Chapter 5.100 — TOBACCO RETAILERS

The purpose of this chapter is to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minors, 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 for violations.

(Ord. 12-25, 6/24/2025)

"Ancillary tobacco retailer" means a business is a business, such as a grocery store, supermarket, convenience store, or gas station, where less than 20% of its floor or display area is dedicated to the sale or display of conventional cigars, cigarettes, or tobacco products.

"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 under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of violations of this chapter that occurred at the location, is presumed not to be an arm's length transaction.

"Cannabis" means the substance defined in California Business and Professions Code Section 26001 and/or California Health and Safety Code Section11018, as those sections may be amended from time to time.

"Characterizing flavor" means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product, as defined in California Health and Safety Code Section 104559.5(a)(1), as that section may be amended from time to time.

"Drug paraphernalia" means any instrument, device, or material used, designed for use, or intended for use in ingesting, inhaling, or preparing cannabis, hashish, hashish oil, cocaine, or other controlled substances, as defined in California Health and Safety Code Sections 11014.5,11364.5, and 11364.7, as those sections may be amended from time to time.

"E-liquid" means any substance that is intended to be consumed in aerosolized or vaporized form using an electronic smoking device, regardless of the nicotine content or other substance.

"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 substance in aerosolized or vaporized form to a person, as well as any component, part, or accessory for the device that is used during its preparation, consumption, or operation. "Electronic smoking device" includes, but is not limited to, electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, vape pen, electronic hookahs, cartridges, cartomizers, e-liquid, smoke juice, tanks, vaporizers, tips, atomizers, device batteries, device charges, or any component, part, or accessory of such a device as contained in state law. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes.

"Flavored tobacco product" means any tobacco product that contains a characterizing flavor, as

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City of Orange, CA

BUSINESS TAXES AND REGULATIONS

§ 5.100.020

§ 5.100.020

defined in California Health and Safety Code Section 104559.5(a)(6), as that section may be amended from time to time.

"Hearing officer" means impartial person such as:

1. Any administrative law judge provided by the State of California Office of Administrative Hearings pursuant to Government Code Section27727;

2. Any duly appointed individual who meets the requirements of Government Code Section 27724;

3. Any independent contractor hired from an organization that provides hearing officers; or

• Any person stipulated upon by the City Manager and appellant.

"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.

"Nitrous oxide" means any of the following substances: N2O2 dinitrogen monoxide, dinitrogen oxide, nitrogen oxide, or laughing gas, as defined in California Penal Code Section 381c(a) as may be amended from time to time. Nitrous oxide is a colorless nonflammable gas sometimes informally or colloquially referred to as "nitro," "NOX," "galaxy gas," "whippits," amongst other names.

"Permittee" means any proprietor who holds a valid tobacco retailer permit issued pursuant to this chapter.

"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 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 shall be deemed to exist when a person has, or shares, control over the dayto-day operations of a business.

"Significant tobacco retailer" means a business that derives 20% or more of its floor or display area dedicated to the sale or display of tobacco products or tobacco paraphernalia.

"Smoking lounge" means a business establishment, or part thereof, dedicated to the smoking of tobacco products, electronic cigarettes, or other substances, including, but not limited to establishments commonly known as private smoker's lounges, cigar lounges, hookah lounges, tobacco clubs, or tobacco bars.

"Smoking" means the act of inhaling, exhaling, burning, or carrying any lighted or heated device or substance, including tobacco, as defined in California Business and Professions Code Section 22950.5(c), as that section may be amended from time to time.

"Tobacco paraphernalia" means cigarette papers or wrappers, blunt wraps as defined in California Penal Code Section 308, pipes, holders of smoking materials of all types, cigarette rolling machines, or any other instruments or items designed or marketed for the consumption, preparation, storing, use, smoking or ingestion of tobacco products, as those sections may be amended from time to time.

"Tobacco product flavor enhancer" has the meaning set forth in Health and Safety Code Section1045595(a)(18), as may be amended from time to time.

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City of Orange, CA

ORANGE CODE

§ 5.100.020

§ 5.100.030

"Tobacco product" means any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by any other means, as defined in California Business and Professions Code Section22950.5(d), as that section may be amended from time to time.

"Tobacco retailer" means any person, proprietor, or any of the tobacco retailer's agents or employees, who sells, offers for sale, exchanges, displays, or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, displayed, or offered for exchange. "Tobacco retailing" means engaging in any activities related to the sale, exchange, display, or offer for exchange of tobacco products, including operating as an ancillary tobacco retailer or a significant tobacco retailer. (Ord. 12-25, 6/24/2025)

• A. Permit Requirement. All persons intending to engage in tobacco retailing must obtain a tobacco retailer permit for each business location within 60 days of the effective date of this chapter.

• B. Zoning and Land Use Restrictions.

  1. Permits shall not be issued for locations that violate the City's Zoning Code (Title 17) or are in zones designated solely for residential use.

  2. Permits shall not be issued for tobacco retailing at any smoking lounge. Smoking lounges are prohibited in all zones.

• C. Population-Based Cap.

  1. The total number of tobacco retailer permits shall not exceed one per 2,500 residents.

  2. Population shall be determined based on the most current U.S. Census Bureau or California Department of Finance data, whichever is more recent at the time of application.

  3. No new permits shall be issued once the population-based cap is reached.

• D. Prohibited Business Types.

  1. Permits shall not be issued or renewed for tobacco retailing in pharmacies as defined by state law.

  2. Permits shall not be issued or renewed for any premises licensed by the state to serve alcohol for on-site consumption, restaurants, or businesses offering food for on-site consumption.

• E. Buffer Zones.

  1. No permit shall be issued or renewed for a location within 500 feet of the following uses:

     • a. Another permitted tobacco retailer;

     • b. A sensitive use, including, but not limited to: schools (public or private,

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City of Orange, CA

BUSINESS TAXES AND REGULATIONS

§ 5.100.030

§ 5.100.040

preschool, K-12), libraries, parks, playgrounds, recreational facilities, daycare centers (Health and Safety Code Section 1596.76), healthcare facilities, elder care facilities, houses of worship, or other youth-oriented locations.

2. Distance is measured in a straight line from the nearest point on the property line of the parcel where the proprietor's business is located to the nearest point on the property line of the parcel of another tobacco retailer or a sensitive use, without regard to intervening structures or obstacles.

• F. Nonconforming Use Exception. A retailer lawfully operating on the effective date of this chapter may continue under the following conditions:

  1. The permit is timely obtained and renewed without lapse or permanent revocation.

  2. The business does not close or suspend tobacco retailing for more than 60 consecutive days.

  3. No substantial change to the premises or operations occurs, including:

     • a. A transfer in ownership unless it is a bona fide arm's length transaction;

     • b. A change made primarily to evade enforcement or penalties.

  4. The retailer remains compliant with all applicable laws. If the City finds the operation has substantially changed, the retailer bears the burden of proving otherwise by a preponderance of the evidence.

• G. Expiration of Legal Nonconforming Use. Permits issued under this section shall be treated as legal nonconforming uses under Chapter 17.38 of the Zoning Code and subject to its provisions, including amortization and termination requirements.

• H. Permit is Conditional. A tobacco retailer permit grants only a limited and conditional privilege to operate at the location listed on the permit. It does not confer any vested right and does not supersede any other applicable law, including:

  1. The City's zoning, building, or business license requirements;

2. Labor Code section 6404.5 regarding smoking in enclosed workplaces.

(Ord. 12-25, 6/24/2025)

• A. Permit Required. No person shall engage in tobacco retailing within the City without first obtaining and maintaining a valid tobacco retailer permit for each specific location.

• B. Application Procedure.

  1. Applications must be submitted on forms provided by the City and include a nonrefundable annual fee as set by City Council resolution.

  2. Each application shall include, at minimum, the following:

     • a. Full legal name, date of birth, government-issued identification number, mailing address, phone number, and email for each proprietor;

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City of Orange, CA

ORANGE CODE

§ 5.100.040

§ 5.100.050

• b. Business name, address, phone number, and hours of operation;

• c. Disclosure of any prior permit suspensions or revocations under this chapter, including dates and reasons;

• d. Proof of a valid state tobacco retailer license from the California Department of Tax and Fee Administration;

• e. Any other information deemed necessary by the City Manager for the administration or enforcement purposes;

• f. A signed certification by each proprietor under penalty of perjury affirming the accuracy of the information provided and compliance with this chapter.

• C. Authority to Adopt Administrative Regulations. The City Manager may adopt and implement additional administrative regulations, consistent with this chapter, to effectively enforce and administer local tobacco control measures. All regulations must be published in advance and filed with the City Clerk's office for public inspection.

• D. Change of Information. Permittee shall notify the City in writing of any changes to submitted application information within 10 calendar days. A fee as set by City Council resolution may be imposed for processing such changes.

• E. Non-Transferability. Tobacco retailer permits are non-transferable between persons, proprietors, or locations. Any attempted transfer shall be null and void. A new permit application is required for any change in ownership or location, subject to all applicable conditions.

• F. Effect of Prior Violations at Location. Permit ineligibility due to prior violations at a location shall continue to apply unless:

  1. The business has been transferred to a new proprietor or proprietors in a bona fide arm's length transaction; and

  2. The new proprietor submits clear and convincing evidence of such transfer to the City's satisfaction.

• (Ord. 12-25, 6/24/2025)

• A. Tobacco Retail Permit Review and Issuance. The City Manager or designee reviews each completed Tobacco Retail Permit application and may conduct an investigation to determine compliance with this chapter and applicable laws. A tobacco retail permit may be issued or renewed unless the City Manager determines that one or more of the following conditions exist:

  1. The application is materially incomplete or contains inaccurate, false, fraudulent, or misleading information;

  2. The applicant seeks authorization for tobacco retailing that is prohibited, unlawful or violates this chapter or other applicable City, County, state, or federal law or regulation;

  3. The applicant has not resolved outstanding fines, penalties, fees, or taxes owed to the

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City of Orange, CA

BUSINESS TAXES AND REGULATIONS

§ 5.100.050

§ 5.100.060

City in connection with tobacco retailing activities or other applicable laws;

4. The location is currently subject to an active suspension or revocation proceeding, unless:

   • a. The applicant has acquired the business or premises through a good-faith, arm's length transaction and provides satisfactory documentation; or

   • b. At least five years have passed since the date of revocation.

• B. Tobacco Retail Permit Term and Renewal.

  1. A permit is valid for one year from the date of issuance and must be renewed annually to continue as a tobacco retailer.

  2. To maintain continuity, renewal applications should be submitted at least 30 days before expiration.

  3. Any permit not renewed by its expiration date automatically expires at midnight, with no grace period or temporary permit issued thereafter. Once a permit expires, all tobacco retailing must cease. A new application is required, subject to all applicable conditions.

  4. If a permit has expired during a suspension or revocation period, the permittee may reapply after the enforcement action has concluded, subject to all applicable conditions of this chapter.

• (Ord. 12-25, 6/24/2025)

• A. Compliance with Laws. Tobacco retailers shall operate in accordance with all applicable local, state, and federal laws, including, but not limited to, zoning, building, fire, public health, safety, general welfare and tobacco control regulations.

• B. Fixed Location Required. Tobacco retailing must occur from a fixed, permanent location. Retailing from vehicles, temporary structures, or mobile operations (e.g., carts, pop-up booths) is prohibited.

• C. Prohibited Products and Activities. The following items shall not be sold, distributed, displayed, furnished, administered, exchanged, given away, or possessed with the intent to sell or offered for sale by any tobacco retailer:

  1. Drug paraphernalia;

  2. Nitrous oxide or any device used to dispense it as defined by state law and the City Code;

  3. Cannabis, cannabis products, cannabis accessories, or edible cannabis products as defined in state or federal law;

  4. Controlled substances, including marijuana where applicable, as governed by California Health and Safety Code Sections 11351, 11352,11359, 11360, 11366, 11378, and 11379 as may be amended from time to time.

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City of Orange, CA

ORANGE CODE

§ 5.100.060

§ 5.100.060

5. Flavored tobacco products and tobacco product flavor enhancer, as prohibited under state or federal law;

6. Electronic smoking devices and related paraphernalia and accessories, effective July 1, 2026, unless preempted or otherwise limited by state or federal law at that time;

7. Imitation tobacco products, including, but not limited to, candy cigarettes and bubble gum cigars;

8. Edible tobacco look-alike products, including, but not limited to, snacks packaged or marketed to resemble tobacco products;

9. Disguised vape or electronic smoking devices, including, but not limited to, those made to look like USB drives, pens, markers, phone cases, watches, lipstick, remote keys or other non-tobacco items.

10. Unlawful weapon sales, including, but not limited to, violations of California Penal Code Sections 17235 (switchblade knives over two inches), 20410 (ballistic knives), 21810 (brass knuckles) as may be amended from time to time, and any other applicable local, state or federal laws.

• D. Self-Service Displays. Self-service displays of tobacco products are prohibited as established by state law. All tobacco sales must be conducted by a tobacco retailer directly assisting the customer.

• E. Minimum Age and Identification.

  1. No person under the minimum legal age determined by the stricter of state or federal law for purchasing or possessing tobacco products may engage in, or assist with tobacco retailing.

  2. A tobacco retailer must request and check a valid, government-issued photo identification of any person who appears under 30 years of age, to ensure the customer meets the minimum age to purchase and possess tobacco products as required by the stricter of state or federal law.

• F. Packaging, Labeling, and Pricing.

1. Tobacco products must be sold in the original manufacturer's packaging, compliant with all federal and state labeling and child-resistant packaging laws.

   2. Prices must be clearly displayed on the product or nearby shelf or signage.

• G. Display of Licenses and Permits. The City-issued tobacco retailer permit, business license, and all applicable state or federal licenses must be visibly posted within five feet of the point-of-sale register.

• H. Premises Regulations.

  1. The business must maintain a clearly designated front entrance for customers. All non-emergency public access must occur through this entrance.

  2. Front entrance doors must remain unlocked during regular business hours, unless temporarily secured for safety or emergency response.

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City of Orange, CA

BUSINESS TAXES AND REGULATIONS

§ 5.100.060

§ 5.100.080

3. No business shall engage in tobacco retailing between the hours of 2:00 a.m. and 6:00 a.m. of the same day, effective July 1, 2026, unless preempted or otherwise limited by state or federal law at that time.

• I. Signage Compliance. Retailers must comply with all signage requirements in Title 17 of the Orange Municipal Code and all applicable state and federal laws related to tobacco warnings, age restrictions, and advertising.

• J. Special Events and Temporary Retailing Prohibited. Tobacco retailing at special events, outdoor markets, street fairs, or temporary setups is not permitted under this Chapter.

• (Ord. 12-25, 6/24/2025)

The City may enter any permitted tobacco retail location during business hours to inspect for compliance with this chapter and applicable laws. Inspections may be routine, unannounced, complaint-based, or involve youth decoy operations. Access must be granted to all areas of the premises, including, but not limited to, sales floors, storage rooms, offices, restrooms, cabinets, drawers, hidden compartments, safes, counters, closets. Refusal to allow entry may constitute a violation of this chapter.

(Ord. 12-25, 6/24/2025)

• A. Grounds for Enforcement. A tobacco retailer permit may be subject to warnings, fines, suspension, or revocation if the permittee or their agents or employees:

  1. Violate any provision of this chapter;

  2. Are found liable in court or administrative proceedings for violating applicable tobacco control laws; or

  3. Admit to or plead guilty or no contest to such violations.

• B. Unpermitted Tobacco Retailing. Operating without a valid permit is a violation and may result in fines established by City Council resolution.

• C. Progressive Penalties (within any five-year period) as established by City Council resolution:

  1. 1st Violation: Written warning or fine; compliance required within 72 hours.

  2. 2nd Violation: Fine and/or 30-day suspension.

  3. 3rd Violation: Fine and/or 60-day suspension.

  4. 4th Violation: Fine and/or 90-day suspension.

  5. 5th or Subsequent Violation: Fine and/or 120-day suspension.

  6. Revocation: After a 5th or subsequent violation, the permit may be revoked.

• D. Appeals of Fines. Administrative fines may be appealed under Chapter 1.10 of the Orange Municipal Code.

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City of Orange, CA

ORANGE CODE

§ 5.100.080

§ 5.100.090

• E. Conditions During Suspension or Revocation. During a suspension or revocation period:

  1. All tobacco products and related items must be removed from customer view and/or stored in a secured, non-public area.

  2. A City-issued notice must be posted at all public entrances and points of sale, stating the reason and duration of the enforcement action.

• F. Failure to comply may constitute a new violation. (Ord. 12-25, 6/24/2025)

• A. Notice of Action. Before denying, suspending, or revoking a tobacco retailer permit or following the seizure of items prohibited under this chapter, the City Manager shall issue written notice to the permittee or applicant. The notice shall include:

  1. The proposed enforcement action;

  2. A brief summary of the reason(s) and applicable code section(s);

  3. Instructions for requesting an administrative review.

• B. Right to Request Review. A permittee or applicant may request administrative review by submitting a written request to the City Clerk within 10 calendar days of the notice. The request must include any applicable appeal fee as set by City Council.

• C. Scheduling the Review. Upon receiving a timely request, the City shall schedule an administrative review. The review shall be conducted within a reasonable time, and notice shall be provided to the appellant at least 10 calendar days in advance.

• D. Hearing Process.

  1. The hearing shall be conducted by a neutral hearing officer.

  2. Both parties may present evidence, provide written statements or oral testimony, and be represented by legal counsel.

  3. Formal rules of evidence do not apply, but relevant and reliable evidence will be considered.

  4. Hearings may be continued for good cause.

• E. Burden of Proof. The City bears the burden of proving the violation by a preponderance of the evidence.

• F. Failure to Participate. If the appellant fails to appear or otherwise participate in the hearing, the appeal will be deemed withdrawn and considered a waiver of the right to exhaust administrative remedies.

• G. Final Decision. The hearing officer shall issue a written decision within a reasonable time following the hearing. The decision shall include findings and be final upon issuance. Judicial review is available under California Code of Civil Procedure Sections 1094.5 and 1094.6.

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City of Orange, CA

BUSINESS TAXES AND REGULATIONS

§ 5.100.090

§ 5.100.100

• H. Permit Ineligibility Following Revocation. If a permit is revoked, no new or renewal permit shall be issued for the same business location for up to five years, unless the City determines that substantial changes in ownership or operations justify reconsideration.

• (Ord. 12-25, 6/24/2025)

• A. The remedies provided in this chapter are in addition to any other remedies available under local, state, or federal law. Nothing in this chapter limits the City's authority to pursue any available legal remedy, including, but not limited to, nuisance abatement, permit or business license suspension or revocation, or enforcement under Chapter 1.08 or 1.10 of the Orange Municipal Code.

Each day a violation of this chapter continues constitutes a separate offense. Any person who violates, aids, permits, or conceals a violation may be subject to:

1. Administrative citations and fines;

2. Civil enforcement actions with reasonable attorneys' fees and costs;

3. Criminal prosecution as a misdemeanor; and/or

4. Public nuisance abatement under California Civil Code Section3480.

5. Tobacco products, paraphernalia, drug paraphernalia, nitrous oxide, flavored tobacco products, or other prohibited items sold, in violation of this chapter may be seized by authorized City personnel and subject to forfeiture, unless the permittee demonstrates compliance.

Seizures may be appealed through the procedures set forth in this Chapter. If not appealed or if upheld after review, seized items shall be destroyed in accordance with Orange Police Department policy and applicable law.

• B. Evidence of Violations. If a violation is partially based on the involvement of a person under the age of 18 years old, that individual is not required to appear or testify in any civil or administrative enforcement process brought to enforce this chapter. The alleged violation will be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

• (Ord. 12-25, 6/24/2025)

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City of Orange, CA