1. (1) A business must be certified by the Authority prior to allowing smoking on the premises.
2. (2) To obtain certification as a smoke shop, a business must agree to allow the Authority or LPHA to make unannounced inspections of the business to determine compliance with the Act.
3. (3) Smoke shop certification is only valid for the business location authorized by the Authority.

4. (4) Application Criteria:

   1. (a) Type A Certification. A business may apply for smoke shop Type A Certification by submitting the following to the Authority:

      1. (A) A complete application form prescribed by the Authority (available online or by calling the Tobacco Prevention and Education Program).

      2. (B) A notarized, sworn statement attesting that the business:

         1. (i) Is primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use, and derives at least 75 percent of its gross revenue from such sales;
         2. (ii) Prohibits persons under 21 years of age from entering the premises;
         3. (iii) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;
         4. (iv) Does not sell or offer food or beverages, including alcoholic beverages, for on-premises consumption;
         5. (v) Does not allow on-premises consumption of alcoholic beverages;
         6. (vi) Has a maximum seating capacity of no more than four persons;
         7. (vii) Allows the smoking of tobacco product samples only for the purpose of making retail purchase decisions, in a manner that complies with ORS 180.486 and 431A.175; and
         8. (viii) Does not allow the smoking, aerosolizing or vaporizing of inhalants that are not tobacco products.
      3. (C) Documentation of the business’s sales, broken down by category of product;
      4. (D) Evidence, such as photographs, of signs required under OAR 333-015-0040(5).
      5. (E) A building map and photographs of the premises demonstrating that the business is a stand-alone business;
      6. (F) A site map and photographs of the premises that denotes maximum seating capacity and includes a detailed seating chart; and
      7. (G) Any other documentation, as specified in the application form, necessary to demonstrate compliance with the Act or these rules.

   2. (b) Type B Certification. A business existing on December 31, 2008, may apply for smoke shop Type B Certification by submitting the following documentation to the Authority:

      1. (A) A complete application form prescribed by the Authority (available online or by calling the Tobacco Prevention and Education Program).
      2. (B) Proof of registration with the Oregon Secretary of State, Corporation Division, since 2008 or, if not required to be registered, tax documentation proving that the business has been in operation since 2008;

      3. (C) A notarized, sworn statement attesting that both currently and on December 31, 2008, the business:

         1. (i) Was primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use, and derived at least 75 percent of its gross revenue from such sales;
         2. (ii) Prohibited persons under 21 years of age from entering the premises;
         3. (iii) Did not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;
         4. (iv) Did not sell or offer food or beverages, including alcoholic beverages for on-premises consumption; and
         5. (v) Did not allow on-premises consumption of alcoholic beverages.
      4. (D) Documentation of the business’s sales, broken down by category of product;

      5. (E) Either of the following:

         1. (i) Documentation, such as a building map or photographs, demonstrating that on December 31, 2008, the business was a stand-alone business with no other businesses or residential property attached; or

         2. (ii) Documentation demonstrating that on December 31, 2008, it had a ventilation system that exhausted smoke from the business and was designed and terminated in accordance with the state building code standards for the occupancy classification in use. Such documentation must include either:

            1. (I) A certificate of occupancy that was current on December 31, 2008, and official documentation from the building authority with jurisdiction of the occupancy classification for which the business was approved; or
            2. (II) If the documentation described in subparagraph (4)(b)(E)(ii)(I) of this rule is unavailable, a current certificate of occupancy, proof that the business’s ventilation system was installed in 2008 or earlier, and official documentation from the building authority with jurisdiction that the business was approved as a smoking lounge;

      6. (F) Either of the following:

         1. (i) Documentation, such as a building map or photographs, demonstrating that the business currently is a stand-alone business with no other businesses or residential property attached; or
         2. (ii) A current certificate of occupancy and official documentation from the building authority with jurisdiction that the business was approved as a smoking lounge;
      7. (G) Evidence, such as photographs, of signs required under OAR 333-015-0040(5).
      8. (H) Any other documentation, as specified in the application form, necessary to demonstrate compliance with the Act or these rules.

   3. (c) Type C Certification. A business certified by the Authority on or before December 31, 2012 as a smoke shop under ORS 433.835, as in effect immediately before June 30, 2011, may apply for smoke shop Type C Certification by submitting the following documentation to the Authority:

      1. (A) A complete application form prescribed by the Authority (available online or by calling the Tobacco Prevention and Education Program).

      2. (B) A notarized, sworn statement attesting that the business:

         1. (i) Was certified by the Authority on or before December 31, 2012 as a smoke shop under ORS 433.835, as in effect immediately before June 30, 2011;
         2. (ii) Allows smoking of cigarettes only if at least 75 percent of the gross revenues of the business results from the sale of cigarettes;
         3. (iii) Is primarily engaged in the sale of tobacco products and smoking instruments, with at least 75 percent of the gross revenues of the business resulting from such sales;

         4. (iv) Does not:

            1. (I) Sell or offer alcoholic beverages for on-premises consumption;
            2. (II) Allow on-premises consumption of alcoholic beverages; or
            3. (III) Offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises.
         5. (v) Prohibits persons under 21 years of age from entering the premises; and
         6. (vi) Is a stand-alone business with no other businesses or residential property attached to the premises.
      3. (C) Documentation of the business’s sales, broken down by category of product, including cigarette sales
      4. (D) Evidence, such as photographs, of signs required under OAR 333-015-0040(5); and
      5. (E) Any other documentation, as specified in the application form, necessary to demonstrate compliance with the Act or these rules.

Statutory/Other Authority

ORS 433.855

Statutes/Other Implemented

ORS 433.835 - 433.870

History

PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 17-2019, renumbered from 333-015-0068, filed 09/26/2019, effective 09/26/2019
PH 23-2017, amend filed 12/21/2017, effective 01/01/2018
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09