HomeMy WebLinkAbout14-12 Public Health and Safety Relating to Hookah ParlorsURGENCY ORDINANCE NO. 14-12
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA,
CALIFORNIA, FOR A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND
OPERATION OF NEW HOOKAH PARLORS FOR A PERIOD NOT TO EXCEED 12
MONTHS PENDING A STUDY OF ZONING REGULATIONS THAT ARE NEEDED TO
ALLEVIATE A CURRENT AND ACTUAL THREAT TO THE PUBLIC HEALTH AND
SAFETY RELATING TO HOOKAH PARLORS
WHEREAS, pursuant to Section 65858 of the California Government Code, on
November 5, 2013, the City Council of the City of Costa Mesa voted 4-0 to adopt Interim
Urgency Ordinance No. 13-07 for a temporary moratorium on the establishment or expansion
of hookah parlors within the City of Costa Mesa for a period of 45 days, pending a study of
zoning regulations that are needed to alleviate a current and actual threat to the public health,
safety and welfare; and
WHEREAS, the City has issued a written report describing the measures taken to
alleviate the conditions which led to the adoption of the aforementioned Interim Urgency
Ordinance on November 5, 2013, which date was at least ten (10) days prior to the adoption of
the extension of the interim urgency ordinance, in compliance with State law; and
WHEREAS, pursuant to Section 65858 of the California Government Code, on
December 3, 2013, the City Council of the City of Costa Mesa voted 5-0 to adopt Interim
Urgency Ordinance No. 13-09 extending the temporary moratorium on the establishment or
expansion of hookah parlors within the City of Costa Mesa for a period for ten (10) months and
fifteen (15) days; and
WHEREAS, the City has issued a written report describing the measures taken to
alleviate the conditions which led to the adoption of the aforementioned Interim Urgency
Ordinance on December 3, 2013, which date was at least ten (10) days prior to the adoption of
the extension of the interim urgency ordinance, in compliance with State law; and
WHEREAS, based on the foregoing, the City Council finds that there continues to be a
current and immediate threat to the public health, safety and welfare by any hookah parlor that
opens or expands during the time the City is studying zoning regulations therefore; and
WHEREAS, Government Code Section 65858 provides for the adoption, as an urgency
measure, interim ordinances for certain expressed purposes and by a vote of four-fifths (4/5)
majority of the voting City Council members; and
WHEREAS, the moratorium shall be extended for a period not to exceed 12 months.
WHEREAS, this urgency ordinance is based on the following facts:
1. That the City of Costa Mesa has the authority, under its police power, to enact
regulations for the public peace, morals, and welfare of the City; and
Urgency Ordinance No. 14-12 Page 1 of 6
2. That the World Health Organization ("WHO") investigatory panel reported in 2005 that
"waterpipe smokers and second-hand smokers [are] at risk for the same kinds of
diseases as are cause by cigarette smoking, including cancer, heart disease,
respiratory disease, and adverse effects during pregnancy, and sharing a hookah's
mouthpiece poses a serious risk of transmission of communicable diseases;" and
3. That the WHO investigatory panel also found that a "typical 1 -hour long waterpipe
smoking session involves inhaling 100-200 times the volume of smoke inhaled with a
single cigarette," and that the smoke, even after passing through water, "contains high
levels of toxic compounds, including high levels of carbon monoxide, metals and
cancer-causing chemicals'; and
4. That the WHO investigatory panel also found that sharing a hookah's mouthpiece
poses a serious risk of transmission of communicable diseases, such as hepatitis and
herpes;
5. That hookah smoking may not be a safe alternative to smoking tobacco, as smoking
hookah pipes has been reported to cause oral, esophageal and lung cancer, as well as
heart disease, chronic bronchitis and of course, nicotine addiction
6. That hookah parlors have been shown to create problems related to loud music,
drinking in public, noise, loitering, underage drinking and large crowds milling outside of
the site; and
7. That hookah parlors could exacerbate the inherently dangerous behavior of tobacco
use around non -tobacco users; diminish the protection of children from exposure to
smoking and tobacco while they increase the potential for minors to associate smoking
and tobacco with a healthy lifestyle; and weaken the protection of the public from
smoking and tobacco -related pollution. Hookah parlors additionally have been found to
create unique problems of second hand smoke, because of the hot charcoal coals used
to enhance the burning tobacco; and
8. That hookah parlors if allowed in the City may have adverse secondary effects on
surrounding properties, including but not limited to lowering property values and
introducing incompatible land uses to existing neighborhoods;
9. That Section 6404.5 of the California Labor Code prohibits smoking of tobacco
products in an enclosed space at a place of employment; and
10. That Labor Code Section 6404.5's definition of "place of employment" does not include
retail or wholesale tobacco shops and private smokers' lounges. Many hookah parlor
owners claim they are tobacco retailers and state law does not clearly repudiate this
claim. This allows tobacco smoking inside establishments where people work, eat and
drink; and
Urgency Ordinance No. 14-12 Page 2 of 6
11. That under State law, tobacco shops and private smokers' lounges are not places of
employment, and therefore the City of Costa Mesa has the authority pursuant to its
police power, to prohibit hookah pipe smoking at such businesses; and
12. That currently the City has four operating hookah parlors and based on the above, it is
in the City's best interest to prevent additional hookah parlors from opening while the
City Council is studying the issue; and
13. That in response to the threat of unregulated hookah parlors several cities, including
but not limited to the Cities of Anaheim, Santa Ana, Garden Grove, San Francisco and
Dublin California, have adopted moratoriums or development restrictions. Other cities,
such as New York and Calgary, Alberta, and the State of Washington, have simply
banned them. Other countries, including the United Kingdom, France, Germany and
Turkey, have banned hookah parlors; and
14. That the California State Planning and Zoning Law Section 65858 allows cities to adopt
an interim zoning ordinance prohibiting any uses which may be in conflict with a
contemplated general plan, specific plan or zoning proposal which is in the process of
being considered by the Planning Agency, Planning Commission, or legislative body;
and
15. That the City Council discussed and directed staff to explore regulatory options other
than a prohibition for hookah parlors at its regular, legally -noticed public meetings on
November 5, 2013, for an initial period of 45 days, and on December 3, 2013, for a
period of 10 months and 15 days; and
16. That the City Council has considered the adoption of this urgency ordinance extension
at a regular, legally -noticed public meeting on October 7, 2014, and hereby finds
pursuant to California Government Code Section 65858, that a current and immediate
threat to the public health, peace, safety and general welfare exists which necessitates
the immediate extension of this urgency ordinance for a period not to exceed 12
months for the immediate preservation of the public health, peace, safety and general
welfare, based upon facts set forth in this urgency ordinance and the facts presented to
the Council; and
17. A moratorium extension will provide the City with time to study, draft and adopt
regulations, consistent with state and federal laws, to regulate the location and
operation of, or prohibition of, hookah parlors; and
18. A moratorium extension will provide the City with the ability to prevent new hookah
parlors from opening, or enjoin any unpermitted hookah parlors, while the City studies,
drafts and adopts new regulations.
Urgency Ordinance No. 14-12 Page 3 of 6
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA
DOES HEREBY ORDAIN BY AT LEAST A FOUR-FIFTHS VOTE HEREBY ADOPTS
THIS INTERIM ZONING AND URGENCY MEASURE PURSUANT TO CALIFORNIA
GOVERNMENT CODE SECTION 65858 AS FOLLOWS:
SECTION 1: After the effective date of this urgency ordinance, the City shall prohibit the
establishment of all new hookah parlors, which shall include expansion of existing
hookah parlors, within the boundaries of the City of Costa Mesa. For the purposes of
this urgency ordinance, the following definitions shall apply:
"Hookah Parlor. Any facility or location whose business operation, whether as its primary
use or as an ancillary use, includes the smoking of tobacco or other substances through
one or more hookah pipes (also commonly referred to as a hookah, waterpipe, shisha or
narghile), including but not limited to establishments known variously as hookah bars,
hookah lounges or hookah cafes. A hookah parlor shall also include any business
establishment with fewer than five (5) employees."
"Establishment" shall mean, as of the effective date of this moratorium, the opening or
commencement of any such business as a new business; the conversion of an existing
business to a hookah parlor; the relocation of any such business; or the expansion
(physical or otherwise) of any such business.
Noywithstanding the provisions of the Costa Mesa Municipal Code, all land use permit
applications, which have been received, but decisions have not been rendered by the City as
of November 5, 2013, were prohibited within the City of Costa Mesa for the initial period of 45
days, which was subsequently extended for a period not to exceed 10 months and 15 days,
shall be further extended for a period not to exceed 12 months from the date of adoption of this
urgency ordinance by City Council pursuant to California Government Code Section 65858.
SECTION 2: URGENCY CLAUSE. The City Council finds and declares that this urgency
ordinance is required for the immediate protection of the public health, safety, and welfare as
previously stated of this urgency ordinance, and that this urgency ordinance shall become
effective immediately upon its adoption and will continue in full force and effect for a period not
to exceed 12 months from the date of adoption of this urgency ordinance in accordance with
Government Code Section 65858,
SECTION 3: ENVIRONMENTAL DETERMINATION. The code amendment has been
reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA
guidelines, and the City's environmental procedures, and has been found to be exempt pursuant
to Section 15061 (b) (3) (General Rule) of the CEQA Guidelines, in that the City Council hereby
finds that it can be seen with certainty that there is no possibility that the passage of this urgency
ordinance amending the zoning code will have a significant effect on the environment.
SECTION 4: INCONSISTENCIES. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of this urgency ordinance, to the extent of
Urgency Ordinance No. 14-12 Page 4 of 6
such inconsistencies and no further, is hereby repealed or modified to that extent necessary to
effect the provisions of this urgency ordinance.
SECTION 5. SEVERABILITY. If any provision or clause of this urgency ordinance or the
application thereof to any person or circumstances is held to be unconstitutional or otherwise
invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions or
clauses or applications of this urgency ordinance which can be implemented without the
invalid provision, clause or application; and to this end, the provisions of this urgency
ordinance are declared to be severable.
SECTION 6: PUBLICATION. This urgency ordinance shall take effect and be in full force
immediately and after the passage thereof, and prior to the expiration of fifteen (15) days from its
passage shall be published once in the DAILY PILOT, a newspaper of general circulation,
printed and published in the City of Costa Mesa or, in the alternative, the City Clerk may cause
to be published a summary of this urgency ordinance and a certified copy of the text of this
urgency ordinance shall be posted in the office of the City Clerk five (5) days prior to the date of
adoption of this urgency ordinance, and within fifteen (15) days after adoption, the City Clerk
shall cause to be published the aforementioned summary and shall post in the office of the City
Clerk a certified copy of this urgency ordinance together with the names and member of the City
Council voting for and against the same.
PASSED AND ADOPTED this 7'h day of October 2014.
ATTEST:
( Jq� o_�
Brenda Green, dity Clerk
APPROVED AS TO FORM:
Thomas' Du e, City Attorney
Urgency Ordinance No. 14-12 Page 5 of 6
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, Brenda Green, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY that the
above and foregoing is the original of Urgency Ordinance No. 14-12 and was duly passed and
adopted by the City Council of the City of Costa Mesa at a regular meeting held on the 7th day
of October, 2014, by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS: Genis, Leece, Monahan, Mensinger, Righeimer
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of
Costa Mesa this 8th day of October, 2014.
_&— Q"'
BRENDA GREEN, CITY CLERK
Urgency Ordinance No. 14-12 Page 6 of 6