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ORDINANCE NO. ________________
AN URGENCY ORDINANCE AMENDING TI TLE 5, CHAPTER 5.104 OF THE
STOCKTON MUNICIPAL CODE UPDA TING TOBACCO RETAIL LICENSE REQUIREMENTS AND REGULATIONS.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF STOCKTON, AS FOLLOWS:
SECTION I. FINDINGS AND INTENT.
The failure of tobacco retailers to comply with all tobacco control laws, particularly the sale of tobacco products to minors, presents a threat to the public health, safety, and welfare. A local licensing program for tobacco retailers is intended to ensure that tobacco retailers comply with tobacco control laws and business standards of the City of Stockton and to protect the health, safety, and welfare of those persons who reside in, work in, and visit the City of Stockton.
State law explicitly authorizes cities to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a local license for a violation of any state tobacco control law. A requirement for a tobacco retail license will not unduly burden legitimate business activities of retailers who sell or distribute tobacco products to adults but will allow the City of Stockton to regulate the operations of lawful businesses to discourage violations of Federal, State, and local tobacco-related laws. The City of Stockton has a substantial interest in promoting compliance with Federal, State, and local laws intended to regulate tobacco sales and use; discouraging the illegal purchase of tobacco products by minors; promoting compliance with laws prohibiting sales of tobacco products to minors; and protecting children from being lured into illegal activity through the misconduct of adults.
On June 20, 2023, this Chapter was adopted by the City of Stockton, creating a tobacco retail license requirement and regulations. On March 4, 2025, the City of Stockton adopted a 45-day moratorium on the issuance of new tobacco retail licenses pursuant to this Chapter and on April 15, 2025, that moratorium was extended for an additional 10 months and 15 days. The moratorium was based on express findings by the City of Stockton that the recent proliferation of tobacco retailer businesses, specifically smoke shops, and the harmful effects of tobacco and other products sold at these establishments were negatively impacting the health, safety, and welfare of City residents, especially youth. Further, tobacco retailer businesses have also been a source of unlawful activities in the City, targets for theft and vandalism, and affiliated with the sale of illegal cannabis products and drug
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paraphernalia that encourage illegal activity. Since the adoption of the moratorium, City staff have continued to study the issue and proposed revisions to the existing Tobacco Retailer Ordinance to address the public health and safety threats created by smoke shops under the existing ordinance.
This Chapter is hereby amended to specifically address those findings and to continue to encourage responsible tobacco retailing and to discourage violation of tobacco- related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minors or that prohibit the sale of flavored tobacco products, industrial hemp products containing intoxicating cannabinoids, and illegal cannabis. This Chapter does not expand or reduce the degree to which the acts regulated by Federal or State law are criminally proscribed or alter the penalties provided by such laws.
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.
The City Council further finds that the immediate adoption of this ordinance pursuant to California Government Code sections 36934 and 36937 is necessary for the immediate preservation of the public health, safety, and welfare based on the City’s determination that the following facts and conditions still exist and constitute a current and immediate threat to the public health, safety, or welfare:
The City has seen a proliferation of tobacco retailer businesses, also known as smoke shops, within the City; and
There are currently 156 approved tobacco retailer businesses, and 19 license applications pending Police Department approval. Staff and the Stockton Police Department do not currently know the number of additional establishments operating without a business license in the City; and
The City is concerned about this recent proliferation of tobacco retailer businesses, locations of tobacco retailer businesses, the harmful effects of tobacco and other products sold at these establishments containing industrial hemp on the health, safety, and welfare of City residents and especially youth; and
Tobacco retailer businesses have also been a source of unlawful activities in the City, which, if not curtailed present an immediate threat to the public health, safety, and welfare; and
Tobacco retailer businesses can be a target for theft and vandalism, as well as may be affiliated with the sale of illegal cannabis products and drug paraphernalia that encourage illegal activity; and
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Within the last year, the Stockton Police Department conducted inspection at various tobacco retailers throughout the City and found evidence of and confiscated illegal tobacco products including flavored tobacco, found evidence of cannabis-infused items, and illegal gambling. During enforcement of the current ordinance, 4 Tobacco Retail Licenses were successfully revoked, 10 Tobacco Retail Licenses were denied and upheld on appeal, and 6 more denials are currently pending appeal. Additionally, the Stockton Police Department has conducted more than 400 inspections of tobacco retailers and issued over 60 citations; and
On November 8, 2022, California voters upheld the state law (“SB 793”) prohibiting a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or processing with the intent to sell or offer for sale, most flavored tobacco products including flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers in retail locations; and
On October 7, 2023, Governor Gavin Newsome signed into law AB 935, strengthening the enforcement of the flavored tobacco retail law and broadening the definition of retail locations; and
Cities still retain the authority to draft and enforce local flavored tobacco bans for products; and
On September 23, 2024, the California Department of Public Health (“CDPH”) promulgated emergency regulations related to industrial hemp and the threat to public health, safety, and welfare, particularly to minors; and The CDPH regulations come after California Governor Gavin Newsome directed the CDPH to draft emergency regulations, citing the increasing amounts of safety concerns from the adverse health effects of intoxicating hemp food and beverage products; and
The emergency regulations aim to combat hemp products containing tetrahydrocannabinol (“THC”) that skirt the age and sale restrictions that have been placed on recreational marijuana sold through licensed and regulated dispensaries; and
Hemp products have been found to be sold in tobacco retailer businesses, or smoke shops, with marketing aimed toward children featuring colorful packaging designs and sweet candy flavors; and
As currently defined under state law, “industrial hemp” is permitted to contain a delta-9 THC concentration of no more than 0.3 percent on a dry weight basis;
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however, the emergency regulations prohibit industrial hemp final form food and beverage products, specifically, from containing any detectible level of THC; and The emergency regulations expand on the number of psychoactive cannabinoids that will need to be undetectable in industrial hemp final form products, including edibles such as gummies, other candies and drinks as well as restricting serving sizes such products contain to five servings or fewer and limiting sales of the products to consumers who are at least 21 years of age; and Aside from new regulations related to hemp, many state laws have been adopted, which acknowledge the public health impacts of tobacco, especially flavored tobacco products, and specifically its effect on minors. For example, state law prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees. State law also prohibits smoking in playgrounds. State law also prohibits smoking within twenty (20) feet of the main entrances and exits of public buildings; and Efforts by other jurisdictions to crack down on these businesses with increased enforcement and tough regulations, are indicative of both the need for more stringent regulations and the type of violations and activities the Stockton Police Department is likely to encounter as it increases its own efforts; and On March 4, 2025, the City Council adopted the Urgency Ordinance no. 2025-03- 04- 1504, creating a moratorium on the establishment of new, and relocation or physical expansion of existing, tobacco retail businesses in the City. That Ordinance was set to expire on April 18, 2025, 45 days after adoption; and
On April 15, 2025, the City Council adopted Ordinance no. 2025-04-15-1601, which extended Urgency Ordinance no. 2025-03-04-1504 for 10 months and 15 days so that the Ordinance is now set to expire on March 2, 2026; and The City Council finds and declares that the adoption and implementation of this ordinance is necessary to address the danger to public health, safety, and general welfare as articulated above, and to prevent a lapse between the expiration of the current moratorium on the establishment of new, and relocation or physical expansion of existing, tobacco retail businesses and the adoption of this ordinance addressing the issues which precipitated said moratorium.
SECTION II. AMENDMENT OF CODE.
Title 5, Chapter 5.104 of the Stockton Municipal Code is hereby amended and shall read as follows:
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5.104.010. Purpose and application.
The purpose of this chapter is to enc ourage responsible tobacco retailing and to discourage violations of tobacco-related la ws, especially those that prohibit or discourage the sale or distributi on of tobacco products to minors or prohibit the sale of flavored tobacco products, industrial he mp products containing intoxicating cannabinoids, and illegal cannabis, but not to expand or reduce the degree to which the acts regulated by Federal and State law are cr iminally proscribed or to alter the penalties provided by such laws.
5.104.020. Definitions.
The following words and phrases, whenever us ed in this chapter, shall be construed as defined in this section:
“Alcoholic beverage sales es tablishment” has the same meaning as “Alcoholic Beverage Sales Establishment” in SMC Section 16.80.040, which states “An establishment where alcoholic beverage sales activity occurs, including but not limited to: liquor stores, beer and wine stores, convenience markets, neighborhood specialty food markets, retail sales establishments, wine shops, service stations, taverns, clubs, cocktail lounges, ballrooms, cabarets, dance bars, piano bars, billiard or game parlors, bowling alleys, nightclubs, dance halls, cafes, bars, restaurants with bars, full-service restaurants, and fast food establishments.”
"Applicant" means and includes any person or entity who submits an application for a tobacco retail license.
"Application" means the appl ication submitted under SMC Section 5.104.040 for a tobacco retail license allowin g the person or entity to engage in tobacco retailing at the designated premises.
"Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this chapter that occurred at the location, is presumed not to be an "arm's length transaction."
"Change of ownership" means a change of 50 percent or more of the ownership of the business within a 12-month period.
"Characterizing flavor" means a taste or ar oma, other than the taste or aroma of tobacco, imparted either prior to or dur ing consumption of a tobacco product or any byproduct produced by the tobacco produc t, including, but not limited to, tastes or aromas relating to menthol, mint, win tergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcohol beverage, herb, or spice. “Convenience store” has the same meaning as “convenience stores” in SMC Section
16.240.020, which states, “Easy access retail stores selling a combination of alcohol, gasoline, and a range of merchandise to prov ide a variety of item s primarily for the
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motoring public. Convenience stores shall comply with the standards for alcoholic beverage sales (off-sale) (Section 16.80. 040) and for problem uses (Section
16.80.270).”
"Flavored tobacco product" means any tobacco product that imparts a characterizing flavor or produces a cooling sensation.
“Hookah” means a single or multi-stemmed water pipe that is often shaped like a bottle or small tank that is used for heating or vaporizing and then smoking tobacco, with the smoke drawn through the water before inhalation. It is also known as a shisha. “Intoxicating Cannabinoid” means delta -8 tetrahydrocannabinol (THC), delta-9 tetrahydrocannabinol (THC), delta- 10 tetrahydrocannabinol (THC), tetrahydrocannabinolic acid (THCA), and the following THC or comparable cannabinoids, including but not limited to any metabolites, derivatives, salts, isomers, and any salt or acid of an isomer of:
(1) Delta-5 tetrahydrocannabinol (THC);
(2) Delta-6 tetrahydrocannabinol (THC);
(3) Delta-6a tetrahydrocannabinol (THC);
(4) Delta-7 tetrahydrocannabinol (THC);
(5) Delta-10a tetrahydrocannabinol (THC);
(6) Delta-11 tetrahydrocannabinol (THC);
(7) Delta-11-Hydroxy- tetrahydrocannabinol (THC);
(8) Exo-tetrahydrocannabinol;
(9) 1-pentyl-3-(1-naphthoyl)indole (JWH-018);
(10) 1-butyl-3-(1-naphthoyl)indole (JWH-073);
(11) 1-pentyl-3-(4-methoxynaphthoyl)indole (14-JWH-200); (12) 1-pentyl-3-(2-methoxynaphthoyl)indole (JWH-250);
(13) 1-pentyl-3-(4-chloronaphthoyl)indole (JWH-398);
(14) 5-(1,1-Dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497); (15) (6aR,10aR)-9-(hydroxymethyl)-6 ,6-dimethyl-3-(2-methyloctan-2- yl)6a,7,10,10a-tetrahydrobenzo[c] chromen-1-ol (HU-210); (16) (6a,10a)-9-(hydroxymethyl)-6,6 -dimethyl-3-(2-methyloctan-2-yl)- 6a,7,10,10atetrahydro-6H-benzo[c]chromen-1-ol (HU-211); (17) All tetrahydrocannabivarins (THCV), including but not limited to delta-8 tetrahydrocannabivarin and similar;
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(18) All metabolites of tetrahydrocannabinol (THC), including but not limited to 11hydroxy-THC, 3-hydroxy-THC, and 7- hydroxy-THC;
(19) Any combination of the com pounds, including but not limited to hexahydrocannabiphorol-O-ester and this list;
(20) All hydrogenated forms of tetrahydrocannabinol (THC), including but not limited to hexahydrocannabinol (HHC), hex ahydrocannabiphorol (HHCP), and hexahydrocannabihexol (HHCH);
(21) All hydrogenated forms of hexahydrocannabinol (HHC) including but not limited to 8-hydroxyhexahydrocannabinol, 10-hydroxyhexahydrocannabinol; (22) All ester forms of tetrahydrocannabinol (THC), including but not limited to delta8 THC-O-acetate, delta-9 THC-O-acetate, and hexahydrocannabinol-Oacetate; (23) Analogues of tetrahydroc annabinols with alkyl chain of four or more carbon atoms, including but not limited to tetrahydrocannabiphorols (THCP), tetrahydrocannabioctyls, te trahydrocannabihexols (THCH), tetrahydrocannabidiol (THC-JD), and tetrahydrocannabutols; (24) Tetrahydrocannabinol acetate (THC-O);
(25) N-(1-Amino-1-methyl -ethyl)-5-fluoropentyl-1-naphthalen-2-yl-1H-indole- 3carboxamide (XRL-11 &15);
(26) N-(1-Amino-1-methyl -ethyl)-5-fluoropentyl-1-naphthalen-2-yl-1H-indole- 3carboxamide (UR-144);
(27) N-(1-Amino-1-methyl -ethyl)-5-fluoropentyl-1-naphthalen-2-yl-1H-indole- 3carboxamide (FUB-144);
(28) N-(1-Amino-1-methyl -ethyl)-5-fluoropentyl-1-naphthalen-2-yl-1H-indole- 3carboxamide (AMB-FUBINACA);
(29) (3-[(1R,4R)-Isopropyl-2-methyl-1 ,3-benzodioxol-5-yl]-N-(2,4-dimethyl- 3methylbenzoyl)-N-methyl-1,2,3,4-tetrahydroisoquinolin-6-amine) (THJ-220); and
(30) (3-[(1R,4R)-Isopropyl-2-methyl-1 ,3-benzodioxol-5-yl]-N-(2,4-dimethyl- 3methylbenzoyl)-N-methyl-1,2,3,4-tetrahydroisoquinolin-6-amine) (RCS-4). "Licensee" means and includes the holder of a tobacco retail license and any person required to have a tobacco retail license under this chapter, whether or not such person is actually so licensed.
"Loitering" means the act of remaining upon posted property without the permission of the owner or person in lawful possession.
"Person" means and includes any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity.
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"Playground" means an active recreational ar ea with a variety of facilities, including equipment for younger children, as well as court and field games. Playground does not include play areas located on the site of residential homes or private facilities. "Premises" means any building or portion of any building where the licensed tobacco retailing occurs.
"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 10 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 has, or can have, sole or shared cont rol over the day-to-day operations of a business.
“Retail store” has the same meaning as “retail stores” in SMC Section 16.240.020, which states: “Stores and shops selling goods or merchandise, not specifically listed under another land use, to the general public for personal or household consumption and rendering services incidental to the sale of goods.” "School" means any public or private ac ademic school for students in kindergarten through 12th grade, nursery school, preschool, or daycare facility. “Smoke shop” means a tobacco retailer that utilizes 25% or more of its retail sales space for the sale, display, marketing, or exchange of tobacco, tobacco products, or tobacco paraphernalia or holds itself out to the public as a smoke shop, or as determined by the Chief of Police, or designee, based on a totality of the circumstances, including but not limited to the onsite inventory of the business. “Smoking lounge” means a tobacco retailer that is dedicated in whole or in part to the purchase and onsite consumptio n of tobacco products, including but not limited to establishments known variously as cigar lounges, hookah lounges, tobacco clubs, tobacco bars, etc.
"Tobacco product" means: (1) any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, aerosolized, vaporized, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, bidis, kreteks, snuff, e-liquids, or vape juice; (2) any device or component, part, or accessory that deliver s nicotine alone or combined with other substances to the person using the device, including, but not limited, to electronic cigarette (or "e-cigarette"), electronic cigar (or "e-cigar''), electronic pipe (or "e- pipe"), vape pen, electronic hookah (or "e-hookah"), ci gars, or pipes, whether or not the device or component is sold separately. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for use as a tobacco cessation product where such product is marketed and sold solely for such an approved purpose.
"Tobacco paraphernalia" means any item designed or marketed for the consumption, use, or preparation of a tobacco product.
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"Tobacco retailer" means any person who sells , offers for sale, e xchanges, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without r egard to the quantity sold, offered for sale, exchanged, or offered for exchange.
“Tobacco retailer- Ancillary” means a tobacco retailer that is a retail store as defined by SMC Title 16 that utilizes less than 250 sq. ft . of its total space, or where the total space is 250 sq. ft. or less that utilizes le ss than 5 sq. ft., for the sale, display, marketing, or exchange of tobacco, tobacco products, or tobacco paraphernalia. “Tobacco retailer- Exempt” means a tobacco retailer that is a retail store as defined in SMC Title 16 at a fixed premises that utilizes less than 5% of the retail sales space for tobacco retailing and utilizes 10 % or more of the retail sa les space for the sale and display of fresh food, including agricultur al products like fresh fruits and vegetables; nuts; minimally processed prepared foods; fresh meat, fish, or poultry; juice and dairy products; and fresh baked goods, breads, and cereals.
“Tobacco retailer- General” means a tobacco retailer that does not meet the definition of Tobacco retailer- Ancillary, Exempt, Smoke shop, or Smoking lounge. "Tobacco retailing" means engaging in any of those activities of a tobacco retailer.
5.104.030. City issued tTobacco retail license required.
A. It shall be unlawful for any person to act as a tobacco retailer, engage in tobacco retailing, or allow tobacco retailing in the City without first obtaining and maintaining a valid tobacco retail license pursuant to the provisions of this chapter for each fixed location at which tobacco retailing is to occur. No license will be issued to authorize tobacco retailing at other than a fixed location.
B. This section applies regardless of whet her a person holds a valid cigarette and tobacco retailer's license from the California Department of Tax and Fee Administration (CDTFA).
A.C. Nothing in this chapter shall be construed to grant any person or entity obtaining a tobacco retail license any status other than the right to act as a tobacco retailer at the location in the City identified on the face of the tobacco retail license, subject to compliance with all other applicable laws, regulations, and ordinances.
Nothing in this chapter shall be constr ued to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition of limitation on indoor sm oking made applicab le to business establishments by Section 6404.5 of the Labor Code.
5.104.040. License application.
A. Every person who proposes to act as a tobacco retailer, engage in tobacco retailing, or allow tobacco retailing in the City shall submit an application for a license to the City in writing on forms provided by the City.
B. An applicantapplication shall be for a fixed location. If an applicant is proposing to
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conduct tobacco retailing at more than one fixed location, then they shall submit a separate application for each location.
A.C. Each application shall be submitted under oath, in duplicate, and shall contain such information pertinent to the busin ess as the City may require. Such information to be provided shall include, but not be limited to, the following:
1. The true name, address, and tel ephone number of each proprietor;
2. The business name, address, and tel ephone number of the fixed location for which a license is sought;
3. The type of tobacco retail license sought: Tobacco retailer- Ancillary, Exempt, General, Smoke shop, or Smoking lounge.
4. Any other type of business operati on that the licensee operates on the premises: retail store (the specific ty pe), convenience stor e, or alcoholic beverage establishment.
5. A site plan showing the layout of the premises, including but not limited to the contiguous area where tobacco retailing will take place and areas where tobacco products will be stored.
3.6. Whether or not any proprietor has previously been issued a license pursuant to this chapter that is, or was at any time, suspended, revo ked, or cited for violation of any part of this chapter, and, if so, the dates of the suspension period, the date of revocation, or date of the violation; and
7. Whether or not any proprietor has been cited by law enforcement for selling tobacco products without a required tobacco retail license.
8. Whether or not any proprietor has been cited by law enforcement for selling, offering for sale, or possessing with t he intent to sell flavored tobacco products.
9. Such other information as any department director deems necessary for the administration or enforcement of this chapter.
10. For Tobacco retailer- Smoke shop license applications:
a. The applicant shall also submit a security plan for review and approval by the Police Department that includes video surveillance, physical security, and a uniformed security personnel deployment plan. a.b. Once City staff receives the applicat ion and required security plan, the original shall be transmitted to the Ch ief of Police who shall initiate an investigation into the applicant 's business background and moral character as the Chief deems necessary for the protection of the public welfare. The Chief of Police shall approve the application unless, as the result of such investigation, t he applicant's character or business responsibility is found to be unsatisfa ctory, or if the applicant has been
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convicted of any violation of this title, a felony, a misdemeanor involving moral turpitude, or a violation of any narcotics law. However, if, in the opinion of the Chief of Police, an applic ant's prior criminal conviction is such that it would not render the applicant unsui table to engage in the business of operating a Tobacco re tailer- Smoke shop or otherwise endanger the public welfare, the Chief of Police, in their discretion, may approve the application. The Chief of Police shall return the approved application to the Administrative Services Officer, who shall, upon payment of the license fee herein pre scribed deliver the license to the applicant. If the Chief of Police disapproves the application, the reasons for such disapproval shall be noted on the application and the application shall be returned to the Administrative Services Officer. The Administrative Services Officer shall notify the applicant of the disapproval and that no license will be issued.
B.D. The applicant shall pay a nonrefundable application fee in an amount as may be fixed and established from time to time by resolution of the City Council.
Thereafter, if a tobacco retail license is granted, the licensee shall pay an annual fee in an amount as may be fixed and established by City Council resolution.
C.E. The applicant must provide a statement to the City to the effect that the applicant understands and agrees that any business or activity conducted or operated under any license issued under such application shall be operated in full conformity with all applicable laws of the Un ited States of America, t he State of California, the County of San Joaquin, and the laws and regulations of the City applicable thereto, and that any violati on of any such laws or regul ations in such place of business, or in connection therewith, may render any toba cco retail license therefor subject to immediate suspension or revocation.
D.F. The applicant must provide a copy of any valid current permit or license from the California Department of Tax and Fee Administration Board of Equalization or any other applicable tobacco retail licensing ag ency, where the applicant is required to obtain any such permit or license in order to lawfully engage in tobacco retailing in the State of California and/or in the County of San Joaquin.
E.G. The applicant hereunder is s eeking the granting of a privilege. Therefore, tT he burden of proving qualif ications to receive such a license is at all times on the applicant. An applicant must accept all risks of adverse public notice, publicity, embarrassment, criticism, fi nancial loss, or all other actions and consequences which may result from activities with respect to reviewing, processing, and approving or disapproving any application. A waiver of any claims for damages against the City or its agents resulting therefrom shall be presumed upon the filing of an application for a tobacco retail license.
F.H. Each applicant shall be responsible for providing truthful, complete, and accurate information and for signing the license application.
G.I. The applicant shall submit written documentation stating that the property owner of the real property upon which the tobacco retailing is to be conducted is fully
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aware of the property's in tended use. Documentation is to include the name, address, and contact telephone number for the property owner.
H.J. The applicant must provide a statement to the City that the applicant will hold harmless, indemnify, and defend the City agai nst all claims and litigation arising from the issuance of the tobacco retail lic ense, including, without limitation, any claims and litigation arising from the establishment, operation, or ownership of the tobacco retailer.
I.K. An application shall not be deemed complete until all the information required in subsections A through JH have been provided to the City and the required fees and any applicable business tax required by any provision of this code have been paid.
J.L. The application for a license pursuant to this chapter shall not authorize the maintenance, operation, or conduct of tobacco retailing until such license has been granted. The issuance of a business license pursuant to Title 5 of the Stockton Municipal Code sh all not authorize the main tenance, operation, or conduct of a tobacco retailer until the lic ense required by this chapter has been lawfully granted.
5.104.050. Business license.
A. Nothing herein shall constitute a waiver of the requirements of Title 5 of the Stockton Municipal Code requiring issuance and possession of a valid business license.
A.B. Tobacco retail licensees shall maintain a valid business license that identifies tobacco retail sales on the business license. Failure to do so shall constitute a violation of this Chapter.
5.104.060. Issuance and renewal of license; grounds for denial.
A. Upon the receipt of an application for a license and the applicable fee, the City shall issue a tobacco retail license unless any of the following exist:
1. The application is incomplete or inaccurate.
2. The application seeks authorization for tobacco retailing at an address that appears on a license that is suspended, has been revoked, or is subject to suspension or revocation proceedings for violation of any of the provisions of this chapter; provided, however, this subsection shall not constitute a basis for denial of a license if either or both of the following apply:
a. The applicant provides the City with documentation demonstrating that the applicant has acquired or is acqui ring the premises or business in an arm's length transaction. Any exemption granted to a tobacco retailer pursuant to section 5.104.070 shall cease to apply.
b. It has been more than five years since the most recent license for that
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location was revoked. Any exemption granted to a tobacco retailer pursuant to section 5.104.070 shall cease to apply
3. The application seeks authorization fo r tobacco retailing that is unlawful pursuant to this code, or t hat is unlawful pursuant to any other local, State, or Federal law.
4. Making any false statements in the application or as to any other information presented as part of the application process.
5. Evidence of current or prior unlawful or nuisance-creating operation in this or another jurisdiction.
6. The proposed location does not co mply with section 5.104.070.
6. The application seeks authorization for tobacco retailing at any location within 600 feet of a school, public park, public playground, public recreational area, or youth facility, as m easured in a straight line from the parcel boundary of these locations to the boundary lines of the parcel of the tobacco retail license applicant's proposed business location. However, the prohibition contained in this subsection (A)(6) shall not apply to the following:
a. Any tobacco retailer operating lawf ully on the day before the effective date of City of Stockton Ordinance 2023-06-20-1502.
b. Any lawfully operating tobacco reta iler that would otherwise become ineligible to receive a new license due to the creation or relocation of a school, public park, public playground, public recreational area, or youth facility.
c. Any location that satisf ies both of the following:
i. A tobacco retailer was lawfully op erating at the location on the day before the effective date of City of Stockton Ordinance 2023-06-20- 1502, or a tobacco retailer was lawf ully operating at the location pursuant to subsection d of this section, and
ii. Either: (a) The location has since been a licensed tobacco retail location, without interruption, except that the most recently issued license for the location may have expired no more than six months from the date of the present application, or (b) the present application has been submitted less than one year since the effective date of City of Stoc kton Ordinance 2023-06-20-1502. d. Any location that was a qualified development project, as defined below, before the effective date of Cit y of Stockton Ordinance 2023-06-20- 1502. A "qualified development project" for purposes of this section is one where a land use permit or ent itlement application has been determined by the Community Development Department to be complete before the effective date of City of Stockton Ordinance 2023-06-20-1502,
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and said land use permit or entitl ement application has not expired pursuant to SMC Section 16.96.020(B).
7. The application seeks authorization for tobacco retailing at any location within 600 feet of a location occupied by anot her tobacco retailer, as measured in a straight line from the parcel boundary of an existing tobacco retailer's business location to the boundary lines of the parcel of the tobacco retailer license applicant's proposed business lo cation. However, the prohibition contained in this subsection (A)(7) shall not apply to the following:
a. Any tobacco retailer operating lawfully on the day before the effective date of City of Stockton Ordinance 2023-06-20-1502; or b. Any location that satisf ies both of the following:
i. A tobacco retailer was lawfully op erating at the location on the day before the effective date of City of Stockton Ordinance 2023-06-20- 1502, or a tobacco retailer was lawf ully operating at the location pursuant to subsection c of this section, and
ii. Either: (a) The location has since been a licensed tobacco retail location, without interruption, except that the most recently issued license for the location may have expired no more than six months from the date of the present application, or (b) the present application has been submitted less than one year since the effective date of City of Stoc kton Ordinance 2023-06-20-1502. c. Any location that was a qualified development project, as defined below, before the effective date of Cit y of Stockton Ordinance 2023-06-20- 1502. A "qualified development project" for purposes of this section is one where a land use permit or ent itlement application has been determined by the Community Development Department to be complete before the effective date of City of Stockton Ordinance 2023-06-20-1502, and said land use permit or entitl ement application has not expired pursuant to SMC Section 16.96.020(B).
8.7. Any exemption granted to a t obacco retailer pursuant to section 5.104.070 shall cease to apply if a tobacco retailer fails to timely renew the tobacco retail license pursuant to this chapter or sha ll cease to apply if the tobacco retail license is revoked pursuant to this chapter.
9.8. The City is in possession of informati on that the applicant or his agents or employees has violated any local, State, or Federal tobacco control law within the preceding 30-day period.
10.9. The applicant does not have a valid cu rrent permit or license from the California Department of Tax and Fee Admi nistration Board of Equalization or any other applicable tobacco reta il licensing agency, where the applicant is required to obtain any such permit or license in order to lawfully engage in tobacco retailing in the State of Calif ornia and/or in the County of San
ATTACHMENT A
Joaquin.
B. If the City does not approve a license or renewal of a license, the City shall notify the applicant of the specific grounds for t he denial in writing. The notice shall be served personally, by regular mail, or by certified mail not later than five days after the denial. If notice is delivered by mail, it shall be addressed to the applicant at the address as it appears on the application. The giving of notice shall be deemed complete at the time of deposit of t he notice in the United States mail without extension of time for any reason. In lieu of mailing, the notice may be served personally by delivering to the person to be served and service shall be deemed complete at the time of such delivery. Personal service to a corporation may be made by delivery of the notice to any person designated in the California Code of Civil Procedure to be served for the cor poration with summons and complaint in a civil action.
C. The denial of a tobacco re tail license or renewal of a license may be appealed.
Notice of such appeal, in writing stating the grounds for such appeal, and admitting or denying those determinations of the City included in the denial notice, shall be filed with the Chief of Police, or designee, within 10 days of the giving of the denial notice as specified in subsection B above. Upon failure to file the notice of appeal within the 10-day period, the action of the City in denying such tobacco retail license or renewal of such license shall be final and conclusive. If the notice of appeal is filed in timely order, accompanied by payment of an appeal fee in an amount as may be established from time to time by resolution of the City Council, the Chief of Police, or designee, shall re fer the matter to th e City Attorney for scheduling of an administrative appeal hearing in accordance with the provisions of Chapter 1.44 of this code.
D. Notwithstanding Section 5. 104.070, in the event a tobacco retailer files a timely appeal from the denial of the renewal of a license pursuant to subsection C above, the tobacco retailer may continue to oper ate under the existing license pending the appeal decision. The determination of the administrative hearing officer shall be final.
5.104.070. Locational requirements fo r tobacco retail license locations.
A. The locational criteria identified in subsections B-E below do not apply to the following tobacco retailers:
1. Any business with a City-iss ued license to operate as a:
a. Tobacco retailer -Exempt; or
b. Tobacco retailer- Ancillary.
2. Any tobacco retailer o perating lawfully on the day before the effective date of City of Stockton Ordinance 2023-06-20-1502; or
3. A tobacco retailer was la wfully operating at the location on the day before the effective date of City of Stockton Ordinance 2023-06-20-1502, or a tobacco
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retailer was lawfully operating at the location pursuant to subsection 4 of this section; and
4. Any location that was a qualified development project, as defined below, before the effective date of City of Stockton Ordinance 2023-06-20-1502. A "qualified development project" for purpos es of this section is one where a land use permit or entitlement application has been determined by the Community Development Department to be complete before the effective date of City of Stockton Ordinanc e 2023-06-20-1502, and said land use permit or entitlement application has not expired pursuant to SMC Section
16.96.020(B).
B. Tobacco retailer- General: Shall not be located within 1,000 feet of any of the following, as measured in a straight line from the parcel boundary of these locations to the boundary lines of the pa rcel of the tobacco retail license applicant's proposed business location.:
1. Residential zone or use;
2. A public or private academic school for students in kindergarten through 12th grade, nursery school, preschool, or childcare facility;
3. Public park, playground, recreat ional area, or youth facility;
4. Religious facilities;
5. Drug abuse, or alcohol reco very/treatment facility; or
6. Any other tobacco retailer-general or tobacco retailer-smoke shop.
C. Tobacco retailer- Smoke shop: Shall not be located within 1,000 feet of any of the following, as measured in a straight line from the parcel boundary of these locations to the boundary lines of the pa rcel of the tobacco retail license applicant's proposed business location.:
1. Residential zone or use;
2. A public or private academic school for students in kindergarten through 12th grade, nursery school, preschool, or childcare facility;
3. Public park, playground, recreat ional area, or youth facility;
4. Religious facilities;
5. Drug abuse, or alcohol reco very/treatment facility; or
6. Any other tobacco retailer-general or tobacco retailer-smoke shop.
D. Tobacco retailer- Smoking Loung e: Shall not be located within 1,000 feet of any of the following, as measured in a straight line from the parcel boundary of these locations to the boundary lines of the pa rcel of the tobacco retail license applicant's proposed business location.:
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1. Residential zone or use;
2. A public or private academic school for students in kindergarten through 12th grade, nursery school, preschool, or childcare facility;
3. Public park, playground, recreat ional area, or youth facility;
4. Religious facilities;
5. Drug abuse, or alcohol reco very/treatment facility; or
1.6. Any other tobacco retailer-general or tobacco retailer-smoke shop.
5.104.0780. Annual renewal of tobacco retail license.
A tobacco retail license shall be valid for one year from the date of issuance, unless earlier suspended or revoked. Any person t hat holds a tobacco retail license may obtain a newrenew their license for the succeeding year by applying for said new license and paying the required fees, in accordance with Section 5.104.040 of this chapter, between the first day of the month following the expiration date and no later than the last day of that m onth. 30 days prior to the ex piration date of the current tobacco retail license, but no earlier than 60 days prior to the expiration of the license.A license for which an application or fee for renewal is received or postmarked after the last day of that month shall not be renewed. However, aA license that has been revoked or is subject to revocation proceedings shall not be renewed.
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5.104.090. Inspection of licensed premises.
A. Law enforcement may conduct scheduled or unannounced inspections of tobacco retail licensees’ premises during posted business hours or of any location where there is evidence of tobacco retailing activities or evasion of cigarette or tobacco products tax and violations of Revenue and Taxation Code section 30165.1 may be discovered.
B. If law enforcement finds a violation(s) of this chapter at any time, then law enforcement may require a reinspection to confirm that any violations have been corrected.
C. Any law enforcement inspection of tobacco retail licensees’ premises may include all areas identified in the licensee’s application as well as any area within or around the premises that law enforcement reasonably believes is relevant to determining compliance with this chapter.
D. Refusal to allow an inspection pursuant to this section is in violation of this chapter.
E. A fee shall be charged for all inspections in an amount as may be fixed and established from time to time by resolution of the City Council. That fee shall include the cost for a standard inspection and, additionally, allow for the collection of additional time charged at an identified hourly rate if inspectors seize items pursuant to this chapter.
5.104.080100. License nontransferable.
A license is nontransferable.
A. If a licensee changes business location :
a. , tT heat licensee must obtain a new license prior to acting as a tobacco retailer at the new location.
b. Any applicable exemptions from locational criteria pursuant to Section 5.104.070(A)(2)-(4) shall not apply to the new license..
B. If a business licensed to conduct tobacco retailinglicensee experiences a changes of ownership:
a. , tT he licenseebusiness must obtain a new license for reflecting the new owner(s) within 30 days of the owner ship change or stop acting as a tobacco retailer.
a.b. Any applicable exemptions from lo cational criteria pursuant to Section 5.104.070(A)(2)-(4) sha ll not apply to the new license . that location before acting as a tobacco retailer.
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5.104.090110. Display of license.
Each license shall be prominently displayed in a publicly visible location at the licensed premises.
5.104.12000. Grounds for suspension or revocation of a tobacco retail license.
In addition to any other remedy authorized by law, a license shall be suspended or revoked as provided in this section.
A. A license may be suspended or revoked purs uant to this subsection A if the Chief of Police, or designee, finds that the licensee, or his or her agents or employees, has or have violated this chapter, any State or local law relating to the sale of tobacco products to a minor, including with out limitation Califo rnia Penal Code Section 308 and this chapter , or any State or local law relating to the sale of flavored tobacco products, including, with out limitation, Calif ornia Health and Safety Code Section 104559.5 and Business and Professions Code Section 22974.8 and this chapter ; provided, however, violations by a licensee at one location may not be accumulated against other locations of that same licensee, nor may violations accumulated against a prior licensee at a licensed location be accumulated against a new licensee at the same licensed location. The Chief of Police, or designee, may conc urrently make multiple fi ndings of prior violations within any five year period; in which case, suspensions provided for in this subsection A shall run concurrently.
1. Upon a finding by the Chief of Police, or designee, of a first violation for:
a. Selling tobacco products to minor s or selling flavored tobacco (unless the licensee is a smoking lounge selling allowed flavored tobacco) within any five year period, the license may shall be suspended for up to 30 days.
b. Knowingly concealing any flavored to bacco or product that if ingested or inhaled would produce intoxication, including but not limited to cannabis, psilocybin, mushrooms containing psychoactive compounds like psilocybin and psilocin, kratom, nitr ous oxide, nitrates including amyl nitrite, aerosols including deodorant, hairspray, or spray paints, or volatile solvents including paint removers and cleaning products with the intent to evade or avoid compliance with th is chapter within any five year period, the license shall be suspended for 30 days.
a.c. Any other first violation, the license may be suspended for up to 30 days.
2. Upon a finding by the Chief of Police, or designee, of a second violation for :
a. Selling tobacco products to minor s or selling flavored tobacco (unless the licensee is a smoking lounge selling allowed flavored tobacco) within any five year period, the license may shall be suspended for up to 60 days.
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b. Knowingly concealing any flavored to bacco or product that if ingested or inhaled would produce intoxication, including but not limited to cannabis, psilocybin, mushrooms containing psychoactive compounds like psilocybin and psilocin, kratom, nitr ous oxide, nitrates including amyl nitrite, aerosols including deodorant, hairspray, or spray paints, or volatile solvents including paint removers and cleaning products with the intent to evade or avoid compliance with th is chapter within any five year period, the license shall be suspended for 60 days.
b.c. Any other second violation, the li cense may be suspended for up to 60 days.
3. Upon a finding by the Chief of Police, or designee, of each additional violation for:
a. Selling tobacco products to minor s or selling flavored tobacco (unless the licensee is a smoking lounge selling allowed flavored tobacco) within any five year period, the license may shall be revoked. b. Knowingly concealing any flavored tobacco or product that if ingested or inhaled would produce intoxication, including but not limited to cannabis, psilocybin, mushrooms containing psychoactive compounds like psilocybin and psilocin, kratom, nitr ous oxide, nitrates including amyl nitrite, aerosols including deodorant, hairspray, or spray paints, or volatile solvents including paint removers and cleaning products with the intent to evade or avoid compliance with th is chapter within any five year period, the license shall be revoked.
c. Any other third violation, the license may be suspended for up to 90 days for each violation, or be revoked.
B. A license may be suspended by the Chief of Police, or designee, if the Chief of Police, or designee, find that, based on as certainable facts, the operation of the tobacco retailer substantially aggravates the crime problems in the City, makes law enforcement unduly difficult, or is detri mental to the public health, safety, or welfare of the City.
C. A license may be revoked if the Chie f of Police, or designee, finds that:
1. A tobacco retailer has failed to pay , when due and payable, any of the fees or taxes required within 10 days after written notice of such failure;
2. A tobacco retailer has made any fraudulent statements as to a material fact on an application form or as to any other information presented as part of the application process; or
3. A tobacco retailer commits any act which that would have constituted grounds for denial of an application for a tobacco retail license , unless the license shall be revoked pursuant to subsection A.
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4. An owner, officer, copartner, employee, or volunteer of the tobacco retailer is engaged in the sale of illegal substanc es on the premises of the tobacco retailer that would constitute a felony if charged pursuant to the California Health and Safety Code.
3.5. An owner, officer, copartner, stockhol der, employee, or volunteer of the tobacco retailer is engaging in gambling, loan sharking, or bookmaking, as defined by the California Penal Code, on the premises of the tobacco retailer.
D. If the Chief of Police, or designee, suspends or revokes a license, written notice of the suspension or revocation shall be served upon the licensee within five days of the suspension or revocation in the manner prescribed in Section 5.104.060(B).
The notice shall contain:
1. A brief statement of the specific grounds for such suspension or revocation;
2. A statement that the licensee may appeal the suspen sion or revocation by submitting an appeal, in writing, in accordance with the provisions of Section
5.104.110, within 10 days of the date of service of the notice; and
3. A statement that the failure to appeal the notice of suspension or revocation will constitute a waiver of all right to an administrative appeal hearing, and the suspension or revocation will be final.
E. A licensee for whom a license suspension is in effect, or whose license has been revoked, must cease all tobacco reta iling and remove all tobacco products and tobacco paraphernalia from public view at the address that appears on the suspended or revoked license.
5.104.130. Tobacco retail sales without a tobacco retail license.
Upon a finding by the Chief of Police, or designee, that a person is currently or has engaged in tobacco retailing without the required tobacco retail license, that person must immediately cease all tobacco retailing and the Chief of Police, or designee, may require removal of all other tobacco products and tobacco paraphernalia from the premises and/or may seize of any tobacco products and tobacco paraphernalia as well as any hemp-derived food, beverages, and dietary supplements intended for human consumption that contain any detectable amount of intoxicating cannabinoids.
5.104.1140. Appeal from suspension or revo cation of tobacco retail license.
A. The action of the Chief of Police, or designee, in revoking or suspending a tobacco retail license may be appealed. Noti ce of such appeal, in writing stating the grounds for such appeal, and admitting or denying those determinations of the Chief of Police, or designee, included in the notice, shall be filed with the Chief of Police, or designee, within 10 days afte r the revocation or suspension of the license. Upon failure to file the notice wit hin the 10-day period, the action of the City in revoking or suspending such t obacco retail license shall be final and conclusive. If the notice of appeal is filed in timely order, accompanied by payment
ATTACHMENT A
of an appeal fee in an amount as may be established from time to time by resolution of the City Council, the Chief of Police, or designee, shall refer the matter to the City Attorney for scheduling of an administrative appeal hearing in accordance with the provisions of Chapter 1.44 of this code.
B. In the event a tobacco reta iler files a timely appeal purs uant to this section, the effective date of the decision shall be stayed pending the appeal decision. The determination of the administrative hearing officer shall be final.
5.104.150___. Following revocation.
Within 60 days of a final determination revoking a tobacco retail license, either by the Chief of Police or their designee or the determination of the administrative hearing officer following a timely appeal, the retailer shall contact the Director of Finance of the City, or their designee, to correct the content of the business license to remove tobacco retailing pursuant to the requirements of SMC Chapter 5.04.
5.104.1260. Operating regulations and conditions.
A. The provisions of this section shall constitute terms and conditions applicable to each tobacco retail license issued under this chapter.
B. The provisions of this se ction shall also constitute operating regulations that are applicable to each holder of a tobacco retail license issued pursuant to this chapter.
C. It shall be unlawful for any tobacco retailer required to be licensed under this chapter, whether or not such tobacco retail er is actually so licensed under this chapter, to violate any of the provisions of this chapter.
D. All tobacco retailers shall remain in compliance with the Stockton Municipal Code and all other local, State, and Federal laws at all times.
E. Tobacco retail licenses are for a specific, fixed location.
F. Tobacco retailing shall only be conduct ed that shall serve as the within the licensed premises and shall not be conducted deviate from the premises from the parking lot, vehicle, or any storage contai ner or area that is not part of the approved premises.
G. Clerks selling tobacco products mu st be at least 21 years of age.
H. Any tobacco products or products prohibi ted by this chapter that are located within the premises or in areas adjacent to the premis es that the retailer has reasonable access to, including without limitation the parking lot, vehicles, or any storage containers, shall be considered inventory intended for sale by the retailer.
I. Tobacco products shall only be display ed within the that wa s contiguous area shown on the site plan submitted with the described in the application or as revised as part of an annual renewal.
ATTACHMENT A
E.J. A tobacco retail license shall maintain legal possession of the premises (e.g., ownership, lease) that was approved by the City with the application for the tobacco retail license.
F.K. No more than 20 percent of windows or clear doors at the premises where tobacco retailing occurs shall bear advertising or other signage of any sort.
G.L. All tobacco retailers shall:
1. Pay all City-imposed fines , penalties, and fees by the deadlines provided for by City officials;
2. Allow for immediate access to a City, Ccounty, or State official that is authorized to regulate tobacco control ordinances under this chapter or any State, Ccounty, or City law or regulation to the prem ises and on-premises records during regular business hours or hours of apparent operation;
3. Prevent loitering, public drinking, and public use of cannabis or other criminal behavior on and around the premises, including parking areas. "No Loitering" signs shall be prominently posted in a readily visible manner on no less than one exterior wall. The tobacco retailer' s operators or em ployees shall ask persons loitering for longer than 15 mi nutes to leave the area and contact law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested to leave fail to do so;
4. Prevent any condition constituting a nuisance on the premises, including parking areas;
5. Remove all graffiti or other signs of vandalism within 48 hours of knowledge of the graffiti or vandalism;
6. Maintain a clean and orderly premis es to ensure public health and safety meet the highest standards.
7. Shall operate consistently with the si te plan provided with the license application, including ensuri ng that tobacco retailing is maintained within a contiguous area.
M. Tobacco retailer – Smoke shops:
1. Shall operate pursuant to their Police Department approved security plan for the premises.
2. Shall operate only between 6:00 a.m. and 10:00 p.m.
3. Shall not operate as part of a business or in the same business space as an alcoholic beverage sales establishment.
N. Tobacco retailer- Smoking lounges shall also:
1. Only allow persons 21 years or older on the premises at any time.
ATTACHMENT A
2. Shall not operate as part of a business or in the same business space as an alcoholic beverage sales establishment.
H.O. The provisions of this chapter are intended to provide a minimum level of public health, safety, and welfare protection at businesses engaging in tobacco retailing.
Nothing in this chapter is intended nor shall prevent the City from imposing more stringent, site-specific operating requi rements and conditions through other applicable permitting and approval processes. In the event of a conflict between an operating regulation set fo rth in this chapter and a requirement or condition contained in any other applicable permi t or approval, the more stringent or restrictive requirement shall apply.
5.104.1370. Lawful business operation.
In the course of tobacco retailing or in the operation of the business or maintenance of the premises for which a t obacco retail license is issued, it shall be a violation of this chapter for any tobacco retailer to violate any Federal, St ate, or local law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.
5.104.13580. Prohibition on sale of fl avored tobacco products; Exception.
A. It is unlawful , and a violation of this chapter, and a viol ation of any a tobacco retail license for a licensee or his or her agents or employees to store, display, sell, list or offer for sale, or possess with the intent to sell or list or offer for sale, any flavored tobacco product except as allowed in subsection C. It is unlawful for any person to sell, offer for sale, or possess with the intent to sell or offer for sale, any flavored tobacco product. There is a rebuttable pres umption that a tobacco product is a flavored tobacco product if a manufacturer or its agents or employees has made a public statement or claim that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, colo r, or images on the product's labeling or packaging that are used to expressly or impliedly communicate that a tobacco product has a characterizing flavor.
B. It is a violation of this chapter and a violation of any tobacco retail license to knowingly conceal any flavored tobacco product with the intent to evade or avoid compliance with this chapter.
C. Tobacco retailer- Smoking lounges licens ed pursuant to this chapter may sell the following flavored tobacco products only for on-site consumption: flavored premium cigars with a w holesale price of $12 each or more, flavored loose-leaf pipe tobacco, flavored shisha/hookah tobacco.
5.104.190. Prohibition on sale of items for the purpose of intoxication.
A. It is violation of this chapter, and a viol ation of any tobacco retail license for any tobacco retail license to stor e, display, sell, or list fo r sale any product that if ingested or inhaled would produce intoxication, incl uding but not limited to cannabis, psilocybin, mushrooms contai ning psychoactive compounds like psilocybin and psilocin, kratom, nitrous ox ide, nitrates including amyl nitrite,
ATTACHMENT A
aerosols including deodorant, hairspray, or spray paints, or volatile solvents including paint removers and cleaning products.
B. It is a violation of this chapter, and a vi olation of any tobacco retail license for any tobacco retail license to store, display, sell, or list for sale hemp-derived food, beverages, and dietary supplements intended for human consumption that contain any detectable amount of intoxicating cannabinoids as follows:
1. To anyone under 21 y ears of age; or
2. In a package containing more than five servings.
C. It is a violation of this chapter and a violation of any tobacco retail license to knowingly conceal any product that if ingested or inha led would produce intoxication, including but not limit ed to cannabis, psilocybin, mushrooms containing psychoactive compounds like psilocybin and psilocin, kratom, nitrous oxide, nitrates including amyl nitrite, aerosols including deodorant, hairspray, or spray paints, or volatile solvents including paint removers and cleaning products with the intent to evade or avoid compliance with this chapter.
D. This prohibition does not apply hemp-der ived cannabidiol (“CBD”) products that contain no detectable intoxicating cannabinoid.
5.104.140200. Violations and pPenalties for Violations.
A. It is unlawful for any tobacco retailer, employee, or other per son to violate any provision of this chapter.
B.A. A violation of any of the pr ovisions of this chapter shall may be charged as a misdemeanor for each day such violation continues.
C.B. Any violation of this chapter may also be remedied by a civil action brought by the City Attorney. The City may recover for reasonable attor neys' fees and costs of suit in any civil litigation brought by the City Attorney to remedy any violation of this chapter.
D.C. A violation of any of the provisions of this chapter may also result in the issuance of civil penalties pursuant to Chapter 1.40 which allows for civil penalties of up to $1,000.00 per violation per day not to exceeding $1 00,000.00 per parcel or structure for any related series of violat ions in a yearfor each day the violation continues.
E.D. A violation of any of the provisions of this chapter may also result in the issuance of administrative citations pursuant to Chapter 1.32. Notwithstanding the penalty amounts found at Section 1.32.050 of this code, administrative penalties for violations of this chapter shall be as follows:
1. $1,000.00 for a first violation wi thin any five year period.
2. $2,000.00 for a second violation within any five year period.
ATTACHMENT A
3. $3,000.00 for each additional violati on within any five year period.
E. Multiple violations of this chapter di scovered during the same inspections may be deemed to collectively constitute a “first violation” for purposes of this section or, alternatively, each violation discovered may be counted separately and, thus, a single inspection may result in the first, second, and additional violations.
1. However, if one of the violations di scovered during an inspection is for sales of tobacco products or other products c onstituting a violation of this chapter to a minor, then that violation shall always be counted as a separate violation for purposes of this section.
F. A violation of any of the provisions of this chapter may also result in the suspension or revocation of the tobacco retail license pursuant to Section
5.104.100 120 of this chapter.
G. A violation of any of the pr ovisions of this chapter may also result in the seizure of all products displayed, sold, listed, or offered for sale, or possessed with the intent to sell or list or offer for sale, pursuant to Section 5.104.210 of this chapter.
G.H. Any use or condition caused or permitted to exist in violation of any of the provisions of this chapter is hereby declared a public nuisance and may be summarily abated by the City.
5.104.210. Seizure of products.
A. Pursuant to this Chapter, the Chief of Po lice, or designee, may seize any tobacco products or tobacco paraphernalia, flav ored tobacco products, or any products that are on display, sold, listed or offered for sale, or possessed with the intent to sell or list or offer for sale that constitute a violation of this Chapter.
B. Within five (5) business days of seizur e, the Chief of Polic e, or designee, will personally serve a property receipt item izing the items seized to the person present at the time of the seizure or to the owner of the business and/or property where the items were seized.
C. Within ten (10) days from the last date a property receipt was served on any person, any person having any right, title, or ownership interest in the seized items may file a request with the Chief of Police, or des ignee, for the release or recovery of the seized items on the basis that the items we re erroneously or illegally seized. Any such request shall include the following:
1. The requestor’s right, title, or owner ship interest in the seized items;
2. The basis upon which the requester asse rts that the Police erroneously or illegally seized the items, incl uding any arguments and supporting documentation.
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3. Whether the requestor has a valid Ca lifornia State tobacco retail license pursuant to which they could legally sell some or all of the seized items.
4. Whether the requestor has applied for or taken action to reinstate a suspended Tobacco Retailer License pur suant to this Chapter that would result in their ability to sell some or all of the seized items legally.
D. The Chief of Police will consider timely filed requests to determine whether to grant the request.
1. If the Chief of Police grant s the request as to some or all of the items seized, then the Chief of Police wil l promptly return the identified items to the requestor.
2. If the Chief of Police denies the request as to some or all of the items seized, then the Chief of Police will respond in writing to the requestor explaining the basis for the denial.
E. The Chief of Police’s determination on timely filed requests for the release or recovery of seized times is final.
F. If no request is timely filed or the reques t is denied by the Chief of Police, or designee, then the property seizure will be final and the seized items deemed forfeited. At that time, t he Chief of Police, or designee, may destroy the seized items.
5.104.211. Administrative Guidelines.
The City Manager may establish and amend administrative guidelines as needed to administer this chapter, implement the licensing process, or introduce additional or modified licensing requirements if they are consistent with the purpose, application, and requirements of this chapter. The reasoning of such administrative guidelines shall be documented in writing by the City Manager or their designee. Such administrative guidelines shall have the force of law, and shall be enforceable in the same manner and to the same extent as the provisions of this chapter.
SECTION III. SEVERABILITY.
If any section, subsection, su bdivision, paragraph, sentence, clause, or phrase of this article or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the re maining portions of this article or any part thereof. The City Council hereby declares that it woul d have passed each se ction, subsection, subdivision, paragraph, sentence , clause, or phrase thereof irrespecti ve of the fact
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that any one or more sections, subsections, subdivisi ons, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid.
SECTION IV. EFFECTIVE DATE.
The City Council finds and declares that the adoption a nd implementation of this ordinance is necessary to address the danger to public health, safety, and general welfare as articulated above, and to prevent a lapse betw een the expiration of the current moratorium on the establishment of new, and relocation or physical expansion of existing, tobacco retail businesses and th e adoption of this ordinance addressing the issues which precipitated said moratorium. The City Council therefore finds and determines that this ordi nance be enacted as an urgen cy ordinance pursuant to Government Code sections 36934 and 36937 and takes effect immediately upon adoption by four-fifths of the City Council.
ADOPTED: ____________________
EFFECTIVE: ____________________
______________________________
CHRISTINA FUGAZI
M a y o r o f t h e C i t y o f S t o c k t o n
ATTEST:
______________________________
KATHERINE ROLAND, CMC, CPMC
City Clerk of the Ci ty of Stockton