HomeMy WebLinkAboutOrd 13-14 Muni Code AmendElect Cigarettes ORDINANCE NO. 13— 14
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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AMENDING CHAPTER 4.40.020 OF THE DUBLIN MUNICIPAL CODE RELATING TO TOBACCO
RETAILER LICENSING, AMENDING CHAPTER 5.56.040 OF THE DUBLIN MUNICIPAL CODE
RELATING TO SMOKING POLLUTION CONTROL, AMENDING CHAPTER 8.08.020 OF THE
ZONING ORDINANCE, AND AMENDING C APTER 8.43.030 OF THE DUBLIN MUNICIPAL CODE
REGULATING THE LOCATION OF TO: CCO RETAILERS WITHIN THE CITY OF DUBLIN
WHEREAS, the Dublin Municipal Code ( he "Code") regulates the sale of tobacco products and
tobacco paraphernalia within the City of Dubli ; and
WHEREAS, the Code, as codified prior to the adoption of this ordinance, regulates the sale and
distribution of electronic cigarettes as a eithe a Tobacco Product or as Tobacco Paraphernalia; and
WHEREAS, specifically listing the inclus on of electronic cigarettes within the Code as either a
Tobacco Product or as Tobacco Parap ernalia would assist residents and businesses in
understanding the restrictions regarding elec ronic cigarettes; and
WHEREAS, it is the intent of the City C•uncil, in enacting this ordinance, to ensure compliance
with the business standards and practices of the City and to encourage responsible retailing of
electronic cigarettes and to discourage viol.tions of related laws, especially those which prohibit or
discourage the sale or distribution of nicoti e products to minors, but not to expand or reduce the
degree to which the acts regulated by fed=ral or state law are criminally proscribed or to alter the
penalties provided therein.
NOW, THEREFORE, the City Council of he City of Dublin does hereby ordain as follows:
Section 1. Section 4.40.020 of the I ublin Municipal Code is hereby amended to read as
follows:
"Arm's length transaction" means a sale in ood faith and for valuable consideration that reflects the
fair market value in the open market betw=en two informed and willing parties, neither of which is
under any compulsion to participate in th= transaction. A sale for which a significant purpose is
avoiding the effect of the violations of this c apter is not an arm's length transaction.
"Chief of Police" means the Chief of the D blin Police Department or his or her designee.
"Electronic smoking device" or "e-cigar-tte" 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 vapors
including nicotine and/or other substan, es. "Electronic smoking device" includes any similar device,
whether manufactured, distributed, ma eted, or sold as an electronic cigarette, an electronic cigar,
an electronic cigarillo, an electronic p pe, an electronic hookah, a vapor cigarette, or any other
product name or descriptor. "Electronic .moking device" does not include any product specifically
approved by the United States Food a d Drug Administration for use in the mitigation, treatment, or
prevention of disease.
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"Person" means any natural person, partnership, cooperative association, corporation, personal
representative, receiver, trustee, assig ee, or any other legal entity.
"Proprietor" means a person with an ownership or managerial interest in a business. An ownership
interest shall be deemed to exist whe a person has a ten percent (10%) or greater interest in the
stock, assets, or income of a busines- other than the sole interest of security for debt. A managerial
interest shall be deemed to exist whe a person can or does have or share ultimate control over the
day-to-day operations of a business.
"Self-service display" means the o•en display or storage of tobacco products or tobacco
paraphernalia in a manner that is phy.ically accessible in any way to the general public without the
assistance of the retailer or employee of the retailer and a direct person-to-person transfer between
the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service
display.
"Smoking" means: 1) possessing a lit hted tobacco product, lighted tobacco paraphernalia, or any
other lighted weed or plant (including .: lighted pipe, cigar, hookah pipe, or cigarette of any kind) and
means the lighting of a tobacco produ•t, tobacco paraphernalia, or any other weed or plant (including
a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device.
"Tobacco Paraphernalia" means cigar=tte papers or wrappers, pipes, holders of smoking materials of
all types, cigarette rolling machines, e ectronic smoking device cartridges, electronic smoking device
liquids, and any other item designed or the smoking, preparation, storing, consumption, or use of
tobacco products or electronic smokin• devices.
"Tobacco Product" means any substa ce containing tobacco or is derived from tobacco, including but
not limited to cigarettes, cigars, pip: tobacco, hookah tobacco, snuff, chewing tobacco, dipping
tobacco, snus, bidis, or any other prep:ration of tobacco; any and all electronic smoking devices; and
I,' any product containing synthetically •roduced nicotine. "Tobacco Product" does not include any
cessation product specifically approved by the United States Food and Drug Administration for use in
treating nicotine or tobacco dependen.e.
"Tobacco retailer" means any person ho sells, offers for sale, or does or offers to exchange for any
form of consideration tobacco, tobacc• products or tobacco paraphernalia. "Tobacco retailing" shall
mean the doing of any of these thing.. This definition is without regard to the quantity of tobacco,
tobacco products, or tobacco para•hernalia sold, offered for sale, exchanged, or offered for
exchange.
Section 2. Section 5.56.040 of the Dublin Municipal Code is hereby amended to read as
follows:
The following words and phrases, whe ever used in this chapter, shall be construed as defined in this
section:
"Bar" means an area that is devoted t• the serving of alcoholic beverages for consumption by guests
on the premises and in which the servi e of food is incidental to the consumption of beverages and in
which persons younger than twenty-on- (21) years of age are at all times excluded.
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"Business" means any sole proprietorship, partnership, joint venture, corporation or other business
entity formed for profit-making purposes, including private residences that are licensed to provide
child care, adult care, and other he.Ith care related services, retail establishments where goods or
services are sold as well as professional corporations and other entities where legal, medical, dental,
engineering, architectural or other professional services are delivered.
"City-sponsored event" means an ev-nt which the City of Dublin plans, administers, coordinates, and
finances, and which is held upon pro erty owned by the City of Dublin.
"Dining area" means any area contai ing a counter or table upon which meals are served or any area
designed, established, or regularly u-ed for consuming meals.
"Electronic smoking device" or "e-cigarette" means an electronic and/or battery-operated device, the
use of which may resemble smoki g, which can be used to deliver an inhaled dose of vapors
including nicotine and/or other subst:nces. "Electronic smoking device" includes any similar device,
whether manufactured, distributed, arketed, or sold as an electronic cigarette, an electronic cigar,
an electronic cigarillo, an electroni pipe, an electronic hookah, a vapor cigarette, or any other
product name or descriptor. "Electronic smoking device" does not include any product specifically
approved by the United States Food and Drug Administration for use in the mitigation, treatment, or
prevention of disease.
"Employee" means any person who is employed by any employer or hired as an independent
contractor in consideration for direct or indirect monetary wages or profit, and any person who
volunteers his or her services for a n o nprofit entity.
"Employer" means any person, pa nership, corporation or nonprofit entity, including a municipal
corporation, who employs the servic=s of one (1) or more persons.
"Enclosed" means closed in by a roof and four (4) walls with appropriate openings for ingress and
egress.
"Landlord" means any person who o ns real property leased as residential property, any person who
lets residential property, or any person who manages such property, except that "landlord" does not
include sublessors.
"Multi-unit residence" means a premi.es that contains sixteen (16) or more units for rent.
"Multi-unit residence common area" eans any outdoor area of a multi-unit residence accessible to
and usable by residents of different units, including but not limited to play areas, common cooking
and eating areas, swimming pools, common courtyards, paths and walkways, and parking areas.
"Nonprofit entity" means any corp.ration, unincorporated association or other entity created for
charitable, educational, political, social or other similar purposes, the net proceeds from the
operations of which are committed to the promotion of the objects or purposes of the organization and
not to private financial gain. A pub is agency is not a nonprofit entity within the meaning of this
section.
"Person" means any natural perso , partnership, cooperative association, corporation, personal
representative, receiver, trustee, assi,•nee, or any other legal entity.
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"Place of employment" means any area under the control of a public or private employer that
employees may have cause to enter during the normal course of employment, including, but not
limited to, work areas, vehicles, employee lounges and restrooms, conference rooms and
classrooms, cafeterias and hallways, except that a private residence is not a place of employment
unless it is used as a child care or a health care facility.
"Premises" means a piece of land and any improvements upon it such as is usually described in a
deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land that are
owned by the same person or by multiple persons owning and operating the land under common
control.
"Public place" means any area in hich the public is invited or in which the public is permitted,
including, but not limited to: bank , educational facilities, health facilities, public transportation
facilities, reception areas, restaura ts, retail food production and marketing establishments, retail
stores, theaters and waiting rooms.
"Reasonable distance" means a dist nce that ensures that occupants of an area in which smoking is
prohibited are not exposed to seco dhand smoke created by smokers outside the area. Except as
otherwise provided in this chapter, his distance shall be a minimum of twenty (20) feet unless the
application of the twenty (20) foot mi imum would place the smoker in a potentially unsafe location, in
which case a "reasonable distance" shall be a location closer than twenty (20) feet which does not
place the smoker in a potentially uns fe location.
"Restaurant" means any coffee sh p, cafeteria, tavern, sandwich stand, soda fountain, private or
public school cafeteria, and any of er eating establishment, organization, club, boardinghouse or
guest house, which gives or offe s food for sale to the public, guests, patrons, members or
employees.
"Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and
accessories.
"Secondhand smoke" means the tobacco smoke created by burning or carrying any lighted pipe,
cigar, or cigarette of any kind, and the smoke exhaled by an individual who engages in smoking.
"Self-service display" means the open display of tobacco products or tobacco paraphernalia in a
manner that is accessible to the gerieral public without the assistance of the retailer or employee of
the retailer.
"Single-family residence" means and includes a detached single-family dwelling designed or intended
for occupancy by one person or by one family.
"Smoking" means: 1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any
other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and
means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including
a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device.
"Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of
all types, cigarette rolling machines, electronic smoking device cartridges, electronic smoking device
liquids, and any other item designed for the-smoking or ingestion of tobacco products or electronic
smoking devices.
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"Tobacco Product" means any substance containing tobacco or is derived from tobacco, including but
not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping
tobacco, snus, bidis, or any other preparation of tobacco; any and all electronic smoking devices; and
any product containing synthetically produced nicotine. "Tobacco Product" does not include any
cessation product specifically approved by the United States Food and Drug Administration for use in
treating nicotine or tobacco dependence.
"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 definition is without regard to the quantity of tobacco,
tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for
exchange.
"Unit" means: (1) a dwelling space c nsisting of complete independent living facilities for one or more
persons, including, for example, per anent provisions for living and sleeping, and any private outdoor
spaces like balconies and patios; an (2) senior citizen housing and single room occupancy hotels, as
defined in California Health and Saf ty Code Section 50519(b)(1), even where lacking private cooking
facilities or private plumbing facilitie . "Unit" does not include lodging in a hotel or motel that meets
the requirements set forth in Califor is Civil Code Section 1940(b)(2).
"Vending machine" means any electronic or mechanical device or appliance the operation of which
depends upon insertion of money, hether in coin or in paper bill, or other thing representative of
value, which dispenses or releases t bacco products and/or tobacco accessories.
Section 3. Section F of Chapter 5.56.050 of the Dublin Municipal Code is hereby added to
read as follows:
F. Notwithstanding any other provision of this Chapter, it shall be a violation of this Chapter to use an
electronic smoking device in any place within the City of Dublin where smoking is prohibited by law.
Section 4. The definition of "Tobacco Retailer" in Section 8.08.020 of the Dublin Municipal
Code is hereby amended to read as follows:
Tobacco Retailer. The term Tobacco Retailer shall mean any person or business that sells, offers for
sale, exchanges or offers to exch. nge for any form of consideration, tobacco, tobacco products
and/or tobacco paraphernalia as t ose terms are defined in Chapter 8.43 of the Dublin Municipal
Code, and includes, but is not limitee to a Retail Tobacco Shop.
Section 5. Section 8.43.03 1 of the Dublin Municipal Code is hereby amended to read as
follows:
The terms used in this Chapter hav= the meaning set forth below:
"Department" means the Communi Development Department.
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"Electronic smoking device" or "e-cigarette" 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 vapors
including nicotine and/or other substances. "Electronic smoking device" includes any similar device,
whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar,
an electronic cigarillo, an electronic pipe, an electronic hookah, a vapor cigarette, or any other
product name or descriptor. "Electronic smoking device" does not include any product specifically
approved by the United States Food and Drug Administration for use in the mitigation, treatment, or
prevention of disease.
"Person" means any natural person, partnership, cooperative association, corporation, personal
representative, receiver, trustee, assignee, or any other legal entity.
"Retail Tobacco Shop" means a business establishment, the main purpose of which is the sale of
tobacco, tobacco products, or tobacco paraphernalia.
"Smoking" means: 1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any
other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and
means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including
a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device.
"Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of
all types, cigarette rolling machines, electronic cigarette cartridges, electronic cigarette liquids, and
any other items designed for the preparation, storing, consumption, or use of tobacco products or
electronic smoking devices.
"Tobacco Product" means any substance that contains tobacco or is derived from tobacco, including
but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping
tobacco, snus, bidis, or any other preparation of tobacco; any and all electronic smoking devices; and
any product containing synthetically produced nicotine. "Tobacco Product" does not include any
cessation product specifically approved by the United States Food and Drug Administration for use in
treating nicotine or tobacco dependence.
"Tobacco Retailer" shall have the meaning ascribed to it in Chapter 8.08 of the Dublin Municipal
Code.
"Tobacco Retailing" shall mean engaging in the activities of a Tobacco Retailer.
Section 6. Severability. If any section, subsection, subdivision, paragraph, sentence, clause
or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to
be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or
enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or
phrases of this Ordinance, or its application to any other person or circumstance. The City Council of
the City of Dublin hereby declares that it would have adopted each section, subsection, subdivision,
paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other
sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared
invalid or unenforceable.
Section 7. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days
following its adoption.
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Section 8. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be
posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the
Government Code of the State of California.
PASSED, APPROVED AND ADOPTED this 15th day of July, 2014, by the following vote:
AYES: Councilmembers Biddle, Gupta, Hart, Haubert, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
Mayor
ATTEST:
a4/p fi,c1
City Clerk
Ord No. 13-14,Adopted 7-15-14, Item 4.3 Page 7 of 7