HomeMy WebLinkAboutCC AG PKT 2013-09-23 #JI Wd Lei a M
SUMMARY OF REQUEST:
Open the public hearing and after consideration of all public testimony, issue the
attached Report and adopt Ordinance No. 1632-U, an Interim Ordinance of the
City of Seal Beach, extending Ordinance No. 1631-U prohibiting the
establishment and operation of any new smoke shop, electronic cigarette retailer,
or drug paraphernalia retailer.
BACKGROUND AND ANALYSIS:
At the meeting of August 26, 2013, the City Council adopted Ordinance
No. 1631-U an urgency ordinance declaring a moratorium on the acceptance,
processing or issuance of any zoning permit, building permit, occupancy permit,
business license or any other entitlement for the establishment and operation of
electronic cigarette retailers, drug paraphernalia retailers and smoke shops. The
45-day moratorium is scheduled to expire on October 10, 2013 unless it is
extended by City Council adoption of an interim ordinance pursuant to California
Government Code Section 65858.
MIN 0 0
Agenda Item i
There are several businesses located in the City that are selling electronic
cigarettes openly displayed on racks and counter -tops which promotes a self -
service display of tobacco products. Providing a self - service customer access to
any tobacco products is a particular concern because it allows easy access to
minors. Furthermore, these businesses have not amended their business
licenses to include the selling of electronic cigarettes and at least one retail
operation has completely changed the nature of the business to a tobacco shop
without City approval. The business is promoting electronic cigarettes as a
nicotine product and as the primary use of the business. Staff is also concerned
that these businesses are attempting to occupy leaseable spaces in
neighborhood shopping centers near Pacific Coast Highway and Seal Beach
Boulevard.
Staff has researched other cities that are also dealing with similar issues and
have described existing smoke shops that expand their products to include
paraphernalia used to smoke synthetic drugs such as synthetic marijuana
substitutes and other products and drug paraphernalia that are potentially
harmful to the public health and safety and to the general quality of life.
The use and sale of electronic cigarette retailers and drug paraphernalia retailers
are established and allowed without appropriate review and regulations. They
could have potential adverse secondary effects on neighborhoods and result in
significant irreversible change to the neighborhood and community character.
E- cigarettes or vapor cigarettes is a recent trend that is proliferating in many local
jurisdictions. Cities are placed in enforcement positions because some retailers
expand the selling of products and equipment that can be used with controlled
substances and advertising of drug paraphernalia, including electronic pipes and
bongs. When -the expansion occurs, it changes or modifies the nature of the
business and use.
Pursuant to provisions of Government Code Section 65858, a public hearing is to
be held this evening to consider an extension of the moratorium. Upon
completion of the public hearing, the City Council may extend the effective time
period of Ordinance No. 1631 -U for a maximum time period of 10 months and 15
days. This action would require a four -fifths vote of the City Council for adoption.
On September 23, 2013, a written report describing the measures taken to
alleviate the conditions that led to the adoption of Ordinance No. 1631 -U was
prepared in compliance with the provisions of California Government Code
Section 65858. A copy of that report is provided as Attachment A for the
information of the City Council and public during the scheduled hearing.
By extending the moratorium, the City will be able to preserve the status quo
while staff further researches applicable provisions to amend -the City's Municipal
Code to address smoke shops and electronic cigarette businesses.
Page 2
Pursuant to Title 14, Section 15061(b)(3) of the California Code of Regulations,
the proposed Ordinance is exempt from California Environmental Quality Act
review because there is no possibility the adoption of -the proposed Ordinance
and establishment of the interim moratorium thereby, will have a significant effect
on the environment, because the moratorium imposes greater limitations on
smoke shops, drug paraphernalia retailers and electronic cigarette retailers than
the limitations currently required under the Municipal Code, and will thereby
serve to reduce potential significant adverse environmental impacts.
LEGAL ANALYSIS:
The City Attorney has reviewed the draft ordinance and approved it as to form.
FINANCIAL IMPACT:
There is no significant financial impact anticipated with the adoption of the
proposed urgency ordinance. There will be staff time expended to prepare the
land use ordinance addressing smoke shops, electronic cigarette retailers, and
paraphernalia retailers.
RECOMMENDATION:
That the City Council issues the attached Report and adopt Interim Ordinance
No. 1632-U of the City of Seal Beach extending Ordinance 1631-U prohibiting
the establishment and operation of any new smoke shop, electronic cigarette
retailer, or drug paraphernalia business.
W-WITTED BY: NOTED AND APPROVED-
F Basham
.. ..................
Attachments:
I F) rZA701
6WFA
•
A. Report by the City of Seal Beach regarding the Ongoing Study of the City's
Regulation of Smoke Shops, Electronic Cigarette Retailers, and Drug
Paraphernalia Retailers
B. Ordinance No. 1632-U
I
REPORT BY THE CITY OF SEAL BEACH REGARDING
THE ONGOING STUDY OF THE CITY'S REGULATION
OF SMOKE SHOPS, ELECTRONIC CIGARETTE
RETAILERS, AND DRUG PARAPHERNALIA
RETAILEPTS
Pursuant to Government Code Section 65858(d), the City has prepared this
written report to describe the measures taken to alleviate the condition which led
to the adoption of a moratorium on the establishment and operation of any new
smoke shop, electronic cigarette retailer, or drug paraphernalia retailer.
In the
it several months, staff has received an increased number of inquiries
regarding the establishment of smoke shops, electronic cigarette businesses as
a primary use. Even now staff is receiving calls to open hookah lounges. There
appears to be a common interest to locate near Pacific Coast Highway. Staff is
also aware of a number of existing businesses in the City that obtained business
licenses
• operate commercial/retail establishment and have added electronic
cigarettes. At least one of the businesses is no longer operating as novelty or gift
store but as a tobacco shop.
The City is concerned that smoke shops, electronic cigarette retailers, and
smoking paraphernalia retailers may not be sufficiently regulated by the Seal
Beach Municipal Code. Provisions are necessary to prevent minors from
accessing the product so easily and to prevent overconcentration.
Staff has discovered at least one unauthorized smoke shop business that is
within close proximity of a playground and a nursery school and adjacent to
residential neighborhoods. A similar business diagonally across Pacific Coast
Highway desires to locate in a shopping center approximately two blocks from an
elementary school and one block from residential neighborhoods. Staff has
learned that the local school district has banned the smoking of e-cigarettes on
school campuses.
Staff's initial research has determined that many cities currently categorize
that restrict tobacco retailers and smoke shops within certain distances from
schools, residences, playgrounds, and parks. Other cities have adopted
moratoriums on similar businesses, and still other cities have addressed the
subject through the requirement of a Conditional Use Permit. Some cities have
experienced an increase in crime.
During the moratorium, staff will further review the land use classifications and
determine the appropriate zones and survey other cities to decide on a
reasonable solution and planning process.
Staff also intends to continue reviewing other cities' ordinances pertaining to this
issue and continue to work with the Seal Beach Police Department to formulate
recommendation for the City Council's consideration.
Possible options that have been identified thus far include the following:
• Amend the Zoning Code to classify the subject uses as conditionally
permitted in certain commercial zones that are sufficiently distant from
schools, parks, etc. Under this option, each proposed business would be
examined on a case-by-case basis to determine whether the use is
compatible with surrounding uses.
• Adopt a regulatory ordinance that regulates the operations of the uses but
not adopt a zoning restriction.
a Adopt a regulatory ordinance and zoning ordinance.
• Amend the Zoning Code to specifically prohibit such uses city-wide.
Staff shall present these and possibly other options to the City Council at a future
date.
This report was issued by the City Council of the City of Seal Beach at a meeting
thereof held on the 23rd day of September, 2013.
AN INTERIM ORDINANCE OF THE CITY OF SEAL BEACH
EXTENDING URGENCY ORDINANCE NO. 1631'U
PROHIBITING THE ESTABLISHMENT AND OPERATION
OF ANY NEW SMOKE SHOP, ELECTRONIC CIGARETTE
RETAILER, OR DRUG PARAPHERNALIA RETAILER
THE SEAL BEACH CITY COUNCIL HEREBY ORDAINS ASFOLLOWS:
Section 1. Ordinance No. 1G31'U adopted nn
August 26.2O13 and set to expire on October 11.2O13ka hereby extended infull
force and effect for 10 months and 15 days to and including August 25, 2014.
Section 2. In accordance with California
Government Code Section 85858(d), the City Council has issued a written report
describing the measures taken to alleviate the condition which led to the adoption
of Ordinance No. 1631'U.
Section l FUnqt%i. The City Council finds and determine axfollows:
a. The City has recently received inquiries regarding the possible
establishment of smoke ohnpu, electronic cigarette retailers, and drug
paraphernalia retailers (ooUeotve|y. "subject uoes.^haminaftar). Several existing
businesses in the Qty are already advertising the sale of electronic cigarettes.
Smoke shops, electronic dgana#eo, and drug paraphernalia are not currently
addressed in the Municipal Coda.
b. The traditional character ofsmoke shops has changed, and newer
shops have been observed to ae|| paraphernalia that could be used to consume
substances other than boba000, as well as synthetic marijuana mubsUUmhea and
other products and drug Aonuphamno|ia that are potentially harmful to the public
health and safety and bo the general quality oflife. Anecdotal evidence suggests
that smoke shops and the ao|e of drug paraphernalia can create harmful
secondary effects in the neighborhoods in which they are |ooahad. but the City
has not studied how to best manage and mitigate these impacts. Further study
and consideration of the potential impacts that smoke shops, electronic cigarette
retai|ero, and drug paraphernalia retailers may have on the public's hoa|th,
oofeh/, and welfare is required to ensure that any negative impacts can be
addressed and mitigated.
C. The use and sale of electronic cigarettes are recent developments
and further study and consideration of the potential impacts that they might have
on the public's health, safety, and welfare is required to ensure that any negative
impacts can be addressed and mitigated.
d. |f the subject uses are established and allowed without appropriate
review and n*gu|oUon. they could have potential adverse secondary effects on
neighborhoods and result in significant irreversible change huthe neighborhood
and community character.
o. The City intends to study, within o reasonable time, the adequacy
of its existing ordinances and the potential need to adopt new regulations
regarding the subject uses. The Planning Commission, the City Counoi|, and the
people ofSeal Beach require sufficient and reasonably limited time to consider
and study legally uppnopdoho and reasonable policies regulating these
businesses in order to prevent negative impacts on neighboring residents and
businesses. Staff has begun to study the issues associated with the subject
uses, but needs more time. The establishment of any uf the subject uses before
appropriate procedures and regulations are enacted has the potential bncause
Ordinance Number 1632-U
adverse impacts hu surrounding residences, businesses, and development and 0n
risk the public health, safety and welfare of the City's residents and the general
public. It is therefore urgent that the City develop regulations governing the
location and operation of the subject uses to prevent adverse impact to the public
hoo|1h, safety and welfare that may namu|t from unregulated placement and
operation of such uses in the City.
i The City Council finds that additional planning and research are
urgently n0000nury to develop appropriate standards to regulate the subject
uses. The City intends 0o undertake such a study within a naaaonob|a time.
During the course of the study and planning pnoumue. the City Council finds that
retailers and others are likely to submit applications for such uaam and the
development of such facilities before appropriate regulations and safeguards are
in place may be incompatible with the result ofthis planning process. Given the
time required to undertake the study and planning this situation calls for, the City
Council finds that it ie necessary (o enact an interim moratorium to ensure that
operation of businesses that may conflict with the contemplated new
development policies are not permitted in the interim. The City Council has the
authority to adopt an interim ordinance pursuant to the Qty Charter and
Government Code Section 65858 in order to protect the public hea|th, aofety, or
welfare.
g. There is current and immediate threat (othe public heo|th, aofety,
and welfare presented by the unregulated operation ofthe subject uses. The
City Council finds that the approval of use pennitn, vahances, building pamoibu.
business |inan000, or any other applicable entitlement providing for the
establishment and/or operation of the subject uses prior to (1) completing the
study of the potential impact of such facilities; and (2) resolving any zoning
conflicts based on the fact that inadequate zoning currently exists in the City for
such uses would result in o current and immediate threat to the public hoa|th,
safety, and welfare.
h. There is therefore an urgent necessity for the City to adopt o
temporary moratorium on the establishment of smoke shops, electronic cigarette
retoUens, and drug paraphernalia retailers hutake effect immediately.
Section 4. Moratorium. The C|h/ hereby declares a moratorium on the
establishment of any smoke shop, electronic dQan*Ue n*tmi|er, or drug
paraphernalia retailer.
a. The establishment of any smoke shop, electronic cigarette retai|er,
or drug paraphernalia retailer is prohibited. The City uheU not approve any new
or pending application for any permit, license, or other entitlement for the
establishment or operation of any nrnoka ohnp, electronic cigarette natai|ar, or
drug paraphernalia retailer.
b. For purposes of this Ordinance, the term "smoke mhop" means any
astob|iohment, mkuotuno, faci|ih/, vehiu|a, stand or cart that devotes more than
2096 of either its floor space or display area 8o the sale, diap|ey, morketing,
bartering, trading or exchange of any combination of tobacco, tobacco products,
or smoking or tobacco paraphernalia.
C. For purposes of this Ordinance, the Kaon "drug paraphernalia
retailer' means any establishment, otmduna, taci|ity, veh|de, stand or cart that
devotes any floor space or display area to the sale, display, marketing, bartering,
trading nr exchange of drug paraphernalia.
d. For purposes of this (]rdinance, the term "drug paraphernalia" is
defined by reference to California Health and Safety Code Section 11014.5.aait
now exists or may be amended in the future.
Ordinance Number 1632-U
o. For purposes of this Ordinance, the term "electronic cigarette
retailer' means any establishment, otruotune, hao|ih/, vehicle, stand or cart that
devotes any floor space or display area to the sale, diop|ay, marketing, bartering,
trading ur exchange of electronic cigarettes.
[ For purposes of this OnJinancm, the term "electronic cigarette"
means an electronic and/or battery-operated davioe, the use of which may
nooemb|o smoking that can be used N deliver an inhaled dose of nicotine or
other substances. The term includes any such devioo, whether manuhadunmd,
dinbibubed, morkebed, or sold as an electronic cigan*de, an electronic dgor, an
electronic dgahUo, an electronic p|po, an electronic hnnkah, or any other product
name ordescriptor. The term does not include any medical inhaler prescribed by
e licensed doctor.
g. The terms defined above shall be broadly and liberally interpreted
to carry out the intent of this interim Ordinance.
Section 5. Term. This Ordinance inan emergency ordinance within the
meaning of the Qb/ 6hader and an urgency ordinance for the immediate
pvoaemoUon of the public peaoe, health and safety within the meaning of
Government Code Section 36937(b) and therefore shall be passed immediately
upon its introduction and shall become effective immediately upon its adoption.
This Ordinance shall expire on August 25, 2014 un|oon extended by the Qh/
Council at e regularly noticed public hearing pursuant to California Government
Code Section 85858.
Section 6' {EQ\1FindUng. The City Council hereby finds that itcan be
seen with certainty that there isno possibility the adoption of this Ordinance and
establishment of the interim moratorium hereby. (1) will have e significant effect
on the onvironment, because the moratorium imposes greater limitations on
smoke ohopa, drug paraphernalia and electronic oigopa#e retailers in the Qb/
than the limitations currently required under the Municipal Code. and (2) will
thereby serve to reduce potential significant adverse environmental impacts, It is
therefore exempt from California Environmental Quality Act review pursuant to
Title 14, Section 1SOG1(b)(3)of the California Code ofRegulations.
Section 7. Penalty. Violation of any provision of this Ordinance shall
constitute a misdemeanor and shall be punishable by a fine not to exceed $1,000
or by imprisonment for a period not 0uexceed nix mnnthn, or by both such fine
and imprisonment. Each and every day such o violation exists shall constitute a
separate and distinct violation cf this Ordinance. |n addition hu the foregoing, any
violation of this Ordinance shall constitute a public nuisance and shall be subject
to abatement as provided by all applicable provisions oflaw.
Section 8. SeverdbOity. If any section, ouboenUnn, nubdivio|on,
paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for
any reason held to be invm|id, such invalidity shall not affect the validity nfthe
remaining portions of this Ordinance n/ any part hereof. The City Council cf the
City of Seal Beach hereby declares that it would have passed each aecUon,
ouboenUon, nubdivioion, panagmph, sontonco, o|aumo or phrase h*neof,
irrespective of the fact that any one ur more sections, subsections, subdivisions,
paragraphs, sentences, clauses or phrases be declared invalid.
Section 9. The City Clerk shall certify hothe passage and adoption of
this Ordinance and aheU cause the same or summary thereof to be published
and posted in the manner required bylaw.
PASSED, APPROVED AND ADOPTED by the City Council of the City ofSeal
Beach ata meeting thereof held on the _23[d day of 2013.
Mayor
ATTEST:
City Clerk
STATE OFCALIFORNIA }
COUNTY OFORANGE }SS
CITY OF SEAL BEACH }
|.Lindo Devine, City Clerk oJ the City ofSeal Beach, California, do hereby cmr*
that the foregoing ordinance is an original copy of Urgency Ordinance Number
1632-U on file in the office of the City Clerk, passed, approved and adopted by the
City Council of the City of Seal Beach, pursuant to the City Charter and
Government Coda § 36067(b)' at a meeting held on the 23rd of
September .2813by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
and do hereby further certify that Urgency Ordinance Number 1632-U has been
published pursuant to the Seal Beach City Charter and Resolution Number 2836.
City Clerk