CHAPTER 29. REGULATION OF ELECTRONIC SMOKING DEVICES
ARTICLE 1. GENERAL PROVISIONS
4-29-1000 PURPOSES:
To provide for the public health, safety, and welfare by discouraging the use of electronic smoking devices around nonusers, especially children; by protecting the public from exposure to secondhand byproducts of electronic smoking devices where they live, work, and play; by facilitating uniform and consistent enforcement of smoke-free air laws; by reducing the potential for re-normalizing smoking in public places and places of employment; by reducing the potential for children to associate the use of electronic smoking devices with a normative or healthy lifestyle; and by prohibiting the sale or distribution of electronic smoking devices to minors.
(Added by Ord. No. 3480, effective 9-10-15)
4-29-1005 NOT EXCLUSIVE REGULATION:
This Chapter is not the exclusive regulation of Electronic Smoking Devices. It shall supplement and be in addition to any other regulating statutes, ordinance, resolutions and policies heretofore or hereafter enacted by the State, the County, or any other legal entity or agency having jurisdiction.
(Added by Ord. No. 3480, effective 9-10-15)
4-29-1010 STATUTORY CONSTRUCTION AND SEVERABILITY:
It is the intent of the Board of Supervisors of the County of Tulare to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intent. 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 Board of Supervisors of the County of Tulare hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof independently, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.
(Added by Ord. No. 3480, effective 9-10-15)
4-29-1015 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:
a) "Business" means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for purposes that include profit-making.
b) "Electronic Smoking Device" means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. "Electronic Smoking Device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, 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.
c) "Electronic Smoking Device Paraphernalia" means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, Electronic Smoking Device batteries, Electronic Smoking Device chargers, and any other item specifically designed for the preparation, charging, or use of Electronic Smoking Devices.
d) "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 Nonprofit Entity.
e) "Employer" means any Business or Nonprofit Entity that retains the service of one or more Employees.
f) "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, educational, political, social 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 not a Nonprofit Entity within the meaning of this Chapter.
g) "Nominal Cost" means the cost of any item imposed for the transfer from one person to another for less than the total of: (1) twenty-five percent (25%) of the fair market value of the item exclusive of taxes and government fees; plus (2) all taxes and government fees previously paid and all taxes and government fees still due on the item at the time of transfer.
h) "Nonsale Distribution" means to give, furnish, or cause or allow to be given or furnished, within the jurisdictional limits of the county, an Electronic Smoking Device or Electronic Smoking Device Paraphernalia at no cost or at Nominal Cost to a Person who is not a Retailer.
i) "Person" means any natural person, Business, cooperative association, Employer, Nonprofit Entity, personal representative, receiver, trustee, assignee, or any other legal entity including a government agency.
j) "Retailer" means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, Electronic Smoking Devices or Electronic Smoking Device Paraphernalia. "Retailing" means the doing of any of these things. This definition is without regard to the quantity of the Electronic Smoking Devices or Electronic Smoking Device Paraphernalia sold, offered for sale, exchanged, or offered for exchange.
k) "Self-Service Display" means the open display or storage of Electronic Smoking Devices or Electronic Smoking Device Paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of a Retailer or Employee of a Retailer and a direct person-to-person transfer between a Retailer or Employee of a Retailer and any other Person. A vending machine is a form of Self-Service Display.
l) "Smoking" means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind.
(Added by Ord. No. 3480, effective 9-10-15)
ARTICLE 2. PROHIBITIONS AND REQUIREMENTS
4-29-1020 PROHIBITION OF ELECTRONIC SMOKING DEVICE USE IN SMOKE-FREE PLACES:
a) It shall be a violation of this Chapter to use an Electronic Smoking Device in any place within the County of Tulare where Smoking of tobacco products is prohibited by law.
b) No Person, Employer, or Nonprofit Entity shall knowingly permit the use of Electronic Smoking Devices in an area under the legal or de facto control of that Person, Employer, or Nonprofit Entity and in which Smoking is prohibited by law.
(Added by Ord. No. 3480, effective 9-10-15)
4-29-1025 RETAILING REQUIREMENTS AND PROHIBITIONS:
a) Sale to minors prohibited. It shall be a violation of this Chapter to sell, give or furnish, or cause to be sold, given, or furnished, an Electronic Smoking Device or Electronic Smoking Device Paraphernalia to a natural Person under 18 years of age in any place within the County of Tulare.
b) Positive identification required. No Retailer shall sell, give, or furnish an Electronic Smoking Device or Electronic Smoking Device Paraphernalia to a natural Person who appears to be under the age of twenty-seven (27) years without first examining identification to confirm that the recipient is at least 18 years of age.
c) Self-Service Displays of Electronic Smoking Devices or Electronic Smoking Device Paraphernalia are prohibited.
d) Nonsale Distribution Prohibited. No Person, motivated by an economic or a business purpose, shall engage in the Nonsale Distribution of any Electronic Smoking Device or Electronic Smoking Device Paraphernalia.
(Added by Ord. No. 3480, effective 9-10-15)
ARTICLE 3. PENALTIES AND ENFORCEMENT
4-29-1030 GENERALLY:
a) The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.
b) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall also constitute a violation of this Chapter.
c) Any violation of this Chapter is hereby declared to be a nuisance.
(Added by Ord. No. 3480, effective 9-10-15)
4-29-1035 CRIMINAL PENALTIES:
a) The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.
b) Failure to comply with any of the requirements of this Chapter is an infraction punishable by a fine not exceeding one hundred dollars ($100) for a first violation, a fine not exceeding two hundred dollars ($200) for a second violation of the same provision within one year, and a fine not exceeding five hundred dollars ($500) for each additional infraction violation of the same provision within one year. An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury and shall not be entitled to have representation by the public defender or other counsel appointed at public expense, unless the person is arrested and not released upon a written promise to appear, the person’s own recognizance or a deposit of bail.
c) A person who has previously been convicted two or more times during any 12 month period for any violation of this Chapter for a crime made punishable as an infraction may be charged with a misdemeanor upon the third violation at the discretion of the District Attorney. A misdemeanor is punishable by imprisonment in the city or county jail for a period not exceeding 6 months or by a fine not exceeding one thousand dollars ($1,000), or by both fine and imprisonment.
d) Enforcement of this Chapter shall be the responsibility of any peace officer and any code enforcement official in the County of Tulare.
(Added by Ord. No. 3480, effective 9-10-15)
4-29-1040 CIVIL ENFORCEMENT:
a) Violations of this Chapter are subject to a civil action brought by the County of Tulare, punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000) per violation.
b) 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 County Counsel, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
c) Any Person acting in the interests of him-, her- or itself, its members, or the general public (hereinafter "Private Enforcer") may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this Chapter against any Person who has violated this Chapter two or more times. Upon proof of the violations, a court shall grant all appropriate relief, including:
1. awarding damages; and
2. issuing an injunction or a conditional judgment. If there is insufficient or no proof of actual damages for a violation, the court shall award one-hundred and fifty dollars ($150) for that violation as statutory damages.
d) Notwithstanding any other provision of this Chapter, a Private Enforcer may bring a civil action to enforce this Chapter only if the following requirements are met:
1. Private Enforcer has given written notice of each of the alleged violations of this Chapter to the Tulare County Health Officer and to the alleged violator.
2. On the date the Private Enforcer’s civil action is filed, no other Person acting on behalf of the county or the state has commenced or is prosecuting an administrative, civil, or criminal action based upon, in whole or in part, any violation which was the subject of the Private Enforcer’s notice.
3. A Private Enforcer shall provide a copy of his, her, or its action to the County Health Officer within seven (7) days of filing it.
Upon a settlement or judgment based upon, in whole or in part, any violation which was the subject of the Private Enforcer’s notice, the Private Enforcer shall give the County Health Officer notice of the settlement or judgment and final disposition of the case within thirty (30) days of the date of the settlement or judgment.
(Added by Ord. No. 3480, effective 9-10-15)
4-29-1045 NONRETALIATION:
No Person, Employer, or Nonprofit Entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another Person who or which seeks to attain compliance with this Chapter.
(Added by Ord. No. 3480, effective 9-10-15)