Agenda packet — Vallejo City Council, November 19, 2024 (part 6 of 9)

• A noticed community meeting, including interpreters and table facilitators with both the Tobacco Retailers and ordinance proponents and supporters on August 21, 2024.

Representatives of various different groups have attended one or more meetings, including Tobacco Retailers, American Petroleum and Convenience Store Operators, LGBTQ minus tobacco, Solano County Public Health, the American Lung Association, Finishing the Fight, Bay Area Community Resources, and American Heart Association. These individuals and organizations represent both retailers, ordinance proponents/supporters as well as public health organizations who have provided input and information.

With regard to expressed concerns and options for potential amendments to the draft ordinance, the community meetings requested by the City Council were well attended. At the first meeting on August 14, 2024, retailers focused on sections of the proposed retail licensing ordinance which they were concerned about. At the second meeting, proponents/supporters focused on concerns of the retailers expressed at the public hearings as well as sections of the proposed ordinance that they were concerned about. At the third community meeting, with both retailers and supporters in attendance, staff consolidated the concerns previously discussed into specific topics and broke the group into tables with both retailers and supporters at each table. Each table also had a facilitator to help answer questions and moderate the table discussions. The goal of these sessions was to try to bring the ordinance proponents and tobacco retailers together in a solutions-oriented manner to discuss possible suggestions for modifications to the ordinance. Group discussion was then had at each table on the topics of transferability of the license, pricing and packaging, density, and enforcement, with each table reporting what they had discussed and the ideas that came out of their discussion.

Staff sought direction from the City Council at a meeting held on September 24, 2024, regarding the draft ordinance and potential amendments to same. Council directed staff to bring forward options relating to Chapter 5.10 on the following topics: (1) transferability; and (2) penalties.

The proposed ordinance is before Council tonight for introduction. Based on the Council's direction at your September 24th meeting, the following significant changes are depicted in redline on the attached document entitled "Chapter 5.10 Redline Version".
• Section 5.10.010.A: changes modify the definition of "arm's length transaction" for clarity. • Section 5.10.050.H: changes modify the timing of the submittal of applications and address in subsection 3 (see highlights) options relating to the business transferability sections. These options include permitting the business to be transferred for a period of five years, ten years, or any other period the Council wishes to consider, and adding a restriction on the transferability of the exemption relating to retailer locations where the retailer license holder has two or more violations within a one- year, two-year, or other time period as selected by the Council. This section also modifies the time the City has to grant the license. Finally, this section adds provisions that require that in order to exempt a retail location from the separation and location and density requirements, a tobacco retail store must be operating lawfully and describes with specificity what operating lawfully means. • Section 5.10.140(5): has been added to conform to other sections of the ordinance relating to loss of location exemptions where the retailer ceases conducting business for more than 60 consecutive days to conform to other sections of the ordinance.
• Section 5.10.150.D: has been deleted, eliminating criminal prosecution.

Date: November 19, 2024
Subject: INTRODUCTION OF AN ORDINANCE ADDING CHAPTER 5.10 TO THE VALLEJO

MUNICIPAL CODE RELATING TO TOBACCO RETAIL LICENSING AND AMENDING CHAPTERS 7.68, 16.301, 16.340, AND 16.701 RELATING TO TOBACCO RETAILERS AND USE PERMIT REQUIREMENTS AND REPEALING CHAPTER 7.69

RELATING TO RESTRICTIONS ON ACCESSIBILITY OF TOBACCO PRODUCTS

Page 3 ends

Staff is requesting that the Council review the above-mentioned changes, make choices from the options presented (see highlighted sections), and introduce the ordinance as modified.

FISCAL IMPACT
The financial impact of this action is not known at this time, but any costs are anticipated to be offset by licensing fees.

ENVIRONMENTAL REVIEW
The project is exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3), which states that CEQA applies only to projects which have the potential for causing a significant effect on the environment. As a series of Municipal Code text amendments that address the sale of tobacco, it can be seen with certainty that there is no possibility that the proposed action may result in a significant effect on the environment, and the proposed revisions to the Municipal Code are exempt from further review under CEQA.

ATTACHMENTS

1. Chapter 5.10 Redline Version

2. Tobacco Retail Licensing Ordinance Base_CAO Stamp

3. Exhibit A - Tobacco Retail Licensing Ordinance Adding Chapter 5.10

4. Exhibit B - Tobacco Retail Licensing Ordinance_ Amending Chapter 7.68 PROHIBITION OF SMOKING

5. Redline Exhibit B - Tobacco Retail Licensing Ordinance_Amending Chapter 7.68 PROHIBITION OF

SMOKING

6. Exhibit C - Tobacco Retail Licensing Ordinance_Amending Chapter 16.301 USE STANDARDS TABLE

7. Redline Exhibit C - Tobacco Retail Licensing Ordinance_Amending Chapter 16.301 USE STANDARDS TABLE

8. Exhibit D - Tobacco Retail Licensing Ordinance_Amending Chapter 16.340 TOBACCO PRODUCT SALES

9. Redline Exhibit D - Tobacco Retail Licensing Ordinance_Amending Chapter 16.340 TOBACCO

PRODUCT SALES

10. Exhibit E - Tobacco Retail Licensing Ordinance - Amending Chapter 16.701 LAND USE TERMS AND

DEFINITIONS

11. Redline Exhibit E - Tobacco Retail Licensing Ordinance_Amending Chapter 16.701 LAND USE TERMS

AND DEFINITIONS

12. Deleting Chapter_7.69_RESTRICTIONS ON ACCESSIBILITY TO CIGARETTES AND OTHER

TOBACCO PRODUCTS

13. PC24-06 - Resolutions - signed

14. Tobacco Retail License - PC Packet

CONTACT
Veronica A.F. Nebb, City Attorney (707) 648-4545
[email protected]

Exhibit A - Chapter 5.10 TOBACCO RETAIL LICENSING

ORDINANCE
Chapter 5.10 – TOBACCO RETAIL LICENSING ORDINANCE

5.10.010 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:

A. “Arm’s Length Transaction” means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. Arms Length Transaction does not include bequest, inheritance, devise or other transaction for less than fair market value to a spouse, domenstic partner, cohabitant, child, step-child, grandchild, parent, stepparent, parent in-law, child in-law, grandparent, great grandparent, sibling, half sibling, stepsibling, niece, nephew (by blood or marriage), first cousins.

B. "Cannabis" has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

C. "Cannabis products" has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

D. "Cannabis Business Retailer" means any retail establishment in which cannabis or Cannabis products are sold or offered for sale to persons that do not hold a license to engage in commercial cannabis activity issued by the State of California in accordance with California Business and Professions Code Section 26000 et seq., as the same may be amended from time to time.

E. “Child-Resistant Packaging” means packaging that meets the definition set forth in Code of Federal Regulations, title 16, section 1700.15(b), as in effect on January 1, 2024, and was tested in accordance with the method described in Code of Federal Regulations, title 16, section 1700.20, as in effect on January 1, 2024.

F. “Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco weighing more than 4.5 pounds per thousand.
2 G. “Cigarette” means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.

H. “City” means the City of Vallejo, California.

I. “Compliance checks” means systems the department may use to investigate and ensure that tobacco retailers are following and complying with the requirements of this chapter. Compliance checks may involve the use of persons between the ages of 18 and 20 who purchase or attempt to purchase tobacco products. Compliance checks may also be conducted by the department or other units of government for educational, research, and training purposes or for investigating or enforcing federal, state, or local laws and regulations relating to tobacco products.

J. “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.

K. “Delivery sale” means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a tobacco retail storeestablishment. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up.

L. “Department” means the City department in charge of Code Enforcement personnel in the City and any other department or personnel designated by the City Manager to enforce or administer the provisions of this chapter.

M. “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. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and 3 Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

N. “Flavored Tobacco Product” means any tobacco product that imparts:

1. a taste or odor, other than the taste or odor of tobacco, that is distinguishable by an ordinary consumer, either prior to or during the consumption of such tobacco product, including but not limited to, tastes or odors relating to any fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, candy, dessert, alcoholic beverage, herb, or spice; or

2. a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.

Any communication by or on behalf of the manufacturer or retailer of a tobacco product that such tobacco product imparts a taste or odor other than the taste or odor of tobacco, or that imparts a cooling or numbing sensation, constitutes presumptive evidence that the tobacco product is a flavored tobacco product.

This includes but is not limited to public statements that a product has a minty or cooling effect, such as describing the product as “chill,” “ice,” “fresh,” “arctic,” “frost”, or similar terms.

O. “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.

P. “Little Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than 4.5 pounds per thousand. “Little Cigar” includes.

But is not limited to tobacco products known or labeled as small cigar, little cigar or cigarillo.

Q. “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.

R. “Moveable place of business” means any form of business that is operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and not a fixed address store front or other permanent type of structure authorized for sales transactions.
4 S. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

T. “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.

U. “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% or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has or shares ultimate control over the day-to-day operations of a business.

V. “Recreation Facility” means an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes, and includes but is not limited to a gymnasium, playing court, playing field, and swimming pool.

W. “Sale” or “Sell” means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

X. “Self-Service Display” means the open display or storage of tobacco products in a manner that is physically accessible in any way 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.

Y. “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated product containing, made, or derived from nicotine, tobacco, cannabis, or other plant, whether natural or synthetic, that is intended for inhalation. “Smoking” includes using an electronic smoking device.

Z. “Tobacco Product” means:

1. any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including 5 but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, or snus; and

2. any electronic device that delivers nicotine or any other substances to the person inhaling from the device, that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, including, but not limited to, a vaporizer/vape, electronic cigarette, electronic cigar, electronic pipe, or electronic hookah; or

3. any component, part, or accessory of (1) or (2), whether or not any of these contain tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
“Tobacco product” does not include drugs, devices, or products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act or Cannabis Products.

AA. “Tobacco Retailer” means any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange.

AB. “Tobacco Retailing” means engaging in the activities of a tobacco retailer.

AC. “Tobacco Retail Store" means any business establishment utilized for the sale of any tobacco product.

AD. “Youth-Oriented Facility” means a parcel in the City that is occupied by:

1. a private or public kindergarten, elementary, middle, junior high, or high school;

2. a library open to the public;

3. a playground open to the public;

4. a youth center, defined as a facility where children, ages 6 to 17, inclusive, come together for programs and activities;

5. a recreation facility open to the public, defined as an area, place, structure, or other facility that is used permanently for community recreation, even though it may be used for other purposes;

6. a park open to the public or to all the residents of a private community;
6 7. a licensed child-care facility or preschool including, but not limited to, a small-family day care home or a large-family day care home as defined in California Health & Safety Code §1596.78.

5.10.020 GENERAL REQUIREMENTS AND PROHIBITIONS.

A. TOBACCO RETAILER’S LICENSE REQUIRED. It shall be unlawful for any person to engage in tobacco retailing in the City without first obtaining and maintaining a valid tobacco retailer’s license for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer’s license is a nuisance as a matter of law.

B. LAWFUL BUSINESS OPERATION. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, any of the licensee’s agents or employees, or any other person to violate any local, state, or federal law applicable to the sale of tobacco products.

C. SMOKING GENERALLY PROHIBITED. Smoking, including smoking for the purpose of sampling any tobacco product, is prohibited within the indoor area of any retail establishment licensed under this chapter unless a separate permit for a Cigar-Tobacco Bar or Lounge, smoking room or other similar establishment has been issued in accordance with the Vallejo Municipal Code.

D. MINIMUM LEGAL SALES AGE. No person engaged in tobacco retailing shall sell a tobacco product to a person under 21 years of age.

E. DISPLAY OF LICENSE. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

F. POSITIVE IDENTIFICATION REQUIRED. No person engaged in tobacco retailing shall 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.

G. SELF-SERVICE DISPLAYS PROHIBITED. Tobacco retailing by means of a self-service display is prohibited.

H. ON-SITE SALES. All sales of tobacco products shall be conducted in- person in the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to engage in the delivery sale of tobacco products or to knowingly or 7 recklessly sell or provide tobacco products to any person that intends to engage in the delivery sale of the tobacco product in the city.

5.10.030 SALE OF FLAVORED TOBACCO PRODUCTS AND ELECTRONIC DEVICES PROHIBITED.

A. FLAVORED TOBACCO PRODUCT SALES PROHIBITED. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.

B. PRESUMPTIVE FLAVORED TOBACCO PRODUCT. A public
statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.

5.10.040 TOBACCO PRODUCT PRICING AND PACKAGING.

A. PACKAGING AND LABELING. No tobacco retailer shall sell any tobacco product to any consumer unless the tobacco product: (1) is sold in the 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.

B. DISPLAY OF PRICE. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed on the tobacco product or on any related shelving, posting, advertising, or display at the location where the item is sold or offered for sale.

C. DISTRIBUTION OF TOBACCO SAMPLES OR PROMOTIONAL
ITEMS. It is unlawful for any person to distribute free or nominally priced tobacco products or tobacco products.

D. PROHIBITION OF TOBACCO COUPONS AND DISCOUNTS. No
tobacco retailer shall:

1. Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the 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 than the full retail price in consideration for the purchase of any tobacco product or any other item; or
8 3. Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.

E. MINIMUM PACKAGE SIZE REQUIREMENTS FOR CIGARS. No
tobacco retailer shall sell:

1. Any little cigar unless it is sold in a package of at least ten (10) little cigars; or

2. Any cigar unless it is sold in a package of at least ten (10) cigars provided however, that this subsection shall not apply to the sale of a single cigar that has a price of at least $10.00 per cigar, including all applicable taxes and fees.

F. MINIMUM PRICE REQUIREMENTS FOR CIGARETTES AND
CIGARS. No tobacco retailer shall sell:

1. Cigarettes at a price that is less than $10.00 per package of twenty (20) cigarettes, including all applicable taxes and fees;

2. Little Cigars at a price that is less than $10.00 per package, including all applicable taxes and fees; or

3. Cigars at a price that is less than $50.00 per package, or $10.00 per cigar, including all applicable taxes and fees.

G. ADJUSTMENT OF MINIMUM PRICE. The prices established in this section shall be adjusted annually by the Department in proportion with the Consumer Price Index, all urban consumers for all items for the Vallejo-Fairfield statistical area as reported by the United States Bureau of Labor Statistics or any successor to that index, using a system established by the Department.

5.10.050 LIMITS ON ELIGIBILITY FOR A TOBACCO RETAILER LICENSE.

A. MOBILE VENDING. No license may be issued to authorize tobacco retailing at other than a fixed location. No tobacco retailer license will be issued to a moveable place of business, including, but not limited to a car, cart, tent, or any other movable vendor apparatus.

B. LICENSED CANNABIS BUSINESSES RETAILER. No license may be issued, and no existing license may be renewed, to authorize tobacco retailing at a location licensed for commercial cannabis activity by the State of California under Business and Professions Code Division 10. 9 C. PHARMACIES. No license may be issued, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.

D. PROXIMITY TO YOUTH-ORIENTED FACILITIES. No license may be issued to authorize tobacco retailing within 1000 feet of a youth- oriented facility as measured by a straight line from the nearest point of the property line of the parcel on which the youth-oriented facility is located to the nearest point of the property line of the parcel on which the applicant’s business is located.

E. PROXIMITY TO OTHER TOBACCO RETAILERS. No license may be issued to authorize tobacco retailing within 1000 feet of a tobacco retailer location already licensed pursuant to this chapter or which predates the effective date of this chapter, as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing licensee’s business is located.

F. PROXIMITY TO CANNABIS BUSINESS RETAILERS. No license may be issued to authorize tobacco retailing within 1000 feet of an existing cannabis business retailer as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing cannabis business retailer is located.

G. POPULATION AND DENSITY. The issuing of tobacco retailer licenses is limited as follows:

1. The total number of tobacco retailer licenses within the incorporated area of Vallejo shall be limited to one for each 2,500 inhabitants, or fraction thereof, of the City of Vallejo;

2. For the purposes of this subsection, the total population of the City shall be determined by the most current published total available from the U.S. Census Bureau or the California State Department of Finance, whichever has been more recently updated, as of the date the license application is filed.

3. No new license may be issued to authorize tobacco retailing if the number of tobacco retailer licenses already issued equals or exceeds the total number authorized pursuant to subsection G.1. of this section.

H. EXISTING RETAILERS EXEMPTED FROM DENSITY AND
PROXIMITY REQUIREMENTS. Notwithstanding subsections D. through G. of this section, a tobacco retailer operating lawfully on the date 10 the ordinance codified in this chapter is introduced that would otherwise be ineligible for a tobacco retailer license for the location for which a license is sought may receive or renew a license for that location so long as all of the following conditions are met:

1. The A complete application for the first license for the location is submitted and accepted as complete within 90 calendar days of the obtained on or before 60 calendar days after the effective date of this ordinance and is issued based upon said application and renewed without lapse or permanent revocation (as opposed to temporary suspension);

2. The tobacco retail storeer is not closed for business or has not otherwise suspendeds tobacco retailing for more than 60 consecutive days;

3. The tobacco retailer does not substantially change the business operation. A substantial change to the business operation includes, but is not limited to, the transferring of a business:
a. To a new proprietor any time after _______[January 1, 2026][January 1, 2031] [other date](s) in an arm’s length transaction; or
b. To a new location; or
c. Where the location or Tobacco Retailer License holder has committed 2 or more violations of this chapter within a [1 year], [two year] [5 year’] [other] time period.

4. The tobacco retailer retains the right to operate under all other applicable laws.

In the event that a tobacco retailer fails to obtain a tobacco retailer license on or before 18090 calendar days after the effective date of this chapter, such tobacco retailer shall be required to comply with all density and location requirements set forth in subsections D. through G. of this section. In the event that the location of the tobacco retail store does not comply with such location and density requirements and has not obtained such tobacco retail license on or before the 18060 calendar day period, such retailer shall immediately cease the sale of any and all tobacco products.

For the purposes of this chapter “operating lawfully” means:
11 (1) that the Tobacco Retailer was in possession of all licenses and permits required to be a Tobacco Retailer; and
(2) that the location for which the Tobacco Retailer License is sought was a permitted or conditionally permitted use (with a valid permit having been issued and maintained) at such location, met all locational requirements pursuant to the Vallejo Municipal Code at the time the Tobacco Retail Store was established.

I. LOCATIONS PROHIBITED OR RESTRICTED BY ZONING. With the exception of those Tobacco Retail Stores operating lawfully on the date that the ordinance codified in this chapter is introduced, nNo license may issue to authorize tobacco retailing at a location where:

1. Such use is prohibited at the requested location by Title 16 of the Vallejo Municipal Code; or

2. Such use is required to have a land use entitlement, including, but not limited to a use permit in order to do business at the requested location and such entitlement has been denied or has yet to be approved.

5.10.060 APPLICATION PROCEDURE.

A. An 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. All applications shall be submitted on a form supplied by the Department.

B. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information, shall be revoked pursuant to Section 5.10.130 C. of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any provision of law.

C. Applicant submissions shall contain the following information:

1. The name, address, and telephone number of each proprietor of the business seeking a license.

2. The business name, address, and telephone number of the location for which a license is sought.
12 3. The name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this chapter.

4. Proof that the location for which a tobacco retailer’s license is sought has been issued all necessary state licenses for the sale of tobacco products and has either been issued or applied for any required land use entitlements/permits required by Title 16 of the Vallejo Municipal Code or was operating lawfully when
established and at all times thereafter.

5. Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter or any other local, state, or federal law governing the sale of tobacco products and, if so, the dates and locations of all such violations within the previous five years.

6. A signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product without a license required by this chapter.

7. Such other information as the Department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.

D. A licensed tobacco retailer shall inform the Department in writing of any change in the information submitted on an application for a tobacco retailer’s license within 10 business days of a change.

5.10.70 LICENSE ISSUANCE OR DENIAL.

A. ISSUANCE OF LICENSE. Upon the receipt of a complete and adequate application for a tobacco retailer’s license and the license fee required by this chapter, the Department may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary.

B. DENIAL OF APPLICATION. The Department may deny an application for a tobacco retailer’s license based on any of the following:

1. The information presented in the application is inaccurate or false.

Intentionally supplying inaccurate or false information shall be a violation of this chapter;

2. The application seeks authorization for tobacco retailing at a location for which this chapter or any other chapter of the Vallejo 13 Municipal Code prohibits a licensed to be issued or a tobacco retail store to be operated unless otherwise stated in this chapter;

3. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued; or

4. The application seeks authorization for tobacco retailing in a manner that is prohibited pursuant to this chapter, that is unlawful pursuant to any other chapter of this Code, or that is unlawful pursuant to any other law.

5. Any other suitable reason the granting of a license to the applicant is not consistent with the public health and welfare, including the applicant’s history of noncompliance with this chapter and other laws relating to the sale of tobacco products.

5.10.080 LICENSE RENEWAL AND EXPIRATION.

A. RENEWAL OF LICENSE. A tobacco retailer’s license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is 1 year. Each tobacco retailer shall apply for the renewal of their tobacco retailer’s license and submit the license fee no later than 9060 days prior to expiration of the current license. A retailer that fails to timely submit a renewal application and fee is ineligible for license renewal and must submit a new application pursuant to Section 5.10.060.

5.10.090 LICENSES NOT TRANSFERABLE; PAST VIOLATIONS AT RETAIL LOCATION.

A. LICENSES NOT TRANSFERRABLE. A tobacco retailer’s license may not be transferred from one person to another or from one location to another. A new tobacco retailer’s license is required whenever a tobacco retailing location has a change in proprietors or location.

1. the location has been acquired by new proprietor(s) in an arm’s length transaction; and

2. the new proprietor(s) provides the city with clear and convincing evidence that the new proprietor(s) have acquired the location in an arm’s length transaction.

5.10.100 LICENSE CONVEYS A LIMITED, CONDITIONAL PRIVILEGE. 14 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 limited conditional privilege to act as a tobacco retailer at the location in the City identified on the face of the permit. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law.

5.10.110 FEE FOR LICENSE.

The fee to issue or to renew a tobacco retailer’s license shall be established from time to time by resolution of the City Council. The fee shall be calculated so as to recover the total cost of administration and enforcement of this chapter, including, but not limited to, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

5.10.120 COMPLIANCE MONITORING.

A. Compliance with this chapter may be monitored by the Department.

In addition, the City Manager may designate additional persons to monitor compliance with this chapter. All licensed premises must be open to inspection by city staff or designated persons during regular business hours.

B. The Department, or designated persons may inspect each tobacco retailer at least 2 times per 12-month period to ensure compliance with this chapter. At least one of those visits may involve the participation of persons under the age of 21 to enter licensed premises to attempt to purchase tobacco products.

C. Nothing in this section shall create a right of action in any licensee or other person against the city or its agents.

5.10.130 SUSPENSION 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, based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee’s agents or employees, have violated any of the requirements, conditions, or prohibitions of this chapter; such violation is determined by any court of competent jurisdiction; or the licensee has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in Section

5.10.020 above.
15 1. Upon a finding by the Department of a first violation of this chapter at a location, the license shall be suspended for 30 days.

2. Upon a finding by the Department of a second violation of this chapter at a location within any 5-year period, the license shall be suspended for 90 days.

3. Upon a finding by the Department of a third violation of this chapter at a location within any 5-year period, the license shall be suspended for 1 year.

4. Upon a finding by the Department of four or more violations of this chapter at a location within any 5-year period, the license shall be revoked.

B. APPEAL OF SUSPENSION OR REVOCATION. A decision of the Department to suspend or revoke a license is appealable to the City Council and any appeal must be filed in writing with the City Clerk within ten (10) calendar days of mailing of the Department’s decision along with the appropriate appeal fee. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to Council is not available for a revocation made pursuant to subsection C. below.

C. REVOCATION OF LICENSE WRONGLY ISSUED. A tobacco retailer’s license shall be revoked if the Department finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.10.070 existed at the time application was made or at any time before the license issued. The decision by the Department shall be the final decision of the City.

5.10.140 TOBACCO RETAILING WITHOUT A VALID LICENSE.

A. INELIGIBLE FOR LICENSE. In addition to any other penalty authorized by law, if the Department finds, or if a court of competent jurisdiction determines, based on a preponderance of evidence after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer’s license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer’s license as follows:

1. After a first violation of this section at a location, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 30 days have passed from the date of the violation.

2. After a second violation of this section at a location within any 5 year period, no new license may issue for the person or the location (unless ownership of the business at the location has been 16 transferred in an arm’s length transaction), until 90 days have passed from the date of the violation.

3. After of a third violation of this section at a location within any 5 year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 1 year has passed from the date of the violation.

5. Notwithstanding the above, as set forth in Section 5.10.050 (H)2, a tobacco retail store which has closed for business or has suspended tobacco retailing for more than 60 consecutive days must comply with the location and separation requirements set forth in Sections 5.10.050 (D) through (F) above;

5.10.150 ADDITIONAL REMEDIES.

A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity, including, but not limited to administrative citation issued by the Department in accordance with Chapter 1.15 of the Vallejo Municipal Code.

B. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of 18 years, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

C. Violations of this chapter are subject to a civil action brought by the district attorney, or the city attorney and are punishable by a civil fine not less than $250 and not exceeding $1,000 per violation. The license holder shall be solely responsible for payment of fines.

D. Violations of this chapter may, in the discretion of the district attorney or city attorney, as applicable, be prosecuted as infractions or misdemeanors when the interests of justice so require.

E.D. Violations of this chapter are hereby declared to be public nuisances.

F.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 17 district attorney or city attorney, including administrative proceedings, judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.

G.F. Tobacco products offered for sale in violation of this chapter are subject to seizure by the Department or its designee and shall be forfeited after the licensee or any other owner of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale in violation of this chapter. The decision by the Department may be appealed pursuant to the procedures set forth in Section 5.10.130 B. Forfeited tobacco products shall be destroyed and properly disposed of at the cost of the seller after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.

H.G. For the purposes of the civil remedies provided in this chapter:

1. Each day on which a tobacco product is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter; and

2. Each individual tobacco product that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.

HI. All tobacco retailers are responsible for the actions of their employees 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. Notwithstanding the provisions of this subsection, enforcement action may also be brought against any employee of a tobacco retailer for a violation of this chapter.

5.10.160 EXCEPTIONS.

A. Nothing in this chapter prevents the provision of tobacco products to any person as part of an indigenous practice or a lawfully recognized religious or spiritual ceremony or practice.

B. 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.

1 ORDINANCE NO. ______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VALLEJO ADDING CHAPTER 5.10 OF THE VALLEJO MUNICIPAL CODE RELATING TO TOBACCO RETAIL LICENSING AND AMENDING CHAPTERS 7.68, 16.301, 16.340, AND 16.701

RELATING TO TOBACCO RETAILERS AND USE PERMIT REQUIREMENTS AND REPEALING CHAPTER 7.69 REGARDING OTHER REGULATIONS RELATED TO

TOBACCO RELATED PRODUCTS
WHEREAS, on August 28, 2020, California Governor Newsom signed SB 793 which ended the sale of most flavored tobacco products statewide; and WHEREAS, on November 8, 2022, California voters upheld Senate Bill (SB) 793 by approving Proposition 31, which prevents retailers from selling most flavored tobacco products, including menthol cigarettes and electronic smoking devices (vapes); and WHEREAS, Section 104559.5(g) of the California Health and Safety Code authorizes local governments to adopt local standards that impose greater restrictions on the access to tobacco products than the restrictions imposed by Section 104559.5; WHEREAS, Section 26200 of the California Business and Professions Code expressly authorize local governments to regulate smoking and cannabis in any manner not inconsistent with state law; and
WHEREAS, Section 22971.3 of the California Business and Professions Code explicitly permits cities and counties 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; and WHEREAS, the City Council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the council, to protect the health, safety, and welfare of our residents; WHEREAS, there is no Constitutional right to smoke; and WHEREAS, the U.S. Environmental Protection Agency has determined tobacco smoke is the major contributor to particulate indoor air pollution; and WHEREAS, Center for Disease Control and Prevention has determined tobacco use is the number one cause of preventable death in California and continues to be an urgent public health issue; and

2 WHEREAS, 5.6 million of today’s Americans who are younger than 18 are projected to die prematurely from a smoking-related illness; and
WHEREAS, tobacco use is the number one cause of preventable death in California and continues to be an urgent public health issue, as evidenced by the following:
●40,000 California adults die from their own smoking annually; ●More than 25% of all adult cancer deaths in California are attributable to smoking; ● Smoking costs California $13.29 billion in annual health care expenses, $3.58 billion in Medicaid costs caused by smoking, and $10.35 billion in smoking-caused productivity losses;
●Tobacco use can cause disease in nearly all of the organs of the body and is responsible for 87% of lung cancer deaths, 32% of coronary heart disease deaths, and 79% of all cases of chronic obstructive pulmonary disease in the United States; and WHEREAS, tobacco use among priority populations in California contributes to health disparities and creates significant barriers to health equity, as evidenced by the following:
●African American (20.4%), Asian or Pacific Islander (11.4%), and Hispanic (15.2%) males all report a higher smoking prevalence than the statewide average among all adults (11.0%);
●American Indian/Alaska Native Californians have the highest smoking prevalence (19.1%) among all reported adult demographic populations; ●Smoking is more prevalent among rural (14.9%) compared to urban (10.6%) Californians;
●Californians with the highest levels of educational attainment and annual household income have the lowest smoking prevalence;
●Adults who identify as lesbian, gay, bisexual, or transgender report smoking at a higher rate (17.4%) than the statewide average (11.0%);
●Those who reported experiencing psychological distress in the past month smoke at rates (26.7%) higher than the statewide average (11.0%); and WHEREAS, despite the state’s efforts to limit youth access to tobacco, youth are still able to access tobacco products, as evidenced by the following:
●In California, research indicates over 67% of current and former adult smokers started by the age of 18 and almost 100% start by age 26;
●In California, from 2017 to 2018, approximately 13% of high school students reported using tobacco;
●Disparities in tobacco use exist among California high school students, with higher rates found among LGBTQ, gender non-binary, American Indian, and Pacific Islander youth;
●Overall, 12.7% of California high school students reported past 30-day tobacco use in 2018, versus 16.4% of gay or lesbian students, 15.5% of bisexual students, 25.2% of transgender students, 20.4% of queer students, 34.1% of intersex or intergender students,

24.1% of gender-nonconforming or genderqueer students, 21.7% of genderfluid students;
3 ●Among California high school students, 12.2% of male students and 11.1 of female students reported tobacco use in 2018, versus 21.8% of students who identify their gender in another way;
●Unless smoking rates decline, an estimated 441,000 of all California youth who are alive today will die prematurely from smoking-related diseases; ●In 2017, 22.8% of high school students in California had tried cigarette smoking; ● Between 2014 and 2018, electronic smoking device use among California youth increased from 14.1% to 46.2%; and
WHEREAS, health care costs and lost productivity incurred by smoking-related disease and death represent a heavy and avoidable financial drain on our community; and WHEREAS, approximately 480,000 people die in the United States from smoking-related diseases and exposure to secondhand smoke every year, making tobacco use the nation’s leading cause of preventable death; and
WHEREAS, the World Health Organization (WHO) estimates that tobacco kills 8 million people and causes over 1.4 trillion dollars in economic damage each year; and WHEREAS, the tobacco industry encourages youth and young adult tobacco initiation through predatory targeting, as evidenced by the following:
●Tobacco companies target young adults ages 18 to 24 to increase their frequency of tobacco use and encourage their transition to habitual users; ●Tobacco industry documents state that if “a man has never smoked by the age of 18, the odds are three-to-one he never will. By age 24, the odds are twenty-to-one”; ●The tobacco industry spends an estimated $496 million annually to market tobacco products to California residents; and
WHEREAS, California retailers continue to sell tobacco to underage consumers, evidenced by the following:
●9.3% of high school students in California reported buying their own electronic cigarette from a store;
●19.1% of California tobacco retailers unlawfully sold tobacco products to underage persons in 2018;
●21.6% of retailers visited in a region consisting of Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Solano counties unlawfully sold tobacco products to 18- or 19-year old decoys in 2019, exceeding the state average of 17.9%; and WHEREAS, requiring tobacco retailers to obtain a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell tobacco products to adults but will, however, allow the city to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco control and youth tobacco access laws, as evidenced by the following:
4 ●Tobacco products are the number one seller in U.S. convenience stores, and in 2018, they generated an average of $595,870 in sales per store; ●Systematic scientific reviews indicate that merchant compliance with youth tobacco sales laws reduces the rate of tobacco use among adolescents; ● Studies found increased retailer compliance and reduced tobacco sales to youth following implementation and active enforcement of youth tobacco sales laws paired with penalties for violations; and
●A review of 41 California communities with strong tobacco retailer licensing ordinances found that youth sales rates declined in 40 of these communities after the ordinances were enacted, with an average 69% decrease in the youth sales rate; and WHEREAS, flavored tobacco products are used by the majority of youth and young adult tobacco users (86.4% and 57.7%, respectively) in California; and WHEREAS, mentholated and flavored products have been shown to be “starter” products for youth who begin using tobacco and that these products help establish tobacco habits that can lead to long-term addiction; and
WHEREAS, studies indicate that laws prohibiting the sale of flavored tobacco products lead to decreases in youth tobacco use; and
WHEREAS, unlike cigarette use that has steadily declined among youth, the prevalence of the use of non-cigarette tobacco products has increased among California youth; and WHEREAS, the availability of inexpensive tobacco products leads to increased tobacco use as evidenced by more than 100 academic studies that conclusively show that when tobacco products are made more expensive, fewer people use tobacco, fewer initiate tobacco use, and more people quit tobacco use; and
WHEREAS, research has also consistently shown that increases in cigarettes prices will result in less smoking across various sociodemographic populations; and WHEREAS, tobacco companies spend considerably to decrease the price of their products in order to counter state and local tobacco control efforts, appeal to price-sensitive consumers, and increase demand for tobacco products. For example, tobacco companies spent the majority of their cigarette marketing budgets on price discounts, accounting for nearly $6.2 billion of $8.6 billion advertising and promotional expenditures in 2018; and WHEREAS, the tobacco industry’s price discounting strategies, such as coupons and multiple- package discounts, are popular among consumers, with more than half of adults using some price minimization strategy and with price-discounted sales account for a substantial proportion of overall tobacco product sales; and
WHEREAS, many retailers sell little cigars and cigars individually, making them more affordable and appealing to youth. Additionally:
●78.3% of California tobacco retailers sell a popular brand of youth-friendly cigars for less than $1.00; and
5 ●Between 2012 and 2016, annual sales of cigarillos increased by 78% overall and by 155% for “concept-flavored” (e.g., Jazz) cigarillos; and WHEREAS, a 10% increase in cigar prices has been associated with decreased cigar sales and may significantly reduce cigar use among youth; and
WHEREAS, studies have estimated that if price discounts were prohibited across the United States, the number of people who smoke would decrease by more than 13%; the impact of a $10 federal minimum floor price for cigarettes could reduce the number of packs sold in the United States by 5.7 billion per year and prompt more than 10 million smokers to quit; and that a state- level minimum floor price law designed to raise the average price of cigarette packs by just under $2.00 could decrease the prevalence of cigarette use and consumption by more than 4% and reduce income-based smoking disparities in California; and WHEREAS, by selling tobacco products, pharmacies reinforce positive social perceptions of smoking, convey tacit approval of tobacco use, and send a message that it is not so dangerous to smoke; and
WHEREAS, tobacco-free pharmacy sales policies decrease the availability of tobacco products by reducing tobacco retailer density by up to three times compared with communities that do not have such policies, and immediately after the nationwide CVS policy change to not sell tobacco products, cigarette purchases declined and smokers who had previously purchased their cigarettes exclusively at CVS were up to twice as likely to stop buying cigarettes entirely; and WHEREAS, research indicates that the density and proximity of tobacco retailers increase smoking behaviors, including number of cigarettes smoked per day, particularly in neighborhoods experiencing poverty; and
WHEREAS, the density of tobacco retailers near adolescents’ homes has been associated with increased youth smoking rates and initiation of noncigarette tobacco product use; and WHEREAS, policies to reduce tobacco retailer density have been shown to be effective and can reduce or eliminate inequities in the location and distribution of tobacco retailers; and WHEREAS, six out of 10 tobacco retailers in California sold cigar products using cannabis- related flavor descriptors and these retailers were more prevalent in school neighborhoods with lower median income; and
WHEREAS, both youth and adult tobacco users are more likely to also use cannabis; and WHEREAS, strict enforcement of policies prohibiting retail sales of cigarettes to youth, sales of cigarettes via vending machines, and other means through which youth gain access to tobacco in the commercial settings can limit their opportunities to obtain these products; and WHEREAS, over 180 cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop youth from using tobacco; and 6 WHEREAS, 27% of Vallejo City Unified School District (VCUSD) juniors reported ever having tried a vaping product, 9% of VCUSD juniors reported using a vaping product in the past 30 days, and 4% of VCUSD juniors reported vaping at least 20 of the past 30 days; and WHEREAS, 60% of VCUSD juniors believe it is “fairly easy” or “very easy” to obtain vaping products and 37% of VCUSD juniors believe it is “fairly easy” or “very easy” to obtain cigarettes; and
WHEREAS, the purpose of the City's smoking restrictions is to serve the public health, safety, and welfare due to the known dangers to health posed by smoking; and WHEREAS, Centers for Disease Control and Prevention report that e-cigarettes contain harmful substances including nicotine, which is highly addictive and can harm adolescent brain development. In addition, electronic smoking devices' vapor emissions and cartridge contents have been found to contain a number of dangerous substances including chemicals known to the State of California to cause cancer such as formaldehyde, acetaldehyde, lead, nickel, and chromium; and
WHEREAS, the Centers for Disease Control and Prevention further report that flavorings in tobacco products can make them more appealing to youth; and WHEREAS, the City Council has a substantial interest in protecting youth and underserved populations from the harms of tobacco use; and
WHEREAS, the City Council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the City of Vallejo in order to protect the health, safety, and welfare of our residents; and WHEREAS, it is the intent of the City Council, in enacting this ordinance, to ensure compliance with the business standards and practices of the city and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to youth, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein; and
WHEREAS, the Planning Commission, after giving all public notices required by State Law and the Vallejo Municipal Code, held a duly noticed public hearing on June 3, 2024, on the proposed Ordinance, including the amendments and recommended adoption thereof to the Vallejo City Council; and
WHEREAS, thereafter, the City Council, after giving all public notices required by State Law and the Vallejo Municipal Code, held a duly noticed public hearing on June 25, 2024, on the proposed Ordinance, including the amendments, and considered testimony and information received at the public hearing and the oral and written reports from City staff, as well as other documents contained in the Record of Proceedings relating to the proposed project, which are maintained at Vallejo City Clerk’s Office, 555 Santa Clara Street, Vallejo, CA 94590.

7 NOW THEREFORE THE CITY COUNCIL OF THE CITY OF VALLEJO DOES ORDAIN AS FOLLOWS:

Section 1. All of the facts set forth in the Recitals are true and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.

Section 2. Prior to taking action on this Ordinance, the City Council considered the Record of Studies in Support of Adoption of Tobacco Retail Licensing Ordinance on file with the City Clerk, and the Record of Proceedings as a whole.

Section 3. Pursuant to the California Environmental Quality Act of 1970, Public Resources Code 21000, et seq., as amended and implementing State CEQA Guidelines, Title 14, Chapter 3 of the California Code of Regulations (collectively, "CEQA"), the Ordinance does not constitute a "project" within the meaning of CEQA Guidelines Section 15060(c)(2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and pursuant to Section 15378 and because the Ordinance has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Further, the adoption of this Ordinance falls within the "common sense" CEQA exemption set forth in CEQA Guidelines Section 15061 (b)(3) in that it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The Ordinance results in no physical changes whatsoever, it merely sets forth a licensing requirement for tobacco within the City and adopts consistency amendments across other sections of the Vallejo Municipal Code. This determination reflects the City's independent judgment and analysis.

Section 4. The Record of Proceedings includes but is not limited to: (1) the environmental determination for the project; (2) the staff reports, City files and records and other documents prepared for and/or submitted to the City relating to the project; (3) the Record of Studies in Support of Adoption of Tobacco Retail Licensing Ordinance on file with the City Clerk; (4) the City of Vallejo General Plan and its related EIR; (5) the Vallejo Municipal Code and its related environmental documents; (6) all studies, data, and correspondence submitted to the City in connection with the project; (7) all documentary and oral evidence received at public workshops, meetings, and hearing regarding the project; and (8) all other matters of common knowledge to the City Council including, but not limited to, City state, and federal laws, policies, rules, regulations, reports, records and projections related to development within the City of Vallejo and its surrounding environs.

Section 5. The Vallejo Municipal Code is hereby amended by adding Chapter 5.10, as set forth in Exhibit A, attached hereto and incorporated herein by reference.

Section 6. Chapter 7.68 PROHIBITION OF SMOKING of the Vallejo Municipal Code is hereby amended as set forth in Exhibit B, attached hereto and incorporated herein by reference.

Section 7. Chapter 16.301., Table 16.301-A: LAND USE REGULATIONS of the Vallejo Municipal Code is hereby amended as set forth in Exhibit C, attached hereto and incorporated herein by reference.

8 Section 8. Chapter 16.340 - TOBACCO PRODUCT SALES of the Vallejo Municipal Code is hereby amended as set forth in Exhibit D, attached hereto and incorporated herein by reference.

Section 9. Chapter 16.701 - LAND USE TERMS AND DEFINITIONS of the Vallejo Municipal Code is hereby amended as set forth in Exhibit E, attached hereto and incorporated herein by reference.

Section 10. Chapter 7.69 – RESTRICTIONS ON ACCESSIBILITY TO CIGARETTES AND OTHER TOBACCO PRODUCTS of the Vallejo Municipal Code is hereby repealed.

Section 10. CONSTRUCTION & SEVERABILITY. It is the intent of the Vallejo City Council to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this chapter, or its application to any other person or circumstance. The Vallejo City Council hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

Section 11. EFFECTIVE DATE. This Ordinance shall take effect and be in force from and after 30 days after the date of enactment.

Exhibit A - Chapter 5.10 TOBACCO RETAIL LICENSING

ORDINANCE
Chapter 5.10 – TOBACCO RETAIL LICENSING ORDINANCE

5.10.010 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:

A. “Arm’s Length Transaction” means a sale in good faith and for valuable consideration between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. Arm’s Length Transaction does not include bequest, inheritance, devise or other transaction for less than fair market value to a spouse, domestic partner, cohabitant, child, step-child, grandchild, parent, stepparent, parent in-law, child in-law, grandparent, great grandparent, sibling, half sibling, stepsibling, niece, nephew (by blood or marriage), first cousins.

B. "Cannabis" has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

C. "Cannabis products" has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

H. “City” means the City of Vallejo, California.

K. “Delivery sale” means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a tobacco retail store. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up.

M. “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. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
3 N. “Flavored Tobacco Product” means any tobacco product that imparts:

2. a cooling or numbing sensation distinguishable by an ordinary consumer during the consumption of such tobacco product.

But is not limited to tobacco products known or labeled as small cigar, little cigar or cigarillo.

S. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
4 T. “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.

W. “Sale” or “Sell” means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

Z. “Tobacco Product” means:

1. any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, or snus; and

5 2. any electronic device that delivers nicotine or any other substances to the person inhaling from the device, that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, including, but not limited to, a vaporizer/vape, electronic cigarette, electronic cigar, electronic pipe, or electronic hookah; or

AB. “Tobacco Retailing” means engaging in the activities of a tobacco retailer.

AC. “Tobacco Retail Store" means any business establishment utilized for the sale of any tobacco product.

AD. “Youth-Oriented Facility” means a parcel in the City that is occupied by:

1. a private or public kindergarten, elementary, middle, junior high, or high school;

2. a library open to the public;

3. a playground open to the public;

4. a youth center, defined as a facility where children, ages 6 to 17, inclusive, come together for programs and activities;

5. a recreation facility open to the public, defined as an area, place, structure, or other facility that is used permanently for community recreation, even though it may be used for other purposes;

5.10.020 GENERAL REQUIREMENTS AND PROHIBITIONS.

A. TOBACCO RETAILER LICENSE REQUIRED. It shall be unlawful for any person to engage in tobacco retailing in the City without first obtaining and maintaining a valid tobacco retailer license for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer license is a nuisance as a matter of law.

D. MINIMUM LEGAL SALES AGE. No person engaged in tobacco retailing shall sell a tobacco product to a person under 21 years of age.

E. DISPLAY OF LICENSE. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

G. SELF-SERVICE DISPLAYS PROHIBITED. Tobacco retailing by means of a self-service display is prohibited.

H. ON-SITE SALES. All sales of tobacco products shall be conducted in- person in the licensed location. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to engage in the delivery sale of tobacco products or to knowingly or recklessly sell or provide tobacco products to any person that intends to engage in the delivery sale of the tobacco product in the city. 7 5.10.030 SALE OF FLAVORED TOBACCO PRODUCTS AND ELECTRONIC DEVICES PROHIBITED.

A. FLAVORED TOBACCO PRODUCT SALES PROHIBITED. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product.

5.10.040 TOBACCO PRODUCT PRICING AND PACKAGING.

C. DISTRIBUTION OF TOBACCO SAMPLES OR PROMOTIONAL
ITEMS. It is unlawful for any person to distribute free or nominally priced tobacco products or tobacco products.

D. PROHIBITION OF TOBACCO COUPONS AND DISCOUNTS. No
tobacco retailer shall:

1. Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price;

3. Provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
8 E. MINIMUM PACKAGE SIZE REQUIREMENTS FOR CIGARS. No
tobacco retailer shall sell:

1. Any little cigar unless it is sold in a package of at least ten (10) little cigars; or

F. MINIMUM PRICE REQUIREMENTS FOR CIGARETTES AND
CIGARS. No tobacco retailer shall sell:

1. Cigarettes at a price that is less than $10.00 per package of twenty (20) cigarettes, including all applicable taxes and fees;

2. Little Cigars at a price that is less than $10.00 per package, including all applicable taxes and fees; or

3. Cigars at a price that is less than $50.00 per package, or $10.00 per cigar, including all applicable taxes and fees.

5.10.050 LIMITS ON ELIGIBILITY FOR A TOBACCO RETAILER LICENSE.

C. PHARMACIES. No license may be issued, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.
9 D. PROXIMITY TO YOUTH-ORIENTED FACILITIES. No license may be issued to authorize tobacco retailing within 1000 feet of a youth- oriented facility as measured by a straight line from the nearest point of the property line of the parcel on which the youth-oriented facility is located to the nearest point of the property line of the parcel on which the applicant’s business is located.

G. POPULATION AND DENSITY. The issuing of tobacco retailer licenses is limited as follows:

1. The total number of tobacco retailer licenses within the incorporated area of Vallejo shall be limited to one for each 2,500 inhabitants, or fraction thereof, of the City of Vallejo;

H. EXISTING RETAILERS EXEMPTED FROM DENSITY AND
PROXIMITY REQUIREMENTS. Notwithstanding subsections D. through G. of this section, a tobacco retailer operating lawfully on the date the ordinance codified in this chapter is introduced that would otherwise be ineligible for a tobacco retailer license for the location for which a 10 license is sought may receive or renew a license for that location so long as all of the following conditions are met:

1. A complete application for the first license for the location is submitted and accepted as complete within 90 calendar days of the effective date of this ordinance and is issued based upon said application and renewed without lapse or permanent revocation (as opposed to temporary suspension);

2. The tobacco retail store is not closed for business or has not otherwise suspended tobacco retailing for more than 60
consecutive days;

3. The tobacco retailer does not substantially change the business operation. A substantial change to the business operation includes, but is not limited to, the transferring of a business:
a. To a new proprietor any time after _______[January 1, 2026][January 1, 2031] [other date] in an arm’s length transaction; or
b. To a new location; or
c. Where the location or Tobacco Retailer License holder has committed 2 or more violations of this chapter within a [1 year], [two year] [5 year] [other] time period.

4. The tobacco retailer retains the right to operate under all other applicable laws.

In the event that a tobacco retailer fails to obtain a tobacco retailer license on or before 180 calendar days after the effective date of this chapter, such tobacco retailer shall be required to comply with all density and location requirements set forth in subsections D. through G. of this section. In the event that the location of the tobacco retail store does not comply with such location and density requirements and has not obtained such tobacco retail license on or before the 180 calendar day period, such retailer shall immediately cease the sale of any and all tobacco products.

For the purposes of this chapter “operating lawfully” means:
(1) that the Tobacco Retailer was in possession of all licenses and permits required to be a Tobacco Retailer; and
(2) that the location for which the Tobacco Retailer License is sought was a permitted or conditionally permitted use (with a valid permit having 11 been issued and maintained) at such location, met all locational requirements pursuant to the Vallejo Municipal Code at the time the Tobacco Retail Store was established.

I. LOCATIONS PROHIBITED OR RESTRICTED BY ZONING. With the exception of those Tobacco Retail Stores operating lawfully on the date that the ordinance codified in this chapter is introduced, no license may issue to authorize tobacco retailing at a location where:

1. Such use is prohibited at the requested location by Title 16 of the Vallejo Municipal Code; or

5.10.060 APPLICATION PROCEDURE.

A. An application for a tobacco retailer 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. All applications shall be submitted on a form supplied by the Department.

B. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information, shall be revoked pursuant to Section 5.10.130 C. of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer license any status or right to act as a tobacco retailer in contravention of any provision of law.

C. Applicant submissions shall contain the following information:

1. The name, address, and telephone number of each proprietor of the business seeking a license.

2. The business name, address, and telephone number of the location for which a license is sought.

3. The name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this chapter.

4. Proof that the location for which a tobacco retailer license is sought has been issued all necessary state licenses for the sale of tobacco products and has either been issued or applied for any 12 required land use entitlements/permits required by Title 16 of the Vallejo Municipal Code or was operating lawfully when
established and at all times thereafter.

6. A signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product without a license required by this chapter.

7. Such other information as the Department deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section.

D. A licensed tobacco retailer shall inform the Department in writing of any change in the information submitted on an application for a tobacco retailer license within 10 business days of a change.

5.10.70 LICENSE ISSUANCE OR DENIAL.

A. ISSUANCE OF LICENSE. Upon the receipt of a complete and adequate application for a tobacco retailer license and the license fee required by this chapter, the Department may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary.

B. DENIAL OF APPLICATION. The Department may deny an application for a tobacco retailer license based on any of the following:

1. The information presented in the application is inaccurate or false.

Intentionally supplying inaccurate or false information shall be a violation of this chapter;

2. The application seeks authorization for tobacco retailing at a location for which this chapter or any other chapter of the Vallejo Municipal Code prohibits a licensed to be issued or a tobacco retail store to be operated unless otherwise stated in this chapter;

3. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued; or

4. The application seeks authorization for tobacco retailing in a manner that is prohibited pursuant to this chapter, that is unlawful 13 pursuant to any other chapter of this Code, or that is unlawful pursuant to any other law.

5.10.080 LICENSE RENEWAL AND EXPIRATION.

A. RENEWAL OF LICENSE. A tobacco retailer license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is 1 year. Each tobacco retailer shall apply for the renewal of their tobacco retailerlicense and submit the license fee no later than 90 days prior to expiration of the current license. A retailer that fails to timely submit a renewal application and fee is ineligible for license renewal and must submit a new application pursuant to Section 5.10.060.

5.10.090 LICENSES NOT TRANSFERABLE; PAST VIOLATIONS AT RETAIL LOCATION.

A. LICENSES NOT TRANSFERRABLE. A tobacco retailer’s license may not be transferred from one person to another or from one location to another. A new tobacco retailer license is required whenever a tobacco retailing location has a change in proprietors or location.

B. PAST VIOLATIONS. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a subsequent location operated by the tobacco retailer license holder and license ineligibility/suspension periods shall continue to apply to the location where a violation occurred unlessthe new proprietor(s) provides the city with clear and convincing evidence that the new proprietor(s) have acquired the location in an arm’s length transaction.

5.10.100 LICENSE CONVEYS A LIMITED, CONDITIONAL PRIVILEGE.

Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the City identified on the face of the permit. Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law.

5.10.110 FEE FOR LICENSE.

The fee to issue or to renew a tobacco retailer license shall be established from time to time by resolution of the City Council. The fee shall be calculated so as to recover the total cost of administration and enforcement of this chapter, including, but not limited to, issuing a license, administering the license program, retailer 14 education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

5.10.120 COMPLIANCE MONITORING.

A. Compliance with this chapter may be monitored by the Department.

C. Nothing in this section shall create a right of action in any licensee or other person against the city or its agents.

5.10.130 SUSPENSION OR REVOCATION OF LICENSE.

A. SUSPENSION OR REVOCATION OF LICENSE FOR VIOLATION. In addition to any other penalty authorized by law, a tobacco retailer license shall be suspended or revoked if the Department finds, based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee’s agents or employees, have violated any of the requirements, conditions, or prohibitions of this chapter; such violation is determined by any court of competent jurisdiction; or the licensee has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in Section

5.10.020 above.

1. Upon a finding by the Department of a first violation of this chapter at a location, the license shall be suspended for 30 days.

2. Upon a finding by the Department of a second violation of this chapter at a location within any 5-year period, the license shall be suspended for 90 days.

3. Upon a finding by the Department of a third violation of this chapter at a location within any 5-year period, the license shall be suspended for 1 year.

4. Upon a finding by the Department of four or more violations of this chapter at a location within any 5-year period, the license shall be revoked.
15 B. APPEAL OF SUSPENSION OR REVOCATION. A decision of the Department to suspend or revoke a license is appealable to the City Council and any appeal must be filed in writing with the City Clerk within ten (10) calendar days of mailing of the Department’s decision along with the appropriate appeal fee. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to Council is not available for a revocation made pursuant to subsection C. below.

C. REVOCATION OF LICENSE WRONGLY ISSUED. A tobacco retailer license shall be revoked if the Department finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.10.070 existed at the time application was made or at any time before the license issued. The decision by the Department shall be the final decision of the City.

5.10.140 TOBACCO RETAILING WITHOUT A VALID LICENSE.

A. INELIGIBLE FOR LICENSE. In addition to any other penalty authorized by law, if the Department finds, or if a court of competent jurisdiction determines, based on a preponderance of evidence after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer license as follows:

2. After a second violation of this section at a location within any 5 year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 90 days have passed from the date of the violation.

4. After a fourth or subsequent violation of this section at a location within any 5 year period, no new license may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 5 years has passed from the date of the violation.
16 5. Notwithstanding the above, as set forth in Section 5.10.050 (H)2, a tobacco retail store which has closed for business or has suspended tobacco retailing for more than 60 consecutive days must comply with the location and separation requirements set forth in Sections 5.10.050 (D) through (F) above;

5.10.150 ADDITIONAL REMEDIES.

D. Violations of this chapter are hereby declared to be public nuisances.

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 district attorney or city attorney, including administrative proceedings, judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.

F. Tobacco products offered for sale in violation of this chapter are subject to seizure by the Department or its designee and shall be forfeited after the licensee or any other owner of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale in violation of this chapter. The decision by the Department may be appealed pursuant to the procedures set forth in Section 5.10.130 B. Forfeited tobacco products shall be destroyed and properly disposed of at the cost of the seller after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.
17 G. For the purposes of the civil remedies provided in this chapter:

1. Each day on which a tobacco product is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter; and

2. Each individual tobacco product that is distributed, sold, or offered for sale in violation of this chapter shall constitute a separate violation of this chapter.

H All tobacco retailers are responsible for the actions of their employees 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. Notwithstanding the provisions of this subsection, enforcement action may also be brought against any employee of a tobacco retailer for a violation of this chapter.

5.10.160 EXCEPTIONS.

A. Nothing in this chapter prevents the provision of tobacco products to any person as part of an indigenous practice or a lawfully recognized religious or spiritual ceremony or practice.

B. 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.

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EXHIBIT B
Chapter 7.68 PROHIBITION OF SMOKING

7.68.010 Findings and purposes.

The City Council of the City of Vallejo finds and declares that the purposes of this chapter are:

A. To protect the public health, safety and general welfare; and B. To guarantee the right of nonsmokers, especially children, to breathe smoke-free air, and to recognize that the need to breathe smoke-free air has priority over the desire to smoke; and
C. To reduce addiction to tobacco products by children and teenagers.

The city council further finds it is within its basic police power to implement and enforce the provisions of this chapter.

7.68.020 Definitions.

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

A. "Adjacent unenclosed property" means any unenclosed area of property, publicly or privately owned, that abuts a multi-unit residence, but does not include property containing detached single-family homes.

B. "Business" means any sole proprietorship, joint venture, corporation, or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold, offered for sale, performed or delivered.

C. "Cannabis" has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

D. "Common area" means any enclosed or unenclosed area of a multi-unit residence or multiunit non-residential premises (such as hotels, motels, mobile home parks, shopping centers, and office buildings) accessible to and usable by more than one resident, tenant, owner, employee, employer, or member of the public, including but not limited to areas such as halls and paths, lobbies, elevators, stairs, laundry rooms, community rooms, cooking areas, dining areas, gym facilities, swimming pools, grassy or landscaped areas, walking/biking paths, seating areas, garages, and parking lots.

E. "Dining area" means any area, including streets and sidewalks, that is available to or customarily used by the public or an employee, and that is designed, established, or regularly used for consuming food or drink, including but not limited to restaurants.

F. "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

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includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

G. "Employee" means any person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for an employer.

H. "Employer" means any person, partnership, corporation or other business or nonprofit entity that retains the service of one or more employees.

I. "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 walls or other vertical constraint to airflow, including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or

2. Four walls or other vertical constraints to airflow, including, but not limited to, vegetation, that exceed six feet in height, whether or not those boundaries include vents or other openings.

J. "Homeowners' association" or "HOA" means an organization or entity established for the purpose of managing or maintaining a common interest development. A homeowners' association shall also mean "association" as defined in California Civil Code Section 4080, or any successor legislation.

K. "Landlord" means any person or agent of a person who owns real property leased or rented or any person who manages premises including property managers, homeowners' associations, commercial property associations, condominium boards, etc., except that "landlord" does not include sublessors.

L. "Multi-unit residence" means property containing two or more units that share a wall, including, but not limited to, apartments, condominiums, townhomes, duplexes, triplexes, quadruplexes, a single-family residence with a junior accessory dwelling unit or attached accessory dwelling unit, senior and assisted living facilities, drug and alcohol rehabilitation facilities, and long-term health care facilities, hospitals, and a room in a single room occupancy ("SRO") facility. Includes all personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. Multi-unit residences do not include the following:

1. A mobile home;

2. A single-family home, except if used as a health care facility subject to licensing requirements;

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3. A single-family home with a detached accessory dwelling unit permitted pursuant to California Government Code Sections 65852.1, 65852.150, 65852.2, or an ordinance of the city adopted pursuant to those sections, except if the single- family home or accessory dwelling unit is used as a health care facility subject to licensing requirements; and

4. A single-family home with a junior or attached accessory dwelling unit where neither unit is rented or leased to an individual or entity other than the occupant of the other unit or a member of the immediate family of the occupant of the other unit.

M. "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, educational, 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 not a nonprofit entity within the meaning of this chapter.

N. "Nonsmoking area" means any enclosed area or unenclosed area in which smoking is prohibited by:

1. This chapter or other law;

2. Binding agreement relating to the ownership, occupancy, or use of real property; or

3. A person with legal control over the area.

O. "Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

P. "Premises" means a piece of land and any improvements thereon such as is usually described in a deed, deed of trust, or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same natural person or by legal persons under common control.

Q. "Private Smokers' Lounge" means any enclosed area in or attached to a Tobacco Retail Store, licensed Cannabis Business Retailer, a Tobacco—Cigar Bar or Lounge that is properly licensed and dedicated to the use of tobacco products or cannabis.

R. "Public place" means any place, publicly or privately owned, which is open to the public regardless of any fee or age requirement, but does not include a “Private Smokers’ Lounge.”
S. "Reasonable distance" means a distance of at least twenty feet in any direction from an area in which smoking is prohibited.

T. "Recreational area" means any area including streets and sidewalks publicly or privately owned and open to the public for recreational purposes, regardless of any fee or age requirement. The term "recreational area" includes, but is not limited to, parks, picnic areas,

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playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, amusement parks, marinas, and beaches.

U. "Restaurant" means any coffee shop, cafeteria, sandwich stand, private and public-school cafeteria, and any other eating establishment which gives or offers for sale food to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities.

V. "Tobacco Retail Store" means any business establishment utilized for the sale of any Tobacco Product.

W. "Service area" means any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to receive a service, wait to receive a service, or to make a transaction, whether or not such service or transaction includes the exchange of money. The term "service area" includes, but is not limited to, areas including or adjacent to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines, or cab stands.

X. "Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition, or vaporization, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense.

The term "smoke" includes, but is not limited to, tobacco smoke, vapors from an electronic device, and cannabis smoke.

Y. "Smoking" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe or any other lighted or heated product containing, made or derived from nicotine, tobacco, cannabis, or other plant, whether natural or synthetic, that is intended for inhalation. “Smoking” includes using an electronic smoking device. Smoking, as defined in this chapter, does not include the use of traditional, sacred tobacco as part of an Indigenous practice or a lawfully recognized religious, spiritual, or cultural ceremony or practice.

Z. "Sports arena" means enclosed or unenclosed sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

AA. "Tobacco product" means:

1. Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff or snus; and

2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, including, but not limited to, a vaporizer (vape), electronic cigarette, electronic cigar, electronic pipe, or electronic hookah; and

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3. Any component part, or accessory of (1) or (2) whether or not any of these contain tobacco or nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
"Tobacco Product" does not include drugs, devices, or products authorized for sale by the US Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act or Cannabis Products.

BB. "Unit" means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes but is not limited to an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a room in a single room occupancy ("SRO") facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single- family home; and an in-law or second unit.
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.030 Prohibition of smoking in city-owned vehicles and facilities.

Smoking shall be prohibited in all city-owned vehicles, including buses and other means of public transit under the authority of the city, and all enclosed facilities owned and controlled by the city.
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.040 Smoking restrictions in multi-unit residences.

A. Effective ninety days after the effective date of this ordinance, smoking is prohibited in all multi-unit residences.

B. No person with legal control over any multi-unit residence shall permit smoking anywhere on the premises of the multi-unit residence except as permitted in subsection

7.68.060(A)(7).
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.050 Prohibition of smoking in enclosed areas.

Smoking is prohibited in the enclosed areas of the following places within the city:

A. Places of employment;
B. Public places;
C. Common areas of multi-unit residences;
D. Retail tobacco shops; and
E. Sports arenas.
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

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7.68.060 Prohibition of smoking in unenclosed areas.

A. Except as otherwise provided in this chapter, smoking shall be prohibited in the unenclosed areas of the following places within the city:

1. Recreational areas.

2. Service areas.

3. Dining Areas.

4. Places of employment.

5. Any private or public sidewalks.

6. Public places, except as permitted in subsection 7.68.060(A)(7) and (8).

7. Common areas of multi-unit residences, provided, however, that a person with legal control over a common area may designate a portion of the unenclosed area of the common area as a designated smoking area if the area:
a. Is located a reasonable distance from any unit or enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate it as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;
b. Does not include, and is a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;
c. Is no more than ten percent of the total unenclosed area of the multi-unit residence for which it is designated;
d. Has a clearly marked perimeter;
e. Is identified by conspicuous signs;
f. Is completely within an unenclosed area; and
g. Does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, state law, or federal law.

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legal control over the property. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate it as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;
b. Does not include, and is a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;
c. Is no more than ten percent of the total unenclosed area of the commercial property for which it is designated;
d. Has a clearly marked perimeter;
e. Is identified by conspicuous signs;
f. Is completely within an unenclosed area; and
g. Does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, state law, or federal law.

B. Nothing in this chapter prohibits any person, employer, or nonprofit entity with legal control over any property from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area.
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.070 Smoking optional areas.

A. Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:

1. Private detached single-family residences, except when used as a family day care or health care facility.

2. Private smokers' lounges.

3. An enclosed place of employment which employs only the owner and no other employee, provided that:
(a) The place of employment is not a public place; and
(b) The place of employment does not share a ventilation system with any other enclosed place of employment or public place.
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

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7.68.080 Reasonable smoking distance required.

A. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited.

B. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under Section 7.68.060.

C. The prohibitions in subsections (A) and (B) of this section shall not apply to unenclosed areas of private residential properties that are not multi-unit residences. ( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.090 Nonsmoking buffer zones.

A. Smoking is prohibited in adjacent unenclosed property located within twenty feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a multi- unit residence.

B. Subsection (A) of this section does not apply to a person who is smoking in the restricted buffer zone area while actively passing on the way to another destination. ( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.100 Notice and posting of signs.

A. Every landlord and homeowner association shall deliver the following, on or before the effective date of the ordinance codified in this chapter plus ninety days, to each unit of a multi-unit residence or multi-tenant non-residential premises:

1. A written notice clearly stating:
a. All units are designated nonsmoking units and smoking is illegal in a unit, including any associated exclusive-use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio, as of the effective date of the ordinance plus ninety days; and
b. Smoking in all common areas, except for specifically designated smoking areas, is a violation of this chapter as of the effective date of the ordinance codified in this chapter.

2. A copy of this chapter.

B. As of the effective date of the ordinance codified in this chapter, every landlord shall provide prospective tenants with written notice clearly stating that:

1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of effective date of the ordinance codified in this chapter; and

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2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of effective date of ordinance codified in this chapter.

C. As of the effective date of the ordinance codified in this chapter, every seller of a unit in a multi-unit residence or non-residential premises shall provide prospective buyers with written notice clearly stating that:

1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of the effective date of the ordinance codified in this chapter; and

2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of the effective date of the ordinance codified in this chapter.

D. The person or persons with legal control over common areas shall post clear and unambiguous "No smoking" signs in sufficient numbers and locations in common areas where smoking is prohibited by this chapter or other law. In addition, the person or persons with legal control over the multi-unit residence shall post signs in sufficient numbers and locations in the multi-unit residence to indicate that smoking is prohibited in all units. The person or persons with legal control over the common areas shall maintain such signs. The absence of signs shall not be a defense to a violation of any provision of this chapter. ( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.110 Required and implied lease terms.

A. Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence or multi-tenant space in a non-residential premises, entered into, renewed, or continued month to month after the effective date of the ordinance codified in this chapter, shall include the provisions set forth in subsection (B) of this section on the earliest possible date allowable by law.

B. Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence or multi-tenant space in a non-residential premises, entered into, renewed, or continued month to month after the effective date of the ordinance codified in this chapter, shall be amended to include the following provisions:

1. A clause providing that as of the effective date of the ordinance codified in this chapter, it is a material breach of the agreement to knowingly or intentionally allow, or engage in, smoking in the unit, including exclusive-use areas such as balconies, porches, or patios.

2. A clause providing that it is a material breach of the agreement for tenant to knowingly and intentionally allow, or engage in, smoking in any common area of the multi-unit residence or multi-tenant space in a non-residential premises other than a designated smoking area.

3. A clause providing that it is a material breach of the agreement for tenant to violate any law regulating smoking while anywhere on the property, or knowingly and

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intentionally allow any other person subject to the control of the tenant to engage in such behavior.

4. A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence or multi-tenant space in a non-residential premises as to the smoking provisions of the lease or other rental agreement.

C. Whether or not a landlord complies with subsections (A) and (B) of this section, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsection (A) or (B) of this section apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection (A) or (B) of this section.

D. A tenant who breaches, or knowingly and intentionally allows any other person subject to the control of the tenant to breach, a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multi-unit residence or multi-tenant space in a non- residential premises shall be liable for the breach to (1) the landlord; and (2) any occupant of the multi-unit residence or multi-tenant space in a non-residential premises who is exposed to smoke or who suffers damages as a result of the breach. A landlord shall not be liable to any person for a tenant's breach of smoking regulations if the landlord has fully complied with this section.

E. Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. ( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.120 Nuisance.

A. The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (1) any provision of this chapter or of this code, (2) any failure by any person to restrict smoking under this chapter or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person's legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

B. For all purposes within the jurisdiction of the city, nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance.

C. Pursuant to California State law, Health and Safety Code Section 11362.3, smoking cannabis is prohibited wherever smoking tobacco is prohibited.

D. Notwithstanding any provision to the contrary, nothing in this chapter shall be interpreted to restrict or otherwise regulate the use of a drug, device, or combination product authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

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( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.130 Other requirements and prohibitions.

A. No person, employer, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking is prohibited by law.

B. No person, employer, or nonprofit entity shall discharge, refuse to hire or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a smoke-free environment afforded by this chapter.

C. It shall be unlawful for any person to smoke in any area where smoking is prohibited under this chapter.
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.140 Penalties and enforcement.

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

B. Enforcement of this chapter shall be implemented by the city manager or his/her designee and may be enforced by any peace officer or code enforcement official.

Prohibition of smoking in multi-unit residences and private outdoor spaces shall be enforced by the landlord and/or tenant.

C. Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter.

D. Each incident of smoking in violation of this chapter is an infraction subject to

1. A fine, not exceeding one hundred dollars and/or five days of community service, for the first violation.

2. A fine, not exceeding two hundred dollars and/or ten days of community service, for a second violation of this section within one year.

3. A fine not exceeding five hundred dollars and/or fifteen days of community service, for a third violation or any subsequent violation of this section within one year.

E. Each instance of smoking in violation of this chapter shall constitute a separate violation.

For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation.
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.150 Other applicable laws.

This chapter shall not be interpreted or construed to permit smoking when it is otherwise restricted or prohibited by other applicable laws.

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( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

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EXHIBIT B – AMENDING CHAPTER 7.68 PROHIBITION OF SMOKING

Chapter 7.68 PROHIBITION OF SMOKING

7.68.010 Findings and purposes.

The Ccity Ccouncil of the City of Vallejo finds and declares that the purposes of this chapter are:

The city council further finds it is within its basic police power to implement and enforce the provisions of this chapter.

7.68.020 Definitions.

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

C. "Cannabis" has the meaning set forth in California Business and Professions Code Section 26001(f), as that section may be amended from time to time.

F. "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,

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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. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

H. "Employer" means any person, partnership, corporation or other business or nonprofit entity that retains the service of one or more employees.

I. "Enclosed area" means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

2. Four walls or other vertical constraints to airflow, including, but not limited to, vegetation, that exceed six feet in height, whether or not those boundaries include vents or other openings.

1. A mobile home; and

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2. A single-family home, except if used as a health care facility subject to licensing requirements; and

N. "Nonsmoking area" means any enclosed area or unenclosed area in which smoking is prohibited by:

1. This chapter or other law;

2. Binding agreement relating to the ownership, occupancy, or use of real property; or

3. A person with legal control over the area.

O. "Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

Q. "Private sSmokers' lLounge" means any enclosed area in or attached to a Tobacco Retail Storeretail tobacco shop, or licensed retail cCannabis Bbusiness Retailer, a Tobacco—Cigar Bar, or Lounge that is properly licensed and dedicated to the use of tobacco products or cannabis., including, but not limited to, cigars and pipes.

R. "Public place" means any place, publicly or privately owned, which is open to the public regardless of any fee or age requirement, but does not include a “Private Smokers’ Lounge”.

S. "Reasonable distance" means a distance of at least twenty feet in any direction from an area in which smoking is prohibited.

P
age 4 of 12
T. "Recreational area" means any area including streets and sidewalks publicly or privately owned and open to the public for recreational purposes, regardless of any fee or age requirement. The term "recreational area" includes, but is not limited to, parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, amusement parks, marinas, and beaches.

V. " Tobacco Retail StoreRetail tobacco store" means any business establishment utilized primarily for the sale of any Ttobacco pProducts., including but not limited to, cigars, pipe tobacco, and smoking accessories, and in which the sale of other products is merely incidental.

The term "smoke" includes, but is not limited to, tobacco smoke, vapors from an electronic device, and cannabis smoke.

Y. "Smoking" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe or any other lighted or heated product containing, made or derived from nicotine, tobacco, cannabis, or other plant, whether natural or synthetic, that is intended for inhalation. weed or plant or other combustible substance whose smoke is intended to be inhaled. “Smoking” includes using an electronic smoking device. Smoking, as defined in this chapter, does not include the use of traditional, sacred tobacco as part of an Indigenous practice or a lawfully recognized religious, spiritual, or cultural ceremony or practice.

AA. "Tobacco product" means:

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including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff or snus; and

2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, including, but not limited to, a vaporizer (vape), an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah; and

3. Any component part, or accessory of (1) or (2) whether of not any of these contain tobacco or nicotine, including, but not limited to, filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.

The phrase "tTobacco pProduct" does not include drugs, devices, or a products authorized for sale that has been approved by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act or Cannabis Productsfor sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.

7.68.030 Prohibition of smoking in city-owned vehicles and facilities.

7.68.040 Smoking restrictions in multi-unit residences.

A. Effective ninety days after the effective date of this ordinance, smoking is prohibited in all multi-unit residences.

B. No person with legal control over any multi-unit residence shall permit smoking anywhere on the premises of the multi-unit residence except as permitted in subsection

7.68.060(A)(7).
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

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7.68.050 Prohibition of smoking in enclosed areas.

Smoking is prohibited in the enclosed areas of the following places within the city:

A. Places of employment;
B. Public places;
C. Common areas of multi-unit residences;
D. Retail tobacco shops; and
E. Sports arenas.
( Ord. No. 1863 N.C. (2d) , §§ 2, 3, 5-24-2022)

7.68.060 Prohibition of smoking in unenclosed areas.

A. Except as otherwise provided in this chapter, smoking shall be prohibited in the unenclosed areas of the following places within the city:

1. Recreational areas.

2. Service areas.

3. Dining Areas.

4. Places of employment.

5. Any private or public sidewalks.

6. Public places, except as permitted in subsection 7.68.060(AB)(7) and (8).

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e. Is identified by conspicuous signs;
f. Is completely within an unenclosed area; and
g. Does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, state law, or federal law.

8. Common areas of commercial properties, provided, however, that a person with legal control over a common area may designate a portion of the unenclosed area of the common area as a designated smoking area if the area:
a. Is located a reasonable distance from any enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate it as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;
b. Does not include, and is a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;
c. Is no more than ten percent of the total unenclosed area of the commercial property for which it is designated;
d. Has a clearly marked perimeter;
e. Is identified by conspicuous signs;
f. Is completely within an unenclosed area; and
g. Does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, state law, or federal law.

7.68.070 Smoking optional areas.

A. Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:

1. Private detached single-family residences, except when used as a family day care or health care facility.

2. Private smokers' lounges.

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7.68.080 Reasonable smoking distance required.

A. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited.

B. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under Section 7.68.060.

7.68.090 Nonsmoking buffer zones.

A. Smoking is prohibited in adjacent unenclosed property located within twenty feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a multi- unit residence.

7.68.100 Notice and posting of signs.

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2. A copy of this chapter.

B. As of the effective date of the ordinance codified in this chapter, every landlord shall provide prospective tenants with written notice clearly stating that:

2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of effective date of ordinance codified in this chapter.

1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of the effective date of the ordinance codified in this chapter; and

2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of the effective date of the ordinance codified in this chapter.

7.68.110 Required and implied lease terms.

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3. A clause providing that it is a material breach of the agreement for tenant to violate any law regulating smoking while anywhere on the property, or knowingly and intentionally allow any other person subject to the control of the tenant to engage in such behavior.