El Cerrito Municipal Code Art. 1 Title and Definitions

This chapter shall be known as the tobacco retailer license program. The City of El Cerrito hereinafter shall be called "city."

(Ord. No. 2015-08, § 3, 10-6-2015)

The following definitions apply to this chapter:

"Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction. The city may require tobacco retailers to provide documentation that demonstrates that a transaction was at arm's length.

"Cigar" means (i) any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco; or (ii) any paper or wrapper that contains tobacco and is designed for smoking or ingestion of tobacco products. For the purposes of this chapter, "cigar" includes, but is not limited to, tobacco products known or labeled as "cigar," "cigarillo," "tiparillo," "little cigar," "blunt," "blunt wrap," or "cigar wrap."

"Cigar lounge" means any facility, building, structure or location, where customers consume cigars or similar smoking products

"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.

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

"Drug paraphernalia" has the meaning set forth in California Health and Safety Code section 11014.5, as that section may be amended from time to time.

"Electronic smoking device" means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. "Electronic smoking device" 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. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.

"Flavored tobacco product" means any tobacco product (other than cigarettes as defined by the U.S. Food and Drug Administration) that contains a constituent that imparts a characterizing flavor. This includes cigars, little cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, and electronic cigarettes or electronic smoking devices containing nicotine.

1. For purposes of this definition, "constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, which is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

2. Further, a tobacco product is presumed to be a flavored tobacco product if a manufacturer or any of the manufacturer's agents or employees has:

a. Made a public statement or claim that the tobacco product has or produces a characterizing flavor, including, but not limited to, text and/or images on the product's labeling or packaging that are used explicitly or implicitly to communicate information about the flavor, taste, or aroma of a tobacco product; or

b. Taken actions directed to consumers that would be reasonably expected to result in consumers believing that the tobacco product imparts a characterizing flavor.

"Gross receipts" includes the total of amounts actually received or receivable from sales and the total of amounts actually received or receivable for the performance of any act or service of whatever nature it may be for, for which a charge is made or credit allowed, in connection with the sale of materials, goods, wares, or merchandise. Refer to ECMC 4.32.010 for the full definition.

"Hookah lounge" means any facility, building, structure or location, where customers share tobacco or a similar smoking product from a communal hookah placed throughout the establishment.

"Imitation tobacco product" means any edible non-tobacco product designed to resemble a tobacco product or any non-edible non-tobacco product designed to resemble a tobacco product that is intended to be used by children as a toy. Examples of imitation tobacco products include, but are not limited to, candy or chocolate cigarettes, bubble gum cigars, shredded bubble gum resembling spit tobacco, and shredded beef jerky in containers resembling snuff tins. An electronic smoking device is not an imitation tobacco product.

"Packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.

"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"Self-service display" means the open display or storage of tobacco products, electronic smoking devices or smoking 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.

"Significant tobacco retail establishment" means any tobacco retail business for which the principal or core business is selling tobacco products, smoking paraphernalia, or both, as evidenced by any one of the following:

1. Twenty percent or more of floor or display area is devoted to tobacco products, smoking paraphernalia, or both;

2. Fifty percent or more of gross sales receipts are derived from tobacco products, smoking paraphernalia, or both;

3. Self-disclosure

"Smoking lounge" means any facility, building, structure or location, where customers consume tobacco or a similar smoking product, or where customers use an electronic smoking device or other apparatus to deliver an inhaled dose of nicotine or other substance within the establishment. This includes cigar lounge, hookah lounge, vapor bar, and similar establishments.

"Smoking paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the consumption or preparation of tobacco products; electronic smoking devices and item specifically designed for the preparation, charging, or use of electronic smoking devices including cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other electronic smoking device paraphernalia.

"Tobacco product" means any of the following:

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, snuff, snus; and

2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to an electronic cigarette, cigar, pipe, or hookah.

3. Notwithstanding any provision of subsections (a) and (b) to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "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 such product is marketed and sold solely for such an approved purpose.

"Tobacco retailer" or "retailer" means any person that sells tobacco, tobacco products, electronic smoking devices, smoking paraphernalia, or any combination thereof, including retail or wholesale sales. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products or smoking paraphernalia sold, offers for sale, exchanged, or offered for exchange.

"Tobacco retailer license" means the license issued pursuant to Article 4 that authorizes retail sales of tobacco, tobacco products, electronic smoking devices, smoking paraphernalia, or any combination thereof, at a certain, fixed location and by a certain tobacco retailer.

"Vapor lounge" or "vape lounge" or "vapor bar" (also referred to as "smoking device bar" or "electronic smoking device lounge") means any facility, building, structure or location where customers use an electronic smoking device or other apparatus to deliver an inhaled dose of nicotine or other substance within the establishment.

(Ord. No. 2015-08, § 3, 10-6-2015)