Division VIII. Specific Use Regulations
Chapter 17.91
SMOKE SHOPS AND TOBACCO RETAIL USES
Sections:
17.91.030 Conditional use permit.
17.91.010 Purpose and intent.
On August 28, 2020, Senate Bill 793 (Hill) was signed into law to prohibit the sale of flavored tobacco in California. SB 793 does not preempt or otherwise prohibit the adoption of local regulations that impose greater restrictions on access to tobacco products. Further, California Business and Professions Code Section 22971.3 authorizes cities to implement local tobacco licensing laws, consistent with state law.
The Escalon city council desires to encourage responsible tobacco retailing and discourage violations of tobacco and drug related laws, especially those that prohibit or discourage the sale or distribution of tobacco or THC products to minors.
The regulation of smoke shops and tobacco retail uses is necessary and in the interests of the public health, safety and general welfare because there is the substantial likelihood of the establishment and operation of more smoke shops and tobacco retail uses in the city of Escalon and for these uses to target and sell to minors. The expansion and operation of such businesses in the city, especially in specific locations, would result in undesirable impacts to the community. Among these impacts are increased potential for tobacco sales to minors, greater opportunities for the sale of illegal drug paraphernalia that is marketed as tobacco paraphernalia, and heightened risk of negative aesthetic impacts, blight, and loss of property values of residential neighborhoods and businesses in close proximity to such uses.
This chapter contains location and operational standards for smoke shops and tobacco retail uses consistent with good zoning and planning practices to address such negative impacts of these uses while providing a reasonable number of locations and zones for these uses to locate within the City of Escalon. (Ord. 593 § 6 (Exh. A), 2023)
17.91.020 Definitions.
Unless otherwise provided in this section, the definitions set forth in EMC Title 17, Division II (District Regulations) apply. The following words shall have the meanings set forth below when used in this section:
“Day care center” means a child day care facility other than a family day care home, and includes infant centers, preschools, extended day care facilities, and school age child care centers, as well as child care centers pursuant to Section 1596.951 of the California Health and Safety Code. This definition shall have the same meaning as set forth in Section 1596.76 of the California Health and Safety Code, as the same may be amended from time to time.
“Drug paraphernalia” means and includes any of the items possession of which is prohibited by Section 11364 of the State of California Health and Safety Code, or any instrument used, designed for use, or intended for use in ingesting, smoking, administering or preparing marijuana, hashish, hashish oil or cocaine.
“Minor(s)” means any person under the age of 21, in accordance with Business and Professions Code Sections 22950 through 22963 and United States Code Section 387f(d).
“School” means those sites upon which full-time instruction in any of the grades K through 12 is provided where the primary purpose is education. “School” includes public schools, private schools, and charter schools, but does not include any private site upon which education is primarily conducted in private homes.
“Sensitive use” means a school, day care center, youth center as defined in this chapter, church or religious institution, library, community center, recreational facility, park, hospital or other similar use where minors are typically gathered or located.
“Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette-rolling machines, electronic cigarettes, e-cigarettes, electronic smoking devices, electronic cigarette cartridges, electronic smoking device cartridges and related products, and any other item designed or used for the smoking or ingestion of tobacco products.
“Tobacco product” means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff, chewing tobacco, e-cigarette or electronic smoking device, or any other form of tobacco or product containing at least 50 percent tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingestion. “Tobacco product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product (e.g., skin patches, lozenges, gum and prescription medications), or for other therapeutic purposes where that product is marketed and sold solely for such approved use.
“Tobacco retail use” means any business or person who sells, offers for sale, exchanges, or offers to exchange any tobacco, tobacco product, or tobacco paraphernalia for consideration, without regard to the quantity sold, offered for sale, exchanged, or offered to exchange and dedicates more than 10 percent of their total retailing square footage to tobacco, tobacco products or tobacco paraphernalia.
“Youth center” means any public or private facility that is primarily used to host recreational or social activities for minors, including but not limited to: private youth membership organizations or clubs, social service teenage club facilities, video arcades where 10 or more video games or game machines or devices are operated, and where minors are legally permitted to accept services, or similar amusement park facilities. It shall also include a park, playground or recreational area specifically designed to be used by children which has play equipment installed, including public grounds designed for athletic activities such as baseball, softball, soccer, or basketball or any similar facility located on a public or private school grounds, or in city, county, or state parks. This definition shall not include any private gym, martial arts, yoga, ballet, music, art studio or similar studio of this nature, nor shall it include any athletic training facility, pizza parlor, dentist office, doctor’s office primarily serving children or a location which is primarily utilized as an administrative office or facility for youth programs or organizations. (Ord. 593 § 6 (Exh. A), 2023)
17.91.030 Conditional use permit.
Smoke shops are permitted in the C-2, C-M, M-1 and M-2 districts subject to the issuance, existence and validity of a conditional use permit as provided for in Chapter 17.56 EMC and full compliance with each and every condition thereof. Such conditional use permit shall be issued only if the applicant has submitted a site plan showing the location of the use and the following findings have been made:
A. That the use is necessary or desirable in relation to the purposes of the Escalon general plan, this title, and the economic, social and environmental status of the city;
B. That the use will be properly related to other uses, transportation facilities, and other public facilities in the area, and will not cause undue environmental impacts relating to noise, odor, pollution, etc.; and
C. That the use will not adversely affect the health or safety of persons living or working in the vicinity, or be materially detrimental to the public welfare of the city and its residents. (Ord. 593 § 6 (Exh. A), 2023)
17.91.040 Location restrictions and operational requirements for smoke shops and tobacco retail uses.
A. The following location restrictions apply to all tobacco retailers operating in the city:
1. Smoke shops/tobacco retail uses shall only be conducted at fixed locations; and
2. Smoke shops/tobacco retail uses shall be located at least 600 feet from a sensitive use; and
3. Smoke shops/tobacco retail uses shall be located at least 800 feet from another such use disregarding the corporate boundary of the city;
4. Smoke shops/tobacco retail uses shall be located at least 600 feet from any parcel zoned for residential use in the city.
B. The following operational requirements apply to all tobacco retailers operating in the city:
1. Obtain written approval from the property owner where such a use is to be established, authorizing the same;
2. Each smoke shop/tobacco retail use shall hold a valid California cigarette and tobacco products retailer’s license issued by the State Board of Equalization, in accordance with state law, and shall be prominently displayed in the publicly visible location at the establishment;
3. No person who is younger than the minimum age of 21 years or as established by state law shall be permitted to sell, display, market, barter, trade or exchange any combination of tobacco, tobacco products, or smoking or exchange paraphernalia, including electronic smoking devices and accessories;
4. Smoke shops and tobacco stores shall post clear signage in accordance with the Stop Tobacco Access to Kids Enforcement (STAKE) Act, indicating that minors may not enter the premises unless accompanied by a parent or legal guardian. At least one such sign, of a size clearly visible to customers, shall be placed in a conspicuous location near each public entrance to the smoke shop and tobacco store. It shall be unlawful for a smoke shop and tobacco store to fail to display and maintain, or fail to cause to be displayed or maintained, such signage;
5. No smoking shall be permitted on the premises at any time;
6. No self-service tobacco, tobacco product, or tobacco paraphernalia displays shall be permitted;
7. No distribution of free or low-cost tobacco, tobacco products or tobacco paraphernalia, as well as coupons for said items, shall be permitted;
8. It is unlawful for any person, firm or corporation to operate or maintain a vending machine for cigarettes or other tobacco products within the city, unless the cigarette vending machine or vending machine for other tobacco products is located in a business premises from which minor persons are excluded by law. Any person, firm or corporation violating the provisions of this chapter is guilty of an infraction, and upon conviction thereof shall be punished for the first offenses by a fine of not less than $25.00, nor more than $100.00, and for the second offense by a fine of not less than $50.00 nor more than $200.00.
C. Smoke shops and tobacco retailers that are legally existing on the effective date of the ordinance codified in this chapter may continue to operate as legal nonconforming uses in accordance with Chapter 17.46 EMC and shall not be required to obtain a conditional use permit. However, any change or expansion of the legal nonconforming use may require compliance with this chapter and a conditional use permit, as more particularly set forth in Chapter 17.46 EMC.
D. The establishment of a sensitive use or a sensitive use within 600 feet of a smoke shop/tobacco retail use after said uses commence legal operations shall render the smoke shop/tobacco retail use a nonconforming use which may continue to operate at their existing location subject to Chapter 17.46 EMC. (Ord. 593 § 6 (Exh. A), 2023)