Modesto Municipal Code § 10-3.803 Location and Minimum Proximity Requirements

The purpose of this Article is to regulate the locations in the City where Smoke Shops may be established in order to preserve and protect public health, safety, and welfare.

(Ord. No. 3801-C.S., § 3, effective 9-11-25)

(a) "Existing Smoke Shop" shall mean any Smoke Shop lawfully established with a City business license and all other required permits, licenses, and/or land use entitlements as of October 8, 2024.

(b) "Hookah Lounge" shall mean a business establishment that qualifies as a smokers' lounge, as defined in California Labor Code section 6404.5(e), and in which the entire premises is dedicated exclusively to the Smoking of Shisha or Shisha Tobacco, and which does not sell Tobacco Products for off-site consumption.

(c) "Premium Cigar Retailer" shall mean a retailer that sells no tobacco products other than premium cigars and looseleaf tobacco as defined under California Health and Safety Code section 104559.5.

(d) "Smoke Shop" shall mean a retailer or any person that primarily sells, offers for sale, or offers to exchange for any form of consideration Tobacco Products and/or Tobacco Paraphernalia. A retailer or person who is primarily engaged in such activities includes, but is not limited to, a retailer or person that has fifteen (15) percent or more of the square feet in the establishment, or more than fifteen (15) linear feet of display area projected to the floor (whether contiguous or non-contiguous), used for the sale, distribution, delivery, furnishing, marketing display, or storage of Tobacco Products or Tobacco Paraphernalia. Smoke Shop, for purposes of this Article, does not include a Premium Cigar Retailer, Hookah Lounge, or establishments operating as a Cannabis Dispensary under Title 10, Chapter 3, Article 7. Nothing herein is intended to permit a Premium Cigar Retailer, Hookah Lounge, or Cannabis Dispensary, except as otherwise authorized by Title 10 of this Code.

(e) "Smoke Shop Permit" shall mean a permit to operate a Smoke Shop issued by the Chief of Police pursuant to Chapter 4-24 of the Modesto Municipal Code.

(f) "Tobacco Paraphernalia" shall mean any device, product, equipment, or material of any kind that is intended or designed for use for smoking, inhaling, or ingesting tobacco, notwithstanding that the device, product, equipment, or material may also be used for smoking, inhaling, or ingesting cannabis or and any controlled substance. Tobacco paraphernalia includes, but is not limited to, all of the following: (i) metal, ivory, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured bowls; (ii) water pipes; (iii) bongs; (iv) chillums; (v) ice pipes or chillers; (vi) cigarette papers or wrappers; (vii) cigarette rolling machines; (viii) blunt wraps, as defined in Section 308 of the Penal Code; (ix) hookahs and similar devices constructed with a receptacle or container in which water or some other liquid may be placed into which smoke passes and is cooled in the process of being inhaled or ingested; and (x) any electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to an electronic cigarette, cigar, pipe, or hookah. Tobacco Paraphernalia shall include any component, part, or accessory of the foregoing, whether or not sold separately.

(g) "Tobacco Product" shall mean 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, an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including an electronic cigarette, cigar, pipe, or hookah (with or without flavoring), cigars, little cigars, chewing tobacco, pipe tobacco, or snuff, or vaping accessories. Tobacco Product shall include any component, part, or accessory of the foregoing, whether or not sold separately. Tobacco Product does not include a 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 solely for such an approved purpose.

(h) "Youth facility or center" shall have the same meaning as in Health and Safety Code section 11353.1, as may be amended from time to time: 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, or similar amusement park facilities.

(Ord. No. 3801-C.S., § 3, effective 9-11-25)

(a) Smoke Shops are permitted in the zones identified in Table 3.8-1 and prohibited in all other zones.

(b) Additionally, the following location and proximity requirements shall apply:

(1) No Smoke Shop shall be located within one thousand (1,000) feet, as measured from the nearest property lines, of the following locations:

(i) A public or private State-licensed or accredited school providing instruction to students in kindergarten or any grades 1 through 12;

(ii) State-licensed childcare center;

(iii) Public park, playground, or recreational area, including a trail that is immediately adjacent to a public park or public library;

(iv) Youth facility or center; or

(v) An alcohol or other drug abuse recovery or treatment facility.

(2) No Smoke Shop use shall be located within one thousand (1,000) feet of any Commercial Cannabis Uses or another Smoke Shop, as measured from the nearest property lines.

(3) No Smoke Shop use shall be located within one hundred (100) feet of any residential use; this distance shall be measured from any building or structure containing a Smoke Shop use to an existing residential structure used for residential purposes.

(4) Smoke Shops are prohibited in the Downtown Cannabis Prohibition Overlay, regardless of a property's zoning designation. The Downtown Cannabis Prohibition Overlay is that area shown in Figure 3.7.1 under Title 10, Chapter 3, Article 7 of this Code, and further described as the area including all properties that front either side of or are within the area bound by the following streets: Kansas Avenue, from Highway 99 to 9th Street; Needham Street; Downey Avenue, from McHenry Avenue to Burney Street; Burney Street, from Downey Avenue to Jennie Street; D Street, from Jennie Street to Highway 99; and the area fronting Highway 99 within the boundary. If any parcel is partially within the Downtown Cannabis Prohibition Overlay, Smoke Shops shall be prohibited on the entire parcel.

(Ord. No. 3801-C.S., § 3, effective 9-11-25)

(a) All Smoke Shops permitted by Section 10.3.803 must, prior to establishing and operating any such Smoke Shop use, obtain and maintain at all times a valid Smoke Shop Permit from the City pursuant to Chapter 4-24 of the Modesto Municipal Code.

(Ord. No. 3801-C.S., § 3, effective 9-11-25)

(a) Notwithstanding Section 10-3.803, any existing and lawfully operating Smoke Shop that holds a City business license and all other required permits, licenses, and/or land use entitlements as of October 8, 2024, may continue to lawfully operate subject to the requirements of this Section.

(b) All Existing Smoke Shop shall apply for a Smoke Shop Permit pursuant to Chapter 4-24 of the Modesto Municipal Code and comply with all related requirements no later than November 14, 2025. An Existing Smoke Shop that fails to timely obtain a Smoke Shop Permit and comply with all related requirements shall cease to be an Existing Smoke Shop under Subsection (a) and shall be subject to all requirements of Section 10-3.803.

(c) Notwithstanding anything in Section 10-3.502, "nonconforming uses," to the contrary, any Existing Smoke Shop that ceases to operate for a period of sixty (60) consecutive days shall be discontinued, except that the Director of Community Economic and Development may extend this period by ninety (90) days if the Director determines that the cessation of the business is due to a cause outside of the preexisting Smoke Shop's reasonable control, such as a natural disaster or declared emergency.

(d) Notwithstanding anything in Section 10-3.502, "nonconforming uses," to the contrary, an Existing Smoke Shop shall not expand the square footage of the establishment or display area dedicated to tobacco products or tobacco paraphernalia as of July 22, 2025, without first complying with Section 10-3.803.

(Ord. No. 3801-C.S., § 3, effective 9-11-25)