Eureka Municipal Code Ch. 123 Tobacco Retailer Licensing

(A) The purpose of this chapter is to reduce minors' access and exposure to tobacco products and to discourage violations of tobacco-related laws that prohibit or discourage the sale or distribution of tobacco products to minors and that prohibit the display of tobacco products within reach of the public, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalty provided therefor.

(B) Nothing in this chapter may be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the right to act as a tobacco retailer at the location in the city identified on the face of the permit, subject to compliance with all other applicable laws and ordinances. Nothing in this chapter may be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on indoor smoking made applicable to business establishments by Cal. Labor Code § 6404.5.

(Ord. 967-C.S., passed 11-4-25)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CHARACTERIZING FLAVOR. A distinguishable taste or aroma, other than the taste or aroma of tobacco, that is imparted either prior to or during consumption of a tobacco product, or any byproduct produced by the tobacco product, including but not limited to tastes or aromas of menthol, mint, wintergreen, chocolate, vanilla, honey, cocoa, any candy, any dessert, any alcoholic beverage, any fruit, any herb, or any spice; provided, however, that no tobacco product may be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.

CIGAR. 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 thousand units.

CIGARETTE.

(1) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; and

(2) Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in division (1) above.

COMMUNITY CENTER. The following kinds of facilities and associated uses: child care center, religious institution, social service or philanthropic facility or a residential care facility, and community gathering facilities, which may include, but are not limited to, theatre, auditorium, performance and meeting space, classrooms, art activities, including but not limited to, dance and music studios, health club, fitness center and related uses, gymnasium, pools, spa and other uses incidental thereto, social services, youth and day camp, teen programs, nighttime entertainment, on-site catering, childcare, retail, roof top recreation (including, but not limited to, basketball courts, play structures and other related uses), and contemplative and rooftop gardens.

CONSUMER. A person who purchases a tobacco product for consumption and not for sale to another.

E-LIQUID. Any liquid, gel or other substance designed for use with an electronic nicotine delivery system, including but not limited to e-juice, smoke juice or any other product name or descriptor. Excluded from this definition is any non-nicotine containing liquid, gel or other substance that contains cannabis in any form as its active ingredient.

ELECTRONIC NICOTINE DELIVERY SYSTEM. Any electronic and/or battery-operated device that can be used to deliver an inhaled dose of nicotine or other substances, including but not limited to electronic cigarettes, vaporizer pens, electronic cigars, electronic cigarillos, electronic pipes, electronic hookahs, or any other product name or descriptor, and including any component, part, or accessory of such a device, whether or not sold separately, including but not limited to cartomizers, clearomizers, atomizers, and tips.

FLAVORED TOBACCO PRODUCT. Any tobacco product that imparts a characterizing flavor.

LABELING. Written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying the tobacco product.

LITTLE CIGAR. 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 thousand units. LITTLE CIGAR includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.

MANUFACTURER. Any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.

PACKAGE or PACKAGING. 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.

PHARMACY. Any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.

PROPRIETOR. A person with an ownership or managerial interest in a business. An ownership interest is deemed to exist when a person has a 10% or greater interest in the stock, assets or income of a business other than the sole interest of security for debt. A managerial interest is deemed to exist when a person can or does have, or can or does share, ultimate control over the day-to-day operations of a business.

SALE or SELL. Any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

SCHOOL. A building or group of buildings and associated grounds used for educational and/or classroom purposes operated by Eureka City Schools and/or other public or private educational institutions offering a general course of study at primary, secondary or high school levels (grades K through 12) that is equivalent to the courses of study at those levels offered by the Eureka City Schools. Excluded from this definition are buildings operated by public or private education institutions in which the total student enrollment is less than 25 students and private residences at which students participate in home-based or independent study programs.

TOBACCO PARAPHERNALIA. Items or instruments designed for the consumption, or preparation for consumption, of any substance containing tobacco or derived from tobacco, including but not limited to cigarette papers or wrappers, pipes, hookahs, and cigarette rolling machines.

TOBACCO PRODUCT.

(1) Includes:

(a) Any substance containing, made of, or derived from tobacco or nicotine including but not limited to cigarettes, cigars, cigarillos, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, and shisha;

(b) Any e-liquid;

(c) Any electronic nicotine delivery system; and

(d) Any tobacco paraphernalia.

(2) TOBACCO PRODUCT does not include drugs, devices or combination products authorized by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

TOBACCO RETAILER. Any person or business that operates a store, stand, booth, concession or other place at which the sales of tobacco products are made to purchasers for personal consumption or use.

(Ord. 967-C.S., passed 11-4-25)

(A) It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter. A separate license is required for each location at which that activity is to occur.

(B) It is a violation of a tobacco retailer's license for a licensee or their agent or employee to violate any local, state, or federal tobacco-related law or any provision of this code regulating products that may be sold in a tobacco retailers licensed facility.

(Ord. 967-C.S., passed 11-4-25)

(A) It is a violation of a tobacco retailer's license for a licensee or their agent or employee to sell or offer for sale, or to possess with intent to sell or offer for sale, any flavored tobacco product.

(B) There is 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 those flavored tobacco products with intent to sell or offer for sale.

(C) There is a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:

(1) Made a public statement or claim that the tobacco product imparts a characterizing flavor;

(2) Used text, color, and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or

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

(Ord. 967-C.S., passed 11-4-25)

(A) No new tobacco retailer license may be issued to a pharmacy.

(B) No new tobacco retailer license may be issued to authorize the sale of tobacco products within 600 feet of any school or community center as measured by a straight line from the nearest point of the property line of the parcel on which the school or community center is located to the nearest point of the property line of the parcel on which the business is located. No new tobacco retailer license may be issued to authorize the sale of tobacco products within one quarter mile (1,320 feet) of any existing tobacco retailer.

(C) (1) Effective January 1, 2026, no person may sell, give away, barter, exchange, or otherwise deal in electronic nicotine delivery systems or e-liquid within 600 feet of any school or community center as measured by a straight line from the nearest point of the property line of the parcel on which the school or community center is located to the nearest point of the property line of the parcel on which the business is located.

(2) Division (C)(1) above does not prohibit the sale of electronic nicotine delivery systems to persons who demonstrate that they are qualified patients or primary caregivers as defined in Cal. Health and Safety Code § 11362.7 or persons with identification cards issued pursuant to Cal. Health and Safety Code § 11362.71, provided that such electronic nicotine delivery systems are unaccompanied by any tobacco product.

(D) Notwithstanding the provisions of division (B) above, an existing and otherwise legally operating tobacco retailer may continue operating as a non-conforming use within 600 feet of a school or community center, provided that within 90 days of the effective date of this chapter the retailer must apply for and diligently pursue until approval a tobacco retailer license under this chapter. Upon obtaining a tobacco retailer license, the use will be treated in the same manner as a non-conforming use under § 155.424.060 of the Eureka Zoning Code.

(Ord. 967-C.S., passed 11-4-25)

Sale by a medical cannabis dispensary to its members of tobacco paraphernalia or electronic nicotine delivery systems does not require a tobacco retailer license, provided that the tobacco paraphernalia and electronic nicotine delivery systems are unaccompanied by any tobacco product defined in § 123.02.

(Ord. 967-C.S., passed 11-4-25)

(A) An application for a tobacco retailer's license must be submitted in the name of each proprietor proposing to conduct retail tobacco sales and must be signed by each proprietor or an authorized agent thereof.

(B) It is the responsibility of each proprietor to know the laws affecting the issuance and maintenance of a tobacco retailer's license.

(C) All applications must be submitted on a form supplied by the city and must contain the following information:

(1) The name, address, and telephone number of each proprietor;

(2) The business name, address, and telephone number of the fixed location for which a tobacco retailer's license is sought;

(3) The name and mailing address authorized by each applicant to receive all license-related communications and notices (the "authorized address"). Failure to supply an authorized address will be deemed to consent to the provision of notice at the business address specified in division (C)(2) above;

(4) Whether or not any applicant has previously been issued a license pursuant to this chapter that is or was at any time suspended or revoked and, if so, the dates of the suspension period or the date of revocation; and

(5) Any other information as the city deems necessary for the administration or enforcement of this chapter.

(D) A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to § 123.12(B).

(Ord. 967-C.S., passed 11-4-25)

(A) Upon the receipt of an application for a tobacco retailer's license and the license fee, the city will issue a license unless:

(1) The application is incomplete or inaccurate; or

(2) The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect or by a proprietor which or who has had a license revoked, pursuant to § 123.12; or

(3) The application seeks authorization for tobacco retailing that is unlawful pursuant to this code, or that is unlawful pursuant to any other local, state or federal law; or

(4) The city has information that the proprietor or their agent or employee has violated any local, state or federal tobacco control law within the preceding 30 day period.

(B) A license is valid for one year and must be renewed no later than 30 days prior to the expiration of the then-current term.

(C) If the information required in the license application pursuant to § 123.07 changes, a new tobacco retailer's license is required before the business may continue to act as a tobacco retailer. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location. If the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.

(D) In respect to a prospective buyer or transferee of an existing tobacco retail location or any person seeking a tobacco retail license for a new location, the prospective new proprietor may apply for a tobacco retail license on a conditional basis, whereby the license will become effective when the new owner takes possession of the existing business or when the new location is secured for a tobacco retail business.

(Ord. 967-C.S., passed 11-4-25)

Each license must be prominently displayed in a publicly visible location at the licensed premises.

(Ord. 967-C.S., passed 11-4-25)

The City Council may by resolution establish fees for the administration of this chapter.

(Ord. 967-C.S., passed 11-4-25)

A tobacco retailer's license is nontransferable and is valid only for the person and location of license issued, and unless it is suspended or revoked for cause, for the period indicated.

(Ord. 967-C.S., passed 11-4-25)

(A) In addition to any other penalty authorized by law, a tobacco retailer's license may be suspended or revoked if the city finds, after notice to the licensee and opportunity to be heard, that the licensee or their agents or employees has violated the conditions of the license imposed pursuant to § 123.03.

(1) Upon a finding by the city of a first license violation within any five-year period, the license may be suspended for up to 30 days;

(2) Upon a finding by the city of a second license violation within any five-year period, the license may be suspended for up to 90 days;

(3) Upon a finding by the city of a third license violation within any five-year period, the license may be suspended for up to one year; and

(4) Upon a finding by the city of a fourth license violation within any five-year period, the license may be revoked.

(B) A tobacco retailer's license may be revoked if the city finds, after notice and opportunity to be heard, that one of the following conditions exist. The revocation will be without prejudice to the filing of a new application for a license.

(1) The application is incomplete for failure to provide the information required by § 123.07;

(2) The information contained in the application, including supplemental information, if any, is found to be false in any material respect; or

(3) The application seeks authorization for a license that is unlawful as specified in § 123.08(A)(3).

(C) A decision of the city to revoke or suspend a license is appealable to a hearing officer and must be filed with the hearing officer at least ten working days prior to the commencement date of the license suspension or revocation. An appeal will stay all proceedings in furtherance of the appealed action. Following appeal, the decision of the hearing officer may be appealed to the City Manager or their designee. A decision of the City Manager or their designee will be the final decision of the city.

(D) During a period of license suspension, the tobacco retailer must remove from public view all tobacco products.

(Ord. 967-C.S., passed 11-4-25)

The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(A) A violation of this chapter is a misdemeanor punishable as set forth in § 10.99, but may be charged, in the discretion of the City Prosecutor, as an infraction.

(B) Violations of this chapter are hereby declared to be public nuisances.

(C) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney.

(D) In any civil action filed pursuant to this chapter, the prevailing party will be entitled to recover reasonable attorneys' fees and costs; provided, that, pursuant to Cal. Gov’t Code § 38773.5, attorneys' fees will only be available in an action or proceeding in which the city has elected, at the commencement of the action or proceeding, to seek recovery of its own attorneys' fees. In no action or proceeding may an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.

(Ord. 967-C.S., passed 11-4-25)