It is the purpose and intent of this chapter to reduce the exposure of youth to tobacco products and tobacco paraphernalia in advertisement and product placement at retail establishments near public schools, public parks and public recreation facilities. These are places where youth congregate, as well as travel to and from frequently. By restricting tobacco sales along frequent youth travel routes, this decreases youth exposure to and availability of tobacco products. The in-tent is to reduce youth smoking and use of tobacco products.
(Ord. 2208 § 3, 2020)
For purposes of this chapter, certain words and terms are defined as follows:
"Public park"
means a site or parcel of land owned by a public agency and open to the public for active or passive recreation activity (e.g. neighborhood or community city parks, East Bay Regional Park District park). This definition excludes public trails.
"Public recreation facility"
means a site or parcel of land owned by a public agency and improved with a building or other facility, open to the public for active or passive recreation activity (e.g. city senior center, city aquatic center).
"Public school"
means a site or parcel of land owned by a public school district where instruction is provided, and includes the buildings and related recreation fields.
"Tobacco paraphernalia"
means cigarette papers or wrappers, blunt wraps, pipes, holders of smoking materials of all types, cigarette rolling machines, e-cigarette liquid pods and any other item designed primarily for the smoking or ingestion of tobacco products. (See California Business and Professions Code Section 22962.) This definition may be used throughout Title 18.
"Tobacco product"
means any of the following:
1. 
A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, 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, or snuff.
2. 
An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.
3. 
Any component, part, or accessory of a tobacco product, whether or not sold separately.
4. 
Exception. "Tobacco product" does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose. (See California Business and Professions Code Section 22950.5.) This definition may be used throughout Title 18.
"Tobacco retailer"
means a business which sells tobacco products and tobacco paraphernalia on a retail basis (but not in the quantity that qualifies the business as a tobacco store) in addition to other products and services being offered by the business. This definition may be used throughout Title 18.
"Tobacco retail site"
means a site where a tobacco retailer or tobacco store operates.
"Tobacco store"
means a retail business which primarily sells tobacco products; generates more than 60 percent of its gross revenues annually from the sale of tobacco products and tobacco paraphernalia; does not permit any person under 18 to enter unless with parent or guardian; and does not sell alcoholic beverages or food for consumption on the premises. (See California Business and Professions Code Section 22962.) This definition may be used throughout Title 18.
(Ord. 2208 § 3, 2020)
A. 
No person shall cause or permit the establishment of a new tobacco retail site within 1,000 feet of a public school, public park, or public recreation facility.
B. 
A tobacco retail site which is within 1,000 feet of a public school, public park, or public recreation facility that is existing on the effective date of the ordinance codified in this chapter may continue to operate, sell and display tobacco products and tobacco paraphernalia.
1. 
However, such pre-existing retail tobacco site shall then be subject to the nonconforming use provisions in Chapter 18.120 with regard to: the restrictions on alterations and additions in Section 18.120.030; and abandonment in Section 18.120.040. But, shall not be subject to the elimination provisions of Section 18.120.060.
a. 
Abandonment includes, but is not limited to, a pre-existing retail tobacco site not maintaining a valid tobacco retailer permit as required by Chapter 9.32; and having only a California cigarette and tobacco license issued by the Cal. Dept. of Tax and Fee Administration without a valid city tobacco retailer permit is evidence of abandonment.
2. 
A retail tobacco site which qualifies under this section shall still be subject to other tobacco retail restrictions in this code and state and federal law.
(Ord. 2208 § 3, 2020; Ord. 2244 § 2, 2023)
The distance between any tobacco retail site and any public school, public park, or public recreation facility shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of the tobacco retail site building to the closest property line of the public school, public park, or public recreation facility.
The city may make the measurement of distance using satellite images to determine building wall location and parcels on the city's geographic information system (GIS). A person who disagrees with this measurement may hire their own California licensed surveyor to provide another measurement.
(Ord. 2208 § 3, 2020)
Any and all investigating officials of the city shall have the right to enter a tobacco retail site from time to time during regular business hours to make reasonable inspections, including review of financial records to determine the percentage of gross receipts related to the sale of tobacco products and tobacco paraphernalia, to observe and enforce compliance with state or federal laws, provisions of this chapter, and provisions of this code.
(Ord. 2208 § 3, 2020)
Notwithstanding Section 1.24.010(B), violations of this chapter are also subject to administrative citation pursuant to Chapter 1.24 for each instance when tobacco products or tobacco paraphernalia are on display or offered for sale in violation of Section 18.109.030. Fines for such administrative citations shall be paid by the business owner, not the employee. The city may also pursue other legal remedies and penalties for violations of this chapter.
(Ord. 2208 § 3, 2020)
If any provision or clause of this chapter or the application thereof to any person or circumstance is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other chapter provisions or clauses or applications thereof which can be implemented without the invalid provision, clause or application, and to this end the provisions and clauses of this chapter are declared to be severable.
(Ord. 2208 § 3, 2020)