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HomeMy WebLinkAboutOrd. 1481-2014ORDINANCE NO. 1481 -2014 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA AN INTERIM ORDINANCE OF THE CITY OF SOUTH SAN FRANCISCO MAKING FINDINGS AND EXTENDING A CITY -WIDE MORATORIUM ON THE ESTABLISHMENT OF E- CIGARETTE LOUNGES AND HOOKAH BARS /SMOKING LOUNGES. WHEREAS, the Planning Division of the City of South San Francisco has approved business license /site clearance applications for two electronic cigarette ( "e- cigarette ") retailers within the City and has received additional inquires related to the establishment of other e- cigarette retailers; and WHEREAS, the South San Francisco Municipal Code ( "SSFMC ") prohibits the establishment of new significant tobacco retailers throughout the City (SSFMC ch. 20.420) and limits the establishment of hookah bars and smoking lounges to certain districts subject to a use permit (SSFMC § 20.620.004), but the Municipal Code does not contemplate the regulation and location of e- cigarette lounges (also known as vapor bars); and WHEREAS, e- cigarettes and associated paraphernalia may be sold and used at hookah bars /smoking lounges, but use of e- cigarettes was not contemplated in the Municipal Code regulation of hookah bars /smoking lounges, which defines a hookah bar /smoking lounge as a tobacco - related business (SSFMC § 20.620.004); and WHEREAS, in order to address community concerns regarding the establishment of e- cigarette lounges, it is necessary for the City to study the potential impact such facilities may have on the public health, safety and welfare; and WHEREAS, e- cigarette lounges are typically adults -only uses in a commercial setting and may not be appropriate near uses where minors are present; and WHEREAS, the proliferation of establishments that sell or display e- cigarettes and vaporizers may adversely affect the City's ability to attract and retain businesses and shoppers in the City, adversely affecting the City's economic vitality, and may promote the consumption and purchase of e- cigarettes by minors, possibly threatening the public health and welfare; and WHEREAS, it is necessary that the City study the possible adoption of amendments to the City's Municipal Code and Zoning Code regarding e- cigarette lounges and hookah bars /smoking lounges. Staff needs time to study whether to limit such businesses to certain zoning districts, and which zoning districts would be appropriate for such uses; and WHEREAS, there is a threat to the public health, safety and welfare of the community if e- cigarette lounges locate in the City without proper regulations in place. Absent the adoption of this interim urgency ordinance, it is likely that the establishment and operation of e- cigarette lounges and vapor bars in locations within the City, without appropriate controls in place to regulate the impacts on the community, will result in harmful effects to the businesses, property owners, and residents of the City; and WHEREAS, Article XI, Section 7 of the California Constitution provides that a city may make and enforce within its 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 local 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 two 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 e- cigarette lounges, (2) study the potential impacts that e- cigarette lounges may have on the public health, safety, and welfare, (3) study and determine what local regulations may be appropriate or necessary for e- cigarette lounges and hookah bars /smoking lounges, (4) study and determine the appropriate zoning and location for e- cigarette lounges and hookah bars /smoking lounges, and (5) determine appropriate controls for protection of public health and welfare; and WHEREAS, in accordance with California Government Code Section 65858, subdivision (c), which provides that such interim ordinances that have the effect of denying approvals needed for the development of projects with a significant component of multifamily housing (as defined in California Government Code Section 65858, subdivisions (g) and (h)) may not be extended except upon written findings adopted by the legislative body as specified in the subdivision, the City Council hereby finds that the moratorium extended pursuant to this ordinance will not have the effect of denying approvals needed for the development of projects with a significant component of multi - family housing; and that, therefore, the findings specified in Section 65858, subdivision (c), need not be made; and WHEREAS, staff shall continue to study the potential impacts of e- cigarette lounges, and possible amendments to the City's Municipal Code for clear, consistent and uniform regulations related to the establishment, location and operation of such businesses; and WHEREAS, at its January 8, 2014 meeting, pursuant to Government Code section 65858, the City Council lawfully adopted a moratorium on the establishment of e- cigarette lounges and hookah bars /smoking lounges pending study of a Zoning Ordinance amendment proposal; and WHEREAS, in the time since the moratorium was adopted, South San Francisco staff has been exploring options for regulation of E- Cigarette Lounges and Hookah Bars /Smoking 2 Lounges, which staff will be presenting to the Planning Commission and City Council for consideration; however, the Zoning Ordinance amendment proposal is not yet ready for adoption; and WHEREAS, on February 12, 2014, in accordance with Government Code section 65858(a), the City Council held a properly noticed public hearing to consider extending the moratorium for a period of ten (10) months and fifteen (15) days from date that Ordinance 1478- 2014 would have otherwise expired; and WHEREAS, 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. NOW THEREFORE, the City Council of the City of South San Francisco 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 South San Francisco. Section 2. Moratorium Extended. A. Scope. In accordance with the authority granted the City of South San Francisco under Article XI, Section 7 of the California Constitution and California Government Code Section 65858, the moratorium imposed by Ordinance 1478 -2014, 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, building permit, conditional use permit, or other land use approval, shall be approved or issued for the establishment or operation of e- cigarette lounges and hookah bars /smoking lounges in the City of South San Francisco, shall hereby be extended for a period of ten (10) months and fifteen (15) days, from and after the effective date that Ordinance 1478 -2014 would have otherwise expired. 3 B. Definitions. 1. For purposes of this ordinance, "e- cigarette lounges" means: any facility, building, structure or location, whether fixed or mobile, where customers use a heating element that vaporizes a liquid solution that releases nicotine or flavored vapor. 2. For the purposes of this ordinance, the term "electronic cigarette" or "e- cigarette" means an electronic and /or battery- operated device, the use of which may resemble smoking, that can be used to deliver an inhaled dose of nicotine or other substances. The term includes any such device, whether manufactured, distributed, marketed, or sold as an e- 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. 3. For the purposes of this ordinance, the term "hookah bar /smoking lounge" shall have the meaning set forth in Municipal Code Section 20.620.004. 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 South San Francisco set forth in the recitals, incorporated by Section 1 of this ordinance, and the additional information set forth below: 1. The purpose of this Ordinance is to protect the public safety, health, and welfare from a current and immediate threat posed by the issuance of an applicable license or entitlement. The facts constituting the urgency are: e- cigarette lounges are typically adults -only uses that may not be appropriate in areas where minors are present. Hookah bars /smoking lounges may be used as e- cigarette lounges, which was not contemplated by the existing regulations applicable to these uses, and may be in conflict with the City's long -term planning goals. The City of South San Francisco does not currently have standards in the Municipal Code related to the location, operation, and concentration of e- cigarette lounges within the City. 2. Issuing permits, business licenses, or other applicable licenses or entitlements providing for the establishment and /or operation of e- cigarette lounges and hookah bars /smoking lounges, prior to the completion of the City's study of the potential impact of such facilities, poses a current and immediate threat to the public health, safety, and welfare. 3. In light of the potential for these uses to be located near uses where minors are present, 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 e- cigarette lounges, hookah bars /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 e- cigarette lounges. Section 3. Zoning Code Amendment. The establishment of e- cigarette lounges and hookah bars /smoking lounges, as defined herein, is not permitted within any zone in the City of South San Francisco. 4 Section 4. Establishment of E- Cigarette Lounges and Hookah Bars /Smoking Lounges Declared Public Nuisance. The establishment of e- cigarette lounges and hookah bars /smoking lounges, as defined herein within the City limits of the City of South San Francisco is declared to be a public nuisance. Violations of this ordinance may be enforced by any applicable laws or ordinances, including but not limited to injunctions, or administrative or criminal penalties under the South San Francisco Municipal Code. 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 if passed and adopted by at least four -fifths vote of the City Council, and extend the effective period of Ordinance 1478 -2014 for a period of ten (10) months and fifteen (15) days from and after the effective date that Ordinance 1478 -2014 would have otherwise expired, unless further extended by the City in accordance with California Government Code Section 65858. 5 Introduced and adopted as an Urgency Ordinance of the City of South San Francisco at a regular meeting of the City Council held the 12th day of February, 2014, by the following Vote: AYES: Councilmembers Mark N. Addiego Pradegp Gupta and Liza Normandy Vice Mayor Richard A. Garbarino and Mayor Karyl Matsumoto NOES: N ABSTAIN: ABSENT: ATTEST: n Deputy City Clerk As Mayor of the City of South San Francisco, I do hereby approve the fore�oing Interim Ordinance this 12th day of February, 2014.