Loading...
HomeMy WebLinkAboutORD 1443ORDINANCE NO. 1443 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA AMENDING CHAPTERS 8.34 AND 8.36 OF THE PALM DESERT MUNICIPAL CODE RELATING TO TOBACCO RETAILER LICENSING AND SMOKING REGULATIONS TO COMPLY WITH CALIFORNIA FLAVORED TOBACCO LAWS, REGULATE KRATOM SALES AND POSSESSION, AND ENHANCE PUBLIC HEALTH PROTECTIONS AND MAKING A FINDING OF EXEMPTION UNDER CEQA. City Attorney’s Summary The purpose of this ordinance is to amend Palm Desert Municipal Code Chapters 8.34 and 8.36 to align with state flavored tobacco laws, enhance tobacco retailer licensing requirements, regulate the sale, distribution, and possession of kratom products by pr ohibiting synthetic kratom products, restricting sales of natural kratom leaf products to persons 21 and older, and prohibiting possession by persons under 21 and strengthen smoking regulations to adopt best practices to protect public health and reduce yo uth access to tobacco and kratom products. WHEREAS, the City of Palm Desert is committed to protecting the public health, safety, and welfare of its residents by regulating the sale and use of tobacco and kratom products and reducing exposure to secondhand smoke; and WHEREAS, the California Legislature has enacted several laws, including Senate Bill No. 793 (2020), Assembly Bill No. 935 (2023), Senate Bill No. 1230 (2024), and Assembly Bill No. 3218 (2024), collectively strengthening restrictions on the sale of flavored tobacco products and enhancing enforcement mechanisms to prevent youth access and protect public health; and WHEREAS, Senate Bill No. 793, effective December 21, 2022, following voter approval via Proposition 31, prohibits tobacco retailers from selling, offering for sale, or possessing with intent to sell most flavored tobacco products and tobacco product flavor enhancers, with exceptions for flavored shisha tobacco sold by licensed hookah retailers, premium cigars sold in cigar lounges, and looseleaf tobacco, as codified in California Health and Safety Code Section 104559.5; and WHEREAS, Assembly Bill No. 935 enhances enforcement of the flavored tobacco ban by aligning penalties with the Stop Tobacco Access to Kids Enforcement (STAKE) Act, allowing civil penalties ranging from $1,000 to $20,000 or more for violations and mandating license suspension or revocation for repeated violations; and WHEREAS, Senate Bill No. 1230, known as the Strengthen Tobacco Oversight Programs (STOP) and Seize Illegal Tobacco Products Act, effective January 1, 2025, authorizes the California Department of Tax and Fee Administration (CDTFA) to seize flavored tobacco products and imposes a $50 per package penalty, with license Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 2 suspension for a second seizure and revocation for a third, and increases STAKE Act penalties for sales to minors; and WHEREAS, Assembly Bill No. 3218, effective January 1, 2025, requires the California Attorney General to establish an Unflavored Tobacco List (UTL) by December 31, 2025, deeming any tobacco product not on the UTL as flavored and prohibited for sale, expands the definition of tobacco products to include synthetic nicotine and nicotine analogs, and prohibits distributors, wholesalers, and delivery sellers from selling non-UTL products or flavor enhancers; and WHEREAS, these state laws collectively aim to reduce youth tobacco use, protect marginalized communities disproportionately targeted by flavored tobacco marketing, and address the public health risks associated with nicotine addiction and secondhand smoke exposure; and WHEREAS, the California Air Resources Board has classified secondhand smoke as a toxic air contaminant with no safe level of exposure, necessitating robust local regulations to limit smoking in public places and places of employment; and WHEREAS, kratom (Mitragyna speciosa) is a tropical tree native to Southeast Asia, and its leaves are often consumed in powdered or extract form for their stimulant and sedative effects, with active compounds including mitragynine and 7- hydroxymitragynine (7-OH), the latter being more potent and largely responsible for stronger pain-relieving, sedative, and euphoric effects; and WHEREAS, research has shown that 7-OH has euphoric and mood-enhancing effects, particularly at higher doses, increasing its appeal for recreational use, and binds to opioid receptors in the brain with greater affinity than morphine, raising significant concerns about its safety profile, including the potential for addiction, overdose, and adverse physical and psychological effects such as nausea, vomiting, and potential psychosis, with risks compounded when products contain higher concentrations of 7 - OH; and WHEREAS, health advisories, including those from the United States Food and Drug Administration (FDA), have raised concerns over the safety of kratom products, particularly those with higher concentrations of 7 -OH, which may increase the potential for abuse and harm to public health, culminating in the FDA’s formal request to the U.S. Drug Enforcement Administration (DEA) on July 29, 2025, to place 7 -OH products on the controlled substance list; and WHEREAS, kratom is not approved for any medical use by the FDA, is designated as a “Drug of Concern” by the DEA, and while legal in California with restrictions on packaging and sales to minors under 21 years old pursuant to Assembly Bill No. 1088 (effective 2025), several states and local jurisdictions, including cities in California such as San Diego and Oceanside, have banned or regulated kratom to protect public safety, especially vulnerable populations; and Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 3 WHEREAS, local law enforcement, including the Riverside County Sheriff ’s Office and District Attorney’s Office, has reported a significant increase in DUI arrests involving kratom as the primary active drug, with documented arrests and deaths associated with its use, underscoring its impairment risks and lack of proven medical benefits; and WHEREAS, the City Council finds that prohibiting synthetic kratom products, restricting sales of natural kratom leaf products to persons 21 and older, and prohibiting possession by persons under 21 will protect public health, particularly youth ,given the unproven benefits, documented risks, and alignment with the City’s tobacco control goals sales and distribution will protect public health, given the unproven benefits, documented risks, and alignment with the City’s tobacco control goals; and WHEREAS, Chapters 8.34 and 8.36 of the Palm Desert Municipal Code regulate tobacco retailer licensing and smoking, respectively, but require updates to align with state flavored tobacco laws, incorporate electronic smoking devices, regulate kratom sales, distribution, and possession, and enhance enforcement coordination; and WHEREAS, the proposed amendments to Chapter 8.34 update definitions to include electronic devices and nicotine analogs, explicitly prohibit the sale of flavored tobacco products and synthetic kratom products, permit limited sales of natural kratom leaf products to persons 21 and older with age verification and other safeguards, adopt proximity restrictions, enhance inspection requirements, strengthen enforcement mechanisms, and require coordination with state agencies for enforcement, ensuring compliance with Health and Safety Code Section 104559.5 and related provisions while implementing targeted kratom regulations; and WHEREAS, the proposed amendments to Chapter 8.36, building on prior revisions, clarify the regulation of electronic smoking devices, align definitions with state law, and add enforcement coordination to address flavored tobacco and kratom -related use, while maintaining exceptions consistent with state law; and WHEREAS, these amendments are necessary to protect public health, prevent youth access to addictive tobacco and kratom products, reduce exposure to secondhand smoke, and ensure that Palm Desert’s regulations are consistent with state law; and WHEREAS, the City Council finds that these changes are in the public interest and will promote the health, safety, and welfare of the community. THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Amendment to Chapter 8.34. Chapter 8.34 Tobacco Retailer License of the Palm Desert Municipal Code is hereby amended in its entirety to read as set forth in Exhibit A, incorporated herein by reference. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 4 SECTION 2. Amendment of Chapter 8.36. Chapter 8.36 Regulation and Prohibition of Smoking of the Palm Desert Municipal Code is hereby amended in its entirety to read as set forth in Exhibit B, incorporated herein by reference. SECTION 3. CEQA Exemption. The City Council finds that the adoption of this ordinance is exempt from review under the California Environmental Quality Act (CEQA) (Public Resources Code § 21000 et seq.) and the CEQA Guidelines (14 Cal. Code Regs. § 15000 et seq.). This ordinance is not a “project” under CEQA Guidelines Section 15378(b)(5), as it is an organizational or administrative activity of government that will not result in direct or indirect physical changes in the environment. The amendments to Chapters 8.34 and 8.36 update tobacco retailer licensing (including kratom regulations) and smoking regulations, including definitions, enforcement, proximity restrictions, and fines, which are administrative actions with no physical environmental impact. Even if considered a project, the ordinance is exempt under CEQA Guidelines Section 15061(b)(3), the “common sense” exemption, because there is no possibility of a significant environmental effect. The ordinance regulates tobacco and kratom sales and public smoking to pr otect health, with measures like pharmacy sales bans and smoking prohibitions, none of which involve construction, land use changes, or activities affecting air, water, or habitat. SECTION 4. Severability. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council her eby declares that it would have passed this ordinance, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. SECTION 5. Posting and Publication. The City Clerk of the City of Palm Desert, California, is hereby directed to publish a summary of this Ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption. ADOPTED ON MARCH 12, 2026. ______________________________ EVAN TRUBEE MAYOR ATTEST: ____________________________ ANTHONY J. MEJIA CITY CLERK Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 5 I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, do hereby certify that Ordinance No. 1443 is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Desert City Council on February 26, 2026, and adopted at a regular meeting of the City Council held on March 12, 2026, by the following vote: AYES: HARNIK, NESTANDE, PRADETTO, QUINTANILLA, AND TRUBEE NOES: NONE ABSENT: NONE ABSTAIN: NONE RECUSED: NONE IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on __________________ . ______________________________ ANTHONY J. MEJIA CITY CLERK Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 3/23/2026 Ordinance 1443 Page 6 Exhibit “A” Chapter 8.34 TOBACCO RETAILER LICENSE § 8.34.010 Definitions. The following words and phrases, whenever used in this chapter, shall have the meaning defined in this section unless the context clearly requires otherwise: “Characterizing flavor” means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, taste s or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, that constitutes a characterizing flavor. “City” means the City of Palm Desert “Constituent” means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product. “Consumer” means a person who purchases a tobacco product for consumption. “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a di scounted price. “Department” means the Development Services Department of the city. “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, and whether natural or synthetic. Electronic smoking dev ice 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 where such product is marketed and sold solely for such an approved purpose. “Flavored tobacco product” means any tobacco product that contains a constituent that imparts a characterizing flavor, as defined in California Health and Safety Code Section 104559.5(a)(1), or any tobacco product, other than looseleaf tobacco, a premium c igar, or a shisha tobacco product, that is not listed on the Unflavored Tobacco List established by the California Attorney General pursuant to California Health and Safety Code Section 104559.1. “Full retail price” means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not i ncluded in the listed price. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 7 “Kratom” means the plant Mitragyna speciosa, whether growing or not, and any compound, manufacture, salt, derivative, mixture, or preparation of that plant, including its leaves, and any product containing mitragynine, speciociliatine, speciogynine, paynan theine, or 7-hydroxymitragynine (also known as 7 -OH), whether natural or synthesized. “Kratom leaf” means the leaf of the kratom plant, also known as Mitragyna speciosa, in any form, but without chemical alternation beyond traditional drying or grinding. “Kratom leaf extract” means the material obtained by extraction of kratom leaves by any means, provided that the extraction process does not introduce synthetic or chemically altered kratom alkaloids. “Kratom product” means a product consisting of kratom leaf, kratom leaf extract, or both; any part of a leaf of the plant Mitragyna speciosa in fresh, dehydrated or dried form or a kratom extract or any product that contains any kratom alkaloid or metaboli te. “Labeling” means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging. “License” means a valid tobacco retailer’s license issued by the department to a person to act as a tobacco retailer. “Looseleaf 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. “Natural kratom leaf product” consisting of kratom leaf, kratom leaf extract, or both, that has not been chemically altered or adulterated with synthetic or concentrated kratom alkaloids or derivatives, including, but not limited to 7 -hydroxymitragynine in concentrations exceeding levels that occur naturally in kratom leaf. “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold, or offered for sale, to a consumer. “Person” means any natural person partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or any other legal entity. “Pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals. “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 interes t 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-to-day operations of a business. “Tobacco product” means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 8 “Self-service display” means the open display or storage of tobacco products in a manner that is physically accessible to the general public without the assistance of the retailer or employee of the retailer and a direct face -to-face transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self -service display. “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 inc lude any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product. “Synthesized” means an alkaloid or alkaloid derivative that has been created by chemical synthesis or biosynthetic means (include but not limited to: fermentation, recombinant techniques, yeast derived enzymatic techniques) rather than traditional food pre paration techniques such as heating or extracting. It also includes alkaloids that have been further exposed to chemicals or processes that would confer a structural change in the alkaloids contained within the extract. “Synthetic kratom alkaloid” means any kratom alkaloid or derivative that has been created, isolated, increased, or modified through chemical synthesis, biosynthesis, fermentation, recombinant techniques, enzymatic processing, or other processes that materially alter the naturally occurring alkaloid profile. “Synthetic kratom product” means any product containing a synthetic kratom alkaloid, including synthesized or chemically altered 7 -hydroxymitragynine (7-OH), regardless of labeling or marketing. “Tobacco paraphernalia” means 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 or marketed for the consumption, use, or preparation of to bacco products, as defined in California Health and Safety Code Section 104559.5(a)(17)(A)(iii). “Tobacco product” means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco product as defined in California Health and Safety Code Section 104559.5(a)(17), including, but not limited to, any product containing, made, or derived from tobacco or nicotine intended for human consumption, electronic devices that deliver nicotine or other vaporized liquids, and any component, pa rt, or accessory of a tobacco product. 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 where such product is marketed and sold solely for such an approved purpose. “Tobacco product flavor enhancer” means a product designed, manufactured, produced, marketed, or sold to produce a characterizing flavor when added to a tobacco product, as defined in California Health and Safety Code Section 104559.5(a)(18). “Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia. “Tobacco retailing” shall mean the doing of any of these things. This definiti on is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 9 § 8.34.020 Requirements. A. It is 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. No license may issue to authorize tobacco r etailing at other than a fixed location. For example, tobacco retailing by persons on foot and tobacco retailing from vehicles are prohibited. No license may be issued to authorize sales of tobacco products at a temporary event, such as a festival or farme rs’ market. B. The payment of the license fee designated in Section 8.34.060 confers paid status upon a license for a term of one year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer’s license no later than thirty (30) days prior to expi ration of the payment term. A license that is not renewed in a timely manner shall expire at the end of its term, and the tobacco retailer must obtain a new license prior to any further sale, offer for sale, or distribution of any tobacco product. C. Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the right to act as a tobacco retailer at the location in the city identified on the face of the permit. Fo r example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code Section 6404.5 or the prohibition on the sale of flavored tobacco products and tobacco product flavor enhancers under California Health and Safety Code Section 104559.5. All licenses are issued subject to the city’s right to amend this chapter from time to time, and tobacco retailers shall comply with all provisions of this chapter, as amended. D. It is unlawful for any person to sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer, except as permitted under California Health and Safety Code Section 104559.5(c), (d), and (e) for flavored shisha tobacco products, premium cigars sold in cigar lounges, and looseleaf tobacco. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agent s or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to, text, color, and/or images on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor. E. A tobacco retailer’s permit issued to a hookah tobacco retailer shall only authorize the sale of flavored shisha tobacco products if the retailer complies with all conditions set forth in California Health and Safety Code Section 104559.5(c), including mai ntaining a valid state cigarette and tobacco products retailer license issued by the California Department of Tax and Fee Administration, prohibiting persons under 21 years of age from entering the premises at any time, and operating in accordance with all state and local laws related to tobacco sales and consumption, including, but not limited to, California Labor Code Section 6404.5. F. No tobacco retailer shall violate, or cause or allow the tobacco retailer’s agents or employees to violate, any provision of this chapter or any other local, state, or federal law applicable to tobacco products or tobacco retailing. G. Tobacco retailers are responsible for the actions of their employees and agents relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee shall be considered an act of the tobacco retailer, and the license holder shall be responsible for any monetary penalties levied. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 10 H. Nothing in this chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing. I. No tobacco retailer shall do any of the following: (1) Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than full retail price; (2) Sell any tobacco product to a consumer through a multiple p ackage discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or any other item; or (3) Provide any free or discounted item to a consumer in consideration fo r the purchase of any tobacco product. J. No person or tobacco retailer shall sell or offer to sell any electronic smoking device that delivers natural or synthetic nicotine or any other substance(s) to the person inhaling from the device. This includes any component, part, or accessory intended o r reasonably expected to be used with the electronic smoking device, whether or not sold separately. K. No pharmacy or pharmacy employee or agent shall sell or offer to sell any tobacco product. The department shall not issue any new, or renew any existing, license for any pharmacy. L. No tobacco retailer or other person shall sell or offer for sale any tobacco product to any consumer unless the tobacco product: (1) is sold in the original manufacturer’s packaging intended for sale to consumers; (2) conforms to all applicable federal lab eling requirements; and (3) conforms to all applicable child -resistant packaging requirements. M. Tobacco retailing by means of a self-service display is prohibited. All sales of tobacco products and tobacco paraphernalia shall be conducted in person, over the counter, at the permitted location. N. Tobacco retailers shall post conspicuously, at each point of purchase, a notice stating that selling tobacco products to anyone under 21 years of age is illegal and subject to penalties. The form and content of such notice shall be subject to the approval of the department. O. No tobacco retailer or other person shall sell or offer to sell a tobacco product to another person without first verifying by means of government -issued photographic identification that the recipient is at least 21 years of age. P. No tobacco retailer shall allow, at its retail location, any individual who is younger than 21 years of age to sell or offer to sell tobacco products. Q. Kratom Regulations 1. No person or business shall sell, offer for sale, or distribute any synthetic kratom product within the City. 2. This chapter shall not prohibit the sale or distribution of natural kratom leaf products that do not contain synthetic or chemically altered kratom alkaloids. 3. No person under twenty-one (21) years of age shall possess any kratom or kratom product within the City. 4. This chapter shall not apply to possession of kratom or kratom products by persons twenty-one (21) years of age or older, provided such products are otherwise lawful under this chapter. 5. There shall be a rebuttable presumption that a product is a synthetic kratom product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has made a statement or claim Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 11 directed to consumers or to the public that the product has or produces effects similar to a synthetic kratom product, including, but not limited to, text, color, and/or images on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the product is a synthetic kratom product. R. It is unlawful for any person to sell, offer for sale, or distribute any kratom product to a person under twenty-one (21) years of age. S. No person or tobacco retailer shall sell or offer for sale any natural kratom leaf product unless it is: (1) is sold in the original manufacturer’s packaging intended for sale to consumers; (2) conforms to all applicable federal labeling requirements; and (3) conforms to all applicable child -resistant packaging requirements. T. Natural kratom leaf product retailing by means of a self -service display is prohibited. All sales of natural kratom leaf products shall be conducted in person, over the counter. U. Retailers selling natural kratom leaf products shall post conspicuously, at each point of purchase a notice stating that selling kratom products to anyone under 21 years of age is illegal and subject to penalties. The form and content of such notice shall be subject to the approval of the department. V. No retailer or other person shall sell or offer to sell a natural kratom leaf product to another person without first verifying by means of government -issued photographic identification that the recipient is at least twenty -one (21) years of age. § 8.34.030 Application procedure. Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. It is the responsibility of each proprietor to b e informed of the laws affecting the issuance of a tobacco retailer’s license, including, but not limited to, California Health and Safety Code Section 104559.5 prohibiting the sale of flavored tobacco products and tobacco product flavor enhancers and the kratom regulations under this chapter. A license that is issued in error or on the basis of false or misleading information supplied by a proprietor may be revoked pursuant to Section 8.34.090 of this chapter. No license holder may rely on the issuance of a license as a determination by the City that the license holder has complied with all laws applicable to tobacco retailing. All applications shall be submitted on a form supplied by the department and shall contain the following information: A. The name, address, and telephone number of each proprietor; B. The business name, address, and telephone number of the single fixed location for which a tobacco retailer’s license is sought; C. The name and mailing address authorized by each proprietor to receive all license-related communications and notices (the “authorized address”). If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of no tice at the business address specified in subsection (B) of this section; D. 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; E. A statement signed by each proprietor affirming that the business will comply with all state and local laws related to the sale of tobacco products, including the prohibition on flavored tobacco products and tobacco product flavor enhancers under Californi a Health and Safety Code Section 104559.5 and the kratom regulations under this chapter; Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 12 F. For applications by hookah tobacco retailers intending to sell flavored shisha tobacco products, a certification that the business meets all conditions set forth in California Health and Safety Code Section 104559.5(c); G. Proof that the location for which a license is sought has been issued a valid state license for the sale of tobacco products, if the tobacco retailer sells products that require such license; H. A statement whether or not the tobacco retailer or any agent of the tobacco retailer has been found to have violated this chapter or other applicable law governing tobacco products or tobacco retailing and, if so, the dates and locations of all such violat ions within the previous five (5) years; I. An application for a new or renewal license will be denied if there are any outstanding fines or late fees issued by the department, or during any period of suspension; and J. Such other information as the department deems necessary for the administration or enforcement of this chapter. § 8.34.040 Issuance of license. Upon the receipt of an application for a tobacco retailer’s license and the license fee, the department shall issue a license unless substantial record evidence demonstrates one of the following bases for denial: A. The application is incomplete or inaccurate; or B. The application seeks authorization for tobacco retailing by a proprietor for which or whom a suspension is in effect pursuant to Section 8.34.080 of this chapter; or by a proprietor which or who has had a license revoked pursuant to Section 8.34.090 of th is chapter; or C. The application seeks authorization for tobacco or kratom retailing that is prohibited pursuant to Section 8.34.020 of this chapter (e.g., mobile vending), that is unlawful pursuant to this Palm Desert code (e.g., the zoning code), or that is unlawful purs uant to any other local, state or federal law, including, but not limited to, the prohibition on the sale of flavored tobacco products and tobacco product flavor enhancers under California Health and Safety Code Section 104559.5. D. For applications by hookah tobacco retailers intending to sell flavored shisha tobacco products, the application fails to demonstrate compliance with all conditions set forth in California Health and Safety Code Section 104559.5(c). E. The sale of tobacco products and accessories is prohibited in City -owned structures and in any area of a structure leased by the City. § 8.34.050 Display of license. Each license shall be prominently displayed in a publicly visible location at the licensed premises. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 13 § 8.34.060 Fees for license. The fee to issue or to renew a tobacco retailer’s license shall be established by resolution of the city council of Palm Desert, California. The fee shall be calculated so as to recover no more than the total cost of license administration and enforcement, including, for example, but not limited to, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators. Fees are nonrefundable except as may be required by law. § 8.34.070 Licenses nontransferable. A tobacco retailer’s license is nontransferable. If the information required in the license application pursuant to Section 8.34.030, subsections (A) through (C), changes a new tobacco retailer’s license is required before the business may continue to act as a tobacco retailer. 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. Any attempted transfer shall render the license null and void. Notwithstanding any other provision of this chapter, prior violations of this chapter at a location shall continue to be counted against that location and license ineligibility and suspension periods shall continue to apply to that location unless: (1) One hundred percent of the interest in the stock, assets, or income of the business, other than a security intere st for the repayment of debt, has been transferred to the new owner(s); and (2) the City is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an Arm’s Length Transaction. An Arm’s Length Transaction, for the purposes of this section, means a transaction in which two or more unrelated and unaffiliated parties agree on the transfer in question; the parties act independently and in their own self -interest; and the parties have equal bargaining power and symmetric information, leading the parties to agree upon fair -market terms. § 8.34.080 License violation. A. Violation of Tobacco and Kratom -Related Laws. It is a violation of this chapter for a person, licensee, or his or her agent or employee to violate any local, state, or federal tobacco-related law, including, but not limited to, the prohibition on the sale, offer for sale, or possession with intent to sell flavored tobacco products or tobacco product flavor enhancers under California Health and Safety Code Section 104559.5 or the kratom regulations in this chapter B. License Compliance Monitoring. Compliance with this chapter shall be monitored by the code compliance division. The city council anticipates that compliance checks of a sample of tobacco retailers selected or based on complaints will be conducted as necess ary during each twelve-month period. Compliance checks shall take place during normal business hours, with or without notice. If a violation has occurred, the tobacco retailer shall be inspected as needed to ensure compliance. All permitted premises must be open to inspection by the department during regular business hours and may include the use of audio or video recording equipment to document illegal sales or attempted sales. The department shall coordinate with the California Department of Public Health and the California Department of Tax and Fee Administration to ensure compliance with state tobacco laws, including the flavored tobacco sales restrictions under California Health and Safety Code Section 104559.5. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 14 § 8.34.090 Suspension, expiration, or revocation of license. A. Suspension or Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer’s license shall be suspended or revoked if the department finds, after notice to the licensee and opportunity to be heard, that the li censee or his or her agents or employees has or have violated the requirements of this chapter or other conditions of the license imposed pursuant to Section 8.34.080. 1. Upon a finding by the department of a first license violation within any sixty-month period, the license shall be suspended for thirty (30) days. 2. Upon a finding by the department of a second license violation within any sixty-month period, the license shall be suspended for ninety (90) days. 3. Upon a finding by the department of a third license violation within any sixty-month period, the license shall be suspended for one (1) year. 4. Upon a finding by the department of a fourth license violation within any sixty-month period, the license shall be revoked and the proprietor or proprietors who had been issued the license shall never again be issued a tobacco retailer’s license pursuant t o this chapter. B. Expiration of License for Failure to Pay Renewal Fee. A tobacco retailer’s license that is not timely renewed pursuant to Section 8.34.020(B) shall automatically expire at the end of its term, and the tobacco retailer must obtain a new license prior to any further sale, offer for sale, or distribution of any tobacco product. C. Revocation of License Issued in Error. A tobacco retailer’s license shall be revoked if the department finds, after notice and opportunity to be heard, that one or more of the bases for denial of a license under Section 8.34.040 existed at the time applica tion was made or at any time before the license issued. The revocation shall be without prejudice to the filing of a new application for a license. D. Appeal of Suspension or Revocation. A decision of the department to revoke or suspend a license is appealable to the city council and must be filed with the city clerk within ten (10) days of mailing of the department’s decision. An appeal shall stay all p roceedings in furtherance of the appealed action. A suspension or revocation pursuant to subsection (B) is not subject to appeal. E. Coordination with State Penalties. In addition to the penalties described in this section, violations of California Health and Safety Code Section 104559.5, including the sale of flavored tobacco products or tobacco product flavor enhancers, may result in civil penalties and license suspension or revocation by the California Department of Tax and Fee Administration as prescribed in California Business and Professions Code Sections 22974.2 and 22958. § 8.34.100 Administrative fine. A. Grounds for Fine. If the department finds, based on substantial evidence, that (1) any unlicensed person, including a person named on a revoked or suspended license, has engaged in tobacco retailing in violation of Section 8.34.020 of this chapter; or (2) that any person has violated the kratom regulations in Section 8.34.020 of this chapter, the department shall fine that person as follows: 1. A fine not exceeding one hundred dollars ($100) for a first violation in any twelve-month period; Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 15 2. A fine not exceeding two hundred dollars ($200) for a second violation in any twelve-month period; or 3. A fine not exceeding five hundred dollars ($500) for a third or subsequent violation in any twelve-month period. Each day that such a person engages in tobacco retailing or unlawful sale of kratom shall constitute a separate violation. A fine shall be imposed in the amounts set forth in this subsection upon findings made by the department that the person, or any agen t or employee of the person, has violated any provision of this chapter. Any administrative fine shall be imposed solely against the tobacco retailer and/or seller of kratom, not the tobacco retailer’s or seller of kratom’s employees or agents. B. Notice of Violation. A notice of violation and of intent to impose a fine shall be personally served on, or sent by certified mail to, the person or persons subject to the fine. The notice shall contain a description of the facts upon which the asserted vi olation is based and include an advisement of the right to request a hearing to contest the fine. Any request for a hearing must be in writing and must be received by the department within ten (10) calendar days of personal service of the notice on the person or persons subject to a fine or within fifteen (15) calendar days if the person or persons subject to a fine are served by mail. C. Imposition of Fine. If no request for a hearing is timely received, the department’s determination on the violation and the imposition of a fine shall be final and payment shall be made within thirty (30) calendar days of written demand made in the manner specified above for a notice of violation. If the fine is not paid within that time, the fine may be collected, along with interest at the legal rate, in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the person or persons subject to the fine shall also be liable for the costs of the suit and attorney’s fees incurred by the city in collecting the fine. D. Notice of Hearing. If a hearing is requested pursuant to subsection (B) of this section, the department shall provide written notice, within forty -five (45) calendar days of its receipt of the hearing request, to the person or persons subject to a fine of the date, time, and place of the hearing in the manner specified above for a notice of violation. E. Hearing Decision. The hearing officer shall render a written decision and findings within twenty (20) working days of the hearing. Copies of the decision and findings shall be provided to the person or persons subject to a fine in the manner specified abov e for a notice of violation. F. Finality of the Hearing Officer’s Decision. The decision of the hearing officer shall be the final decision of the city. G. Appeal to Superior Court of Limited Jurisdiction. Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, within twenty (20) days after personal service of the hearing officer’s decision and findings, or within twenty -five (25) days if served by mail, any person subject to a fine may seek review of the hearing officer’s decision and findings by the superior court of limited jurisdiction. A copy of the notice of appeal to the superior court shall be timely served in person or by first-class mail upon the department by the contestant. The appeal shall be heard de novo, except that the contents of the department’s file in the case shall be received in evidence. A copy of the records of the department of the notices of the violation and of the hearing officer’s decision and findings shall be admitted into evidence as prima facie evidence of the facts stated therein. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 16 H. Failure to Pay Fine. If no timely notice of appeal to the superior court is filed, or the department is not timely served with a copy of a notice of appeal, the hearing officer’s decision and findings shall be deemed confirmed and the fine shall be collect ed pursuant to subsection (C) of this section. I. A tobacco retailer without a current valid license shall: (1) Keep all tobacco and/or natural kratom leaf products out of public view. The public display of tobacco products in violation of this provision shall constitute tobacco retailing without a licens e; and (2) Not display any advertisement relating to tobacco products that offers the sale of such products from the tobacco retailer’s location. J. State Penalties. Administrative fines imposed under this section are in addition to any civil penalties or license suspension or revocation imposed by the California Department of Public Health, the California Department of Tax and Fee Administration, or o ther enforcing agencies under California Health and Safety Code Section 104559.5 or Business and Professions Code Sections 22974.2 and 22958 for violations of state tobacco laws, including the sale of flavored tobacco products or tobacco product flavor enh ancers. K. Infraction. The city may issue an infraction citation to any property owner, manager, agent, employee or operator, pursuant to the provisions set forth in Chapter 1.08, Citations for Code Violations, including, but not limited to, the imposition of any and all criminal penalties set forth therein if there is any violation of this chapter committed, caused or maintained by any of the above parties. Unless otherwise provided herein, any person convicted of an infraction shall, for each separate violation of this chapter be subject to: (1) a fine in an amount not to exceed one hundred dollars ($100) for a first conviction of an offense; (2) a fine in an amount not to exceed two hundred dollars ($200) for a second conviction of the same offense within a twelve -month period of the date of the first offense; and (3) a fine in an amount not to exceed five hundred dollars ($500) for the third conviction of the same offense within a twelve -month period of the date of the first offense. § 8.34.110 Enforcement. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. A. Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall constitute a violation. B. In addition to the administrative enforcement procedures provided by Section 8.34.090 of this chapter, violations of this chapter may, in the discretion of the prosecutor, be prosecuted as infractions or as otherwise provided by state law, including Califo rnia Health and Safety Code Section 104559.5 and Business and Professions Code Sections 22974.2 and 22958. C. Violations of this chapter are declared to be public nuisances, subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures contained in this Municipal Code and state law, including, but n ot limited to, an action for abatement or injunctive relief. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 17 D. Violations of this chapter are hereby declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates. E. 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, for example, administrative or judicial nuisance abatement proceedings, civil o r criminal code compliance proceedings and suits for injunctive relief. F. Any person acting for the interests of itself, its members or the general public may bring an action for injunctive relief to prevent future such violations or to recover such actual damages as he or she may prove. G. The department shall coordinate with the California Department of Public Health, the California Department of Tax and Fee Administration, and other state or local enforcing agencies to report suspected violations of state tobacco laws, including the sale o f flavored tobacco products or tobacco product flavor enhancers, and to facilitate the seizure of illegal products as authorized by California Business and Professions Code Section 22974.2. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 18 Exhibit “B” Chapter 8.36 Regulation and Prohibition of Smoking § 8.36.010 Purpose of chapter. Smoking of tobacco, or any other weed or plant, is a positive danger to health and a cause of material annoyance, inconvenience, discomfort and health hazard to those who are present in confined places. In addition, the California Air Resources Board has placed secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categori zing it as a toxic air contaminant for which there is no safe level of exposure. Therefore, it is the city’s intent to provide for the public health, safety and welfare, by prohibiting the smoking of tobacco, or any other weed or plant, in public places and places of employment, except in designated smoking areas as set forth herein. Smoking tobacco or any other weed, plant, or substance, including through electronic smoking devices, poses a danger to public health and causes material annoyance, inconvenience, discomfort, and health hazards to those present in confined places. The California Air Resources Board has categorized secondhand smoke as a toxic air contaminant with no safe level of exposure, placing it in the same category as the most toxic automotive and industrial air pollutants. Therefore, it is the City’s intent to protect public health, safety, and welfare by prohibiting the smoking of tobacco or any other weed, plant, or substance in public places and places of employment, except in designated smoking areas as set forth herein. § 8.36.020 Definitions. The following words and phrases, whenever used in this chapter , shall have the meanings defined in this section unless the context clearly requires otherwise: “Business” means any sole proprietorship, partnership, joint venture, corporation , association, or other entity formed for profit -making purposes. “City” means the City of Palm Desert and its related entities, including the Palm Desert Housing Authority. “Common area” means every unenclosed area of a multiunit residence that residents of more than one (1) unit of that multiunit residence are entitled to enter or use, including, for example, paths, courtyards, playgrounds, swimming pools, parking lots, and picnic areas. “Dining area” means any area, including streets and sidewalks, which is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or drink. “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, and whether natural or synthetic. Electronic smoking dev ice 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 where such product is marketed and sold solely for such an approved purpose. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 19 “Employee” means any person who is employed or retained as an independent contractor by any employer or nonprofit entity in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer or n onprofit entity. “Employer” means any person, business, entity or nonprofit entity that retains the service of one (1) or more employees. “Enclosed area” means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has: A. Any type of overhead cover whether or not that cover includes vents or other openings and at least three (3) walls or other vertical boundaries of any height whether or not those boundaries include vents or other openings; or B. Four walls or other vertical boundaries that exceed six (6) feet in height whether or not those boundaries include vents or other openings. “Multiunit residence” means a residential property containing two (2) or more units. “Nonprofit entity” means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, unincorporated association or other entity created for charitable, religious, philanthropic, education, political, soci al or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A government agency is a nonprofit entity within the meaning of this chapter. “Person” means any natural person, business, cooperative association, nonprofit entity, personal representative, receiver, trustee, assignee, or any other legal entity including government agencies. "Place of employment" means any enclosed areas under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a place of employment, except for childcare facilities in private homes. “Pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals. “Primary entrance” means the entrance to a building or business through which the majority of patrons enter. A building or business has only one primary entrance. Where the door into the establishment is at the end of a corridor formed by two or more verti cal walls or barriers, with or without overhead cover, the primary entrance shall be deemed to be at the end of the corridor open to the exterior. “Public place” means: 6. Any area to which the public is invited or in which the public is permitted, including, but not limited to, shopping malls, retail stores, retail service establishments, retail food production and marketing establishments, restaurants, theaters, waiting ro oms, reception areas, educational facilities, health facilities, public transportation facilities, and their associated parking areas. A private residence or the fairway or putting green of a golf course within a private country club is not a public place; Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 20 C. Areas measured a distance of forty (40) feet from the entrances and exits to City-owned public places; D. Areas measured a distance of twenty (20) feet from the primary entrances to publicly or privately-owned commercial, industrial, institutional, or office professional buildings; E. Unenclosed areas owned by the City, including, but not limited to, City- owned property, parks, playgrounds, restrooms, baseball and soccer fields, except the golf course area of Desert Willow, or where specific signs are posted permitting such smoking; F. Unenclosed public events, including, but not limited to, sports events, entertainment, speaking performances, ceremonies , and fairs; G. Hotels, except in designated areas. “Reasonable distance” means a distance of twenty (20) feet or, with respect to a designated smoking area or such larger area as the city manager reasonably determines in writing to be necessary in a given circumstance to ensure that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. “Secondary entrance” means any entrance to a building or business that is not the primary entrance. One building or business may have multiple secondary entrances. “Secondhand smoke” means smoke from tobacco or any other weed, plant, or substance created by burning or carrying any lighted pipe, hookah, cigar, cigarette, or electronic smoking device of any kind, and the smoke exhaled by an individual who engages in sm oking. “Shopping mall” means any parcel of land zoned and used for retail sales by more than one retailer that is jointly operated or which includes shared parking facilities. “Smoke,” or “smoking” means and includes any of the following: (1) the direct burning or indirect heating of any cigar, cigarette, pipe, electronic smoking device, or any similar kind of smoking equipment or article, using any form of tobacco, plant produc t, or other combustible substance in any form, or (2) the holding or carrying of a lighted or operated cigar, cigarette, pipe, electronic smoking device, or any other lighted smoking equipment or device, or (3) emitting or exhaling the smoke directly from a cigar, cigarette, pipe, electronic smoking device, or any other lighted smoking equipment or device. Smoke also means the gaseous or vaporous products or particles created by the use of a lighted or operated pipe, cigar, cigarette, electronic smoking device, or other kind of smoking equipment or article. “Tobacco product” means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco product as defined in California Health and Safety Code Section 104559.5(a)(17), including, but not limited to, any product containing, made, or derived from tobacco or nicotine intended for human consumption, electronic devices that deliver nicotine or other vaporized liquids, and any component, pa rt, or accessory of a tobacco product. 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 where such product is marketed and sold solely for such an approved purpose. “Unenclosed area” means any area that is not an enclosed area. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 21 § 8.36.030 Prohibition of smoking in unenclosed areas. A. Smoking is prohibited in the unenclosed areas of the following places within the City, except places where smoking is already prohibited by state or federal law, in which case, those laws apply: a. Public places; b. Places of employment; c. Businesses, including, but not limited to, restaurants and bars, and other public accommodations. In addition, smoking is prohibited within a reasonable distance of the primary entrance to a dining area. Where a business has more than one entrance, an outd oor smoking area may be designated within a reasonable distance of one of the secondary entrances. In such case, smoking is prohibited within a reasonable distance of the primary entrance and any other secondary entrances. d. Common areas of multifamily residential properties owned by the City, except where permitted under Section 8.36.070. B. No person shall dispose of smoking waste or place or maintain a receptacle for smoking waste in an area in which smoking is prohibited by this chapter or other law, including within any reasonable distance required by this chapter. § 8.36.040 Designation of smoking areas. A. Places Where Smoking Permitted. Notwithstanding Section 8.36.030 of this chapter, smoking is permitted in the following locations within the City, unless otherwise provided by state or federal law: a. Private residential property, other than: (a) those private residential properties used as a child -care or health-care facility subject to licensing requirements when employees, children or patients are present; or (b) home-based business where members of the public are invited. Nothing in this chapter shall require a person or entity who or which owns or controls a private residential property, including, but not limited to, a condominium association or an apartment owner, to permit smoking and such a person may prohibit smoking throughout the property he, she or it owns or controls. b. Designated areas in shopping mall unenclosed areas, provided that: (a) there is not more than one (1) square foot of area designated for smoking for every twenty thousand (20,000) square feet of rentable space of the shopping mall (provided that each shopping mall may have at least one designated smoking area of forty (40) or fewer square feet in area); (b) the area is prominently marked with signs; (c) it is located the greatest distance practicable, and at least a reasonable distance, from any doorway or opening into an area or any accessway from parking facilities to the retail areas of the shopping mall; (d) smoke is not permitted to enter adjacent areas in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of the adjacent property; and (e) the location(s) of the designated smoking area(s) is or are approved in writing by the city manager of the City or designee based on the standards of this subsection and the goals of this chapter. c. Any unenclosed area in which no nonsmoker is present and, due to the time of day or other factors, it is not reasonable to expect another person to arrive. B. Where smoking areas are designated, existing physical barriers and ventilation systems shall be used to eliminate the toxic effect of smoke in adjacent nonsmoking areas, but employers are not required to incur any expense to make structural or physical mod ifications in Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 22 providing these areas. There shall be no designated smoking areas in areas that have a common or shared air space with other areas in which smoking is prohibited such as, without limitation, air conditioning systems, heating systems, ventilation systems, e ntries, doorways, hallways, and stairways or within a reasonable distance of commercial building entries. In all disputes in the work place, the rights of the nonsmoker shall be given priority over the rights of the smoker. C. No person shall smoke in an area in which smoking is otherwise permitted by this chapter or other law within a reasonable distance from any primary entrance, opening, crack, or vent into an area in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of that area. § 8.36.050 Optional prohibition. All managers and owners of any establishment exempted from the provisions of Section 8.36.070 serving or doing business with the public may, at their discretion, post “No Smoking” signs within various areas of their businesses and utilize the full right of the provision of this chapter. No public place other than those enumerated in Section 8.36.070 shall be designated as a smoking area in its entirety. § 8.36.060 Posting of signs. Signs which designate smoking or no smoking areas established by this chapter shall be clearly, sufficiently, and conspicuously posted in every room, building or other place so covered by this chapter. “No Smoking” signs shall be specifically placed in ret ail food productions and marketing establishments, including grocery stores and supermarkets open to the public, so they are clearly visible to persons upon entering the store, clearly visible to persons in checkout lines and clearly visible to persons at meat and produce counters. The manner of such posting, including the wording, size, color, design and place of posting, whether on the walls, doors, tables, counters, stands or elsewhere, shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place, so long as clarity, sufficiency and conspicuousness are apparent in communicating the intent of this chapter. § 8.36.070 Exceptions. Exceptions to the smoking prohibitions of this chapter are as follows: A. Private offices, including those in the work place, designated areas of hotels and motels, areas and rooms while in use for private social functions, private hospital rooms, psychiatric facilities, jails, and stores that deal exclusively in tobacco product s and accessories, provided such stores comply with all state and local laws, including California Labor Code Section 6404.5 and California Health and Safety Code Section 104559.5. No pharmacy shall be considered a store that deals exclusively in tobacco p roducts and accessories. B. Fairways or putting greens of golf courses within private country clubs, provided smoking complies with all applicable state and local laws. Notwithstanding the foregoing, nothing in this chapter shall require a person or entity that owns or controls a pri vate country club to permit smoking and such a person or entity may prohibit smoking throughout the property he, she or it owns or controls. C. Areas measured within a twenty-foot zone outside of a building’s primary entrance, as long as the smoker is actively passing through on the way to another destination and so long as the smoke does not enter any indoor area in which smoking is prohibited. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 23 D. Any owners or other person having control of a business or other establishment subject to this chapter may apply to the city for an exemption or modification of the provisions of this chapter due to unique or unusual circumstances or conditions. E. Up to twenty-five percent of the contiguous deck area around swimming pools in multifamily residential properties owned by the City. Such designated smoking areas must be clearly signed. § 8.36.080 Nonretaliation. No person or employer shall discharge, refuse to hire or in any manner retaliate against an employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter. § 8.36.090 Enforcement. A. The owner, operator or manager of any facility, business or agency within the purview of this chapter shall comply herewith. Such owner, operator or manager shall post, or cause to be posted, all “No Smoking” signs required by this chapter. Such owner, operator or manager shall not allow service to any person who violates this chapter by smoking in a posted “No Smoking” area. B. It shall be the responsibility of employers to disseminate information concerning the provisions of this chapter to employees. C. The city’s code compliance officers, police, and fire personnel are authorized to issue citations for violation of the provisions of this chapter. Any peace officer may enforce the provisions of this Chapter. The City’s code compliance department may designate additional persons to monitor and facilitate compliance with this Chapter. D. The City’s code compliance division shall coordinate with the California Department of Public Health and the California Department of Tax and Fee Administration to ensure compliance with state laws regarding smoking and tobacco use, including California Labor Code Section 6404.5. The division may use audio or video recording equipment when conducting inspections to record and document illegal smoking activities. § 8.36.100 Violation—Penalty. A. Any person who violates any provision of this chapter by: (1) smoking in a posted “No Smoking” area; (2) failing to post or cause to be posted a “No Smoking” sign required by this chapter; (3) owning, managing or operating a business or building in which t he prohibitions of this chapter are violated; or (4) violating any other provision of this chapter, is deemed guilty of an infraction in accordance with Chapter 1.12 of this code. Violations of this chapter may be criminally prosecuted as infractions or misdemeanors at the discretion of the prosecuting attorney as the interests of justice require. B. Any violation of this chapter is hereby declared to be a nuisance, subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures contained in this Municipal Code and state law, including, bu t not limited to, an action for abatement or injunctive relief. C. Each incident of smoking in violation of this chapter is an infraction subject to: 1) a fine in an amount not to exceed fifty dollars ($50) for a first conviction of an offense; Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5 Ordinance 1443 Page 24 (2) a fine in an amount not to exceed one hundred dollars ($100) for a second conviction of the same offense within a twelve -month period of the date of the first offense; and (3) a fine in an amount not to exceed two hundred and fifty dollars ($250) for the third conviction of the same offense within a twelve -month period of the date of the first offense. Docusign Envelope ID: 724A9344-0750-4366-9105-968C5008A2C5