Morro Bay Municipal Code Ch. 5.54 Tobacco, Electronic Cigarettes and Vaping

The following words and phrases, as used in this chapter, shall have the following meanings:

"Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco or menthol, 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 relating to mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice.

"Cigar" means:

1. Any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco; or

2. Any paper or wrapper that contains tobacco and is designed for smoking or ingestion of tobacco products. "Cigar" includes, but is not limited to, tobacco products known or labeled as "cigar," "cigarillo," "tiparillo," "little cigar," "blunt wrap," or "cigar wrap."

"Electronic cigarette," (i.e., e-cigarettes) for purposes of solely this Chapter 5.54, means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances (excluding cannabis that contains no vitamin E acetate), including any component, part or accessory of such a device, whether or not sold separately. 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 cigarette paraphernalia" means an item that is marketed as or can be used as a component part of an electronic cigarette.

"Flavored tobacco product" means any tobacco product that imparts a characterizing flavor. A public statement or claim made or disseminated by the manufacture of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.

"Hearing officer" means the person or persons designated by the city manager to serve in this capacity. Compensation of a hearing officer shall not depend on any particular outcome of any hearings the hearing officer is involved with concerning this Chapter 5.54.

"Licensing agent" means a person or persons designated by the city manager to serve in this capacity.

"Menthol" means any form or taste of menthol commonly used to add flavor or aroma to tobacco products, and any substance derived from menthol.

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

"Pharmacy" means a retail establishment in which the profession of pharmacy by a pharmacist licensed by the state of California in accordance with the Business and Professions Code is practiced and where prescriptions are offered for sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals. "Pharmacy" includes any retail establishment that contains a pharmacy, even if the pharmacy is not the sole or primary business of the retail establishment.

"Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have, or can or does share, ultimate control over the day-today operations of a business.

"Smokeless tobacco product" means any tobacco product that is not smoked or burned, including but not limited to chewing tobacco and snuff; this definition does not include electronic cigarettes, electronic cigarette paraphernalia, nor vaping products.

"Tobacco product" means any product containing, made from, 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, pipe tobacco, snuff, chewing tobacco, dipping tobacco, electronic cigarettes or any other preparation of tobacco including Indian cigarettes called "bidis." "Tobacco product" includes electronic cigarette paraphernalia and tobacco product paraphernalia. "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 and is marketed and sold solely for such an approved purpose.

"Tobacco product paraphernalia" includes cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco or products prepared from tobacco.

"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, or any tobacco product; "tobacco retailing" shall mean the doing of any of these things.

"Vaping" is a term that commonly refers to the use of an electronic cigarette.

"Vitamin E acetate," also known as α-Tocopheryl acetate, means a synthetic form of vitamin E and/or an oil derived from vitamin E, and known to be used as an additive for vaping products.

(Ord. No. 632, § 1, 4-28-20)

It is unlawful to sell, offer to sell, or exchange or offer to exchange for consideration any of the following products in the city of Morro Bay (commencing December 1, 2020):

A. Electronic cigarettes.

B. Electronic cigarette paraphernalia.

C. Cigars meeting any of the following criteria:

1. Any single cigar, whether or not packaged for individual sale, unless the retail price exceeds five dollars; or

2. Any number of cigars fewer than the number contained in the manufacturer's original consumer packaging designed for retail sale to a consumer; or

3. Any package of cigars containing fewer than five cigars.

D. Flavored tobacco products (excepting smokeless tobacco products).

(Ord. No. 632, § 1, 4-28-20)

A. Beginning on June 1, 2021, it shall be 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 for each location at which that activity is to occur.

B. Licenses are valid for one year and each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license prior to its expiration.

C. The conference of a tobacco retailer license does not confer any new rights under any other law and does not exempt any business that otherwise would be subject to the smoking related provisions within the Morro Bay Municipal Code and Labor Code Section 6404.5.

(Ord. No. 632, § 1, 4-28-20)

A. No license will be issued to authorize tobacco retailing at other than a fixed location. Itinerant tobacco retailing and tobacco retailing from vehicles are prohibited.

B. No license will be issued to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g., an "on-sale" license issued by the California Department of Alcoholic Beverage Control); tobacco retailing in bars and restaurants serving alcoholic beverages is prohibited.

C. No license will be issued to authorize tobacco retailing in a pharmacy and no pharmacy shall engage in tobacco retailing at any time.

(Ord. No. 632, § 1, 4-28-20)

A. Application for a tobacco retailer's license shall be submitted to the licensing agent in the name of each proprietor/person proposing to conduct retail tobacco sales and shall be signed by such person or an authorized agent thereof. All applications shall be submitted on a form supplied by the licensing agent and shall contain the following information:

1. The name, address, and telephone number of the applicant.

2. The business name, address, and telephone number of each location for which a tobacco retailer's license is sought.

3. Such other information as the licensing agent deems necessary for enforcement of this chapter.

4. Whether or not any proprietor 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.

B A licensed tobacco retailer shall inform the city in writing of any change in the information submitted on an application for a tobacco retailer's license within ten business days of a change.

(Ord. No. 632, § 1, 4-28-20)

Upon the receipt of an application for a tobacco retailer's license, the licensing agent shall issue a license unless substantial evidence in the record demonstrates one of the following bases for denial:

A. The application is incomplete or inaccurate;

B. The application seeks authorization for tobacco retailing at a location prohibited by section 5.54.040; or

C. The application seeks authorization for tobacco retailing by a person or at a location for which a suspension is in effect pursuant to Section 5.54.120 of this chapter.

(Ord. No. 632, § 1, 4-28-20)

Each licensee shall prominently display the license in a public place at each location where tobacco retailing occurs.

(Ord. No. 632, § 1, 4-28-20)

The fee for a tobacco retailer's license shall be established by resolution of the city council. The fee shall be calculated so as to recover the total cost, but no more than the total cost, of license administration and enforcement, including, but not limited to, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violation, and prosecution of violators. The fee for tobacco retailer's license shall be paid to the licensing agent.

(Ord. No. 632, § 1, 4-28-20)

A tobacco retailer's license is not transferable to a new location or to another person. 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; or, if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer.

(Ord. No. 632, § 1, 4-28-20)

It shall be a violation of a tobacco retailer's license for a licensee or his or her agents or employees to violate any local, state or federal tobacco-related law.

(Ord. No. 632, § 1, 4-28-20)

Tobacco retailers shall verify the age of every person purchasing a tobacco product by means of a government issued (or equivalent) photographic identification containing the bearer's date of birth regardless of what age the purchaser appears to be.

(Ord. No. 632, § 1, 4-28-20)

Compliance with this chapter shall be monitored by city law enforcement agents. At least four compliance checks of each tobacco retailer shall be conducted during each twelve-month period. The cost of compliance monitoring shall be incorporated into the license fee.

(Ord. No. 632, § 1, 4-28-20)

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 consistent with Section 1.03.120 of this code, and reasonable opportunity to be heard, that the licensee or his or her agents or employees has violated the conditions of the license imposed pursuant to this chapter, or that the information contained in the application, including supplemental information, if any, is false in any material respect, as follows:

1. Upon a finding by the city of a first license violation within any five-year period, the license shall be suspended for thirty days.

2. Upon a finding by the city of a second license violation within any five-year period, the license shall be suspended for ninety days.

3. Upon a finding by the city of a third license violation within any five-year period, the license shall be suspended for one year.

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

B. During a period of license suspension, the tobacco retailer shall remove all tobacco products from public view at the retail location.

C. The suspension or revocation of a tobacco retailer's license shall become effective on the date specified in the notice of suspension or revocation issued by the city, which shall not be sooner than the 11th business day following the date of the city's decision to suspend or revoke the license.

(Ord. No. 632, § 1, 4-28-20)

A decision of the city to suspend or revoke a license is appealable to a hearing officer and must be filed with the city clerk no later than ten business days following the date of the city's decision to suspend or revoke the license. Appeal procedures shall follow those contained in Sections 1.03.080-090 of this code except when in conflict with this Chapter 5.54. An appeal shall 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 his or her designee by filing a notice of appeal with the city clerk no later than ten business days following the date of the decision of the hearing officer. A decision of the city manager or his or her designee shall be the final decision of the city.

(Ord. No. 632, § 1, 4-28-20)

A. Any violation of the provisions of this chapter by any person is a misdemeanor and is punishable as provided in Chapter 1.16 of this code. Any violation of the provisions of this chapter by any person is also subject to administrative fines as provided in Chapter 1.03 of this code.

B. Each day that a person acts as a tobacco retailer without a valid tobacco retailer's license shall constitute a separate violation of this chapter.

C. Violations of this chapter are hereby declared to be public nuisances.

D. 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, including but not limited to administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

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

(Ord. No. 632, § 1, 4-28-20)