Urgency Ordinance of the City of Livingston Making Findings and Extending a Temporary Moratorium on the Establishment and Operation of Smoke Shops and Smoking Lounges, to Become Effective Immediately

LIVINGSTON CALIFORNIA / DECEMBER 14, 2013

Meeting Date: December 17, 2013

Agenda Item #1. Urgency Ordinance of the City of Livingston Making Findings and Extending a Temporary Moratorium on the Establishment and Operation of Smoke Shops and Smoking Lounges, to Become Effective Immediately

{Note from TheGardeningSnail: This page was produced by using a program that converts Image to Text. My apologies for any textual gremlins that may have crept in. I have taken the liberty of breaking up some of the longer paragraphs – for ease of reading.}

STAFF REPORT

AGENDA ITEM: Urgency Ordinance of the City of Livingston Making Findings and Extending a Temporary Moratorium on the Establishment and Operation of Smoke Shops and Smoking Lounges, to Become Effective Immediately.

MEETING DATE: December 17, 2013

PREPARED BY: Jose M. Sanchez, City Attorney

REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMENDATION:

Staff recommends that City Council adopt Urgency Ordinance No. 608, making findings and extending a temporary moratorium on the establishment and operation of smoke shops and smoking lounges for a period of 10 months and 15 days, to become effective immediately.

BACKGROUND:

California Government Code section 65858, subdivision (a) authorizes city legislative bodies to adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body is considering or studying or intends to study within a reasonable time.

Under Section 65858, adoption of such urgency measures requires a four-fifths vote of the legislative body.

Urgency measures adopted under Section 65858 expire 45 days from the date of adoption, although they may be extended a maximum of two times and have a maximum total duration of 2 years.

Section 65858, subdivision (c) provides that legislative bodies may not adopt or extend interim ordinances under the section unless they contain findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional entitlements would result in that threat to the public health, safety or welfare.

At its November 22, 2013, Special Meeting, the Council adopted Urgency Ordinance No. 608 establishing a 45-day moratorium on the establishment, expansion or relocation of Smoke Shops and Smoking Lounges.

The purpose of the moratorium was to give City staff time to analyze, consider and possibly adopt updated zoning regulations to best address new imminent threats to public safety, health, and welfare resulting from these businesses.

Since the adoption of Ordinance No. 608, City staff has begun reviewing and analyzing possible approaches to new zoning provisions related to these types of businesses and anticipates bringing the item to Planning Commission for discussion in January.

As previously reported at the November 22, 2013 meeting, this type of use is not specifically contemplated in the Zoning Ordinance.

The City’s Code does not adequately address performance or locational criteria for this type of use. Currently, "tobacco stores" are referenced in the Zoning Ordinance for the purpose of determining a business license fee (3-2-3-(A)), and no definition exists in Title 5, Zoning Regulations.

Typically, stores that sold primarily tobacco would be considered retail stores and would be allowed in the following zones: C-1, DTC, C-2 and C-3.

In the weeks prior to the establishment of the tempora1y moratorium, the City received two separate business license applications for smoke shops within the Downtown Commercial District (DTC).

Staff brought forth the moratorium for Council’s consideration because they were concerned that without proper regulations, these establishments may result in unwanted negative impacts to surrounding establishments.

DISCUSSION:

Adoption of this Ordinance will extend, by ten (10) months and fifteen (15) days, the temporary moratorium on the establishment, expansion or relocation of Smoke Shops and Smoking Lounges previously adopted by the City Council on November 22, 2013 via Ordinance No. 608. This moratorium is needed in order to:

(1) further address concerns regarding the establishment and operation of Smoke Shops and Smoking Lounges;

(2) further study the potential impacts that these types of businesses may have on the public health, safety and welfare;

(3) further study and determine what local regulations may be appropriate or necessary for Smoke Shops and Smoking Lounges;

(4) further study and determine the appropriate zoning and location for these types of businesses; and

(5) determine appropriate measures to ensure the protection of public health, safety and welfare.

The 45-day temporary moratorium expires on January 6, 2014. Since the potential threats to public health, safety, and welfare identified by the Council in Urgency Ordinance No. 608 still exist, and in order to allow the City sufficient time to complete the above stated activities,

Staff recommends that the Council extend the moratorium for the period allowed under Government Code section 65858 of 10 months and 15 days.

The moratorium may be terminated prior to its expiration as soon as an ordinance is presented to Council, adopted and effective. Extension of the moratorium requires at least a four-fifths vote of the Council.

The attached ordinance contains findings required by law for adoption of such an ordinance. If adopted by a four-fifths (4/5) vote of the Council, the ordinance would take immediate effect, and remain in effect for 10 months and 15 days.

Concurrently, Staff has begun the process of researching similar regulations in other jurisdictions, and is anticipating bringing the item forward to the Planning Commission for review in January.

This report and its attachments constitute the written report required by Government Code section 65858(d).

ATTACHMENTS:

1. Urgency Ordinance No. _

ORDINANCE NO.

AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON MAKING FINDINGS AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF SMOKE SHOPS AND SMOKING LOUNGES, TO BECOME EFFECTIVE IMMEDIATELY

THE CITY COUNCIL OF THE CITY OF LIVINGSTON DOES ORDAIN AS FOLLOWS:

Section 1. Findings.

WHEREAS, the City of Livingston ("City") has an overriding interest in planning and regulating the use of property within the City. Implicit in any plan or regulation is the City’s interest in maintaining the quality of urban life and the character of the City’s neighborhoods. Without stable, well-planned neighborhoods, sections of the City can quickly deteriorate, with negative consequences to property, social and environmental values; and

WHEREAS, at its November 22, 2013 Special Council Meeting, pursuant to California Government Code section 65858, the City Council of the City of Livingston adopted Urgency Ordinance No. 608 imposing a 45-day moratorium on the establishment and operation of Smoke Shops and Smoking Lounges; and

and

WHEREAS, Ordinance No. 608 will, unless extended, expire by its own terms on January 6, 2014;

WHEREAS, this Urgency Ordinance incorporates by reference all the findings provided in Urgency Ordinance No. 608 and its accompanying staff report; and

WHEREAS, Government Code section 65858 authorizes the extension of the moratorium, after a noticed public hearing, to prohibit uses of land which may conflict with a contemplated general plan, specific plan or zoning proposal which the legislative body, planning commission or planning department is considering or studying or intends to study within a reasonable period of time; and

WHEREAS, pursuant to Article XI, Section 7 of the California Constitution, the City of Livingston may make and enforce, within its limits, all local police, sanitary, and other ordinances and regulations not in conflict with general laws; and

WHEREAS, the City has received, and anticipates additional, requests for the establishment and operation of Smoke Shops (as defined in this Ordinance) within the City. However, the Livingston Municipal Code does not contain provisions that specifically regulate the establishment and operation of Smoke Shops and Smoking Lounges in the City and is therefore inadequate and need review, study, and revision. The current Code fails to thoroughly address the impacts related to the location and manner of construction, establishment, and operation of Smoke Shops and Smoking Lounges in relation to public health, safety, and welfare concerns, including, but not limited to, the impacts they may have on surrounding uses and the community; and

WHEREAS, City staff expects that more applications for Smoke Shops and Smoking Lounges will be received. Without a moratorium, the City would need to make its decisions on any business license or permit based on the City’s current codes; and

WHEREAS, without the extension of this moratorium, multiple applicants could quickly receive entitlements which would allow additional Smoke Shops and Smoking Lounges that could pose a threat to the public health, safety, and welfare. The City Council hereby determines that the Municipal Code is in need of updating to protect the public against potential health, safety, and welfare dangers caused by Smoke Shops and Smoking Lounges. The City requires additional time to prepare, evaluate and adopt reasonable regulations regarding the construction, placement, and operation of Smoke Shops and Smoking Lounges; and

WHEREAS, in order to address community concerns regarding the establishment of Smoke Shops and Smoking Lounges, it is necessary for the City to study the potential impact such facilities may have on the public health, safety and welfare and to study the possible adoption of amendments to the City’s Municipal Code and Zoning Code; and

WHEREAS, because the City has not adopted rules and regulations specifically applicable to the establishment and operation of Smoke Shops and Smoking Lounges, the lack of such controls may lead to the proliferation of such businesses and the inability of the City to regulate these establishments in a manner that will protect the general public, homes and businesses adjacent to and near such businesses, and the clients of such establishments. The City Council finds that there is a threat to the public health, safety and welfare of the community if Smoke Shops and Smoking Lounges locate within the City without proper regulations in place; and

WHEREAS, California Government Code section 65858, Subdivision (a) provides: that city legislative bodies may, to protect public safety, health and welfare, adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body is considering or studying or intends to study within a reasonable time; that adoption of such urgency measures requires a four-fifths (4/5) vote of the legislative body; and that such measures shall be of no further force and effect 45 days from the date of adoption, and may be extended a maximum of two times and have a maximum total duration of 2 years; and

WHEREAS, California Government Code section 65858, Subdivision (c), provides: that legislative bodies may not adopt or extend such interim ordinances unless they contain findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional entitlements would result in that threat to the public health, safety or welfare; and

WHEREAS, the City Council desires to: (1) address the community concerns regarding the establishment and operation of Smoking Shops and Smoking Lounges; (2) study the potential impacts that Smoking Shops and Smoking Lounges may have on the public health, safety and welfare; (3) study and determine what local regulations may be appropriate or necessary for Smoking Shops and Smoking Lounges; (4) study and determine the appropriate zoning and location for Smoking Shops and Smoking Lounges; and (5) determine appropriate controls for the protection of public health, safety and welfare; and

WHEREAS, Staff shall commence steps to conduct a study of the potential impacts of Smoking Shops and Smoking Lounges, and possible amendments to the City’s Municipal and Zoning Code, for clear, consistent and uniform regulations related to the establishment, location and operation of such businesses.

Section 2. Moratorium Extended.

A. Scope

In accordance with the authority granted to the City of Livingston under Article XI, Section 7 of the California Constitution and California Government Code section 65858, the moratorium imposed by Ordinance No. 608, which provides that no permit or any other applicable license or entitlement for use, including, but not limited to, the issuance of a business license, business permit, building permit, conditional use permit, or zoning text amendment shall be approved or issued for the establishment or operation of Smoke Shops and Smoking Lounges in the City of Livingston, shall hereby be extended for a period of ten (10) months and fifteen (15) days from and after the date that Ordinance No. 608 would have otherwise expired, January 6, 2014. Additionally, the express prohibition against Smoke Shops and Smoking Lounges in all areas and zoning districts of the City contained in Ordinance No. 608 is also hereby extended for a period of ten (10) months and fifteen (15) days from and after the date that Ordinance 687-2013 would have otherwise expired, October 26 2013.

B. Definitions.

1. For purposes of this ordinance, "Smoke shop" is defined as a retail establishment that devotes 15% or more of its total floor space to products intended or designed for use in ingesting, inhaling or otherwise introducing tobacco or controlled substances into the human body, including but not limited to tobacco products, smoking oils and extracts, electronic cigarettes which contain nicotine and emit smoke or vapor, and smoking accessories, including but not limited to rolling papers, rolling machines, herb grinders, scales, glass pipes, hookah pipes, bongs, bubbler or other paraphernalia. Herbal and nicotine containing products which do not generate smoke and incense used solely for olfactory purposes and not containing tobacco or nicotine, are not included in this definition.

2. For purposes of this ordinance "Smoking Lounge" means a business establishment that is dedicated, in whole or in part, to the smoking of tobacco or other substances, including but not limited to establishments known variously as cigar lounges, hookah cafes, tobacco clubs, tobacco bars, etc. (Collectively referred to as "Smoking Lounge(s)."}

3. For purposes of this ordinance, "Smoke" means the gases, particles or vapors released into the air as a result of combustion, electrical ignition or vaporization when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, but excluding incense or similar products inhaled solely for olfactory purposes so long as the products do not contain nicotine or tobacco. The term "Smoke" includes but is not limited to tobacco smoke, electronic cigarette vapors and marijuana smoke. The term "Smoke" does not include the product of combustion of incense or similar products which do not contain tobacco or nicotine, when used solely for olfactory purposes.

C. Statutory Findings and Purpose

This Ordinance, which extends the effective period of Ordinance No. 608, is declared to be an interim ordinance adopted as an urgency measure pursuant to Government Code section 65858 and is for the immediate and long-term preservation of the public peace, health, and welfare. This Ordinance is deemed necessary based on the findings of the City Council of the City of Livingston as set forth herein.

Section 3. Public Nuisance.

The establishment, maintenance or operation of Smoke Shops and Smoking Lounges, as defined herein within the City limits of the City of Livingston, are a public nuisance. Violations of this Ordinance may be enforced by any applicable law, including but not limited to, injunctions, administrative citations, or criminal penalties.

Section 4. CEQA.

Pursuant to Section 15001 of the California Environmental Quality Act ("CEQA") Guidelines, this Ordinance is exempt from CEQA based on the following:

(1) This Ordinance is not a project within the meaning of Section 15378 of the State CEQA Guidelines because it has no potential for resulting in physical change in the environment, directly or ultimately.

(2) This Ordinance is categorically exempt from CEQA under Section 15308 of the CEQA Guidelines as a regulatory action taken by the City pursuant to its police power, and in accordance with Government Code section 65858, to assure maintenance and protection of the environment pending the evaluation and adoption of contemplated local legislation, regulation and policies.

(3) This Ordinance is not subject to CEQA under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. For the reasons set forth in subparagraphs (1) and (2), above, it can be seen with certainty that there is no possibility that this Ordinance will have a significant effect on the environment.

Section 5. Severability.

If any provision of this Ordinance or the application thereof to any person or circumstance, is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid or unenforceable.

Section 6. Effective Date and Duration.

This Ordinance shall become effective immediately upon passage and adoption by at least a four-fifths (4/5) vote of the City Council, and shall be in effect for ten (10) months and fifteen (15) days from and after the date that Ordinance No. 608 would have expired, January 6, 2014, unless further extended by the City in accordance with California Government Code section 65858.

PASSED AND ADOPTED, THIS day of , 2013, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Rodrigo Espinoza, Mayor

ATTEST:

Antonio Silva, City Clerk

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