HomeMy WebLinkAbout13-09 Zoning Regulations Needed to Alleviate Current and Actual Threat to Public Health and Safety, Hookah ParlorsORDINANCE NO. 13-09
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
COSTA MESA FOR A TEMPORARY MORATORIUM ON THE
ESTABLISHMENT AND OPERATION OF NEW HOOKAH PARLORS FOR
A PERIOD NOT TO EXCEED 10 MONTHS AND 15 DAYS 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, 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 ten (10) months and fifteen
(15) days and may be extended, after notice and public hearing, for an additional
twelve (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
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
Ordinance No. 13-09 Page 1 of 6
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
Ordinance No. 13-09 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 meeting on November 5, 2013, for an initial period of 45
days; and
16. That the City Council has considered the adoption of this urgency
ordinance extension at a regular, legally -noticed public meeting on
December 3, 2013, 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 Ordinance for a period not to exceed 10
months and 15 days for the immediate preservation of the public health,
peace, safety and general welfare, based upon facts set forth in this
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.
Ordinance No. 13-09 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 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 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.
Notwithstanding 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. Additionally, such applications shall
not be processed for further a period not to exceed 10 months and 15 days from
the date of adoption of this ordinance by City Council pursuant to California
Government Code Section 65858.
SECTION 2: URGENCY CLAUSE. The City Council finds and declares that this
ordinance is required for the immediate protection of the public health, safety, and
welfare as previously stated of this ordinance, and that this ordinance shall become
effective immediately upon its adoption and will continue in full force and effect for a
period not to exceed 10 months and 15 days from the date of adoption of this
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 ordinance amending the
zoning code will have a significant effect on the environment.
Ordinance No. 13-09 Page 4 of 6
SECTION 4: INCONSISTENCIES. Any provision of the Costa Mesa Municipal
Code or appendices thereto inconsistent with the provisions of this Ordinance, to
the extent of such inconsistencies and no further, is hereby repealed or modified
to that extent necessary to effect the provisions of this Ordinance.
SECTION 5. SEVERABILITY. If any provision or clause of this 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 ordinance which can
be implemented without the invalid provision, clause or application; and to this
end, the provisions of this ordinance are declared to be severable.
SECTION 6: PUBLICATION. This Ordinance shall take effect and be in full force
immediately from and after adoption, 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 and a certified copy of
the text shall be posted in the City Clerk's office.
PASSED AND this V day of December 2013.
Jam gheimer
the City of Costa Mesa
ATTEST:
bLnk 4�
Brenda Green
City Clerk of the City of Costa Mesa
APPRO A TO ORM:
Thonies Duarte
City Attorney
Ordinance No. 13-09 Page 5 of 6
STATE OF CALIFORNIA)
)ss
COUNTY OF ORANGE )
I, Brenda Green, City Clerk and ex -officio Clerk of the City Council of the City of
Costa Mesa, hereby certify that the above and foregoing Urgency Ordinance No.
13-09 was duly passed and adopted at a regular meeting of the City Council held
on December 3rd, 2013, by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS: Genis, Leece, Mensinger, Monahan, 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 4th day of December, 2013.
Brenda Green
City Clerk
Ordinance No. 13-09 Page 6 of 6