§ 5.91.010. Definitions.

The following definitions apply to this chapter:

"Arm's Length Transaction" as used in this chapter shall mean a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction.

"Characterizing Flavor" means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice; provided, however, that 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.

"Cigar" means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or in any substance containing tobacco. For purposes of this Chapter, "cigar" includes, but is not limited to, tobacco products known or labeled as "cigar," "cigarillo," "tiparillo," or "little cigar."

"Cigarette" means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.

"City Administrator" as used in this chapter shall mean the City Administrator for the City of Oakland; further provided, that the use of the title of any officer or to any office shall refer to such officer or office of the City of Oakland.

"Consumer" means a person who purchases a package of cigarettes or other tobacco product for consumption and not for sale to another.

"Coupon" means anything that can be exchanged or used to acquire a cigarette or other tobacco product for less than the full retail price, whether in paper, digital or other form.

"Department" as used in this chapter shall mean the Oakland Police Department.

"Distinguishable" means perceivable by an ordinary consumer by either the sense of smell or taste.

"Drug Paraphernalia" as used in this chapter shall have the same definition set forth under California Health and Safety Code section 11364.5, as amended from time to time.

"Electronic Smoking Device" means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "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.

"Flavored Tobacco Product" means any tobacco product which contains an ingredient that imparts a characterizing flavor.

"Full Retail Price" means the price listed for a package of cigarettes or other tobacco product on its packaging or on any related shelving, advertising, or display where the package of cigarettes or tobacco product is sold or offered for sale.

"Ingredient" means any 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.

"Labeling" means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.

"Manufacturer" means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.

"Package of Cigarettes" means a pack of twenty (20) cigarettes in a manufacturer's original consumer packaging designed for individual retail sale to a consumer.

"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" as used in this chapter shall mean any natural person, partnership, cooperative association, corporation, limited liability company, personal representative, receiver, trustee, assignee, or any other legal entity.

"Proprietor" as used in this chapter shall mean 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 (10) percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.

"Public Nuisance" as used in this chapter shall have the same definition as set forth under California Civil Code Section 3480, as amended from time to time.

"Sale" or "Sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

"Self-Service Display" as used in this chapter shall mean the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. A vending machine is a form of self-service display.

"Smoking" as used in this Chapter means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

"Tobacco Paraphernalia" as used in this Chapter shall mean cigarette papers and any other item designed for the smoking, preparation, storing, or consumption of tobacco products, including but not limited to wrappers, pipes, holders of smoking materials of all types, and cigarette rolling machines.

"Tobacco Product" as used in this Chapter means:

a.

Any product containing, made, or derived from tobacco or nicotine that is in-tended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff; and

b.

Any electronic smoking device.

c.

Notwithstanding any provision of subsections a. and b. to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "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 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. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

"Tobacco Retailing" means the act of selling, offering for sale, or exchanging or offering to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia.

"Tobacco Store" has the same meaning as provide in California Business and Professions Code Section 22962, which defines the term as a retail business that meets all of the following requirements:

a.

Primarily sells tobacco products;

b.

Generates more than sixty (60) percent of its gross revenues annually from the sale of tobacco products and tobacco paraphernalia;

c.

Does not permit any person under eighteen (18) years of age to be present or enter the premises at any time, unless accompanied by the person's parent or legal guardian, as defined in Section 6903 of the California Family Code; and

d.

Does not sell alcoholic beverages or food for consumption on the premises.

"Vending Machine" as used in this Chapter shall mean a machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

(Ord. 12867 § 2 (part), 2008; Ord. No. 13452, § 2, 9-19-2017)