HomeMy WebLinkAbout45 - PH-1 - Code Amendment CO-15-02 - 9/1/2015CITY COUNCIL AGENDA REPORT
MEETING DATE: SEPTEMBER 1, 2015 ITEM NUMBER: PH -1
SUBJECT: CODE AMENDMENT CO -15-02: AN AMENDMENT TO TITLE 8 AND TITLE 13 OF THE
COSTA MESA MUNICIPAL CODE RELATED TO VAPING IN PUBLIC FACILITIES AND
THE REGULATION OF SMOKING LOUNGE USES
FROM: PLANNING DIVISION I DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: STEPHANIE ROXAS, ASSOCIATE PLANNER
DATE: AUGUST 20, 2015
FOR FURTHER INFORMATION CONTACT: STEPHANIE ROXAS, AICP (714) 754-5667
stephanie.roxas@costamesaca.gov
RECOMMENDATION
Pursuant to the Planning Commission's recommendation, give first reading to Ordinance
No. 15-10 (Attachment 1), to be read by title only, and waive further reading.
BACKGROUND
Moratorium Expires on November 5, 2015
On November 5, 2013, the City Council adopted Urgency Ordinance No. 13-07 approving
an initial 45 -day moratorium on hookah lounges prohibiting the establishment of new
hookah lounges within City limits. On December 3, 2013, the City Council extended the
moratorium for an additional 10 months and 15 days. On October 7, 2014 the City
Council approved a twelve month extension of the moratorium to allow for further study of
regulatory options for hookah lounges. The moratorium will expire on November 5, 2015.
Local Laws for Smoking Lounges
Staff reviewed ordinances from other Orange County cities relative to the regulation of
smoking lounge uses. The following table lists which cities prohibit and permit smoking
lounges, and more information on their regulations is provided in Attachment 5.
City Prohibits Smoking Lounges
City Requires a CUP for Smoking Lounges
*Permitted ministerially subject to criteria
Irvine San Clemente
Anaheim* Laguna Beach
Laguna Niguel Santa Ana
Buena Park* Lake Forest
Newport Beach Seal Beach
Fountain Valley Mission Viejo
Orange
Huntington Beach* Westminster*
Planning Commission Actions
Over the last few years, staff and the Planning Commission evaluated different regulatory
options and considered potential Code amendments that would mitigate the negative
effects associated with hookah lounge uses. During this time, the City also experienced
an increase in the number of e -cigarette retail establishments, so this work effort was also
extended to electronic cigarettes, or "e -cigarettes". Currently, electronic cigarettes are not
regulated by the Food and Drug Administration or the City's Zoning Code.
On July 27, 2015, the Planning Commission held a public hearing to consider Code
Amendment CO -15-02 amending Costa Mesa Municipal Code Title 8, Chapter 8 related
to vaping in public facilities and Title 13 (Zoning Code) to create regulations for new
smoking lounge establishments. The meeting minutes are provided as Attachment 2,
and a list of existing businesses notified of the public hearing is provided as Attachment 3.
The proposed regulations within the ordinance were developed in response to specific
areas of concerns previously cited by the Planning Commission and City Council. During
the hearing, several members of the public generally spoke of the distinction between
tobacco and electronic cigarette/vaping products and their users. The Planning
Commission recommended approval of the draft ordinance with several modifications
intended to address the concerns raised relative to vaping businesses. A summary of the
public comments and links from the Planning Commission meeting are provided below:
Planning Commission Staff Report:
http://www. costamesaca.gov/ftp/planningcommission/agenda/2015/2015-07-27/PH-2.pdf
Meeting Minutes: (Attachment 2)
http://www.costamesaca.gov/modules/showdocument.aspx?documentid=19185
Planning2015
Name, Affiliation
Summary of Public Comments Related to Vaping / E -Cigarettes
Austin Hopper,
Thanked the City for the ordinance and appreciated the City's efforts to
supplier of electronic
support existing businesses by allowing them to operate as normal.
cigarette products
Douglas Hughes,
Stated reasons why electronic cigarettes are less harmful than
vapor business owner
tobacco.
Norm Bour,
Stated the City is "pro-business" compared to other cities that have
Vapor Mentor
required CUP's for vape shops. He commended the City for allowing
the existing businesses to continue operating.
Laura McCollum,
Wanted to see bans on the vaping industry in the general Southern
SoCal Vape Expo
California region stopped.
Shane Simpson,
Gave personal testimony on how vaping has helped him quit smoking
C3 Vapors
and changed his life. Does not like vaping to be associated with
tobacco.
Lucy Noble,
Wanted the City to continue allowing product testing inside vape
Alley Blends LLC
shops. She also spoke about the benefits of electronic cigarettes.
John Cavanaugh,
Owns several businesses in the Costa Mesa area and thanked the City
owner of vaping retail
for the ordinance. Supported the Commission's proposed modifications
businesses
to the ordinance to distinguish between vaping and tobacco products.
ANALYSIS
The draft ordinance recommended by the Planning Commission is provided as
Attachment 1. Each proposed regulation was developed in response to a specific
issue/concern raised by the Planning Commission or City Council at previous meetings,
which are summarized in the table below and detailed further in this report.
Issue
Proposed Regulation
1.
Smoking lounges are not currently
1.
Add a definition and create zoning
regulated by the Zoning Code.
regulations specifically pertaining to
smoking lounges.
2.
In the past, retail stores have
2.
Add a definition for "smoking/vaping
expanded their business to include
retailers" to preclude the establishment of
lounge uses without City approval.
lounge uses as part of a retail store.
3.
The City's current ban on smoking in
3.
Prohibit vaping in specified public places
parks and facilities does not
by amending the definition of "smoking" in
including electronic cigarettes.
Title 8, Chapter V of the Code.
4.
Existing businesses would become
4.
Consider the existing two, legally -
nonconforming by the proposed
established smoking lounges as legal
ordinance.
nonconforming uses, which may be
subject to discontinuation or closure in the
future under specific circumstances.
5.
Smoking lounges may be
5.
Create standards to allow several zoning
incompatible with residential areas
districts where new smoking lounges may
and public uses.
be permitted by right or conditionally
permitted.
6.
The Zoning Code does not have
6.
Create operational and development
regulations to address "nuisance"
standards to address various potential
type impacts from smoking lounges.
issues, including but not limited to:
o Noise
o Public Safety
o Building Safety
o Parking
7.
Additional concerns were raised by
7.
The Planning Commission recommended
vaping industry representatives at
changes to the definitions to distinguish
the July 27, 2015, Planning
between tobacco and electronic
Commission meeting.
cigarette/vaping products.
In developing the recommend ordinance, staff researched other cities, evaluated
regulatory options, and identified best practices in the regulation of smoking lounges. For
the City Council's reference, Attachments 5 and 6 summarize smoking lounge and
outdoor vaping regulations from other Orange County cities, and Attachment 7 references
where the language in the draft ordinance originated from.
1. Add a definition and create zoning regulations specifically pertaining to smoking
lounges.
Smoking lounge uses are not defined by the Zoning Code. Currently, smoking lounges
are treated like restaurants and regulated accordingly. The proposed change recognizes
smoking lounges as a separate and distinct use. In addition to adding this use to the
Citywide Land Use Matrix, the ordinance creates a section in the Special Land Use
Regulations chapter of the Zoning Code to create additional zoning standards specifically
for smoking lounges (detailed in subsection #6 of this report).
2. Add a definition for "smoking/vaping retailers" to preclude the establishment of lounge
uses as part of a retail store.
The recommended ordinance does not affect existing, legally -permitted retail stores of
electronic cigarettes, vape-related products, tobacco products, and cigars. The intention
of this proposed regulation is to allow existing smoking/vaping retail businesses to
continue their current business operations, while establishing specific parameters to
distinguish between new retail and lounge establishments.
The ordinance would distinguish between retail shops and smoking lounges. In the past,
establishments have opened in the City indicating on their business license applications
that they are retail uses only, but eventually established lounges without City approval.
To develop a definition, staff visited most of the smoking/vaping retailers in the City to
understand their business operations. The presence of food/beverage service and a
large lounge seating area would typically result in a higher volume of customers and
traffic that is greater than a conventional retail shop.
Proposed "Smoking/Vaping Retailer" Definition —
A smoke shop, electronic cigarette retailer, vapor cigarette retailer, or any other
retail business that sells tobacco, electronic cigarettes, and related products
primarily for off-site consumption. Smoking/vaping retailers shall not include food
or beverage service, outdoor seating, or an indoor seating area greater than 100
square feet in area.
All existing smoking/vaping retail businesses comply with this proposed definition.
Furthermore, the recommended ordinance allows vaping retailers to continue offering
product testing within the store, which is a common practice in this business industry.
3. Prohibit vaping in specified public places by modifying the current prohibition of
smoking in public facilities (Title 8, Chapter V).
The Costa Mesa Municipal Code (Title 8 - Health and Sanitation, Chapter V) currently
prohibits smoking in designated "no smoking" areas within public facilities and parks.
Because these provisions predated the technology of electronic cigarettes, this smoking
prohibition does not refer to electronic cigarettes. However, electronic cigarettes are
designed to resemble conventional cigarettes with unknown risk factors potentially
causing confusion and uncertainty with the enforcement of this regulation. By making
minor changes to the definitions in Title 8 of the Code, the existing prohibition would also
prohibit vaping and electronic cigarettes in parks and public facilities. The proposed
changes to the definition are red -lined below:
"Smoke" or "smoking" means and includes any of the following:
• The consumption of tobacco products, electronic cigarettes, and related
products by burning, inhalation, vaporization, or other forms of ingestion.
• The holding or carrying of a lighted or electronically -charged smoking device; or
• Emitting or exhaling the smoke or vapor directly from a cigar, cigarette, pipe,
electronic cigarette or any other lighted smoking device or substance.
The entire Code chapter is provided as Attachment 4 with the recommended Code
changes denoted in red. Attachment 6 summarizes other cities that have passed laws
limiting smoking/vaping in outdoor areas.
4. Consider the existing two, legally -established smoking lounges as legal nonconforming
uses, which may be subiect to discontinuation or closure in the future under specific
circumstances.
There are two businesses that are directly abutting residential uses; however, under the
current zoning requirements the City requires these businesses to close by 11 p.m.
i. Orange County Cigars — 2470 Newport Boulevard
- Hours of Operation: 3:00 p.m. to 10:00 p.m.
- Size of Lounge Area: Approximately 1,000 sq. ft.
Coastline Hookah Lounge (formerly Sultana Hookah) — 698 W. 19'" Street
- Hours of Operation: 5:00 p.m. to 11:00 p.m.*
(*Code Enforcement activity is pending on this property due to business
operations past the required 11 p.m. closure. Operating past 11 p.m. is not
permitted by the current Zoning Code. An extension of the business hours
would constitute a loss in its status as a legal, nonconforming use.)
- Size of Lounge Area: Approximately 1,000 sq. ft.
The recommended ordinance allows these two smoking lounges to continue operating at
their existing locations as legal nonconforming uses. The purpose of this regulation is to
ensure that the ordinance does not disrupt or displace existing, law-abiding businesses.
In this case, the legal nonconforming status signifies that:
• If the business is discontinued or abandoned for 6 consecutive months (or for 18
nonconsecutive months during a three year period), it shall be considered
discontinued and cannot be established.
Structural alterations such as building additions or expansion of the lease area
shall not be approved. Ordinary maintenance is allowed.
• No changes to the hours of operation beyond 11 p.m. shall be permitted.
• No changes to the size of the current business shall be permitted.
5. Create standards to allow several zoning districts where new smoking lounges maybe
Permitted by right or conditionally permitted.
As previously noted, the Zoning Code does not address smoking lounges. Currently,
smoking lounges are treated like restaurants and are permitted by right in a wide range of
areas throughout the City. Under the proposed Code amendment, new smoking lounges
would be permissible by right or by approval of a conditional use permit in three zoning
districts, which are summarized in the table:
Zoning District
Examples of Locations
Proposed Regulation
• Harbor Center (2300 Harbor)
CUP /
C1 -S
• K -Mart Center (2200 Harbor)
Public Hearing
(Shopping Center)
• 17th Street Village (241 & 267 E.
17th Street)Required
• The Triangle (1870 Harbor)
PDC
• Costa Mesa Courtyards (1835
CUP /
(Planned Development
Newport)
Public Hearing
Commercial)
• Mesa Verde Shopping Center
Required
2701 Harbor
MP
• Industrial properties along Redhill
Permitted, subject to
(Industrial Park)
Ave, Airway Ave, Pullman St,
compliance with
and Fischer Ave
standards
Attachment 8 is a map exhibit identifying these zones in the City. The C1 -S and PDC
districts include large commercial lots typically containing multiple building structures that
could buffer potential noise. The MP district includes large industrial properties generally
located near the airport with few surrounding residential uses. The proposed zoning
standards provides some opportunity for new smoking lounges to establish through a
streamlined process, with reserving the ability for the City to review new applications in
commercial areas on a case-by-case basis.
To prevent the establishment of new smoking lounges in a concentrated area, the draft
ordinance also requires smoking lounges to be separated by a minimum distance of
1,500 feet. For example, this regulation would not allow two smoking lounges within the
same commercial center.
Note for the Record: The ordinance proposed at the Planning Commission hearing
included separation requirements between smoking lounges and sensitive uses (i.e.,
schools and parks). Given that the recommended ordinance would already limit new
smoking lounges to specific zones, the additional distance separation requirements are
unnecessary, and consequently have been removed from the draft ordinance.
6. Create operational and development standards to address various potential issues.
As noted above, the recommended ordinance includes the creation of a new section in
the Zoning Code containing special land use regulations for smoking lounges. This new
section would include operational and development standards applicable to all smoking
lounges (new and existing), and the standards would be included as conditions of
approval. However, to provide flexibility and give the City discretion to consider unique
circumstances, applicants may request modifications to the standards through the
Conditional Use Permit process. The proposed operational and development standards
modeled after other cities (Anaheim, Westminster, Santa Ana) are intended to address
specific areas of concern, which are summarized below.
Areas of Concern
Proposed standards include:
o Hours of operation limited to 8:00 a.m. - 11:00 p.m.
o Outdoor business activities are prohibited.
Noise
o Live entertainment is prohibited.
o Businesses are subject to compliance with the City's Noise
Control standards and enforcement actions.
o Employees and customers must be over the age of 18.
o Alcoholic beverages are prohibited.
Public Safety
o The City has the discretion to require security guards.
o The interior of the business must be visible (i.e. no window
coverings) and adequately illuminated.
Building and Fire
o Business must comply with maximum building occupancy.
Safety
o Adequate ventilation must be provided.
Parking
o New smoking lounges must provide parking at a ratio of 17
spaces per 1,000 sq. ft. of floor area.
In addition, the Food and Drug Administration is currently proposing legislation that would
regulate electronic cigarettes. Accordingly, the ordinance includes a standard requiring all
businesses to operate in compliance with all applicable Federal, State, County, and local
laws, in the event laws relative to electronic cigarettes change in the future.
7. Planning Commission recommended changes to distinguish between tobacco and
electronic cigarette/vaping products.
As noted previously, the Planning Commission recommended modifications to the
definitions to address public comments regarding the differences between tobacco and
electronic cigarette/vaping products and their users. For example, under the Planning
Commission's changes, vape shops are no longer referred to as "tobacco retailers" and a
definition was added for electronic cigarettes.
Proposed "Electronic Cigarette" Definition —
An electronic and/or battery-operated device used to provide an inhalable dose of
nicotine by delivering a vaporized solution. The term includes any such device
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. The term does not include any medical
inhaler prescribed by a licensed doctor.
ADDITIONAL OUTREACH
The City reached out to other agencies, City departments, and local groups to provide an
opportunity to review the draft ordinance and provide staff with comments and input.
Outreach included, but was not limited to, the Orange County Health Care Agency
(OCHCA), Newport Mesa School District, Costa Mesa Police Department, and American
Lung Association in California. In addition, a representative from OCHCA will provide a
brief presentation to the City Council at the public hearing on September 1St and be
available to answer any questions regarding current legislation and the health aspects
of smoking/vaping.
Staff also conducted outreach to the business community, including contacting the
existing smoking lounges and smoking/vaping retailers in the City via phone calls,
emails, and site visits to inform them of the pending Code changes. Public notices
were mailed to all existing smoking lounges and smoking/vaping retailers in the City
apprising them of the Planning Commission and City Council hearings. This outreach
provided businesses with an opportunity to ask questions and express any concerns to
staff regarding the proposed ordinance. In addition, because a large number of
representatives from the vaping industry attended the Planning Commission meeting on
July 27, 2015, staff reached out to several business owners to ensure the proposed
ordinance addressed any sensitivities related to electronic cigarette/vaping businesses.
All correspondence received from the public are provided as Attachment 9.
LEGAL REVIEW
The draft ordinance has been reviewed by the City Attorney's Office.
ALTERNATIVES
The City Council may take the following actions:
1. Continue the meeting to address additional changes to the draft ordinance. The
deadline for Council to adopt an ordinance, under the current moratorium, is
November 5, 2015. The ordinance would need to be considered by September 15,
2015.
2. Direct staff to modify the ordinance and forward to City Council for consideration.
If the ordinance is not ultimately adopted by the City Council, smoking lounges
may continue to be established with no formal regulations in the Zoning Code.
Furthermore, individuals may continue to use electronic cigarettes in public parks,
and the existing moratorium on new hookah lounges would need to be extended.
CONCLUSION
The draft ordinance recommended by the Planning Commission does not require any
existing, legally -permitted smoking lounge, hookah parlor, smoke shop, or electronic
cigarette/vaping retail business to close or relocate their business. The draft ordinance is
intended to allow existing businesses to continue their current business operations,
while creating standards to ensure new smoking lounges operate in a manner that is
compatible with the surrounding area.
Over the last two years, the City Council and Planning Commission have expressed a
desire to formally regulate smoking lounges to minimize their negative impacts, including
increased levels of noise, loitering, odors, public nuisances, disturbances of the peace,
and the creation of unsafe conditions and situations. Staff researched other cities to
evaluate regulatory options and identify best practices in the regulation of smoking
lounges. Furthermore, staff developed the draft ordinance in response to specific issues
and areas of concern raised by the City Council and Planning Commission at prior
meetings. Code Amendment CO -15-02 would provide for the comprehensive regulation
of new and existing smoking lounges and smoking/vaping retailers to ensure businesses
are operated in a manner that is compatible with surrounding uses and properties.
Planning Commission recommended that the City Council approve and give first reading
to the ordinance.
STEPHANIE ROXAS, AICP GARY ARMSTRONG, AICP
Associate Planner Economic Development & Development
Services Director/ Deputy CEO
Attachments: 1. Draft Ordinance Recommended by the Planning Commission
2. Minutes from Planning Commission hearing (July 27, 2015)
3. List of existing smoking lounges and smoking/vapinq retailers
4. CMMC Title 8, Chapter V with recommended changes red -lined
5. City Survey — Summary of smoking lounge regulations
6. City Survey — Laws limiting smoking/vapinq in outdoor areas
7. Reference list for draft ordinance citing other cities
8. Map of zoning districts allowing new smoking lounges
9. Public Correspondence
cc: Chief Executive Officer
Assistant Chief Executive Officer
Economic Development & Development Services Director / Deputy
CEO
City Attorney
Public Services Director
Transportation Svs. Mgr.
City Engineer
City Clerk (9)
Staff (7)
File (2)