Modesto Municipal Code Ch. 24 Smoke Shops

The purpose of this Chapter is to establish a licensing requirement and regulations for the operation of Smoke Shops in the City of Modesto in order to preserve and protect public health, safety, and welfare.

(Ord. No. 3801-C.S., § 4, 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) "Chief of Police" shall mean the Chief of Police of the City of Modesto, or their designee, or such other person designated by the City Manager of the City of Modesto to carry out the duties of the Chief of Police hereunder.

(c) "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.

(d) "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.

(e) "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.

(f) "Smoke Shop Operator" shall mean all individuals or entities who own or operate a Smoke Shop. An owner is any individual or entity that has any ownership interest, regardless of size, in the Smoke Shop.

(g) "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.

(h) "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 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.

(i) "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.

(Ord. No. 3801-C.S., § 4, effective 9-11-25)

(a) All Smoke Shops must obtain a Smoke Shop Permit prior to commencing operations, in addition to a City business license and any other permit, licenses, or approval required by the City, State, or other public agency.

(b) The total number of Smoke Shop Permits within the City shall be limited to one (1) per twenty-five thousand (25,000) residents in the City. For the purposes of this Subsection, the total population of the City shall be determined by the most current published total available from the U.S. Census Bureau or the California State Department of Finance, whichever has been more recently updated, as of the date the permit application is filed. Existing Smoke Shops may apply for a Smoke Shop Permit prior to November 14, 2025, regardless of whether or not the maximum number of permits established by this Section has been reached. No Smoke Shop Permit may be issued to any Smoke Shop, other than to an Existing Smoke Shop, prior to November 14, 2025.

(c) If, at any time after all applications for a Smoke Shop Permit submitted by Existing Smoke Shops by November 14, 2025 have been approved or denied, the number of Smoke Shop Permits that have been issued is fewer than the number authorized by Section 4-24.103(b), the Chief of Police shall, within a reasonable period of time, open an application period for available Smoke Shop Permit(s). If at the end of the application period, the number of eligible applicants exceeds the number of available permits, the Chief of Police shall award the Smoke Shop Permits by random lottery. Notwithstanding the foregoing, in no event shall a Smoke Shop Permit be awarded for a proposed location if there are already two (2) other Smoke Shops operating in the same Council-District.

(d) No new Smoke Shop Permit may be issued if the number of issued Smoke Shop Permits equals or exceeds the total number authorized pursuant to Section 10-3.804(b) above. A new proprietor that has not had a business in violation of this Chapter may apply for a Smoke Shop Permit to continue operating in the same location as an existing Smoke Shop, and such Permit shall not be considered a new Smoke Shop Permit for purposes of this Section, as long as the existing Smoke Shop has not ceased operating.

(e) An Existing Smoke Shop that is ineligible to receive or renew a Smoke Shop Permit for a location pursuant to Section 10-3.803, and any Smoke Shop operating lawfully that becomes ineligible to receive or renew a Smoke Shop Permit due to the creation of a new sensitive use under Section 10-3.803(b), may apply for and receive a Smoke Shop Permit for that location as long as all the following conditions are met:

(1) The Smoke Shop Permit application is submitted no later than November 14, 2025;

(2) The Smoke Shop is not closed for business for more than sixty (60) consecutive days, except that the Police Chief may extend this period by ninety (90) days if the Police Chief determines that the cessation of the business is due to a cause outside of the Smoke Shop's reasonable control, such as a natural disaster or declared emergency;

(3) The Smoke Shop Operator retains the right to operate under all other applicable laws; and

(4) The Smoke Shop has complied with all Operating Standards under Section 4-24.105, Security Requirements under Section 4-24.106, and Training Requirements under Section 4-24.107 of this Article no later than November 14, 2025.

(Ord. No. 3801-C.S., § 4, effective 9-11-25)

(a) An application for a Smoke Shop Permit shall be submitted on forms provided by the City and accompanied by the appropriate application fee established by the City Council by Resolution. The application form provided by the City shall include, but not be limited to, the following information:

(1) The name, address, email address, and telephone number of the property owner.

(2) The name, address, email address, and telephone number of all Smoke Shop Operators.

(3) The name, address, email address, and telephone number of the individual designated as the primary point of contact for the management of the Smoke Shop.

(4) A site plan of the property.

(5) Such other information as the Chief of Police deems reasonably necessary to administer this Chapter.

(b) The Chief of Police may refer the application to other City departments to determine whether the Smoke Shop's location will comply with building, health, zoning, and fire ordinances or other applicable ordinances or laws. City departments may conduct an inspection of the premises to determine compliance with the ordinances and other laws they administer. They may subsequently prepare reports summarizing their inspections and recommend whether to approve or deny the application based on their inspections.

(c) A Smoke Shop Permit shall be non-transferable, shall not run with the land, and shall be valid only at the site described in the application.

(d) A Smoke Shop Permit shall be valid for one (1) year from the date of issuance and may be renewed upon submission of a renewal application and fee established by the City Council by Resolution to the City.

(e) The Chief of Police may deny an application for a new Smoke Shop Permit or renewal of an existing Smoke Shop Permit for any of the following reasons:

(1) The application is incomplete, or the full application fee has not been paid;

(2) The application contains a false or misleading statement or omission of a material fact;

(3) The property is subject to an enforcement action under any provision of the Modesto Municipal Code or state law;

(4) The applicant is delinquent on any payment to the City of any fees, penalties, taxes, or any other monies related to the property or business;

(5) The applicant has previously owned, in whole or in part, or been an officer for a Smoke Shop found to be in violation of applicable law or that had its Smoke Shop Permit revoked;

(6) Within twenty-four (24) months of application, a Smoke Shop Permit was revoked or renewal denied at the property subject to the application;

(7) The operation of a Smoke Shop at the property is a threat to the public health, safety, or welfare; or

(8) The Smoke Shop does not comply with, or has violated, one (1) or more of the applicable requirements of this Chapter, the Modesto Municipal Code, or any other applicable law, including the Modesto Building Code or Fire Code.

(9) For Existing Smoke Shops applying for a Smoke Shop Permit prior to November 14, 2025, noncompliance with a requirement of Section 4-24.105 occurring after August 12, 2025, but before November 14, 2025, shall not be a basis to deny an application, unless such conduct is also a violation of another section of applicable law, including, but not limited to, the sale of flavored tobacco or other illegal products.

(Ord. No. 3801-C.S., § 4, effective 9-11-25)

All Smoke Shops shall comply with the operational standards listed in this Section.

(a) Lighting. The exterior of the premises, including adjacent public sidewalks and all parking lots under the control of the Smoke Shop, shall be illuminated in accordance with the lighting requirements of the underlying zoning district.

(b) Litter and Graffiti. Trash and recycling receptacles shall be provided near public entrances to and exits from the building. The Smoke Shop Operator shall provide for daily removal of trash, litter, and debris from the premises and on all sidewalks that abut the premises, including the Smoke Shop's parking areas. The Smoke Shop Operator shall remove graffiti from the building and premises within forty-eight (48) hours.

(c) Vending Machines. Internal and external vending machines of any and all kinds are prohibited.

(d) Signage.

(1) All signs on the premises of the Smoke Shop shall comply with Chapter 6, Signs of Title 10, Zoning, of the Modesto Municipal Code.

(2) The Smoke Shops shall comply with the requirements of the California Cigarette and Tobacco Products Licensing Act of 2003, and all other applicable state and federal laws and regulations, including any amendments and successor statutes or regulations.

(3) In addition to the requirements above, the following copy is required to be prominently posted in a readily visible manner on an interior wall or fixture and not on windows of the Smoke Shop:

(i) "California State Law Prohibits the Sale of Tobacco Products to Persons Under 21 Years of Age."

(ii) "No Persons Under the Age of Twenty-One (21) Shall be Allowed on the Premises."

(iii) "No Loitering is Allowed on or in Front of These Premises."

(iv) "No Smoking or Vaping Allowed on These Premises."

(v) "Sale of Flavored Tobacco is Prohibited."

(4) In the event of a conflict between any of the above requirements, the most restrictive requirements shall apply.

(e) Windows and Doors.

(1) At least fifty (50) percent of any street-facing facade must be glazed with a clear, non-tinted material.

(2) No more than five (5) percent of the square footage of each window that is visible to the public from a public thoroughfare, sidewalk, or parking lot of Smoke Shop shall bear advertising, signs, or other obstructions of any sort.

(3) Doors must be free from signs, regardless of door type or material. The area covered by signs or advertising shall be measured using the border of such sign and shall include all areas within a sign or advertisement that may not include writing, such as the clear area within neon signs.

(4) Signage, advertising, or other obstructions inside or outside the Smoke Shop that are not physically attached to the windows or doors but are visible from a public thoroughfare, sidewalk, or parking lot in the same manner as if they were physically attached are included in the five (5) percent limitation.

(5) Any signage required by law shall not count towards the five (5) percent limitation but shall nonetheless follow the rules related to visual obstruction.

(6) Advertising and signage on windows shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the business. Including the area in which the cash registers are maintained, from exterior public sidewalks, parking lots, or the entrance to the business.

(7) Any Smoke Shop located within one thousand (1,000) feet of uses listed in Section 10-3.803(b)(1) or within one hundred (100) feet of uses listed in Section 10-3.803(b)(3), shall not advertise Tobacco Product sales in a manner visible from the outside of the Smoke Shop, such as from a public thoroughfare, sidewalk, or parking lot.

(f) Hours of Operation. Smoke Shops are prohibited from operating except from 8:00 a.m. to 10:00 p.m.

(g) Consumption of Tobacco Products. Smoke Shops are prohibited from selling Tobacco Products for onsite consumption.

(h) Consumption of Alcohol and Cannabis. The consumption of alcoholic beverages or cannabis in any form is prohibited on the premises of a Smoke Shop.

(i) Minimum Age Requirement.

(1) Smoke Shop Operators and Smoke Shop employees must be twenty-one (21) years of age or older.

(2) No person under the age of twenty-one (21) shall be allowed on the premises of a Smoke Shop.

(j) Loitering and Other Nuisance Activities.

(1) The operation of a Smoke Shop shall not result in nuisance activities on the property, which may include, but are not limited to, disturbances of the peace, illegal drug activity, public intoxication, drinking in public, tobacco product sales to minors, harassment of members of the public, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, loitering, excessive littering, graffiti, illegal parking, excessively loud noises (especially in the late night or early morning hours), traffic violations, curfew violations, lewd conduct, or other violations of City, state, or federal laws

(2) The Smoke Shop Operator shall post the property with readily visible signs advising that consumption of alcoholic beverages and cannabis, gambling, trespassing, or loitering on private property is a violation of the Modesto Municipal Code and providing appropriate citations to the relevant Sections of this Code.

(3) At least every twelve (12) months, the Smoke Shop Operator must provide the Modesto Police Department, on a form provided by the City, with written authorization for the Modesto Police Department peace officers to enter the Smoke Shop premises and remove trespassers when the business is closed to the public, in accordance with Penal Code section 602(0), including any amendments or successor statutes thereto. Such a form shall include the notarized signature of the Smoke Shop Operator.

(4) Any violations of this Section shall be considered an egregious violation of this Chapter and a public nuisance that is imminently dangerous to life, health, safety, or adjacent property, such that it requires immediate correction or elimination. Such a violation shall subject the Smoke Shop Operator to immediate suspension or revocation of the Smoke Shop Permit.

(k) Prohibited Products. The sale or distribution of one (1) or more of the following is prohibited:

(1) Cannabis or Cannabis products as defined in Modesto Zoning Code section 10-3.702.

(2) Drug paraphernalia, as defined in Health and Safety Code section 11014.5, not directly related to legal Tobacco Products.

(3) Nitrous oxide.

(4) Flavored tobacco products as defined in California Health and Safety Code section 104559.5.

(5) Other products prohibited by law.

(l) Gambling Prohibited. On-site or online gambling activities not related to the California Lottery are prohibited on the Smoke Shop premises.

(m) Code Requirements. The Smoke Shop shall comply with such other requirements as established by the Modesto Municipal Code, including the Modesto Building Code.

(Ord. No. 3801-C.S., § 4, effective 9-11-25)

(a) Security Plan Required. Smoke Shop Operators/Applicants shall submit a security plan consistent with the Modesto Police Department policy on the sale of age-restricted materials. Prior to the approval of the Smoke Shop Permit, the applicant shall prepare and submit, for review by the Modesto Police Department Chief of Police or their designee, a security plan for approval. Approval of the security plan by the Chief of Police or their designee shall not be unreasonably denied. The content of the security plan shall be incorporated as conditions of approval for the Smoke Shop Permit. As a part of the annual inspection process, the security plan shall be resubmitted for approval by the Chief of Police or their designee.

(b) Additional security measures such as reduced hours of operation, security guards, door monitors, and burglar alarm systems may be required if harm, nuisance, or related problems are demonstrated to occur as a result of business practices or operations. This will be determined on a case-by-case basis upon review by the Police Department.

(c) Video Surveillance. Smoke Shops must maintain a fully functional color digital video camera system meeting the following requirements:

(1) Security surveillance cameras and a video recording system shall be installed to monitor the interior, main entrance, all entries and exits (from both the inside and outside of the building), and the exterior Smoke Shop area to discourage loitering, crime, and illegal or nuisance activities.

(2) The camera and recording system must be of adequate quality (at least HD), color rendition, and resolution to allow the identification of any individual present in the Smoke Shop area.

(3) At each point-of-sale location, camera coverage must enable recording of the customer(s) and employee(s) facial features with sufficient clarity to determine identity.

(4) In addition, remote and real-time, live access to the video footage from the cameras shall be provided to the Chief of Police or his/her designee(s) using such software as designated by the Chief of Police. The Smoke Shop Operator shall be responsible for ensuring that the security surveillance camera's footage is remotely accessible by the Chief of Police or his/her designee(s), and that it is compatible with the City's software and hardware.

(5) All surveillance equipment, records, and recordings must be stored in a secure area that is only accessible to management staff. Operators must keep a current list of all authorized employees who have access to the surveillance system and/or alarm system.

(6) Video from the security surveillance cameras shall be maintained for a period of not less than forty-five (45) days and shall be made available to the City upon request.

(Ord. No. 3801-C.S., §4, effective 9-11-25)

(a) Initial Training. The Smoke Shop Operator and all employees of the Smoke Shop who are involved in the sale of Tobacco Products must complete approved course(s) in training of Tobacco Product sales and handling within sixty (60) days after approval of the Smoke Shop Permit becomes final, or for employees hired after the approval of the Smoke Shop Permit, within sixty (60) days from the date of hire. Existing Smoke Shops Operators and employees shall have until November 14, 2025, to come into compliance with the training requirement, and thereafter, new employees shall obtain the necessary training within sixty (60) days of the date of hire. To satisfy this requirement, a certified program must meet the standards of the California Department of Public Health on the Stop Tobacco Access to Kids Enforcement ("STAKE") Act or other certifying or licensing body designated by the State of California. If the Smoke Shop Operator is a legal entity, the manager or executive responsible for the Smoke Shop shall obtain the requisite training.

(b) Annual Training. The Smoke Shop Operator and all employees shall also be required to complete annual trainings which comply with State standards, including changes to tobacco sales laws and regulations.

(c) Records. Smoke Shops shall be required to keep up to date records which prove that all individuals listed above have completed the requisite trainings and shall furnish these records to the City during inspections and upon a reasonable request from the City.

(Ord. No. 3801-C.S., § 4, effective 9-11-25)

(a) Smoke Shops shall be subject to routine unannounced inspections at least annually to ensure compliance with this Chapter and any additional conditions of the Smoke Shop Permit.

(b) In the event that the inspection identifies violations, the Smoke Shop Operator shall pay a reinspection fee to reimburse the City for the cost of the City performing a follow-up inspection to ensure all identified violations have been corrected. The amount of such reinspection shall be established by the City Council by Resolution.

(c) If an annual inspection results in a finding that a Smoke Shop Operator is not in compliance with this Chapter or the specific conditions of the Smoke Shop License, that finding may be used as a basis for enforcement pursuant to Section 4-24.109.

(Ord. No. 3801-C.S., § 4, effective 9-11-25)

If the Smoke Shop violates any provision of this Chapter, or if any of the circumstances identified in 4-24.104(e) exist, the Smoke Shop and Smoke Shop operator may be subject to one (1) or more of the following:

(a) Suspension or Revocation of the Smoke Shop Permit. The Chief of Police may suspend or revoke the Smoke Shop Permit of any business violating this Chapter.

(b) Administrative Enforcement.

(1) Notwithstanding the schedule of fines established in Section 1-6.404(b) for administrative citations, the penalties assessed for each violation of this Chapter shall be as follows:

(i) A fine of five hundred dollars ($500.00) to two thousand dollars ($2,000.00) for the first violation.

(ii) A fine of one thousand dollars ($1,000.00) to three thousand dollars ($3,000.00) for the second violation within a five (5) year period.

(iii) A fine of two thousand dollars ($2,000.00) to five thousand dollars ($5,000.00) for the third violation and all subsequent violations within a five (5) year period.

(iv) Notwithstanding the foregoing, operating a Smoke Shop without a valid Smoke Shop Permit shall be subject to a fine of up to twenty thousand dollars ($20,000.00).

(c) Criminal Enforcement. Violation of this Chapter shall be punishable as a misdemeanor pursuant to Chapter 1-2 of this Code. The property owner of the site on which the Smoke Shop is located, the Smoke Shop Operator(s), and the Smoke Shop's employees may all be subject to criminal enforcement consistent with applicable laws.

(d) Notwithstanding anything to the contrary in this Code, the property owner of the site on which the Smoke Shop is located, as well as the Smoke Shop Operator(s), and all responsible parties who cause or permit a violation of this Chapter, may be jointly and severally liable for violations of this Chapter.

(e) Additional Signage. The Chief of Police, or designee, may require any Smoke Shop that violates this Ordinance to post a sign in a prominent location near the cash register identifying that the business has violated applicable law and the specific violations. The text of the sign shall be as specified by the Chief of Police or designee and shall be readily readable. The Chief of Police shall determine the length of time that the sign shall remain posted, which shall not exceed one (1) year.

(f) Any other remedy authorized by Chapter 1-6 of this Code or other applicable law, including but not limited to California Health and Safety Code section 104559.5.

(g) These remedies are cumulative and not exclusive of each other. Each violation and each day on which the same violation occurs constitutes a separate offense for which a separate penalty may be imposed.

(h) The Chief of Police shall select the remedy and penalty based on the severity of the violation, as well as any past violations committed by the Smoke Shop or Smoke Shop Operator, including violations that occurred prior to the issuance of the Smoke Shop Permit.

(Ord. No. 3801-C.S., § 4, effective 9-11-25)

(a) Appeal of Proposed Denial, Suspension, Revocation, or Nonrenewal. Any applicant or Smoke Shop Permit holder may appeal a proposed Smoke Shop denial, suspension, revocation, or nonrenewal by filing a written appeal with the City Manager's office within ten (10) days from the date of the notice of denial, suspension, revocation, or nonrenewal. The written appeal must contain the following:

(1) A brief, clear statement, including material facts, to support the appellant's position and the relief sought;

(2) The signature of the Smoke Shop Permit holder with verification under penalty of perjury of the truth of the statements in the written appeal; and

(3) Any required appeal fee, which may be approved via Resolution of the City Council.

(b) Appeal Hearing Procedure.

(1) Upon receipt of a valid written appeal, the City Manager shall schedule an appeal hearing no earlier than twenty (20) days from the receipt of the appeal.

(2) A Hearing Officer, appointed by the City Manager, will conduct the appeal hearing.

(3) The Hearing Officer may only consider evidence that is relevant to whether the Smoke Shop Permit should be denied, suspended, revoked, or not renewed. However, the formal rules of evidence shall not apply to the hearing.

(4) The person contesting the action will be given the opportunity to testify and present witnesses and evidence concerning the action. Unless requested in advance by the person contesting the action, a representative of the City is not required to attend the hearing, provided that any such appearance may be made at the discretion of the City Manager.

(5) The Hearing Officer may continue the hearing and request additional information from either party prior to issuing a written decision.

(6) After considering all of the testimony and evidence submitted at the hearing, the Hearing Officer must issue a written decision within a reasonable time after the hearing to uphold or deny the recommended action and must list in the decision the reasons for that decision. The Hearing Officer will use the preponderance of evidence as the standard of evidence in deciding issues. The decision of the Hearing Officer will be final.

(7) If the Hearing Officer determines that the action should not be upheld, the City will promptly refund the applicable amount of the appeal hearing fee.

(8) The City shall serve the recipient of the notice of appeal or nonrenewal with a copy of the Hearing Officer's written decision by first-class mail.

(Ord. No. 3801-C.S., § 4, effective 9-11-25)