Agenda packet — Vallejo City Council, December 30, 2024 (part 5 of 5)

ENVIRONMENTAL REVIEW
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.

ATTACHMENTS

1. Tobacco Retail Licensing Ordinance Amendments Base_CAO Stamp

2. Exhibit A - TRL amendments OPTIONS

3. TRL Odinance Exhibit A - Adopted Version 12-10-24

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

1 ORDINANCE NO. ______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VALLEJO AMENDING ORDINANCE 1875, SECTION 5, EXHIBIT A- CHAPTER 5.10 OF THE VALLEJO

MUNICIPAL CODE RELATING TO TOBACCO RETAIL LICENSING
WHEREAS, at the City Council meeting of November 17, 2024, the City Council made changes to and introduced 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 and Repealing Chapter 7.69 Regarding Other Regulations Related to Tobacco Related Products (TRL Ordinance); and WHEREAS, on December 10, 2024, the Council considered the adoption of the TRL Ordinance and upon first vote, the adoption of the TRL Ordinance failed to pass. However, a councilmember who voted on the prevailing side of the previous vote, moved to reconsider the vote. The motion for reconsideration passed and the Council again took up the matter. After some additional discussion, the Council voted to adopt the TRL Ordinance, but directed staff to bring back for consideration possible amendments to the section of Chapter 5.10 dealing with exemptions from location/separation and density requirements. The Council’s discussions addressed three general topics: (1) transfers of an existing retail business; (2) location requirements; and (3) conformance of violation and penalty provisions; and WHEREAS, staff prepared options for amendment to Chapter 5.10 at the City Council meeting of December 30, 2024 and wishes to adopt amendments.

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 the TRL 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 and the amendments do not change such studies or render them inapplicable.

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

2 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.

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. The City Clerk is the custodian of records for this Project.

Section 5. Ordinance 1875, Section 5, adding Chapter 5.10, as set forth in Exhibit A, - Chapter

5.10 of the Vallejo Municipal Code is hereby amended as set forth in Exhibit A, attached hereto and incorporated herein by reference.

Section 6. All other sections, recitals, and provisions of Ordinance 1875 not herein amended shall remain in full force and effect.

Section 7. 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 8. EFFECTIVE DATE. This Ordinance shall take effect and be in force from and after 30 days after the date of enactment.

EXHIBIT A
OPTIONS FOR AMENDMENTS TO SECTION 5.10.050 H. RELATING TO RETAINING EXEMPTIONS: Potential Language changes shown in RED. Italics are explanations not part of the amendments themselves.

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 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 90 consecutive days; however, such tobacco retailer may receive or renew a license, provided such retailer complies with the location and separation requirements set forth in Sections 5.10.050 (D) through (F) above. – This additional language is to conform to the change to sub-section 3. (b) below, and the penalty sections of Section 5.10.130 A. 2. and 5.10.140 A.5

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, 2032 in an arm’s length transaction; or
Option 1: OMIT SUBSECTION IMMEDIATELY ABOVE IF

WANT THE EXEMPTIONS TO REMAIN FOREVER IF

BUSINESS IS SOLD
Option 2: CHANGE THE JANUARY 1, 2032 DATE IN THE

SUBSECTION ABOVE TO ANY DIFFERENT DATE IF

YOU WANT TO EITHER SHORTEN OR EXTEND THE

EXEMPTION
b. To a new location; or
Option 1: OMIT SUBSECTION IMMEDIATELY ABOVE IF

COUNCIL WANTS THE EXISTING RETAILER OR ANY

BUYER TO BE ABLE TO MOVE TO A NEW LOCATION

REGARDLES OF WHETHER THE NEW LOCATION

COMPLIES WITH SEPARATION REQUIREMENTS
Option 2: CHANGE THE LANGUAGE OF THIS SECTION

TO READ AS FOLLOWS IN ORDER TO PERMIT A

CHANGE OF LOCATION THAT COMPLIES WITH THE
LOCATION REQUIREMENTS (substitute language follows in
red)
b. To a new location that does not comply with the location requirements of Section 5.10.050 (D), (E), and/or (F); or This means that the existing retailer who wants to move to a compliant location can move locations and would still be able to get a license.
c. Where the location or Tobacco Retailer License holder has committed 3 or more violations of this chapter within a 1 year time period.

Option 1: MODIFY THE ABOVE TO AMEND THE

LANGUAGE FOR CLARITY AND NUMBER OF
VIOLATIONS OR TIME PERIOD ( language set forth below)
c. A substantial change in the business operations also includes a circumstance in which the location or Tobacco Retailer License holder has received 3 or more violations of this chapter within any 5-year time period. This additional language is to (1) fix a confusing sentence structure, (2) conform to the change the H. 2 above and (3) conform to the penalty sections of Section

5.10.130 A. 2. and 5.10.140 A.5
Option 2: OMIT SUBSECTION IMMEDIATELY ABOVE IF

COUNCIL WANTS THE EXISTING RETAILER OR ANY

BUYER TO BE ABLE TO RETAIN THEIR EXEMPTION

EVEN IF THERE ARE VIOLATIONS

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 use 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.

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, child, stepchild, grandchild, parent, stepparent, parent in-law, child in-law, grandparent, great grandparent, sibling, half sibling, stepsibling, niece or 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 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.

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 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:

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.

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.

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 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

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 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.

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 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.

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

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

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.

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.

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 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:

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

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

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 use or conditionally permitted use (with a valid permit having been issued and maintained) at such location, met all 11 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

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 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 required land use entitlements/permits required by Title 16 of the 12 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 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. 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 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 license 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 unless 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.

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.

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 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:

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 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.

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.

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 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.

Vallejo City CouncilDecember 30, 2024

Vallejo City Council
December 30, 2024