Scotts Valley Municipal Code Ch. 8.25 Regulation of Tobacco and Electronic Cigarettes Advertising and Sales

Footnotes:

--- (3) ---

* Editorial Note: Ord. No. 129.2, § 3, adopted April 16, 2014, amended the title of Ch. 8.25 to read as herein set out. Formerly, said chapter was entitled "Regulation of Tobacco Advertising and Sales."

The purpose of this chapter is to promote the welfare of minors by discouraging the commercial exploitation of potential underage tobacco and electronic cigarette users and by discouraging actions that promote the unlawful sale of tobacco and electronic cigarette products to minors as well as the unlawful purchase or possession of tobacco and electronic cigarette products by minors.

(Ord. 169 § 1 (part), 1999; Ord. No. 129.2, § 4, 4-16-2014)

A. "Advertising" means printed matter that calls the public's attention to things for sale.

B. "Advertising display" means any sign, billboard, signboard, poster, placard, pennant, banner, graphic display, mural, or similar device that is used to advertise or promote a product.

C. "Area which minors frequent" means any public kindergarten, elementary, middle, junior high, or high school; private school; licensed child-care facility or preschool; public library; public park; or bus stop.

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

E. "Promotion" means a display of any logo, brand name, character, graphic, artwork, colors, scenes, or designs that are a recognized image of a particular product brand that calls the public's attention to the product brand.

F. "Private school" means an elementary or high school that is listed in the California private school directory published by the California Department of Education pursuant to California Education Code Section 33190.

G. "Publicly visible location" means any outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or any location inside a commercial establishment that is in or adjacent to a window or doorway and is visible from any street, sidewalk, or other public thoroughfare.

H. "Retail tobacco store" means a retail store that sells, offers for sale, or does or offers to exchange for any form of consideration tobacco products.

I. "Self-service display" means an open display of tobacco or electronic cigarette products which is accessible without the intervention of a vendor, including, but not limited to a rack, shelf, or counter-top display.

J. "Tobacco Product" means:

(1) Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

(2) Any electronic smoking device as defined in this section and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine.

(3) Any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, and pipes.

"Tobacco product" does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

K. "Vendor-assisted sale" means a purchase requiring a direct, face-to-face exchange between the vendor and the customer, in which the vendor does not transfer possession of the product to the customer until the purchase is completed.

L. "Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. "Electronic smoking device" includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine.

M. "Flavored tobacco product" means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, dessert, alcoholic beverage, herb, or spice.

N. "Tobacco retailer" shall mean any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco products. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange.

O. "Significant tobacco retailer" means any tobacco retailer for which the principal or core business is selling tobacco products, tobacco paraphernalia, or both, as evidenced the fact that (1) twenty percent or more of floor or display area is devoted to tobacco products, tobacco paraphernalia, or both; (2) sixty-seven percent or more of gross sales receipts are derived from tobacco products, tobacco paraphernalia, or both; or (3) fifty percent or more of completed sales transactions include tobacco products or tobacco paraphernalia.

(Ord. 169 § 1 (part), 1999; Ord. No. 129.2, § 5, 4-16-2014; Ord. No. 188, §§ 2—5, 12-16-2015; Ord. No. 188.1, §§ 10—14, 6-15-2022)

A. No significant tobacco retailer shall be located within one thousand feet of any existing public kindergarten, elementary, middle, or junior high or high school or any private school in the City of Scotts Valley.

B. No part of this chapter shall be construed to permit any advertising display that is otherwise restricted or prohibited by law. Nor shall it be construed to permit an otherwise restricted or prohibited advertising display because it is combined with a permitted public service message.

C. No part of this chapter shall be construed to regulate messages that do not propose a commercial transaction.

D. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product to another person without first verifying by means of government-issued photographic identification that the recipient is at least twenty-one years of age. Verification is not required for a person over the age of thirty. That the person appeared to be thirty years of age or older does not constitute a defense to a violation of this subsection.

E. Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase of tobacco products shall engage in tobacco retailing.

F. Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited.

G. Flavored Tobacco Sales Prohibited. The sale of flavored tobacco products is prohibited.

(Ord. 169 § 1 (part), 1999; Ord. No. 129.2, § 6, 4-16-2014; Ord. No. 188, §§ 6, 7, 12-16-2015; Ord. No. 188.1, §§ 15—18, 6-15-2022)

The provisions of Section 8.25.030 of this chapter shall not apply to any advertising display:

A. That is located on a parcel with a nonresidential zoning designation, provided it is more than one thousand feet in any direction (measured in a straight line from parcel boundary to parcel boundary) from any area which minors frequent; or

B. That is located on the premises of a commercial establishment if the advertising display provides notice that the establishment sells tobacco products, as long as the display does not promote any brand of tobacco product or otherwise constitute a "promotion" as defined by this chapter, and provided that any such premises shall have no more than one such sign; or

C. That is located on a commercial vehicle used for transporting tobacco products; or

D. That is located on a taxicab; or

E. That is located on tobacco product packaging; or

F. That is worn as clothing as an individual.

(Ord. 169 § 1 (part), 1999)

A. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall constitute a violation. After notification, it shall be a separate offense for each day such violation shall continue.

B. Violations of this chapter shall be prosecuted as infractions in accordance with Chapter 1.08 of this code.

C. This chapter shall be administered and enforced by the planning department.

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

E. In addition to other remedies provided by this chapter, any violation of this chapter may be enforced by a civil action brought by the city attorney, including but not limited to administrative or judicial nuisance abatement proceedings, civil enforcement proceedings, and suits for injunctive relief. The remedies provided by this chapter are cumulative and in addition to any other remedies at law or in equity.

(Ord. 169 § 1 (part), 1999)

A. Owners of advertising displays in place on the date the ordinance adopting this chapter was first introduced may, within sixty days after the date that the city council takes final action to adopt the ordinance codified in this chapter, submit an application for an extension of time for compliance to the city manager. The application shall include written documentation that demonstrates that timely compliance would cause unreasonable financial hardship and that granting the extension of time would not constitute a grant of special privileges inconsistent with other owners of such advertising who are required to comply. On timely receipt of a completed application, the city manager or the city manager's designee shall conduct a hearing to determine whether, and under what conditions, the extension of time shall be granted.

B. Whether or not an extension of time to remove a preexisting advertising display is granted pursuant to this section, advertising displays that are prohibited by this ordinance shall not be deemed to be legal nonconforming uses.

(Ord. 169 § 1 (part), 1999)

Except for retail tobacco stores, it is unlawful to sell, permit to be sold, or offer for sale any tobacco or electronic cigarette product by means of self-service merchandising, or by any means other than a vendor-assisted sale.

(Ord. 169 § 1 (part), 1999; Ord. No. 129.2, § 7, 4-16-2014)