Urgency Ordinance of the City of Livingston Making Findings and Establishing a Temporary Moratorium on the Establishment and Operation of Smoke Shops and Smoking Lounges.

Meeting Date, November 22, 2013

Agenda Item #1Urgency Ordinance of the City of Livingston Making Findings and Establishing a Temporary Moratorium on the Establishment and Operation of Smoke Shops and Smoking Lounges.

STAFF REPORT

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

MEETING DATE: November 22, 2013

PREPARED BY: Jose M. Sanchez, City Attorney

REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMENDATION:

Staff recommends that City Council adopt Urgency Ordinance , making findings and establishing a temporary moratorium on the establishment and operation of smoke shops and smoking lounges, to become effective immediately.

BACKGROUND:

The City’s current Zoning Ordinance does not specifically contemplate uses that are primarily based in the sale or on-site use of tobacco, drug or related products often referred to as tobacco shops, smoke shops, smoking lounges, head shops or hookah bars. Since this type of use is not specifically contemplated, the Zoning Ordinance 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 past few weeks, the City has received two separate business license applications for smoke shops within the Downtown Commercial District (DTC). Staff is concerned that without proper regulations, these establishments may result in unwanted negative impacts to surrounding establishments.

DISCUSSION:

Pursuant to California Government Codes Section 65858, the attached moratorium would establish a temporary City-wide moratorium on the establishment and operation of smoke shops and smoking lounges in the City. Adoption of the Ordinance would provide Staff time to review and consider the possible adoption of new zoning standards regulating these types of businesses in the City in order to ensure the protection of the public health, safety and welfare and to ensure that the locations for these types of businesses are established in a manner that is consistent with the standards, goals and policies of the City’s current General Plan.

Currently, Livingston does not have specific language in its Zoning Ordinance that regulates this type of use. Adoption of the ordinance would provide the City time to review and consider the potential new Zoning standards regulating these types of businesses in the community in order to ensure the protection of the public health, safety and welfare and to ensure that the locations for these types of businesses are established in a manner that is consistent with the standards, goals and policies of the City’s General Plan.

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 4/5 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. As indicated above, the City has two active business license applications for these types of uses.

The attached ordinance contains findings required by law for adoption of such an interim ordinance. If adopted by a 4/5 vote of the Council, the ordinance would take immediate effect, and remain in effect for 45 days. If the Council intends to extend the ordinance, it will be necessary to provide notice, prepare a report, and adopt an ordinance extending the moratorium prior to the expiration of the initial 45-day period. Concurrently, Staff would begin the process of researching similar regulations in other jurisdictions and bring the item forward to the Planning Commission for review and recommendation by the City Council.

ATTACHMENTS:

1. Urgency Ordinance No.

ORDINANCE NO. _

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

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, smoke shops and smoking lounges sell and permit the use of tobacco and nicotine-containing products that emit smoke or vapors; and

WHEREAS, tobacco and nicotine-containing products that emit smoke or vapors are known to cause serious health issues; and

WHEREAS, the City’s Municipal Code and Zoning Ordinance do not specifically regulate the location or operation of smoke shops or smoking lounges; and

WHEREAS, the proliferation of establishments that permit the smoking of tobacco or other substances; that sell or display smoking, drug and/or tobacco paraphernalia, and other items promoting the use of tobacco products; that promote or encourage the use of illegal drugs or controlled substances as defined in Health and Safety Code section 11007; and/or that characterize paraphernalia which can be used for consumption of illegal drugs or controlled substances as intended for use with tobacco products, may adversely affect the City’s ability to attract and retain businesses and shoppers to areas of the City necessary for its economic growth and vitality; and

WHEREAS, permitting the sale of smoking, drug and/or tobacco paraphernalia without appropriate regulation may adversely affect the City’s economic vitality, may promote the consumption and purchase of controlled substances by minors by increasing their exposure to tobacco and drug paraphernalia, may result in high concentration of controlled substance­ related uses in certain neighborhoods, may result in a threat to public health, safety, and welfare and may not be compatible with existing and potential uses of similarly zoned businesses; and

WHEREAS, it is urgent and essential to the general health, safety, and welfare of the community and its citizens and the promotion of proper land use, to immediately prohibit for a limited time the issuance of building, zoning, occupancy, and all other permits and licenses for the establishment and expansion of smoke shops and smoking lounges, to allow time to study the issue so that appropriate land use controls can be developed; and

WHEREAS, in the past fast few weeks, City Staff received two separate applications for smoke shops within the City, one at 517 Main Street, Suite B and the other at 1472 B Street, Suite D in the City of Livingston; and

1

WHEREAS, the City Council expressly finds and declares that this ordinance is necessary for protecting the public safety, health, and welfare and urgent action is needed to consider: (1) the potential negative effects of smoke shops and smoking lounges on public health, welfare and safety, as detailed herein; (2) potential proliferation of smoke shops and smoking lounges; (3) ambiguities in the City’s Zoning Ordinance; (4) the City’s need to study the zoning, health and safety, and economic development impacts of said business; and

WHEREAS, the City Council finds and determines that the public safety, health, convenience, comfort, prosperity, and general welfare will be furthered by the proposed moratorium; and

WHEREAS, Article XI, Section 7 of the California Constitution provides that a city may make and enforce within it limits all local police, sanitary and other ordinances and regulations not in conflict with general laws; 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 vote of the legislative body; that such measures shall be of no 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, pursuant to Section 15001 of the California Environmental Quality Act (CEQA) Guidelines, this ordinance is not subject to CEQA, or is categorically exempt from 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) below, it can be seen with certainty that there is no possibility that this ordinance will have a significant effect on the environment.

(1) This ordinance is not a project within the meaning of Section 15378 of the California Code of Regulations, Title 14, Chapter 3 ("CEQA Guidelines"), because it merely preserves the status quo for development uses in certain zoning districts in the City of Livingston pending review of the City Zoning Code and potential adoption of new legislation relating to said uses, and therefore has no potential for resulting in physical change in the environment, directly or indirectly.

(2) Alternatively, 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) Alternatively, this ordinance is categorically exempt from CEQA under Section 15050(c)(2) of the CEQA Guidelines because it preserves the physical status quo in the City and will not result in a direct or reasonably foreseeable indirect physical change in the environment.

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

Section 1. Recitals Made Findings. The above recitals are hereby declared to be true and correct and findings of the City Council of the City of Livingston.

Section 2. Moratorium Imposed.

A. Scope.

In accordance with the authority granted the City of Livingston under Article XI, Section 7 of the California Constitution and California Government Code Section 65858, from and after the effective date of this ordinance, no permit or any other applicable license or entitlement for use, including, but not limited to, the issuance of a business license, shall be approved or issued for the establishment or operation of a smoke shop or smoking lounge in the City of Livingston. This moratorium shall not apply to the renewal of a business license for an existing business of these types in the City provided the renewal seeks to maintain the business in its existing location without expansion of the use.

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, 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 purpose 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 is declared to be an interim ordinance as defined under California Government Code section 65858. This ordinance is deemed necessary based on the following findings of the City Council of the City of Livingston:

1. The purpose of this Ordinance is to protect the public safety, health and welfare from a current and immediate threat posed by the establishment of new and expansion of existing smoke shops and smoking lounges. The facts constituting the urgency are: in the past few weeks, the receipt of business license applications from two different parties in the last month requesting to open smoke shops in the Downtown Commercial District (OTC). Staff has not issued the business licenses yet.

Further, Smoke shops and smoking lounges sell tobacco products and the use of tobacco products is a serious health issue. Smoke shops also sell smoking paraphernalia which may promote the illegal consumption and purchase of drugs by children and minors by increasing their exposure to smoking paraphernalia that may be used for other drugs. The City of Livingston does not currently have standards in the Livingston Municipal Code related to the location, operation and concentration of smoke shops and smoking lounges within the City.

2. Absent the adoption of this urgency ordinance, the establishment and operation of smoke shops and smoking lounges in the City would result in the harmful secondary effects detailed herein.

3. The City Council finds that these uses as currently regulated are not specifically prohibited or regulated in areas adjacent to schools, public parks, or public libraries. Thus, as applications for business license are submitted to the City, there is no determination as to whether such potential uses are consistent with the purpose and intent of the City’s Zoning Code and General Plan.

4. The City Council finds that, in general, these types of businesses, as presently regulated in other cities, have resulted in serious harmful effects, including but not limited to loitering, drug sales, littering, aesthetically unappealing premises, lowering of surrounding property values, increase of public nuisances, and an increase of other criminal activity.

5. The City Council finds that smoke shops and smoking lounges promote the illegal consumption and purchase of illegal drugs by children and minors by increasing their exposure to tobacco paraphernalia that may be used for other drugs, contribute to high concentrations of controlled substance-related uses in certain neighborhoods, and adversely affect the City’s economic vitality.

6. The City has concluded that the best method of protecting the public safety, health, and welfare is to adopt regulations concerning the operation of smoke shops and smoking lounges, and/or businesses offering related services.

7. The City finds that absent the adoption of this urgency ordinance, the City could be required to approve the establishment of the above mentioned type of businesses, which in turn would result in an increase in the identified harmful effects.

8. The City Council finds that it is necessary to ensure that these types of businesses are properly located and regulated within the City, both to protect public health, safety, and welfare, and to ensure that the locations for these types of businesses are established in a manner that is consistent with the standards, goals, and policies of the City’s General Plan.

9. The City Council finds it necessary and desirable to have the Community Development Department review and consider the possible adoption of new zoning standards regulating these types of businesses in the City in order to ensure that the locations for these types of businesses are established in a manner that is consistent with the standards, goals, and policies of the City’s General Plan.

10. In light of the harmful secondary effects associated with the establishment of smoke shops and smoking lounges in the City of Livingston, and the current and immediate threat such secondary effects pose to the public health, safety and welfare, it is necessary, in accordance with Government Code Section 65858, to impose a moratorium on the issuance of entitlements for and the establishment of new and/or expanded smoke shops and smoking lounges in the City to provide time for the City Council to further evaluate and consider possible adoption of legislation, guidelines and/or polices as required to avert the potential impacts of smoke shop and smoking lounge uses in the City.

Section 3. 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 4. Effective Date and Duration.

This Ordinance shall become effective immediately upon passage and adoption if passed and adopted by at least four-fifths (4/5) vote of the City Council and shall be in effect for 45 days there from unless extended by the City in accordance with California Government Code section 65858.

PASSED AND ADOPTED, THIS 22nd day of November, 2013, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

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Rodrigo Espinoza, Mayor of the City of Livingston

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