobacco product. Tobacco product does not include any product 13 that has been approved by the United States Food and Drug Administration for sale as 14 a tobacco cessation product or for other therapeutic purposes where such product is 15 marketed and sold solely for such an approved purpose. 16 “Tobacco product flavor enhancer” means a product designed, manufactured, 17 produced, marketed, or sold to produce a characterizing flavor when added to a tobacco 18 product, as defined in California Health and Safety Code Section 104559.5(a)(18). 19 “Tobacco retailer” means any person who sells, offers for sale, or does or offers 20 to exchange for any form of consideration, tobacco, tobacco products, or tobacco 21 paraphernalia. “Tobacco retailing” shall mean the doing of any of these things. This 22 definition is without regard to the quantity of tobacco, tobacco products, or tobacco 23 paraphernalia sold, offered for sale, exchanged, or offered for exchange. 24 § 8.34.020 Requirements.
25 A. It is unlawful for any person to act as a tobacco retailer without first 26 obtaining and maintaining a valid tobacco retailer’s license pursuant to this chapter for 27 each location at which that activity is to occur. No license may issue to authorize 28 tobacco retailing at other than a fixed location. For example, tobacco retailing by 29 persons on foot and tobacco retailing from vehicles are prohibited. No license may be 30 issued to authorize sales of tobacco products at a temporary event, such as a festival or 31 farmers’ market.
32 B. The payment of the license fee designated in Section 8.34.060 confers 33 paid status upon a license for a term of one year. Each tobacco retailer shall apply for 34 the renewal of his or her tobacco retailer’s license no later than thirty (30) days prior to 35 expiration of the payment term. A license that is not renewed in a timely manner shall 36 expire at the end of its term, and the tobacco retailer must obtain a new license prior to 37 any further sale, offer for sale, or distribution of any tobacco product. 38 C. Nothing in this chapter shall be construed to grant any person obtaining 39 and maintaining a tobacco retailer’s license any status or right other than the right to act 40 as a tobacco retailer at the location in the city identified on the face of the permit. For 236
1 example, nothing in this chapter shall be construed to render inapplicable, supersede, 2 or apply in lieu of any other provision of applicable law, including, without limitation, any 3 condition or limitation on smoking in enclosed places of employment made applicable to 4 business establishments by California Labor Code Section 6404.5 or the prohibition on 5 the sale of flavored tobacco products and tobacco product flavor enhancers under 6 California Health and Safety Code Section 104559.5. All licenses are issued subject to 7 the city’s right to amend this chapter from time to time, and tobacco retailers shall 8 comply with all provisions of this chapter, as amended. 9 D. It is unlawful for any person to sell, offer for sale, or possess with the 10 intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor 11 enhancer, except as permitted under California Health and Safety Code Section 12 104559.5(c), (d), and (e) for flavored shisha tobacco products, premium cigars sold in 13 cigar lounges, and looseleaf tobacco. There shall be a rebuttable presumption that a 14 tobacco product is a flavored tobacco product if a manufacturer or any of the 15 manufacturer’s agents or employees, in the course of their agency or employment, has 16 made a statement or claim directed to consumers or to the public that the tobacco 17 product has or produces a characterizing flavor, including, but not limited to, text, color, 18 and/or images on the product’s labeling or packaging that are used to explicitly or 19 implicitly communicate that the tobacco product has a characterizing flavor. 20 E. A tobacco retailer’s permit issued to a hookah tobacco retailer shall only 21 authorize the sale of flavored shisha tobacco products if the retailer complies with all 22 conditions set forth in California Health and Safety Code Section 104559.5(c), including 23 maintaining a valid state cigarette and tobacco products retailer license issued by the 24 California Department of Tax and Fee Administration, prohibiting persons under 21 25 years of age from entering the premises at any time, and operating in accordance with 26 all state and local laws related to tobacco sales and consumption, including, but not 27 limited to, California Labor Code Section 6404.5.
28 F. No tobacco retailer shall violate, or cause or allow the tobacco retailer’s 29 agents or employees to violate, any provision of this chapter or any other local, state, or 30 federal law applicable to tobacco products or tobacco retailing. 31 G. Tobacco retailers are responsible for the actions of their employees and 32 agents relating to the sale, offer to sell, and furnishing of tobacco products at the retail 33 location. The sale of any tobacco product by an employee shall be considered an act of 34 the tobacco retailer, and the license holder shall be responsible for any monetary 35 penalties levied.
36 H. Nothing in this chapter shall be construed to penalize the purchase, use, 37 or possession of a tobacco product by any person not engaged in tobacco retailing. 38 I. No tobacco retailer shall do any of the following: (1) Honor or redeem, or 39 offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product 40 for less than full retail price; (2) Sell any tobacco product to a consumer through a 41 multiple package discount or otherwise provide any such product to a consumer for less 237
1 than the full retail price in consideration for the purchase of any tobacco product or any 2 other item; or (3) Provide any free or discounted item to a consumer in consideration for 3 the purchase of any tobacco product.
4 J. No person or tobacco retailer shall sell or offer to sell any electronic 5 smoking device that delivers natural or synthetic nicotine or any other substance(s) to 6 the person inhaling from the device. This includes any component, part, or accessory 7 intended or reasonably expected to be used with the electronic smoking device, 8 whether or not sold separately.
9 K. No pharmacy or pharmacy employee or agent shall sell or offer to sell any 10 tobacco product. The department shall not issue any new, or renew any existing, 11 license for any pharmacy.
12 L. No tobacco retailer or other person shall sell or offer for sale any tobacco 13 product to any consumer unless the tobacco product: (1) is sold in the original 14 manufacturer’s packaging intended for sale to consumers; (2) conforms to all applicable 15 federal labeling requirements; and (3) conforms to all applicable child-resistant 16 packaging requirements.
17 M. Tobacco retailing by means of a self-service display is prohibited. All sales 18 of tobacco products and tobacco paraphernalia shall be conducted in person, over the 19 counter, at the permitted location.
20 N. Tobacco retailers shall post conspicuously, at each point of purchase, a 21 notice stating that selling tobacco products to anyone under 21 years of age is illegal 22 and subject to penalties. The form and content of such notice shall be subject to the 23 approval of the department.
24 O. No tobacco retailer or other person shall sell or offer to sell a tobacco 25 product to another person without first verifying by means of government-issued 26 photographic identification that the recipient is at least 21 years of age. 27 P. No tobacco retailer shall allow, at its retail location, any individual who is 28 younger than 21 years of age to sell or offer to sell tobacco products. 29 Q. Kratom Regulations
30 1. No person or business shall sell, offer for sale, or distribute any synthetic 31 kratom product within the City.
32 2. This chapter shall not prohibit the sale or distribution of natural kratom leaf 33 products that do not contain synthetic or chemically altered kratom 34 alkaloids.
35 3. No person under twenty-one (21) years of age shall possess any kratom 36 or kratom product within the City.
37 4. This chapter shall not apply to possession of kratom or kratom products by 38 persons twenty-one (21) years of age or older, provided such products are 39 otherwise lawful under this chapter.
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1 5. There shall be a rebuttable presumption that a product is a synthetic 2 kratom product if a manufacturer or any of the manufacturer’s agents or 3 employees, in the course of their agency or employment, has made a 4 statement or claim directed to consumers or to the public that the product 5 has or produces effects similar to a synthetic kratom product, including, 6 but not limited to, text, color, and/or images on the product’s labeling or 7 packaging that are used to explicitly or implicitly communicate that the 8 product is a synthetic kratom product.
9 R. It is unlawful for any person to sell, offer for sale, or distribute any kratom product 10 to a person under twenty-one (21) years of age.
11 S. No person or tobacco retailer shall sell or offer for sale any natural kratom leaf 12 product unless it is: (1) is sold in the original manufacturer’s packaging intended 13 for sale to consumers; (2) conforms to all applicable federal labeling 14 requirements; and (3) conforms to all applicable child-resistant packaging 15 requirements.
16 T. Natural kratom leaf product retailing by means of a self-service display is 17 prohibited. All sales of natural kratom leaf products shall be conducted in person, 18 over the counter.
19 U. Retailers selling natural kratom leaf products shall post conspicuously, at each 20 point of purchase a notice stating that selling kratom products to anyone under 21 21 years of age is illegal and subject to penalties. The form and content of such 22 notice shall be subject to the approval of the department. 23 V. No retailer or other person shall sell or offer to sell a natural kratom leaf product 24 to another person without first verifying by means of government-issued 25 photographic identification that the recipient is at least twenty-one (21) years of 26 age.
27 28 § 8.34.030 Application procedure.
29 Application for a tobacco retailer’s license shall be submitted in the name of each 30 proprietor proposing to conduct retail tobacco sales and shall be signed by each 31 proprietor or an authorized agent thereof. It is the responsibility of each proprietor to be 32 informed of the laws affecting the issuance of a tobacco retailer’s license, including, but 33 not limited to, California Health and Safety Code Section 104559.5 prohibiting the sale 34 of flavored tobacco products and tobacco product flavor enhancers and the kratom 35 regulations under this chapter. A license that is issued in error or on the basis of false or 36 misleading information supplied by a proprietor may be revoked pursuant to Section 37 8.34.090 of this chapter. No license holder may rely on the issuance of a license as a 38 determination by the City that the license holder has complied with all laws applicable to 39 tobacco retailing. All applications shall be submitted on a form supplied by the 40 department and shall contain the following information:
41 A. The name, address, and telephone number of each proprietor; 239
1 B. The business name, address, and telephone number of the single fixed 2 location for which a tobacco retailer’s license is sought; 3 C. The name and mailing address authorized by each proprietor to receive all 4 license-related communications and notices (the “authorized address”). If an authorized 5 address is not supplied, each proprietor shall be understood to consent to the provision 6 of notice at the business address specified in subsection (B) of this section; 7 D. Whether or not any proprietor has previously been issued a license 8 pursuant to this chapter that is, or was at any time, suspended or revoked and, if so, the 9 dates of the suspension period or the date of revocation; 10 E. A statement signed by each proprietor affirming that the business will 11 comply with all state and local laws related to the sale of tobacco products, including the 12 prohibition on flavored tobacco products and tobacco product flavor enhancers under 13 California Health and Safety Code Section 104559.5 and the kratom regulations under 14 this chapter;
15 F. For applications by hookah tobacco retailers intending to sell flavored 16 shisha tobacco products, a certification that the business meets all conditions set forth 17 in California Health and Safety Code Section 104559.5(c); 18 G. Proof that the location for which a license is sought has been issued a 19 valid state license for the sale of tobacco products, if the tobacco retailer sells products 20 that require such license;
21 H. A statement whether or not the tobacco retailer or any agent of the 22 tobacco retailer has been found to have violated this chapter or other applicable law 23 governing tobacco products or tobacco retailing and, if so, the dates and locations of all 24 such violations within the previous five (5) years;
25 I. An application for a new or renewal license will be denied if there are any 26 outstanding fines or late fees issued by the department, or during any period of 27 suspension; and
28 J. Such other information as the department deems necessary for the 29 administration or enforcement of this chapter.
30 § 8.34.040 Issuance of license.
31 Upon the receipt of an application for a tobacco retailer’s license and the license 32 fee, the department shall issue a license unless substantial record evidence 33 demonstrates one of the following bases for denial:
34 A. The application is incomplete or inaccurate; or
35 B. The application seeks authorization for tobacco retailing by a proprietor for 36 which or whom a suspension is in effect pursuant to Section 8.34.080 of this chapter; or 240
1 by a proprietor which or who has had a license revoked pursuant to Section 8.34.090 of 2 this chapter; or
3 C. The application seeks authorization for tobacco or kratom retailing that is 4 prohibited pursuant to Section 8.34.020 of this chapter (e.g., mobile vending), that is 5 unlawful pursuant to this Palm Desert code (e.g., the zoning code), or that is unlawful 6 pursuant to any other local, state or federal law, including, but not limited to, the 7 prohibition on the sale of flavored tobacco products and tobacco product flavor 8 enhancers under California Health and Safety Code Section 104559.5. 9 D. For applications by hookah tobacco retailers intending to sell flavored 10 shisha tobacco products, the application fails to demonstrate compliance with all 11 conditions set forth in California Health and Safety Code Section 104559.5(c). 12 E. The sale of tobacco products and accessories is prohibited in City-owned 13 structures and in any area of a structure leased by the City. 14 § 8.34.050 Display of license.
15 Each license shall be prominently displayed in a publicly visible location at the 16 licensed premises.
17 § 8.34.060 Fees for license.
18 The fee to issue or to renew a tobacco retailer’s license shall be established by 19 resolution of the city council of Palm Desert, California. The fee shall be calculated so 20 as to recover no more than the total cost of license administration and enforcement, 21 including, for example, but not limited to, issuing the license, administering the license 22 program, retailer education, retailer inspection and compliance checks, documentation 23 of violations, and prosecution of violators. Fees are nonrefundable except as may be 24 required by law.
25 § 8.34.070 Licenses nontransferable.
26 A tobacco retailer’s license is nontransferable. If the information required in the 27 license application pursuant to Section 8.34.030, subsections (A) through (C), changes 28 a new tobacco retailer’s license is required before the business may continue to act as a 29 tobacco retailer. For example, if a proprietor to whom a license has been issued 30 changes business location, that proprietor must apply for a new license prior to acting 31 as a tobacco retailer at the new location. Or if the business is sold, the new owner must 32 apply for a license for that location before acting as a tobacco retailer. Any attempted 33 transfer shall render the license null and void. Notwithstanding any other provision of 34 this chapter, prior violations of this chapter at a location shall continue to be counted 35 against that location and license ineligibility and suspension periods shall continue to 36 apply to that location unless: (1) One hundred percent of the interest in the stock, 37 assets, or income of the business, other than a security interest for the repayment of 38 debt, has been transferred to the new owner(s); and (2) the City is provided with clear 39 and convincing evidence, including an affidavit, that the business has been acquired in 241
1 an Arm’s Length Transaction. An Arm’s Length Transaction, for the purposes of this 2 section, means a transaction in which two or more unrelated and unaffiliated parties 3 agree on the transfer in question; the parties act independently and in their own self4 interest; and the parties have equal bargaining power and symmetric information, 5 leading the parties to agree upon fair-market terms.
6 § 8.34.080 License violation.
7 A. Violation of Tobacco and Kratom-Related Laws. It is a violation of this 8 chapter for a person, licensee, or his or her agent or employee to violate any local, 9 state, or federal tobacco-related law, including, but not limited to, the prohibition on the 10 sale, offer for sale, or possession with intent to sell flavored tobacco products or 11 tobacco product flavor enhancers under California Health and Safety Code Section 12 104559.5 or the kratom regulations in this chapter
13 B. License Compliance Monitoring. Compliance with this chapter shall be 14 monitored by the code compliance division. The city council anticipates that compliance 15 checks of a sample of tobacco retailers selected or based on complaints will be 16 conducted as necessary during each twelve-month period. Compliance checks shall 17 take place during normal business hours, with or without notice. If a violation has 18 occurred, the tobacco retailer shall be inspected as needed to ensure compliance. All 19 permitted premises must be open to inspection by the department during regular 20 business hours and may include the use of audio or video recording equipment to 21 document illegal sales or attempted sales. The department shall coordinate with the 22 California Department of Public Health and the California Department of Tax and Fee 23 Administration to ensure compliance with state tobacco laws, including the flavored 24 tobacco sales restrictions under California Health and Safety Code Section 104559.5. 25 § 8.34.090 Suspension, expiration, or revocation of license. 26 A. Suspension or Revocation of License for Violation. In addition to any other 27 penalty authorized by law, a tobacco retailer’s license shall be suspended or revoked if 28 the department finds, after notice to the licensee and opportunity to be heard, that the 29 licensee or his or her agents or employees has or have violated the requirements of this 30 chapter or other conditions of the license imposed pursuant to Section 8.34.080. 31 1. Upon a finding by the department of a first license violation within 32 any sixty-month period, the license shall be suspended for thirty (30) days. 33 2. Upon a finding by the department of a second license violation 34 within any sixty-month period, the license shall be suspended for ninety (90) days. 35 3. Upon a finding by the department of a third license violation within 36 any sixty-month period, the license shall be suspended for one (1) year. 37 4. Upon a finding by the department of a fourth license violation within 38 any sixty-month period, the license shall be revoked and the proprietor or proprietors 39 who had been issued the license shall never again be issued a tobacco retailer’s license 40 pursuant to this chapter.
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1 B. Expiration of License for Failure to Pay Renewal Fee. A tobacco retailer’s 2 license that is not timely renewed pursuant to Section 8.34.020(B) shall automatically 3 expire at the end of its term, and the tobacco retailer must obtain a new license prior to 4 any further sale, offer for sale, or distribution of any tobacco product. 5 C. Revocation of License Issued in Error. A tobacco retailer’s license shall be 6 revoked if the department finds, after notice and opportunity to be heard, that one or 7 more of the bases for denial of a license under Section 8.34.040 existed at the time 8 application was made or at any time before the license issued. The revocation shall be 9 without prejudice to the filing of a new application for a license. 10 D. Appeal of Suspension or Revocation. A decision of the department to 11 revoke or suspend a license is appealable to the city council and must be filed with the 12 city clerk within ten (10) days of mailing of the department’s decision. An appeal shall 13 stay all proceedings in furtherance of the appealed action. A suspension or revocation 14 pursuant to subsection (B) is not subject to appeal. 15 E. Coordination with State Penalties. In addition to the penalties described in 16 this section, violations of California Health and Safety Code Section 104559.5, including 17 the sale of flavored tobacco products or tobacco product flavor enhancers, may result in 18 civil penalties and license suspension or revocation by the California Department of Tax 19 and Fee Administration as prescribed in California Business and Professions Code 20 Sections 22974.2 and 22958.
21 § 8.34.100 Administrative fine.
22 A. Grounds for Fine. If the department finds, based on substantial evidence, 23 that (1) any unlicensed person, including a person named on a revoked or suspended 24 license, has engaged in tobacco retailing in violation of Section 8.34.020 of this chapter; 25 or (2) that any person has violated the kratom regulations in Section 8.34.020 of this 26 chapter, the department shall fine that person as follows:
27 1. A fine not exceeding one hundred dollars ($100) for a first violation 28 in any twelve-month period;
29 2. A fine not exceeding two hundred dollars ($200) for a second 30 violation in any twelve-month period; or
31 3. A fine not exceeding five hundred dollars ($500) for a third or 32 subsequent violation in any twelve-month period.
33 Each day that such a person engages in tobacco retailing or unlawful sale of 34 kratom shall constitute a separate violation. A fine shall be imposed in the amounts set 35 forth in this subsection upon findings made by the department that the person, or any 36 agent or employee of the person, has violated any provision of this chapter. Any 37 administrative fine shall be imposed solely against the tobacco retailer and/or seller of 38 kratom, not the tobacco retailer’s or seller of kratom’s employees or agents. 243
1 B. Notice of Violation. A notice of violation and of intent to impose a fine shall 2 be personally served on, or sent by certified mail to, the person or persons subject to 3 the fine. The notice shall contain a description of the facts upon which the asserted 4 violation is based and include an advisement of the right to request a hearing to contest 5 the fine. Any request for a hearing must be in writing and must be received by the 6 department within ten (10) calendar days of personal service of the notice on the person 7 or persons subject to a fine or within fifteen (15) calendar days if the person or persons 8 subject to a fine are served by mail.
9 C. Imposition of Fine. If no request for a hearing is timely received, the 10 department’s determination on the violation and the imposition of a fine shall be final 11 and payment shall be made within thirty (30) calendar days of written demand made in 12 the manner specified above for a notice of violation. If the fine is not paid within that 13 time, the fine may be collected, along with interest at the legal rate, in any manner 14 provided by law. In the event that a judicial action is necessary to compel payment of 15 the fine and accumulated interest, the person or persons subject to the fine shall also be 16 liable for the costs of the suit and attorney’s fees incurred by the city in collecting the 17 fine.
18 D. Notice of Hearing. If a hearing is requested pursuant to subsection (B) of 19 this section, the department shall provide written notice, within forty-five (45) calendar 20 days of its receipt of the hearing request, to the person or persons subject to a fine of 21 the date, time, and place of the hearing in the manner specified above for a notice of 22 violation.
23 E. Hearing Decision. The hearing officer shall render a written decision and 24 findings within twenty (20) working days of the hearing. Copies of the decision and 25 findings shall be provided to the person or persons subject to a fine in the manner 26 specified above for a notice of violation.
27 F. Finality of the Hearing Officer’s Decision. The decision of the hearing 28 officer shall be the final decision of the city.
29 G. Appeal to Superior Court of Limited Jurisdiction. Notwithstanding the 30 provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, within twenty 31 (20) days after personal service of the hearing officer’s decision and findings, or within 32 twenty-five (25) days if served by mail, any person subject to a fine may seek review of 33 the hearing officer’s decision and findings by the superior court of limited jurisdiction. A 34 copy of the notice of appeal to the superior court shall be timely served in person or by 35 first-class mail upon the department by the contestant. The appeal shall be heard de 36 novo, except that the contents of the department’s file in the case shall be received in 37 evidence. A copy of the records of the department of the notices of the violation and of 38 the hearing officer’s decision and findings shall be admitted into evidence as prima facie 39 evidence of the facts stated therein.
40 H. Failure to Pay Fine. If no timely notice of appeal to the superior court is 41 filed, or the department is not timely served with a copy of a notice of appeal, the 244
1 hearing officer’s decision and findings shall be deemed confirmed and the fine shall be 2 collected pursuant to subsection (C) of this section. 3 I. A tobacco retailer without a current valid license shall: (1) Keep all tobacco 4 and/or natural kratom leaf products out of public view. The public display of tobacco 5 products in violation of this provision shall constitute tobacco retailing without a license; 6 and (2) Not display any advertisement relating to tobacco products that offers the sale 7 of such products from the tobacco retailer’s location. 8 J. State Penalties. Administrative fines imposed under this section are in 9 addition to any civil penalties or license suspension or revocation imposed by the 10 California Department of Public Health, the California Department of Tax and Fee 11 Administration, or other enforcing agencies under California Health and Safety Code 12 Section 104559.5 or Business and Professions Code Sections 22974.2 and 22958 for 13 violations of state tobacco laws, including the sale of flavored tobacco products or 14 tobacco product flavor enhancers.
15 K. Infraction. The city may issue an infraction citation to any property owner, 16 manager, agent, employee or operator, pursuant to the provisions set forth in 17 Chapter 1.08, Citations for Code Violations, including, but not limited to, the imposition 18 of any and all criminal penalties set forth therein if there is any violation of this chapter 19 committed, caused or maintained by any of the above parties. Unless otherwise 20 provided herein, any person convicted of an infraction shall, for each separate violation 21 of this chapter be subject to:
22 (1) a fine in an amount not to exceed one hundred dollars ($100) for a first 23 conviction of an offense;
24 (2) a fine in an amount not to exceed two hundred dollars ($200) for a second 25 conviction of the same offense within a twelve-month period of the date of the 26 first offense; and
27 (3) a fine in an amount not to exceed five hundred dollars ($500) for the third 28 conviction of the same offense within a twelve-month period of the date of the 29 first offense.
30 31 § 8.34.110 Enforcement.
32 The remedies provided by this chapter are cumulative and in addition to any 33 other remedies available at law or in equity.
34 A. Causing, permitting, aiding, abetting or concealing a violation of any 35 provision of this chapter shall constitute a violation. 36 B. In addition to the administrative enforcement procedures provided by 37 Section 8.34.090 of this chapter, violations of this chapter may, in the discretion of the 245
1 prosecutor, be prosecuted as infractions or as otherwise provided by state law, 2 including California Health and Safety Code Section 104559.5 and Business and 3 Professions Code Sections 22974.2 and 22958.
4 C. Violations of this chapter are declared to be public nuisances, subject to 5 all applicable civil, administrative, and criminal remedies and penalties according to the 6 provisions and procedures contained in this Municipal Code and state law, including, 7 but not limited to, an action for abatement or injunctive relief. 8 D. Violations of this chapter are hereby declared to be unfair business 9 practices and are presumed to at least nominally damage each and every resident of 10 the community in which the business operates.
11 E. In addition to other remedies provided by this chapter or by other law, any 12 violation of this chapter may be remedied by a civil action brought by the city attorney, 13 including, for example, administrative or judicial nuisance abatement proceedings, civil 14 or criminal code enforcement proceedings and suits for injunctive relief. 15 F. Any person acting for the interests of itself, its members or the general 16 public may bring an action for injunctive relief to prevent future such violations or to 17 recover such actual damages as he or she may prove.
18 G. The department shall coordinate with the California Department of Public 19 Health, the California Department of Tax and Fee Administration, and other state or 20 local enforcing agencies to report suspected violations of state tobacco laws, including 21 the sale of flavored tobacco products or tobacco product flavor enhancers, and to 22 facilitate the seizure of illegal products as authorized by California Business and 23 Professions Code Section 22974.2.
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Chapter 8.36 Regulation and Prohibition of Smoking
§ 8.36.010 Purpose of chapter.

Smoking of tobacco, or any other weed or plant, is a positive danger to health and a cause of material annoyance, inconvenience, discomfort and health hazard to those who are present in confined places. In addition, the California Air Resources Board has placed secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure. Therefore, it is the city’s intent to provide for the public health, safety and welfare, by prohibiting the smoking of tobacco, or any other weed or plant, in public places and places of employment, except in designated smoking areas as set forth herein. Smoking tobacco or any other weed, plant, or substance, including through electronic smoking devices, poses a danger to public health and causes material annoyance, inconvenience, discomfort, and health hazards to those present in confined places. The California Air Resources Board has categorized secondhand smoke as a toxic air contaminant with no safe level of exposure, placing it in the same category as the most toxic automotive and industrial air pollutants. Therefore, it is the City’s intent to protect public health, safety, and welfare by prohibiting the smoking of tobacco or any other weed, plant, or substance in public places and places of employment, except in designated smoking areas as set forth herein.
§ 8.36.020 Definitions.

The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
“Business” means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes. “City” means the City of Palm Desert and its related entities, including the Palm Desert Housing Authority.
“Common area” means every unenclosed area of a multiunit residence that residents of more than one (1) unit of that multiunit residence are entitled to enter or use, including, for example, paths, courtyards, playgrounds, swimming pools, parking lots, and picnic areas.
“Dining area” means any area, including streets and sidewalks, which is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or drink. “Electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, and whether natural or synthetic. Electronic smoking device 247
does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose. “Employee” means any person who is employed or retained as an independent contractor by any employer or nonprofit entity in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer or nonprofit entity.
“Employer” means any person, business, entity or nonprofit entity that retains the service of one (1) or more employees.
“Enclosed area” means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

1. Any type of overhead cover whether or not that cover includes vents or other openings and at least three (3) walls or other vertical boundaries of any height whether or not those boundaries include vents or other openings; or

2. Four walls or other vertical boundaries that exceed six (6) feet in height whether or not those boundaries include vents or other openings. “Multiunit residence” means a residential property containing two (2) or more units. “Nonprofit entity” means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, unincorporated association or other entity created for charitable, religious, philanthropic, education, political, social or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A government agency is a nonprofit entity within the meaning of this chapter.
“Person” means any natural person, business, cooperative association, nonprofit entity, personal representative, receiver, trustee, assignee, or any other legal entity including government agencies.
"Place of employment" means any enclosed areas under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a place of employment, except for childcare facilities in private homes.
“Pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
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“Primary entrance” means the entrance to a building or business through which the majority of patrons enter. A building or business has only one primary entrance.

Where the door into the establishment is at the end of a corridor formed by two or more vertical walls or barriers, with or without overhead cover, the primary entrance shall be deemed to be at the end of the corridor open to the exterior. “Public place” means:

1. Any area to which the public is invited or in which the public is permitted, including, but not limited to, shopping malls, retail stores, retail service establishments, retail food production and marketing establishments, restaurants, theaters, waiting rooms, reception areas, educational facilities, health facilities, public transportation facilities, and their associated parking areas. A private residence or the fairway or putting green of a golf course within a private country club is not a public place;

2. Areas measured a distance of forty (40) feet from the entrances and exits to City-owned public places;

3. Areas measured a distance of twenty (20) feet from the primary entrances to publicly or privately-owned commercial, industrial, institutional, or office professional buildings;

4. Unenclosed areas owned by the City, including, but not limited to, City-owned property, parks, playgrounds, restrooms, baseball and soccer fields, except the golf course area of Desert Willow, or where specific signs are posted permitting such smoking;

5. Unenclosed public events, including, but not limited to, sports events, entertainment, speaking performances, ceremonies, and fairs;

6. Hotels, except in designated areas.
“Reasonable distance” means a distance of twenty (20) feet or, with respect to a designated smoking area or such larger area as the city manager reasonably determines in writing to be necessary in a given circumstance to ensure that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area.
“Secondary entrance” means any entrance to a building or business that is not the primary entrance. One building or business may have multiple secondary entrances. “Secondhand smoke” means smoke from tobacco or any other weed, plant, or substance created by burning or carrying any lighted pipe, hookah, cigar, cigarette, or electronic smoking device of any kind, and the smoke exhaled by an individual who engages in smoking.
“Shopping mall” means any parcel of land zoned and used for retail sales by more than one retailer that is jointly operated or which includes shared parking facilities. 249
“Smoke,” or “smoking” means and includes any of the following: (1) the direct burning or indirect heating of any cigar, cigarette, pipe, electronic smoking device, or any similar kind of smoking equipment or article, using any form of tobacco, plant product, or other combustible substance in any form, or (2) the holding or carrying of a lighted or operated cigar, cigarette, pipe, electronic smoking device, or any other lighted smoking equipment or device, or (3) emitting or exhaling the smoke directly from a cigar, cigarette, pipe, electronic smoking device, or any other lighted smoking equipment or device.

Smoke also means the gaseous or vaporous products or particles created by the use of a lighted or operated pipe, cigar, cigarette, electronic smoking device, or other kind of smoking equipment or article.
“Tobacco product” means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco product as defined in California Health and Safety Code Section 104559.5(a)(17), including, but not limited to, any product containing, made, or derived from tobacco or nicotine intended for human consumption, electronic devices that deliver nicotine or other vaporized liquids, and any component, part, or accessory of a tobacco product. Tobacco product does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
“Unenclosed area” means any area that is not an enclosed area. § 8.36.030 Prohibition of smoking in unenclosed areas.

A. Smoking is prohibited in the unenclosed areas of the following places within the City, except places where smoking is already prohibited by state or federal law, in which case, those laws apply:

1. Public places;

2. Places of employment;

3. Businesses, including, but not limited to, restaurants and bars, and other public accommodations. In addition, smoking is prohibited within a reasonable distance of the primary entrance to a dining area. Where a business has more than one entrance, an outdoor smoking area may be designated within a reasonable distance of one of the secondary entrances. In such case, smoking is prohibited within a reasonable distance of the primary entrance and any other secondary entrances.

4. Common areas of multifamily residential properties owned by the City, except where permitted under Section 8.36.070.

B. No person shall dispose of smoking waste or place or maintain a receptacle for smoking waste in an area in which smoking is prohibited by this chapter or other law, including within any reasonable distance required by this chapter. 250
§ 8.36.040 Designation of smoking areas.

A. Places Where Smoking Permitted. Notwithstanding Section 8.36.030 of this chapter, smoking is permitted in the following locations within the City, unless otherwise provided by state or federal law:

1. Private residential property, other than: (a) those private residential properties used as a child-care or health-care facility subject to licensing requirements when employees, children or patients are present; or (b) home-based business where members of the public are invited. Nothing in this chapter shall require a person or entity who or which owns or controls a private residential property, including, but not limited to, a condominium association or an apartment owner, to permit smoking and such a person may prohibit smoking throughout the property he, she or it owns or controls.

2. Designated areas in shopping mall unenclosed areas, provided that:
(a) there is not more than one (1) square foot of area designated for smoking for every twenty thousand (20,000) square feet of rentable space of the shopping mall (provided that each shopping mall may have at least one designated smoking area of forty (40) or fewer square feet in area); (b) the area is prominently marked with signs; (c) it is located the greatest distance practicable, and at least a reasonable distance, from any doorway or opening into an area or any accessway from parking facilities to the retail areas of the shopping mall; (d) smoke is not permitted to enter adjacent areas in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of the adjacent property; and (e) the location(s) of the designated smoking area(s) is or are approved in writing by the city manager of the City or designee based on the standards of this subsection and the goals of this chapter.

3. Any unenclosed area in which no nonsmoker is present and, due to the time of day or other factors, it is not reasonable to expect another person to arrive.

B. Where smoking areas are designated, existing physical barriers and ventilation systems shall be used to eliminate the toxic effect of smoke in adjacent nonsmoking areas, but employers are not required to incur any expense to make structural or physical modifications in providing these areas. There shall be no designated smoking areas in areas that have a common or shared air space with other areas in which smoking is prohibited such as, without limitation, air conditioning systems, heating systems, ventilation systems, entries, doorways, hallways, and stairways or within a reasonable distance of commercial building entries. In all disputes in the work place, the rights of the nonsmoker shall be given priority over the rights of the smoker.

C. No person shall smoke in an area in which smoking is otherwise permitted by this chapter or other law within a reasonable distance from any primary entrance, opening, crack, or vent into an area in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of that area.
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§ 8.36.050 Optional prohibition.

All managers and owners of any establishment exempted from the provisions of Section 8.36.070 serving or doing business with the public may, at their discretion, post “No Smoking” signs within various areas of their businesses and utilize the full right of the provision of this chapter. No public place other than those enumerated in Section

8.36.070 shall be designated as a smoking area in its entirety. § 8.36.060 Posting of signs.

Signs which designate smoking or no smoking areas established by this chapter shall be clearly, sufficiently, and conspicuously posted in every room, building or other place so covered by this chapter. “No Smoking” signs shall be specifically placed in retail food productions and marketing establishments, including grocery stores and supermarkets open to the public, so they are clearly visible to persons upon entering the store, clearly visible to persons in checkout lines and clearly visible to persons at meat and produce counters. The manner of such posting, including the wording, size, color, design and place of posting, whether on the walls, doors, tables, counters, stands or elsewhere, shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place, so long as clarity, sufficiency and conspicuousness are apparent in communicating the intent of this chapter. § 8.36.070 Exceptions.

Exceptions to the smoking prohibitions of this chapter are as follows:

A. Private offices, including those in the work place, designated areas of hotels and motels, areas and rooms while in use for private social functions, private hospital rooms, psychiatric facilities, jails, and stores that deal exclusively in tobacco products and accessories, provided such stores comply with all state and local laws, including California Labor Code Section 6404.5 and California Health and Safety Code Section 104559.5. No pharmacy shall be considered a store that deals exclusively in tobacco products and accessories.

B. Fairways or putting greens of golf courses within private country clubs, provided smoking complies with all applicable state and local laws. Notwithstanding the foregoing, nothing in this chapter shall require a person or entity that owns or controls a private country club to permit smoking and such a person or entity may prohibit smoking throughout the property he, she or it owns or controls.

C. Areas measured within a twenty-foot zone outside of a building’s primary entrance, as long as the smoker is actively passing through on the way to another destination and so long as the smoke does not enter any indoor area in which smoking is prohibited.

D. Any owners or other person having control of a business or other establishment subject to this chapter may apply to the city for an exemption or 252
modification of the provisions of this chapter due to unique or unusual circumstances or conditions.

E. Up to twenty-five percent of the contiguous deck area around swimming pools in multifamily residential properties owned by the City. Such designated smoking areas must be clearly signed.
§ 8.36.080 Nonretaliation.

No person or employer shall discharge, refuse to hire or in any manner retaliate against an employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter.
§ 8.36.090 Enforcement.

A. The owner, operator or manager of any facility, business or agency within the purview of this chapter shall comply herewith. Such owner, operator or manager shall post, or cause to be posted, all “No Smoking” signs required by this chapter. Such owner, operator or manager shall not allow service to any person who violates this chapter by smoking in a posted “No Smoking” area.

B. It shall be the responsibility of employers to disseminate information concerning the provisions of this chapter to employees.

C. The city’s code enforcement officers, police, and fire personnel are authorized to issue citations for violation of the provisions of this chapter. Any peace officer may enforce the provisions of this Chapter. The City’s code compliance department may designate additional persons to monitor and facilitate compliance with this Chapter.

D. The City’s code compliance department shall coordinate with the California Department of Public Health and the California Department of Tax and Fee Administration to ensure compliance with state laws regarding smoking and tobacco use, including California Labor Code Section 6404.5. The department may use audio or video recording equipment when conducting inspections to record and document illegal smoking activities.
§ 8.36.100 Violation—Penalty.

A. Any person who violates any provision of this chapter by: (1) smoking in a posted “No Smoking” area; (2) failing to post or cause to be posted a “No Smoking” sign required by this chapter; (3) owning, managing or operating a business or building in which the prohibitions of this chapter are violated; or (4) violating any other provision of this chapter, is deemed guilty of an infraction in accordance with Chapter 1.12 of this code. Violations of this chapter may be criminally prosecuted as infractions or misdemeanors at the discretion of the prosecuting attorney as the interests of justice require.
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B. Any violation of this chapter is hereby declared to be a nuisance, subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures contained in this Municipal Code and state law, including, but not limited to, an action for abatement or injunctive relief.

C. Each incident of smoking in violation of this chapter is an infraction subject to:
1) a fine in an amount not to exceed fifty dollars ($50) for a first conviction of an offense;
(2) a fine in an amount not to exceed one hundred dollars ($100) for a second conviction of the same offense within a twelve-month period of the date of the first offense; and
(3) a fine in an amount not to exceed two hundred and fifty dollars ($250) for the third conviction of the same offense within a twelve-month period of the date of the first offense.
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1 2 Chapter 8.36 Regulation and Prohibition of Smoking
3 § 8.36.010 Purpose of chapter.
4 Smoking of tobacco, or any other weed or plant, is a positive danger to health 5 and a cause of material annoyance, inconvenience, discomfort and health hazard to 6 those who are present in confined places. In addition, the California Air Resources 7 Board has placed secondhand smoke in the same category as the most toxic 8 automotive and industrial air pollutants by categorizing it as a toxic air contaminant for 9 which there is no safe level of exposure. Therefore, it is the city’s intent to provide for 10 the public health, safety and welfare, by prohibiting the smoking of tobacco, or any other 11 weed or plant, in public places and places of employment, except in designated 12 smoking areas as set forth herein. The smoking of tobacco, or any other weed, plant, or 13 substance, including through electronic smoking devices, is a danger to public health 14 and a cause of material annoyance, inconvenience, discomfort, and health hazard to 15 those who are present in confined places. The California Air Resources Board has 16 categorized secondhand smoke as a toxic air contaminant with no safe level of 17 exposure, placing it in the same category as the most toxic automotive and industrial air 18 pollutants. Therefore, it is the City’s intent to provide for the public health, safety, and 19 welfare by prohibiting the smoking of tobacco, or any other weed, plant, or substance, in 20 public places and places of employment, except in designated smoking areas as set 21 forth herein.
22 § 8.36.020 Definitions.
23 The following words and phrases, whenever used in this chapter shall have the 24 meanings defined in this section unless the context clearly requires otherwise:
25 “Business” means any sole proprietorship, partnership, joint venture, corporation 26 association, or other entity formed for profit-making purposes. 27 “City” means the City of Palm Desert and its related entities, including the Palm 28 Desert Redevelopment Agency and the Palm Desert Housing Authority. 29 “Common area” means every unenclosed area of a multiunit residence that 30 residents of more than one (1) unit of that multiunit residence are entitled to enter or 31 use, including, for example, paths, courtyards, playgrounds, swimming pools, parking 32 lots, and picnic areas.
33 “Dining area” means any area, including streets and sidewalks, which is available 34 to or customarily used by the general public or an employee, and which is designed, 35 established, or regularly used for consuming food or drink. 36 “Electronic smoking device” means any device that may be used to deliver any 37 aerosolized or vaporized substance to the person inhaling from the device, including, 38 but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic 255
1 smoking device includes any component, part, or accessory of the device, and also 2 includes any substance that may be aerosolized or vaporized by such device, whether 3 or not the substance contains nicotine, and whether natural or synthetic. Electronic 4 smoking device does not include any product that has been approved by the United 5 States Food and Drug Administration for sale as a tobacco cessation product or for 6 other therapeutic purposes where such product is marketed and sold solely for such an 7 approved purpose.
8 “Employee” means any person who is employed or retained as an independent 9 contractor by any employer or nonprofit entity in consideration for direct or indirect 10 monetary wages or profit, or any person who volunteers his or her services for an 11 employer or nonprofit entity.
12 “Employer” means any person, business, entity or nonprofit entity that retains the 13 service of one (1) or more employees.
14 “Enclosed area” means an area in which outside air cannot circulate freely to all 15 parts of the area, and includes an area that has:
16 1. Any type of overhead cover whether or not that cover includes 17 vents or other openings and at least three (3) walls or other vertical boundaries of any 18 height whether or not those boundaries include vents or other openings; or 19 2. Four walls or other vertical boundaries that exceed six (6) feet in 20 height whether or not those boundaries include vents or other openings. 21 “Multiunit residence” means a residential property containing two (2) or more 22 units.
23 “Nonprofit entity” means any entity that meets the requirements of California 24 Corporations Code Section 5003 as well as any corporation, unincorporated association 25 or other entity created for charitable, religious, philanthropic, education, political, social 26 or similar purposes, the net proceeds of which are committed to the promotion of the 27 objectives or purposes of the entity and not to private gain. A government agency is a 28 nonprofit entity within the meaning of this chapter. 29 “Person” means any natural person, business, cooperative association, nonprofit 30 entity, personal representative, receiver, trustee, assignee, or any other legal entity 31 including government agencies.
32 "Place of employment" means any enclosed areas under the control of a public or 33 private employer which employees normally frequent during the course of employment, 34 including, but not limited to, work areas, employee lounges, conference rooms and 35 employee cafeterias. A private residence is not a place of employment, except for child 36 care facilities in private homes.
37 256
1 “Pharmacy” means any retail establishment in which the profession of pharmacy 2 is practiced by a pharmacist licensed by the State of California in accordance with the 3 Business and Professions Code and where prescription pharmaceuticals are offered for 4 sale, regardless of whether the retail establishment sells other retail goods in addition to 5 prescription pharmaceuticals.
6 7 “Primary entrance” means the entrance to a building or business through which 8 the majority of patrons enter. A building or business has only one primary entrance. 9 Where the door into the establishment is at the end of a corridor formed by two or more 10 vertical walls or barriers, with or without overhead cover, the primary entrance shall be 11 deemed to be at the end of the corridor open to the exterior. 12 “Public place” means:
13 1. Any area to which the public is invited or in which the public is 14 permitted, including, but not limited to, shopping malls, retail stores, retail service 15 establishments, retail food production and marketing establishments, restaurants, 16 theaters, waiting rooms, reception areas, educational facilities, health facilities, and 17 public transportation facilities and their associated parking areas. A private residence or 18 the fairway or putting green of a golf course within a private country club is not a public 19 place;
20 2. Areas measured a distance of forty (40) feet from the entrances 21 and exits to City-owned public places;
22 3. Areas measured a distance of twenty (20) feet from the primary 23 entrances to publicly or privately-owned commercial, industrial, institutional, or office 24 professional buildings;
25 4. Unenclosed areas owned by the City including, but not limited to, 26 City-owned property, parks, playgrounds, restrooms, baseball and soccer fields, except 27 the golf course area of Desert Willow or where specific signs are posted permitting such 28 smoking;
29 5. Unenclosed public events including, but not limited to, sports 30 events, entertainment, speaking performances, ceremonies and fairs; 31 6. Hotels, except in designated areas.
32 “Reasonable distance” means a distance of twenty (20) feet or, with respect to a 33 designated smoking area or such larger area as the city manager reasonably 34 determines in writing to be necessary in a given circumstance to ensure that occupants 35 of an area in which smoking is prohibited are not exposed to secondhand smoke 36 created by smokers outside the area.
257
1 “Secondary entrance” means any entrance to a building or business that is not 2 the primary entrance. One building or business may have multiple secondary entrances. 3 “Secondhand smoke” means smoke from tobacco or any other weed, plant, or 4 substance created by burning or carrying any lighted pipe, hookah, cigar, cigarette, or 5 electronic smoking device of any kind, and the smoke exhaled by an individual who 6 engages in smoking.
7 “Shopping mall” means any parcel of land zoned and used for retail sales by 8 more than one retailer that is jointly operated or which includes shared parking facilities. 9 “Smoke,” or “smoking” means and includes any of the following: (1) the direct 10 burning or indirect heating of any cigar, cigarette, pipe, electronic smoking device, or 11 any similar kind of smoking equipment or article, using any form of tobacco, plant 12 product, or other combustible substance in any form, or (2) the holding or carrying of a 13 lighted or operated cigar, cigarette, pipe, electronic smoking device, or any other lighted 14 smoking equipment or device, or (3) emitting or exhaling the smoke directly from a 15 cigar, cigarette, pipe, electronic smoking device, or any other lighted smoking 16 equipment or device. Smoke also means the gaseous or vaporous products or particles 17 created by the use of a lighted or operated pipe, cigar, cigarette, electronic smoking 18 device, or other kind of smoking equipment or article. 19 “Tobacco product” means any substance containing tobacco leaf, including, but 20 not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, 21 bidis, or any other preparation of tobacco product as defined in California Health and 22 Safety Code Section 104559.5(a)(17), including, but not limited to, any product 23 containing, made, or derived from tobacco or nicotine intended for human consumption, 24 electronic devices that deliver nicotine or other vaporized liquids, and any component, 25 part, or accessory of a tobacco product. Tobacco product does not include any product 26 that has been approved by the United States Food and Drug Administration for sale as 27 a tobacco cessation product or for other therapeutic purposes where such product is 28 marketed and sold solely for such an approved purpose. 29 “Unenclosed area” means any area that is not an enclosed area. 30 § 8.36.030 Prohibition of smoking in unenclosed areas. 31 A. Smoking is prohibited in the unenclosed areas of the following places 32 within the City, except places where smoking is already prohibited by state or federal 33 law, in which case, those laws apply:
34 1. Public places;
35 2. Places of employment;
36 3. Businesses, including, but not limited to, restaurants and bars, and 37 other public accommodations. In addition, smoking is prohibited within a reasonable 38 distance of the primary entrance to a dining area. Where a business has more than one 39 entrance, an outdoor smoking area may be designated within a reasonable distance of 258
1 one of the secondary entrances. In such case, smoking is prohibited within a 2 reasonable distance of the primary entrance and any other secondary entrances. 3 4. Common areas of multifamily residential properties owned by the 4 City, except where permitted under Section 8.36.070.
5 B. No person shall dispose of smoking waste or place or maintain a 6 receptacle for smoking waste in an area in which smoking is prohibited by this chapter 7 or other law, including within any reasonable distance required by this chapter. 8 § 8.36.040 Designation of smoking areas.
9 A. Places Where Smoking Permitted. Notwithstanding Section 8.36.030 of 10 this chapter, smoking is permitted in the following locations within the City, unless 11 otherwise provided by state or federal law:
12 1. Private residential property, other than: (a) those private residential 13 properties used as a child-care or health-care facility subject to licensing requirements 14 when employees, children or patients are present; or (b) home based business where 15 members of the public are invited. Nothing in this chapter shall require a person or entity 16 who or which owns or controls a private residential property, including, but not limited to, 17 a condominium association or an apartment owner, to permit smoking and such a 18 person may prohibit smoking throughout the property he, she or it owns or controls. 19 2. Designated areas in shopping mall unenclosed areas, provided 20 that: (a) there is not more than one (1) square foot of area designated for smoking for 21 every twenty thousand (20,000) square feet of rentable space of the shopping mall 22 (provided that each shopping mall may have at least one designated smoking area of 23 forty (40) or fewer square feet in area); (b) the area is prominently marked with signs; 24 (c) it is located the greatest distance practicable, and at least a reasonable distance, 25 from any doorway or opening into an area or any accessway from parking facilities to 26 the retail areas of the shopping mall; (d) smoke is not permitted to enter adjacent areas 27 in which smoking is prohibited by this chapter, other law or by the owner, lessee or 28 licensee of the adjacent property; and (e) the location(s) of the designated smoking 29 area(s) is or are approved in writing by the city manager of the City or designee based 30 on the standards of this subsection and the goals of this chapter. 31 3. Any unenclosed area in which no nonsmoker is present and, due to 32 the time of day or other factors, it is not reasonable to expect another person to arrive. 33 B. Where smoking areas are designated, existing physical barriers and 34 ventilation systems shall be used to eliminate the toxic effect of smoke in adjacent 35 nonsmoking areas, but employers are not required to incur any expense to make 36 structural or physical modifications in providing these areas. There shall be no 37 designated smoking areas in areas that have a common or shared air space with other 38 areas in which smoking is prohibited such as, without limitation, air conditioning 39 systems, heating systems, ventilation systems, entries, doorways, hallways, and 40 stairways or within a reasonable distance of commercial building entries. In all disputes 259
1 in the work place, the rights of the nonsmoker shall be given priority over the rights of 2 the smoker.
3 C. No person shall smoke in an area in which smoking is otherwise permitted 4 by this chapter or other law within a reasonable distance from any primary entrance, 5 opening, crack, or vent into an area in which smoking is prohibited by this chapter, other 6 law or by the owner, lessee or licensee of that area. 7 § 8.36.050 Optional prohibition.
8 All managers and owners of any establishment exempted from the provisions of 9 Section 8.36.070 serving or doing business with the public may, at their discretion, post 10 “No Smoking” signs within various areas of their businesses and utilize the full right of 11 the provision of this chapter. No public place other than those enumerated in Section 12 8.36.070 shall be designated as a smoking area in its entirety. 13 § 8.36.060 Posting of signs.
14 Signs which designate smoking or no smoking areas established by this chapter 15 shall be clearly, sufficiently, and conspicuously posted in every room, building or other 16 place so covered by this chapter. “No Smoking” signs shall be specifically placed in 17 retail food productions and marketing establishments, including grocery stores and 18 supermarkets open to the public, so they are clearly visible to persons upon entering the 19 store, clearly visible to persons in checkout lines and clearly visible to persons at meat 20 and produce counters. The manner of such posting, including the wording, size, color, 21 design and place of posting, whether on the walls, doors, tables, counters, stands or 22 elsewhere, shall be at the discretion of the owner, operator, manager or other person 23 having control of such room, building or other place, so long as clarity, sufficiency and 24 conspicuousness are apparent in communicating the intent of this chapter. 25 § 8.36.070 Exceptions.
26 Exceptions to the smoking prohibitions of this chapter are as follows:
27 A. Private offices, including those in the work place, designated areas of 28 hotels and motels, areas and rooms while in use for private social functions, private 29 hospital rooms, psychiatric facilities, jails, and stores that deal exclusively in tobacco 30 products and accessories, provided such stores comply with all state and local laws, 31 including California Labor Code Section 6404.5 and California Health and Safety Code 32 Section 104559.5. No pharmacy shall be considered a store that deals exclusively in 33 tobacco products and accessories.
34 B. Fairways or putting greens of golf courses within private country clubs, 35 provided smoking complies with all applicable state and local laws. Notwithstanding the 36 foregoing, nothing in this chapter shall require a person or entity that owns or controls a 37 private country club to permit smoking and such a person or entity may prohibit smoking 38 throughout the property he, she or it owns or controls. 260
1 C. Areas measured within a twenty-foot zone outside of a building’s primary 2 entrance, as long as the smoker is actively passing through on the way to another 3 destination and so long as the smoke does not enter any indoor area in which smoking 4 is prohibited.
5 D. Any owners or other person having control of a business or other 6 establishment subject to this chapter may apply to the city for an exemption or 7 modification of the provisions of this chapter due to unique or unusual circumstances or 8 conditions.
9 E. Up to twenty-five percent of the contiguous deck area around swimming 10 pools in multifamily residential properties owned by the City. Such designated smoking 11 areas must be clearly signed.
12 § 8.36.080 Nonretaliation.
13 No person or employer shall discharge, refuse to hire or in any manner retaliate 14 against an employee or applicant for employment because such employee or applicant 15 exercises any rights afforded by this chapter.
16 § 8.36.090 Enforcement.
17 A. The owner, operator or manager of any facility, business or agency within 18 the purview of this chapter shall comply herewith. Such owner, operator or manager 19 shall post, or cause to be posted, all “No Smoking” signs required by this chapter. Such 20 owner, operator or manager shall not allow service to any person who violates this 21 chapter by smoking in a posted “No Smoking” area.
22 B. It shall be the responsibility of employers to disseminate information 23 concerning the provisions of this chapter to employees. 24 C. The City’s code enforcement officers, police and fire personnel are 25 authorized to issue citations for violation of the provisions of this chapter. Any peace 26 officer may enforce the provisions of this Chapter. The City’s code compliance 27 department may designate additional persons to monitor and facilitate compliance with 28 this Chapter.
29 D. The City’s code compliance department shall coordinate with the 30 California Department of Public Health and the California Department of Tax and Fee 31 Administration to ensure compliance with state laws regarding smoking and tobacco 32 use, including California Labor Code Section 6404.5. The department may use audio or 33 video recording equipment when conducting inspections to record and document illegal 34 smoking activities.
35 § 8.36.100 Violation—Penalty.
36 A. Any person who violates any provision of this chapter by: (1) smoking in a 37 posted “No Smoking” area; (2) failing to post or cause to be posted a “No Smoking” sign 261
1 required by this chapter; (3) owning, managing or operating a business or building in 2 which the prohibitions of this chapter are violated; or (4) violating any other provision of 3 this chapter, is deemed guilty of an infraction in accordance with Chapter 1.12 of this 4 code. Violations of this chapter may be criminally prosecuted as infractions or 5 misdemeanors at the discretion of the prosecuting attorney as the interests of justice 6 require.
7 B. Any violation of this chapter is hereby declared to be a nuisance, subject 8 to all applicable civil, administrative, and criminal remedies and penalties according to 9 the provisions and procedures contained in this Municipal Code and state law, 10 including, but not limited to, an action for abatement or injunctive relief. 11 C. Each incident of smoking in violation of this chapter is an infraction subject 12 to: a fifty-dollar ($50) fine.
13 1) a fine in an amount not to exceed fifty dollars ($50) for a first conviction of an 14 offense;
15 (2) a fine in an amount not to exceed one hundred dollars ($100) for a second 16 conviction of the same offense within a twelve-month period of the date of the 17 first offense; and
18 (3) a fine in an amount not to exceed two hundred and fifty dollars ($250) for the 19 third conviction of the same offense within a twelve-month period of the date of 20 the first offense.
21 22
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ORDINANCE NO. 2025-

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

PALM DESERT, CALIFORNIA AMENDING CHAPTERS

8.34 AND 8.36 OF THE PALM DESERT MUNICIPAL CODE

RELATING TO TOBACCO RETAILER LICENSING AND

SMOKING REGULATIONS TO COMPLY WITH

CALIFORNIA FLAVORED TOBACCO LAWS, REGULATE

KRATOM SALES AND POSSESSION, AND ENHANCE

PUBLIC HEALTH PROTECTIONS AND MAKING A
FINDING OF EXEMPTION UNDER CEQA.

City Attorney’s Summary
The purpose of this ordinance is to amend Palm Desert Municipal Code Chapters 8.34 and 8.36 to align with state flavored tobacco laws, enhance tobacco retailer licensing requirements, regulate the sale, distribution, and possession of kratom products by prohibiting synthetic kratom products, restricting sales of natural kratom leaf products to persons 21 and older, and prohibiting possession by persons under 21 and strengthen smoking regulations to adopt best practices to protect public health and reduce youth access to tobacco and kratom products.

WHEREAS, the City of Palm Desert is committed to protecting the public health, safety, and welfare of its residents by regulating the sale and use of tobacco and kratom products and reducing exposure to secondhand smoke; and WHEREAS, the California Legislature has enacted several laws, including Senate Bill No. 793 (2020), Assembly Bill No. 935 (2023), Senate Bill No. 1230 (2024), and Assembly Bill No. 3218 (2024), collectively strengthening restrictions on the sale of flavored tobacco products and enhancing enforcement mechanisms to prevent youth access and protect public health; and
WHEREAS, Senate Bill No. 793, effective December 21, 2022, following voter approval via Proposition 31, prohibits tobacco retailers from selling, offering for sale, or possessing with intent to sell most flavored tobacco products and tobacco product flavor enhancers, with exceptions for flavored shisha tobacco sold by licensed hookah retailers, premium cigars sold in cigar lounges, and looseleaf tobacco, as codified in California Health and Safety Code Section 104559.5; and WHEREAS, Assembly Bill No. 935 enhances enforcement of the flavored tobacco ban by aligning penalties with the Stop Tobacco Access to Kids Enforcement (STAKE) Act, allowing civil penalties ranging from $1,000 to $20,000 or more for violations and mandating license suspension or revocation for repeated violations; and WHEREAS, Senate Bill No. 1230, known as the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act, effective January 1, 2025, authorizes the California Department of Tax and Fee Administration (CDTFA) to seize 263
flavored tobacco products and imposes a $50 per package penalty, with license suspension for a second seizure and revocation for a third, and increases STAKE Act penalties for sales to minors; and
WHEREAS, Assembly Bill No. 3218, effective January 1, 2025, requires the California Attorney General to establish an Unflavored Tobacco List (UTL) by December 31, 2025, deeming any tobacco product not on the UTL as flavored and prohibited for sale, expands the definition of tobacco products to include synthetic nicotine and nicotine analogs, and prohibits distributors, wholesalers, and delivery sellers from selling non-UTL products or flavor enhancers; and
WHEREAS, these state laws collectively aim to reduce youth tobacco use, protect marginalized communities disproportionately targeted by flavored tobacco marketing, and address the public health risks associated with nicotine addiction and secondhand smoke exposure; and
WHEREAS, the California Air Resources Board has classified secondhand smoke as a toxic air contaminant with no safe level of exposure, necessitating robust local regulations to limit smoking in public places and places of employment; and WHEREAS, kratom (Mitragyna speciosa) is a tropical tree native to Southeast Asia, and its leaves are often consumed in powdered or extract form for their stimulant and sedative effects, with active compounds including mitragynine and 7- hydroxymitragynine (7-OH), the latter being more potent and largely responsible for stronger pain-relieving, sedative, and euphoric effects; and WHEREAS, research has shown that 7-OH has euphoric and mood-enhancing effects, particularly at higher doses, increasing its appeal for recreational use, and binds to opioid receptors in the brain with greater affinity than morphine, raising significant concerns about its safety profile, including the potential for addiction, overdose, and adverse physical and psychological effects such as nausea, vomiting, and potential psychosis, with risks compounded when products contain higher concentrations of 7- OH; and
WHEREAS, health advisories, including those from the United States Food and Drug Administration (FDA), have raised concerns over the safety of kratom products, particularly those with higher concentrations of 7-OH, which may increase the potential for abuse and harm to public health, culminating in the FDA’s formal request to the U.S.

Drug Enforcement Administration (DEA) on July 29, 2025, to place 7-OH products on the controlled substance list; and
WHEREAS, kratom is not approved for any medical use by the FDA, is designated as a “Drug of Concern” by the DEA, and while legal in California with restrictions on packaging and sales to minors under 21 years old pursuant to Assembly Bill No. 1088 (effective 2025), several states and local jurisdictions, including cities in California such as San Diego and Oceanside, have banned or regulated kratom to protect public safety, especially vulnerable populations; and 264
WHEREAS, local law enforcement, including the Riverside County Sheriff’s Office and District Attorney’s Office, has reported a significant increase in DUI arrests involving kratom as the primary active drug, with documented arrests and deaths associated with its use, underscoring its impairment risks and lack of proven medical benefits; and
WHEREAS, the City Council finds that prohibiting synthetic kratom products, restricting sales of natural kratom leaf products to persons 21 and older, and prohibiting possession by persons under 21 will protect public health, particularly youth ,given the unproven benefits, documented risks, and alignment with the City’s tobacco control goals sales and distribution will protect public health, given the unproven benefits, documented risks, and alignment with the City’s tobacco control goals; and WHEREAS, Chapters 8.34 and 8.36 of the Palm Desert Municipal Code regulate tobacco retailer licensing and smoking, respectively, but require updates to align with state flavored tobacco laws, incorporate electronic smoking devices, regulate kratom sales, distribution, and possession, and enhance enforcement coordination; and WHEREAS, the proposed amendments to Chapter 8.34 update definitions to include electronic devices and nicotine analogs, explicitly prohibit the sale of flavored tobacco products and synthetic kratom products, permit limited sales of natural kratom leaf products to persons 21 and older with age verification and other safeguards, adopt proximity restrictions, enhance inspection requirements, strengthen enforcement mechanisms, and require coordination with state agencies for enforcement, ensuring compliance with Health and Safety Code Section 104559.5 and related provisions while implementing targeted kratom regulations; and
WHEREAS, the proposed amendments to Chapter 8.36, building on prior revisions, clarify the regulation of electronic smoking devices, align definitions with state law, and add enforcement coordination to address flavored tobacco and kratom-related use, while maintaining exceptions consistent with state law; and WHEREAS, these amendments are necessary to protect public health, prevent youth access to addictive tobacco and kratom products, reduce exposure to secondhand smoke, and ensure that Palm Desert’s regulations are consistent with state law; and
WHEREAS, the City Council finds that these changes are in the public interest and will promote the health, safety, and welfare of the community.

THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Amendment to Chapter 8.34. Chapter 8.34 Tobacco Retailer License of the Palm Desert Municipal Code is hereby amended in its entirety to read as set forth in Attachment A, incorporated herein by reference. 265
SECTION 2. Amendment of Chapter 8.36. Chapter 8.36 Regulation and Prohibition of Smoking of the Palm Desert Municipal Code is hereby amended in its entirety to read as set forth in Attachment B, incorporated herein by reference.

SECTION 3. CEQA Exemption. The City Council finds that the adoption of this ordinance is exempt from review under the California Environmental Quality Act (CEQA) (Public Resources Code § 21000 et seq.) and the CEQA Guidelines (14 Cal. Code Regs. § 15000 et seq.). This ordinance is not a “project” under CEQA Guidelines Section 15378(b)(5), as it is an organizational or administrative activity of government that will not result in direct or indirect physical changes in the environment. The amendments to Chapters 8.34 and 8.36 update tobacco retailer licensing (including kratom regulations) and smoking regulations, including definitions, enforcement, proximity restrictions, and fines, which are administrative actions with no physical environmental impact. Even if considered a project, the ordinance is exempt under CEQA Guidelines Section 15061(b)(3), the “common sense” exemption, because there is no possibility of a significant environmental effect. The ordinance regulates tobacco and kratom sales and public smoking to protect health, with measures like pharmacy sales bans and smoking prohibitions, none of which involve construction, land use changes, or activities affecting air, water, or habitat.

SECTION 4. Severability. If any section, subsection, 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, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid.

SECTION 5. Posting and Publication. The City Clerk of the City of Palm Desert, California, is hereby directed to publish a summary of this Ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption.

ADOPTED ON___________________, 2026.

EVAN TRUBEE
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK
266
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, do hereby certify that Ordinance No. ____ is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Desert City Council on ________ , 2026, and adopted at a regular meeting of the City Council held on __________, 2026, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on __________________ .

ANTHONY J. MEJIA

CITY CLERK
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