The purpose of this chapter is to mitigate negative impacts that tobacco product retailers may have on the public's health, safety, and welfare. Tobacco products are demonstrably dangerous to the health and safety, especially to minors, and the city of Westminster has a significant interest in ensuring that tobacco products are lawfully and judiciously distributed.
This chapter further addresses any potential adverse secondary effects on neighborhoods, which may result in significant irreversible change to the neighborhood and community character.
(Ord. 2514 § 1, 2014)
For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
"Department"
means the Westminster police department and any agency or person designated by the department to enforce or administer the provisions of this chapter.
"Electronic cigarette"
means an electronic and/or battery-operated device, the use of which may resemble smoking that can be used to deliver an inhaled dose of nicotine or other substances. The term includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. The term does not include any medical inhaler prescribed by a licensed doctor.
"Electronic cigarette retailer"
means any establishment, structure, or facility that devotes ten percent or more total floor space or display area to the sale, display, marketing, bartering, trading or exchange of electronic cigarettes.
"Health department"
means the Orange County health care agency.
"Operate"
means to own, manage, operate or control, whether by an owner or lessee.
"Operator"
means a person who operates a tobacco retailing business.
"Person"
means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
"Police chief"
shall have the same definition as Section 1.08.280, and shall include his or her designee.
"Private smokers lounge"
means any enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars and pipes.
"Proprietor"
means a person with an ownership or managerial interest in the business or his or her representative, agent or designee. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.
"Self-service display"
means the open display or storage of tobacco products or paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer and a direct person-to-person transfer between the purchaser and the retailer. A vending machine is a form of self-service display.
"Smoke shop"
means any establishment, structure, facility, vehicle, that devotes ten percent or more of either its floor space or display area to the sale, display, marketing, bartering, trading or exchange of any combination of tobacco, tobacco products, or smoking or tobacco paraphernalia.
"Smoking"
means possessing a lighted or electronically charged tobacco product, lighted or electronically charged tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind), and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind).
"Tobacco"
means dried tobacco leaves that are smoked in cigars, cigarettes and pipes, but can also be chewed in the mouth or sniffed in the nose.
"Tobacco product"
means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter, including, but not limited to, a vapor cigarette, containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.
"Tobacco product retailer"
means a smoke shop, electronic cigarette retailer, vapor cigarette retailer, or any other retailer that provides tobacco and/or nicotine products, accessories, smoking paraphernalia and that devotes ten percent or more of the business's floor area or display area to the sale, display, marketing, bartering, trading, or exchange of tobacco products or tobacco paraphernalia.
"Vapor cigarette"
means high-power electronic cigarette devices known as tank systems, which produce nicotine vapor. Vapor cigarettes are larger devices than electronic cigarettes and are designed to vaporize liquid nicotine.
"Vapor cigarette retailer"
means any establishment, structure, facility, vehicle, stand or cart that devotes ten percent or more floor space or display area to the sale, display, marketing, bartering, trading or exchange of vapor (electronic) cigarettes.
(Ord. 2514 § 1, 2014)
A. 
Permit Required. It is unlawful to operate a tobacco product retailer in the city without first obtaining and maintaining a valid tobacco product retailer permit pursuant to this chapter for each location at which that activity is to occur.
B. 
Lawful Business Operation. In the course of tobacco product retailing or in the operation of the business or maintenance of the location for which a permit has issued, it shall be a violation of this chapter for a permittee, or any of the permittee's agents or employees, to violate any local, state, or federal law applicable to tobacco products or tobacco retailing. Smoking shall only be allowed in accordance with state law.
C. 
Visibility. The visibility into the interior of the premises shall not be blocked by window tinting greater than twenty percent opacity, opaque coverings of any nature, or by painted signs covering more that twenty-five percent of any window pane area. Those businesses containing current window tinting in violation of this subsection must remove such tinting within ninety days from the adoption of this chapter.
D. 
Illumination. The illumination within the business shall not be less than one foot candle per square foot.
E. 
Display of Permit. Each tobacco product permit shall be prominently displayed in a publicly visible location at the permitted location.
F. 
Signs. Each operator and/or manager shall post and maintain, adjacent to the main entrance and the front of the business, a readable sign identifying the premises as a business selling tobacco products or items associated with smoking of tobacco and nicotine products. All such signs shall have letters at least four inches in height, and shall be posted and maintained at locations visible to the public. All signs shall comply with Chapter 17.330 in the municipal code.
1. 
"No Loitering" signs shall be posted on the front and rear of the business. Signs shall comply with Chapter 17.330 in the municipal code.
2. 
Self-Service Displays Prohibited. A tobacco product retailer is prohibited from utilizing a self-service display.
G. 
Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco product retailing.
1. 
Signs indicating "No person under the age of eighteen is allowed to purchase tobacco products" must be posted at the front of the business so as to be visible from the exterior of the business, as well as in the interior lobby area.
H. 
Positive Identification Required. Pursuant to 21 CFR 1140.14(b) any person who engages in tobacco product retailing must check the identification of tobacco purchasers who reasonably appear to be under twenty-seven years of age.
I. 
Hours of Operation. The premises shall be open, only between the hours of seven a.m. and ten p.m. All customers, patrons and visitors shall be excluded from the business between the hours of ten p.m. and seven a.m., and shall be advised of these hours. The hours of operation must be displayed in a conspicuous place in the lobby within the business and in the front window clearly visible from outside the business.
J. 
Alcoholic Beverages/Drugs. No person shall enter, be in or on, or remain in or on, any part of the business while in possession of an open container of alcohol, or, consuming, using or under the influence of, any alcoholic beverage or controlled substance. The operator of the business shall not knowingly allow any person described in this section to enter or remain upon the premises of the business. Service of alcoholic beverages shall not be permitted, unless conducted in association with a permitted use that is defined in Title 17 of this code.
K. 
Front Entrance. One front entrance into the business shall be provided for customer use. All customers and any other persons other than employees shall be required to enter and exit through the front entrance of the business except in case of emergency.
L. 
Doors. The front door(s) shall remain unlocked during business hours.
(Ord. 2514 § 1, 2014)
A. 
No permit may be issued to authorize tobacco product retailing at other than a fixed location. For example, tobacco product retailing or a smoke shop by persons on foot or from vehicles is prohibited.
B. 
No tobacco product retailer may be located within five hundred feet of any public school as measured from the closest point on the property line of the parcels containing the retailer's establishment and the school. Such measurement shall be in a straight line without regard to intervening structures.
C. 
No tobacco product retailer may be located within a one thousand five hundred foot radius of another tobacco product retailer. The distance between a proposed tobacco product retailer and another tobacco product retailer shall be measured from the closest point on the property line of the parcels containing the tobacco retailer establishments. Such measurement shall be in a straight line without regard to intervening structures.
D. 
Existing tobacco product retailers who are in full operation prior to the effective date of the ordinance codified in this chapter (pre-existing tobacco product retailer) shall have ninety days from the effective date of the ordinance codified in this chapter to obtain all of the necessary permits and to otherwise come into full compliance with the requirements of this chapter. Notwithstanding the foregoing, any preexisting tobacco product retailer with a location that would otherwise violate the distance requirements in subsections B and C of this section, shall be exempt from those distance requirements with respect to the location in question, but only so long as the pre-existing tobacco product retailer continues to operate at that address and does not expand the size or scope of its operations. All of the remaining requirements of this chapter shall continue to apply to each pre-existing tobacco product retailer.
(Ord. 2514 § 1, 2014)
A. 
Application for a tobacco product retailer permit shall be submitted for each location where tobacco products will be sold, and shall include the name, contact information, and signature of all proprietors of the business. A new application shall be submitted in the event the business moves to a new location, opens an additional store at a different location, or twenty-five percent or more of the ownership changes.
B. 
Every operator is responsible to be familiar with all laws applicable to tobacco product retailing. No proprietor may rely on the issuance of a permit as a determination by the city that the proprietor has complied with all state and federal laws applicable to tobacco product retailing. A permit issued contrary to this chapter and/or contrary to state or federal law, or on the basis of false or misleading information supplied by an operator, is invalid, and may be revoked pursuant to Section 5.38.120 of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco product permit any status or right to act as a tobacco product retailer in contravention of any provision of law.
C. 
All applications shall be submitted on a form supplied by the department and shall contain the following information:
1. 
The name, address, and telephone number of each proprietor of the business seeking a permit;
2. 
The business name, address, and telephone number of the single fixed location for which a permit is sought;
3. 
A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") relating to this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (C)(2);
4. 
Proof that the location for which a tobacco product permit is sought has been issued a valid state tobacco retailer permit by the California Board of Equalization;
5. 
Whether or not any proprietor has admitted violating, or has been found to have violated, this chapter, or any applicable state or federal laws, and, if so, the dates and locations of all such violations within the previous five years;
6. 
A nonrefundable application fee, as set and as may be amended from time to time by city council resolution;
7. 
Such other information as the department deems necessary for the administration or enforcement of this chapter, as specified on the application form.
D. 
A permitted tobacco product retailer operator shall inform the department in writing of any change in the information submitted on an application for a tobacco product permit within ten business days of a change.
E. 
All information specified in an application pursuant to this section shall be subject to disclosure consistent with the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law.
(Ord. 2514 § 1, 2014)
Upon the receipt of a completed application for a tobacco product permit and the permit fee required by this chapter, the department shall issue a permit unless a preponderance of the evidence demonstrates that one or more of the following bases for denial exists:
A. 
Material information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.
B. 
The application seeks authorization for tobacco product retailing or for the operation of a smoke shop that is prohibited pursuant to this chapter (e.g., mobile vending), that is unlawful pursuant to any provision in this code, including, without limitation, the zoning code, building code, and business license tax code, or that is unlawful pursuant to any other law.
(Ord. 2514 § 1, 2014)
A. 
Renewal of Permit. A tobacco product retailer permit is invalid if the appropriate fee has not been timely paid in full or if the term of the permit has expired. The term of a tobacco product permit is one year. Each operator shall apply for the renewal of his or her tobacco product permit with the chief of police and submit the permit fee no later than sixty days prior to the expiration of the term.
B. 
Expiration of Permit. A tobacco product retailer permit that is not timely renewed shall expire at the end of its term. Temporary permits will not be issued. Any permittee allowing his or her permit to lapse, or whose permit expires during a suspension, shall be required to submit a new application and pay the corresponding original application fees.
C. 
Renewal Fee. A tobacco product retailer permit may be renewed by timely payment of the renewal fee, as determined by city council resolution, and shall not require submission of a new application, provided that the tobacco product retailer remains at the same location.
(Ord. 2514 § 1, 2014)
No operator's permit may be sold, transferred or assigned by a permittee, or by operation of law, to any other person or from one location to another. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of the permit and the permit shall thereafter be null and void.
(Ord. 2514 § 1, 2014)
A. 
Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco product permit any status or right other than the limited conditional privilege to act as a tobacco product retailer or smoke shop operator at the location identified on the face of the permit.
B. 
Nothing in this article shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including, but not limited to, any provision of this code including, without limitation, the zoning code, building codes, and business license tax code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5.
C. 
Obtaining a tobacco product permit does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.
(Ord. 2514 § 1, 2014)
The city council shall establish by resolution, and from time to time may amend, the fees for the administration of this chapter. Fees required by this chapter shall be in addition to any other fees that may be required under any other applicable chapter of this code. This chapter shall not be construed to require fees in lieu of any other applicable state or federal permit fees.
(Ord. 2514 § 1, 2014)
The chief of police and the county health department shall have the right to enter any business where tobacco products are being sold, at any time during business hours, for the purpose of making reasonable unscheduled inspections to observe and enforce compliance with the provisions of this chapter.
An operator commits a punishable offense if he or she refuses to permit, delays, or interferes with a lawful inspection of the premises by the chief of police or the health department at any time it is occupied or open for business.
(Ord. 2514 § 1, 2014)
Violation and Noncompliance. Failure of a permittee to comply with any requirement imposed by this chapter or any other conditions imposed pursuant to the permit shall be grounds for nonrenewal, suspension or revocation of the permit.
Suspension, Nonrenewal or Revocation of Operator's Permit. The chief of police may suspend, revoke or refuse to renew an operator's permit if any of the following conditions exists:
If there have been repeated violations of the provisions of this chapter which require ongoing supervision or action by law enforcement officers which demonstrate that the operator and/or manager is unable to operate or manage the tobacco product or smoke shop establishment in a law-abiding manner.
(Ord. 2514 § 1, 2014)
When the chief of police concludes that grounds for denial, suspension, revocation or refusal to renew a permit exist, the chief of police shall serve the applicant or permit holder, either personally or by certified mail addressed to the address listed on the application, with a notice of denial, non-renewal or notice of intent to suspend or revoke a permit (the "notice"). This notice shall state the reasons for the proposed action, the effective date of the decision, the right of the applicant or permit holder to appeal the decision to the city manager and that the city manager's decision will be final if no appeal is filed within the time stated.
(Ord. 2514 § 1, 2014)
An applicant may appeal any permit condition, denial, revocation or suspension to the chief of police within a period ten days from the date of the action, by filing a notice of appeal in writing to the city clerk. The chief of police will review the appeal de novo, and may grant or deny the permit, reinstate the permit, uphold the revocation or suspension, and impose reasonable conditions as the chief of police may determine to be appropriate. Prior to making a decision the chief of police may request additional information from the applicant or city staff. The decision of the chief of police will be final.
(Ord. 2514 § 1, 2014)
A. 
Any person who violates any provision of this chapter is guilty of a misdemeanor.
B. 
Any violation of this article is hereby declared to be a public nuisance.
C. 
The penalties set forth herein are cumulative and in addition to all other remedies, violations and penalties set forth in this chapter, or in any other ordinances, laws, rules or regulations of the city, county and the state. Any violation of this article can be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
(Ord. 2514 § 1, 2014)