Chapter 9.45 TOBACCO PRODUCTS AND ELECTRONIC SMOKING DEVICES

Chapter 9.45
TOBACCO PRODUCTS AND ELECTRONIC SMOKING DEVICES¹

Sections:

Article I. Regulation of Smoking

9.45.010 Findings.

9.45.020 Purpose.

9.45.030 Definitions.

9.45.040 Repealed.

9.45.050 Smoking prohibition.

9.45.060 Designated smoking areas.

9.45.070 Exceptions.

9.45.080 Smoking waste.

9.45.090 Duty to control – Signs.

9.45.100 Reserved.

9.45.110 Distribution of free samples and coupons.

9.45.120 Out-of-package sales.

9.45.125 Minimum package size for little cigars and cigars.

9.45.130 Implementation.

9.45.140 Penalties.

9.45.150 Nonretaliation.

9.45.160 Other applicable laws.

Article II. Restricting the Advertising and Promotion of Tobacco Products to Minors

9.45.200 Purpose.

9.45.210 Definitions.

9.45.220 Administration.

9.45.230 Restrictions on the advertising of tobacco products – Exceptions.

9.45.240 Sale and distribution of promotional items related to tobacco products prohibited.

9.45.250 Self-service displays prohibited.

9.45.260 Violations.

9.45.270 Additional remedies – Disclaimers.

Article III. Retail Licenses

9.45.300 Retailer license requirement – Generally.

9.45.310 Retailer license – Application procedure.

9.45.320 Retailer license – Issuance.

9.45.330 Retailer license – Fee.

9.45.340 Retailer license – Display.

9.45.350 Retailer license – Nontransferable.

9.45.360 Retailer license – Suspension.

9.45.370 Enforcement.

Article IV. Sales of Flavored Tobacco Products and Sales of Electronic Smoking Devices Prohibited

9.45.400 Sale or offer for sale of flavored tobacco products prohibited.

9.45.410 Sale or offer for sale of electronic smoking devices and electronic smoking device paraphernalia prohibited.

9.45.420 Exemption.

9.45.430 Public nuisance.

9.45.440 No conflict with federal or state law.

9.45.450 Enforcement.

Article I. Regulation of Smoking

9.45.010 Findings.

The city council of the city of Pleasant Hill hereby finds that:

A. The U.S. Environmental Protection Agency has determined that tobacco smoke is the major contributor of particulate indoor air pollution; and

B. Reliable studies have shown that breathing secondhand smoke is a significant health hazard, in particular for elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

C. Health hazards induced by breathing secondhand smoke include heart disease, lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and

D. Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same; and

E. The smoking of tobacco, or any other weed or plant, is a danger to health; and

F. The health care costs and lost productivity incurred by smoking-related disease and death represent a heavy and avoidable financial drain on our community; and

G. The free distribution of cigarettes and other tobacco products encourages people to begin smoking and using tobacco products, and tempts those who had quit smoking to begin smoking again; and

H. Free distribution of cigarettes and other tobacco products promotes unsightly litter, thereby increasing the costs to the public in cleaning the streets, and also causes pedestrian traffic congestion; and

I. The popularity and use of electronic smoking devices has grown substantially in recent years, as shown by the fact that:

1. Between 2011 and 2012 the percentage of all youth in grades 6 to 12 who had tried electronic smoking devices doubled;²

2. 6.8% of all youth between 6th and 12th grade report trying electronic smoking devices;³

3. 10% of high school students have tried electronic smoking devices;⁴

4. 9.3% of youth who have used electronic smoking devices have never smoked conventional cigarettes;⁵

5. Between 2010 and 2011, rates of both awareness and use of unregulated electronic smoking devices by adults also increased significantly;⁶ and

J. The liquid solutions filtered through electronic smoking devices in order to produce aerosol or vapor are available in a wide variety of mixtures and combinations, the comprehensive health effects of which are not currently known, although studies have shown that the vapor emissions and cartridge contents of some electronic smoking devices have included dangerous substances such as:

1. Chemicals known to the state of California to cause cancer⁷ such as formaldehyde, acetaldehyde, lead, nickel, and chromium;⁸,⁹

2. PM2.5, acrolein, tin, toluene, and aluminum,¹⁰,¹¹,¹²,¹³ which are associated with a range of negative health effects such as skin, eye, and respiratory irritation,¹⁴,¹⁵,¹⁶,¹⁷ neurological effects,¹⁸ damage to reproductive systems,¹⁹ and even premature death from heart attacks and stroke;²⁰

3. Inconsistent labeling of nicotine levels in electronic smoking device products;²¹ and

4. In one instance, diethylene glycol, an ingredient used in antifreeze and toxic to humans;²² and

K. Pursuant to the Family Smoking Prevention and Tobacco Control Act of 2009 (the Tobacco Control Act), the Federal Food and Drug Administration currently regulates cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco products. The Tobacco Control Act likewise vested the FDA with the authority to regulate additional tobacco products through rule making. A proposed rule now being considered by the FDA would bring certain electronic smoking devices under the FDA’s regulatory authority, but no such rule is in place as of the adoption date of the ordinance codified in this chapter. (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006)

9.45.020 Purpose.

The compelling purpose and intent of this chapter includes, but is not limited to, generally promoting the health, safety, and welfare of all people in the community against the health hazards and harmful effects of the use of addictive tobacco products, as well as discouraging the use of electronic smoking devices around nonusers, especially children, by protecting the public from exposure to secondhand by-products of electronic smoking devices where they live, work, and play; by facilitating uniform and consistent enforcement of smoke-free air laws; by reducing the potential for re-normalizing smoking in public places and places of employment; by reducing the potential for children to associate the use of electronic smoking devices with a normative or healthy lifestyle; and by prohibiting the sale or distribution of electronic smoking devices to minors. (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006)

9.45.030 Definitions.

The following words and phrases, whenever used in this chapter, shall be construed as set forth here, unless it is apparent that they have a different meaning:

Adult means an individual 21 years of age or older.

Adult only business means any retailer or business that allows entry only by adults onto the entire premises of the business or retailer, or that require minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. Adult only business does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that is marked or otherwise restricted as adult only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult.

Business means an entity formed for profit-making purposes that has an employee, as defined in this section.

Characterizing flavor means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.

Cigar means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three pounds per 1,000.

Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

Consumer means a person who purchases a tobacco product for consumption and not for sale to another.

Designated smoking area means an area where smoking is permitted in a location where smoking would otherwise be prohibited under this chapter.

Distinguishable means perceivable by an ordinary consumer by either the sense of smell or taste.

Distribute means to give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue or offer to give, sell, deliver, dispense, or issue.

Electronic smoking device means any device or delivery system that can be used to deliver to a person in aerosolized or vaporized form, nicotine, tetrahydrocannabinol, or any other cannabinoid, including but not limited to an electronic cigarette, electronic cigar, electronic pipe, electronic hookah, or vape pen. Electronic smoking device includes any component, part, or accessory of such a device, including but not limited to a cartridge that is used during the operation of the device.

Electronic smoking device paraphernalia means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices.

E-liquid means any substance that is intended to be consumed in aerosolized or vaporized form using an electronic smoking device, regardless of the nicotine content of the substance.

Employee means a person who is employed by, retained by an independent contractor for, or volunteers his or services for an employer.

Employer means a person or entity, including a nonprofit entity, which employs the services of one or more persons or supervises volunteers.

Enclosed means:

1. A covered or partially covered space having more than 50% of its perimeter area walled in or otherwise closed to the outside (such as, for example, a covered porch with more than two walls); or

2. An uncovered space of 3,000 square feet or more having more than 75% of its perimeter area walled in or otherwise closed to the outside (such as, for example, a courtyard).

Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor. Menthol cigarettes are included in the definition of a flavored tobacco product for the purposes of this chapter. A tobacco product whose labeling or packaging contains text or an image indicating that the product imparts a characterizing flavor is presumed to be a flavored tobacco product.

General public includes but is not limited to shoppers, customers, patrons, patients, students, clients and other similar invitees of a business or nonprofit entity.

Hookah means a type of water pipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.

Hookah tobacco business means a tobacco retailer, a smoking lounge or bar that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories, or the serving of those products and accessories for on-site smoking.

Labeling means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

Landlord includes the owner and manager of a multi-unit residence.

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 three pounds per 1,000. Little cigar includes, but is not limited to, any tobacco product known or labeled as “small cigar” or “little cigar.”

Loose leaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.

Menthol cigarettes means cigarettes as defined by federal law that have a characterizing flavor of menthol, mint, or wintergreen, including cigarettes advertised, labeled, or described by the manufacturer as possessing a menthol characterizing flavor.

Multi-unit residence means a building or portion of a building that contains four or more dwelling units. It does not include a condominium. A multi-unit residence common area means an indoor or outdoor common area of a multi-unit residence accessible to and usable by more than one residence, including but not limited to a hall, lobby, laundry room, outdoor eating area, play area or swimming pool.

Nonprofit entity means an entity that (1) meets the requirements of California Corporations Code section 5003 or (2) a corporation, 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 public agency is not a nonprofit entity within the meaning of this section.

Outdoor area means an area that is not enclosed, as defined in this section.

Package or packaging means a pack, box, carton, or container of any kind, or any wrapping, in which a tobacco product is sold or offered for sale to a consumer.

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

Service area means an area used to receive or wait for a service, enter a public place or conduct a transaction, including ATMs, bank teller windows, public telephones, ticket lines, bus stops and taxicab stands.

Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, water pipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.

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, marijuana, or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. Smoke includes, but is not limited to, tobacco and marijuana smoke and gases, particles, e‑liquids, and vapors from electronic smoking devices as defined in this chapter. Any vapor produced during vaporization of marijuana for medical purposes in a multiunit residence is not included within this definition.

Smoking means engaging in an act that generates smoke, such as, for example: inhaling, exhaling, burning, igniting, operating, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

Tobacco paraphernalia means any item designed for the consumption, use, or preparation of tobacco products.

Tobacco product means:

1. Any 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, and snuff.

2. Any electronic smoking device that contains nicotine or can be used to deliver nicotine in aerosolized or vaporized form.

3. Any component, part, or accessory of a tobacco product, whether or not it is sold separately.

4. 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 or for other therapeutic purposes where the product is marketed and sold solely for that approved purpose.

Tobacco retailer means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products or tobacco paraphernalia. Tobacco retailing shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

Vending machine means any electronic or mechanical device which dispenses or releases a tobacco product, electronic smoking device or electronic smoking device paraphernalia, and/or smoking accessories. (Ord. 952 §§ 1 – 5, 2022; Ord. 892 § 1, 2015; Ord. 845 § 1, 2010; Ord. 814 § 1, 2006)

9.45.040 City facilities.

Repealed by Ord. 845. (Ord. 814 § 1, 2006)

9.45.050 Smoking prohibition.

Smoking is prohibited in the following places within the city, except as provided in this section and PHMC §§ 9.45.060 and 9.45.070:

A. City property.

1. City facilities. Except as set forth in subsection A.2 of this section, smoking is prohibited on and within all real property and vehicles owned, leased, or operated by the city.

2. Outdoor public events utilizing city facilities. Smoking is prohibited at outdoor public events on city property (including, but not limited to, the summer concert series, the farmers’ market, and Art Jazz and Wine Festival), except within a designated smoking area as provided in PHMC § 9.45.060. The prohibition includes any city street or sidewalk which is part of the event area. An event sponsor shall post signs to alert attendees to the prohibition and to the designated smoking area, if any, and shall provide ash containers in any designated smoking area.

B. Places of employment. In addition to the prohibitions on the use of tobacco in places of employment set forth in California Labor Code section 6404.5, within the city of Pleasant Hill, no employer shall knowingly or intentionally permit, and no person shall engage in, the use of any electronic smoking device in an enclosed space at a place of employment. Enclosed space includes lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building. For purposes of this subsection B and in order to determine compliance with the requirements of California Labor Code section 6404.5:

Place of employment does not include an enclosed area in or attached to any tobacco retailer, provided the enclosed area shares no common air space, ventilation, air conditioning or heating system with the remainder of said retailer.

The fact that emissions from an electronic smoking device or tobacco smoke from a tobacco product enters one enclosed area from another is conclusive proof that the areas share a common or shared air space, ventilation, air conditioning or heating system.

C. Residence used as child care or health care facility. Regarding a private residence used as a child care or health care facility, smoking is prohibited:

1. Inside the residence at any time (whether or not clients are actually present); and

2. Outside the residence within 20 feet of the building or play area for one hour before and during any time clients are present.

D. Service areas. Smoking is prohibited in a service area and within 20 feet of a service area.

E. Commercial areas. Except as may otherwise be allowed by this chapter, outdoor smoking is prohibited on all properties within the city of Pleasant Hill designated commercial by the city of Pleasant Hill general plan, as may be amended from time to time.

F. Multi-unit residences.

1. Prohibition. Smoking is prohibited in the following areas of multi-unit residences:

a. Common areas, whether enclosed or not;

b. Within 20 feet of a door, operable window or ventilation system, except while actively passing on the way to another destination;

c. Prior to designation of nonsmoking units, whether under subsection F.2 of this section or otherwise, on any private deck, balcony or patio at the request of a nonsmoking tenant who resides within 20 feet of the smoker’s deck, balcony or patio; and

d. After the designation of nonsmoking units, whether under subsection F.2 of this section or otherwise, on a private deck that is within 20 feet of a designated nonsmoking unit.

2. Obligations of landlord. The landlord of a multi-unit residence shall:

a. Designate 50% of the units existing as of January, 2010, as permanent nonsmoking units. The designated nonsmoking units shall be contiguous (both horizontally and vertically) unless physically infeasible to do so due to the layout of a particular housing complex. In any event, the landlord shall make good faith efforts to maximize the number of designated nonsmoking units that are contiguous (both horizontally and vertically) to other nonsmoking units. The landlord shall begin this designation process in January, 2011, and complete it within five years;

b. Designate 100% of the units constructed after May 6, 2010, as nonsmoking units;

c. Before entering a new or renewal lease, disclose to the lessee in writing (i) the location of smoking-allowed units; (ii) the existence of any adjacent unit where the tenant smokes; and (iii) if the prior tenant smoked in the unit;

d. Not charge a relocation fee to a tenant who requests moving to another available, equivalent or smaller unit to avoid secondhand smoke, except for the customary security deposit and any charges for damages caused by the tenant to the prior unit. If a tenant is relocated pursuant to this section, he/she shall pay (i) the same rent as the rent on the leased unit as long as the new unit is equivalent, or (ii) the market rent for a new unit that is not equivalent to the leased unit, without otherwise altering the terms and conditions of the existing lease;

e. Upon request of the city, provide written documents showing the nonsmoking unit designations under subsections F.2.a and F.2.b of this section, and the written disclosures made under subsection F.2.c of this section.

3. No landlord liability. A landlord shall not be liable to any person for a tenant’s breach of smoking regulations if the landlord has fully complied with subsection F.2.c of this section. (Ord. 952 § 6, 2022; Ord. 892 § 1, 2015; Ord. 850 § 1, 2010; Ord. 847 § 1, 2010; Ord. 845 § 3, 2010; Ord. 814 § 1, 2006)

9.45.060 Designated smoking areas.

Notwithstanding any other provision of this chapter, the owner or lessee with control over any privately owned commercial property, as well as the lessee or permittee of any city facility or property, may establish a designated smoking area subject to the written approval of the city manager or his or her designee; provided, that the designated smoking area meets all requirements adopted by the city council in a resolution governing the same. The city manager or his or her designee may require that any designated smoking area be modified or removed if, in the sole discretion of the city manager or his or her designee, it does not satisfy the criteria established by the city council. (Ord. 892 § 1, 2015)

9.45.070 Exceptions.

Smoking is permitted in the following places, notwithstanding the prohibitions of PHMC § 9.45.050.

A. Designated smoking areas as defined in PHMC § 9.45.030 and provided for in PHMC § 9.45.060.

B. Multi-unit residences.

1. The landlord of a multi-unit residence may designate a portion of an outdoor common area for smoking. The designated smoking area shall include not more than 25% of the outdoor common area, not be within 20 feet of a swimming pool or play area, not overlap with any area where smoking is otherwise prohibited by local, state, or federal law, be located at least 20 feet in all directions from nonsmoking areas, have a clearly-marked perimeter and have clearly-marked signs.

2. Although the city encourages all multi-unit residence owners and managers to comply with PHMC § 9.45.050.F, that subsection will not be enforced as to permanent or transitional housing facilities for people with special needs or disabilities. (Ord. 892 § 1, 2015; Ord. 845 § 4, 2010; Ord. 814 § 1, 2006. Formerly 9.45.060)

9.45.080 Smoking waste.

No person shall dispose of smoking waste within an area in which smoking is prohibited. (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.070)

9.45.090 Duty to control – Signs.

A. Duty to control. No person, employer, business or nonprofit entity shall knowingly permit the following in areas under his or her control:

1. Smoking in an area in which smoking is prohibited by law;

2. The placement or presence of ash receptacles (i.e., ash trays or ash cans) in any area in which smoking is prohibited.

B. Greater control. Notwithstanding any other provision of this chapter, a property owner, landlord, employer, business or nonprofit entity may prohibit smoking in any area in which smoking would otherwise be permitted.

C. Signs. Each person, employer, business or nonprofit entity who controls any property shall conspicuously post either:

1. A “No Smoking” or “Smoke Free” sign, with letters at least one-inch high; or

2. The international “No Smoking” symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it.

The absence of a required sign is a separate violation. The presence or absence of a sign shall not be a defense to the violation of another provision of this chapter. (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.080)

9.45.100 Reserved.

Repealed by Ord. 952. (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.090)

9.45.110 Distribution of free samples and coupons.

No person, firm, association or corporation in the business of selling tobacco products for commercial purposes, or agent or employee thereof, shall in the course of such business distribute, or direct, authorize, or permit any agent or employee to distribute, any of the following on or in a public street, sidewalk, park, playground or building: (A) any tobacco product; or (B) coupons, certificates, or other written material which may be redeemed for tobacco products without charge. (Ord. 952 § 8, 2022; Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.100)

9.45.120 Out-of-package sales.

No person shall sell or offer for sale any tobacco product not in the original packaging provided by the manufacturer. (Ord. 952 § 9, 2022; Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.110)

9.45.125 Minimum package size for little cigars and cigars.

No tobacco retailer may sell to a consumer any of the following:

A. Any little cigar unless it is sold in a package of at least 20 little cigars.

B. Any cigar unless it is sold in a package of at least 10 cigars. This subsection does not apply to a cigar that has a price of at least $7.50 per cigar, including all applicable taxes and fees. (Ord. 956 § 1, 2022)

9.45.130 Implementation.

Administration of this article shall be by the city manager or his or her designee. (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.120)

9.45.140 Penalties.

A. The city may enforce this article by any means authorized in PHMC Chapter 1.25, including an administrative citation under PHMC Chapter 1.35.

B. Except as otherwise permitted, exposing other people to secondhand smoke or emissions given off by an electronic smoking device constitutes a public nuisance and may be abated. (PHMC § 1.25.030.) (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.130)

9.45.150 Nonretaliation.

No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this article. (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.140)

9.45.160 Other applicable laws.

This article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. 892 § 1, 2015; Ord. 814 § 1, 2006. Formerly 9.45.150)

Article II. Restricting the Advertising and Promotion of Tobacco Products to Minors

9.45.200 Purpose.

The purpose of this article is to promote the welfare of minors by discouraging the commercial exploitation of potential underage tobacco users and by discouraging actions that promote the unlawful sale of tobacco products to minors, as well as the unlawful purchase or possession of tobacco products by minors. (Ord. 952 § 10, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.1. Formerly 9.45.160)

9.45.210 Definitions.

This article incorporates the definitions set forth in PHMC § 9.45.030. In addition, as used in this article:

Advertising display sign means a sign, billboard, signboard, poster, placard, freestanding sign, pennant, banner, graphic display, mural, or similar device that is used to advertise or promote a product. It includes a sign which is temporary or permanent, placed on or affixed to the ground, sidewalk, a pole or post, fence, or a building, or displayed in the window or door of a commercial establishment.

Chief of police means the city chief of police or his or her designee.

Mobile billboard means an advertising display sign which is placed on or affixed to a vehicle if the vehicle is parked within a public right-of-way or on private property and is used primarily to advertise a product. (See Prohibited signs, PHMC § 18.60.060.)

Offering for sale means that tobacco products are actually sold and/or displayed in the retail establishment.

Promotion means a display of any logo, brand name, character, graphic, artwork, colors, scenes, or designs that are a recognized image of a particular product brand that calls the public’s attention to the product brand.

Publicly visible location means an outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or a location inside a commercial establishment that is in or adjacent to a window or doorway and is visible from any street, sidewalk, or other public thoroughfare. To be considered publicly visible, an inside location must be within one foot of a window or doorway.

Self-service display means the open display or storage of tobacco products or tobacco paraphernalia 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 person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display. (Ord. 952 § 10, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.2. Formerly 9.45.170)

9.45.220 Administration.

This article shall be administered by the chief of police. The chief may develop guidelines to ensure implementation of this article. (Ord. 952 § 10, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.3. Formerly 9.45.180)

9.45.230 Restrictions on the advertising of tobacco products – Exceptions.

A. Restriction. No person shall place or maintain, or cause or allow to be placed or maintained, any advertising or promotion of tobacco products on an advertising display sign in a publicly visible location within 1,600 feet of the perimeter of: a public or private elementary, middle or secondary school; or a public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts).

B. Exceptions. Subsection A of this section does not apply to advertising or promotion for tobacco products which are:

1. Located inside a commercial establishment, unless the advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare;

2. On vehicles, other than mobile billboards;

3. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product; or

4. On tobacco product packaging. (Ord. 952 § 10, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.5. Formerly 9.45.190)

9.45.240 Sale and distribution of promotional items related to tobacco products prohibited.

A. No manufacturer, distributor, or retailer of tobacco products may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor which bears the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product.

B. No person in the business of selling or otherwise distributing tobacco products for commercial purposes shall, in the course of such business, distribute, or direct, authorize or permit any agent or employee to distribute, any of the following on a public street or sidewalk, in a public park or playground, or on any other public ground or in a public building: (1) a tobacco product; or (2) a coupon, certificate, or other written material which may be redeemed for tobacco products without charge. (Ord. 952 § 10, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.6. Formerly 9.45.200)

9.45.250 Self-service displays prohibited.

It is unlawful for a person to sell, permit to be sold, offer for sale, or display for sale any tobacco product by means of a self-service display, rack, counter top or shelf that allows a self-service customer access to a tobacco product. All tobacco products shall be offered for sale exclusively by means of seller assistance. Tobacco products shall be located exclusively in a locked case, located behind counters out of reach from customers, or in a similar location that is inaccessible to customers, requiring seller assistance for the customer to obtain access to the products. (Ord. 952 § 10, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.7. Formerly 9.45.210)

9.45.260 Violations.

A. Chief of police review. A private citizen or a city officer or employee may submit a written complaint to the chief of police concerning any advertising or promotion prohibited by this article. The chief will review and, if determined to be appropriate, act upon the complaint in a timely manner. The chief may serve written notice requiring correction of any violation of this article upon the person responsible for the business or for the advertising display sign or promotion or self-service display prohibited by this article. Any notice issued shall specify a date by which the violation must be corrected. The notice shall be served by (1) personal service or by (2) certified and first class mail.

B. Correction. The person responsible shall correct the violation within the time specified in the notice.

C. Each display and each day a separate offense. Each separate display of advertising or promotion prohibited by this article is considered a separate violation. Each day a violation continues is considered a separate violation.

D. Each business location a separate entity. For purposes of determining liability, each individual franchise or business entity is deemed a separate entity. (Ord. 952 § 10, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.8. Formerly 9.45.220)

9.45.270 Additional remedies – Disclaimers.

A. Intent as to additional legal restrictions and remedies. Nothing in this article is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards, advertising or any other matter covered by this article. The remedies set forth in this article are not exclusive. If any action prohibited by this article is also unlawful under any other law, the penalties and remedies under other laws may be pursued in addition to those provided in this chapter.

B. Disclaimers. By prohibiting the advertising or promotion of the products regulated herein in outdoor or publicly visible locations, prohibiting the distribution of certain promotional items and self-service displays of enumerated products, the city is only promoting the general welfare. It is not assuming, nor is it imposing upon its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury. (Ord. 952 § 10, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.9. Formerly 9.45.230)

Article III. Retail Licenses

9.45.300 Retailer license requirement – Generally.

A. License required. It is unlawful for a person or retailer who, within the last 12 months, has been determined to be in violation of a provision of this chapter, or applicable state or federal law governing the sale and distribution of any tobacco product, electronic smoking device or electronic smoking device paraphernalia, to sell or offer for sale any tobacco product within the city without first obtaining and maintaining a retailer’s license from the city.

It is unlawful for any retailer who is required to have a retailer’s license pursuant to this article to sell or offer for sale any tobacco products if the license has been suspended under PHMC § 9.45.360.

A retailer’s license shall be obtained from the chief of police.

B. Term of license – Obligation to maintain. A license is valid for three years, and a person or retailer subject to this license requirement must maintain the license during the three-year period. If there are no further violations of any laws regulating the sale or distribution of tobacco products in that three-year period, a retailer’s license will no longer be required. (Ord. 952 § 11, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.10. Formerly 9.45.240)

9.45.310 Retailer license – Application procedure.

An application for a retailer’s license shall be submitted in the name of the person or retailer who, following a finding of violation as specified in PHMC § 9.45.300, proposes to conduct retail tobacco sales on the business premises. The application shall be signed by the person or retailer or its authorized agent. The application shall be submitted on a form provided by the city and shall contain the following information:

A. The name, address, and telephone number of the applicant;

B. The business name, address, and telephone number where the tobacco product is to be sold; and

C. Such other information as the chief of police determines is reasonably necessary for implementation of this article. (Ord. 952 § 12, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.11. Formerly 9.45.250)

9.45.320 Retailer license – Issuance.

Upon receipt of a completed application for a retailer’s license, including payment of the license fee, the chief of police will issue a license. A license may not be issued if there are continuing, uncorrected violations. (Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.12. Formerly 9.45.260)

9.45.330 Retailer license – Fee.

The fee for a retailer’s license shall reflect the actual cost of processing the license, including inspection of the retailer’s business premises and implementation of the licensing program, as established by resolution of the city council. The fee shall not exceed $500.00 annually. (Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.13. Formerly 9.45.270)

9.45.340 Retailer license – Display.

The license must be prominently displayed at the location where tobacco retail sales are conducted. (Ord. 952 § 13, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.14. Formerly 9.45.280)

9.45.350 Retailer license – Nontransferable.

The retailer’s license is nontransferable. If there is a change in location, a new retail license will be issued for the new address upon receipt of an application for change of location. The new license will retain the same expiration date as the previous one. (Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.15. Formerly 9.45.290)

9.45.360 Retailer license – Suspension.

A. Suspension of license. In order to discourage violations of law, a retailer’s license may be suspended if the chief of police finds that the licensee or his or her employee has violated any law regulating the sale or distribution of tobacco products, electronic smoking devices or electronic smoking paraphernalia. (See PHMC § 9.45.300.A.) The chief may suspend the license only after giving the licensee notice and a reasonable opportunity to be heard on the matter. The chief shall put his or her findings in writing.

B. Time period of suspension.

1. The first time that the chief finds a violation occurred, the license to sell tobacco products may be suspended for up to 60 days.

2. After the second time that the chief finds a violation occurred within a 12-month period, the license to sell tobacco products may be suspended for up to 120 days.

3. After the third and each subsequent time that the chief finds a violation occurred within a 12-month period, the license to sell tobacco products may be suspended for up to one year.

C. Appeal of suspension. A decision of the chief to suspend a retailer’s license may be appealed to the city manager or his or her designee. (Ord. 952 § 14, 2022; Ord. 892 § 1, 2015; Ord. 737 § 2, 1999; 1991 code § 9-3.16. Formerly 9.45.300)

9.45.370 Enforcement.

The city may enforce this article by any means authorized in PHMC Chapter 1.25, including an administrative citation under PHMC Chapter 1.35. (Ord. 892 § 1, 2015; amended during 2005 recodification; Ord. 737 § 2, 1999; 1991 code § 9-3.17. Formerly 9.45.310)

Article IV. Sales of Flavored Tobacco Products and Sales of Electronic Smoking Devices Prohibited

9.45.400 Sale or offer for sale of flavored tobacco products prohibited.

A. No person or tobacco retailer shall sell, or offer to sell, any flavored tobacco product.

B. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including but not limited to individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.

C. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has:

1. Made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor including, but not limited to, text, color, and/or images on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor; or

2. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.

D. The provisions of this section shall not apply to loose leaf tobacco or cigars. (Ord. 952 § 15, 2022)

9.45.410 Sale or offer for sale of electronic smoking devices and electronic smoking device paraphernalia prohibited.

No person or tobacco retailer shall sell, or offer to sell, any electronic smoking device or electronic smoking device paraphernalia. (Ord. 952 § 15, 2022)

9.45.420 Exemption.

Notwithstanding any other provision of this article, hookah tobacco businesses with valid retailer’s licenses issued pursuant to this chapter shall be exempt from the requirements of this chapter; provided, that such businesses qualify as an adult-only business and operate in accordance with all relevant state and local laws relating to the sale of tobacco products and tobacco paraphernalia. (Ord. 952 § 15, 2022)

9.45.430 Public nuisance.

Any violation of this article is hereby declared a public nuisance. (Ord. 952 § 15, 2022)

9.45.440 No conflict with federal or state law.

Nothing in this article shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law. (Ord. 952 § 15, 2022)

9.45.450 Enforcement.

The city may enforce this article by any means authorized in PHMC Chapter 1.25, including an administrative citation under PHMC Chapter 1.35. (Ord. 952 § 15, 2022)

Prior legislation: portions of Ords. 589, 600 and 681.

Corey, C., Johnson, S., Apelberg, B., et al. (2013). “Notes from the Field: Electronic Cigarette Use Among Middle and High School Students – United States, 2011-2012.” Morbidity and Mortality Weekly Report (MMWR). 62(35):729–730. Available at: www.cdc.gov/mmwr/preview/mmwrhtml/mm6235a6.htm.

Ibid.

King, B., Alam S., Promoff, G., et al. (2013). “Awareness and Ever Use of Electronic Cigarettes Among U.S. Adults, 2010-2011.” Nicotine and Tobacco Research, doi: 10.1093/ntr/ntt013, 2013.

State of California Environmental Protection Agency, Office of Environmental Health Hazard Assessment, Safe Drinking Water and Toxic Enforcement Act of 1986 (2013). Chemicals known to the state of California to cause cancer or reproductive toxicity. Available at: http://oehha.ca.gov/prop65/prop65_list/files/P65single091313.pdf.

German Cancer Research Center (2013). “Electronic Cigarettes – An Overview,” Red Series Tobacco Prevention and Control. Available at:
www.dkfz.de/de/tabakkontrolle/download/Publikationen/RoteReihe/Band_19_e-cigarettes_an_overview.pdf.

Goniewicz, M., Knysak, J., Gawron, M., et al. Levels of selected carcinogens and toxicants in vapour from electronic cigarettes. Tob. Control. 2013; 1:1–8. Available at: www.ncbi.nlm.nih.gov/pubmed/23467656. Accessed August 2, 2013.

Goniewicz, M., Knysak, J., Gawron, M., et al. (2013). Levels of selected carcinogens and toxicants in vapour from electronic cigarettes. Tob. Control. 1:1–8. Available at: www.ncbi.nlm.nih.gov/pubmed/23467656.

Williams, M., Villarreal, A., Bozhilov, K., Lin, S., and Talbot, P. (2013). Metal and silicate particles including nanoparticles are present in electronic cigarette cartomizer fluid and aerosol. PloS one, 8(3), e57987. doi: 10.1371/journal.pone.0057987.

Schober, W., Szendrei, K., Matzen, W., et al. (2013). Use of electronic cigarettes (e-cigarettes) impairs indoor air quality and increases FeNO levels of e-cigarette consumers. Int. J. Hyg. Environ. Health. Available at:
http://dx.doi.org/10.1016/j.ijheh.2013.11.003.

Agency for Toxic Substances and Disease Registry (ATSDR) (2008). Toxic Substances Portal – Aluminum. Available at: www.atsdr.cdc.gov/phs/phs.asp?id=1076&tid=34.

Agency for Toxic Substances and Disease Registry (ATSDR) (2005). Toxic Substances Portal – Tin. Available at: www.atsdr.cdc.gov/phs/phs.asp?id=541&tid=98.

United States Environmental Protection Agency (n.d.). EPA Schools Monitoring Initiative Fact Sheet. Available at: www.epa.gov/air/sat/pdfs/acroleinupdate.pdf.

Agency for Toxic Substances and Disease Registry (ATSDR) (2007). Toxic Substances Portal – Acrolein. Available at: www.atsdr.cdc.gov/phs/phs.asp?id=554&tid=102.

State of California Environmental Protection Agency Office of Environmental Health Hazard Assessment (n.d.). Chronic Toxicity Summary: Toluene. CAS Registry Number: 108-88-3. Available at:
http://oehha.ca.gov/air/chronic_rels/pdf/108883.pdf.

Environmental Protection Agency (2012). Particle Pollution and Health. Available at:
www.epa.gov/pm/2012/fshealth.pdf.

Department of Health and Human Servics Food and Drug Administration (2009). “FDA Evaluation of E-Cigarettes.” Available at: www.fda.gov/downloads/drugs/Scienceresearch/UCM173250.pdf.

Department of Health and Human Services Food and Drug Administration (2009). “FDA Evaluation of E-Cigarettes.” Available at: www.fda.gov/downloads/drugs/Scienceresearch/UCM173250.pdf.