San Jose Municipal Code Part 1 Purpose and Definitions

The failure of Tobacco Retailers to comply with all tobacco control laws, particularly the sale of Tobacco Products, including flavored tobacco and Electronic Cigarette Products to minors, presents an imminent threat to the public health, safety and welfare. A local licensing program for Tobacco Retailers is intended to ensure that Tobacco Retailers comply with tobacco control laws and business standards of the City and to protect the health, safety and welfare of those persons who reside in, work in and visit this City. State law explicitly permits cities to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a local license for a violation of any state tobacco control law. A requirement for a Tobacco Retailer license will not unduly burden legitimate business activities of retailers who sell or distribute Tobacco Products to adults but will allow the City to regulate the operation of lawful businesses to discourage violations of federal, state and local tobacco-related laws. The City has a substantial interest in promoting compliance with federal, state and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of Tobacco Products, including flavored tobacco and Electronic Cigarette Products, by minors; in promoting compliance with laws prohibiting sales of Tobacco Products to minors; and in protecting children from being lured into illegal activity through the misconduct of adults. This Chapter is adopted to encourage responsible Tobacco Retailing and to discourage violation of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of Tobacco Products and Electronic Cigarette Products to minors. This chapter does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws. Nothing in this Chapter shall be construed to penalize the purchase, use or possession of a tobacco product by any person not engaged in the retail of tobacco.

(Ords. 28875, 30675.)

The definitions set forth in this part shall govern the application and interpretation of this chapter.

(Ord. 28875.)

"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 (2) or more informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of violations of this Chapter is not an Arm's Length Transaction.

(Ord. 30675.)

"City manager" shall mean the manager of the city as appointed by the city council in accordance with the city's charter, or the city manager's designee.

(Ord. 28875.)

"Department" means the city's department of planning, building and code enforcement.

(Ord. 28875.)

"Director" means the director of the department of planning, building and code enforcement, the director's designee, or such other director as may be designated by the city manager to administer the provisions of this chapter.

(Ord. 28875.)

"Electronic Cigarette Products" means any of the following products:

1. Any device or delivery system that can be used to deliver nicotine in aerosolized or vaporized form, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah.

2. Any component, part, or accessory of such a device or delivery system that is used during its operation.

3. Any flavored or unflavored liquid or substance containing nicotine, whether sold separately or sold in combination with any device or delivery system that could be used to deliver nicotine in aerosolized or vaporized form.

4. Any product for use in an electronic nicotine device or delivery system whether or not it contains nicotine or tobacco or is derived from nicotine or tobacco.

5. Electronic Cigarette Products shall not include any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold separately. Electronic Cigarette Products shall 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 where that product is marketed and sold solely for such approved use. See 21 U.S.C. § 387(a). As used in this subsection, nicotine does not include any food products as that term is defined pursuant to Section 6359 of the California Revenue and Taxation Code.

(Ord. 30675.)

"Hookah" means a waterpipe, used to smoke shisha or other Tobacco Products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.

(Ord. 30675.)

"Licensee" means and includes the holder of a tobacco retail license and any person required to have a tobacco retail license under this chapter, whether or not such person is actually so licensed.

(Ord. 28875.)

"Loose leaf tobacco" consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any Tobacco Product, which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.

(Ord. 30675.)

"Person" shall have the definition given in Section 1.04.020 of this code.

(Ord. 28875.)

"Premises" means any building or portion of any building where tobacco retailing is occurring.

(Ord. 28875.)

"Premium cigar" means any cigar that is handmade, is not mass produced by the use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have filter, tip, or nontobacco mouthpiece and is capped by hand.

(Ord. 30675.)

"Sale" and "sold" include any sale, exchange, barter or offer for sale.

(Ord. 30675.)

"School" means a public or private preschool, elementary, middle, or secondary school.

(Ord. 30675.)

"Self-service display" means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the tobacco retailer or the tobacco retailer's agent or employee and without a direct person-to-person transfer between the purchaser and the tobacco retailer or tobacco retailer's agent or employee. A vending machine is a form of self-service display.

(Ord. 28875.)

"Shisha Tobacco Product" means a Tobacco Product smoked or intended to be smoked in a hookah. "Shisha Tobacco Product" includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. "Shisha Tobacco Product" does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic Tobacco Product.

(Ord. 30675.)

Editor's note— Ord. 30675, adopted Oct. 19, 2021, repealed § 6.87.100, which pertained to smoking and derived from Ord. 28875.

Editor's note— Ord. 30675, adopted Oct. 19, 2021, repealed § 6.87.110, which pertained to tobacco paraphernalia and derived from Ord. 28875.

"Tobacco Product" means (unless specifically noted elsewhere) any product subject to Subchapter IX (21 U.S.C. § 387 et seq. ("Subchapter IX")) of the Federal Food, Drug, and Cosmetic Act. (See 21 U.S.C. § 387a(b) (products subject to Subchapter IX); 21 C.F.R. §§ 1100.1 - 1100.3 (tobacco products subject to Subchapter IX).) Products subject to Subchapter IX include, but are not limited to, cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, cigars, pipe tobacco, waterpipe tobacco, and Electronic Cigarette Products. Products that are not subject to Subchapter IX include accessories of Tobacco Products, such as, but not limited to, ashtrays, spittoons, and conventional matches and lighters that solely provide an external heat source to initiate but not maintain combustion of a Tobacco Product.

(Ords. 28875, 30675.)

"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco products or tobacco paraphernalia. This definition shall be without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. 28875.)

"Tobacco retailing" means engaging in any of those activities of a tobacco retailer. This definition shall be without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(Ord. 28875.)