CITY COUNCIL AGENDA REPORT Date: October 15, 2013 TO: Honorable City Council FROM: Michael J. Egan, City Manager BY: Kurt H. Anderson, Director of Community Development Beth Chow, Senior Planner SUBJECT: PUBLIC HEARING - INTERIM ORDINANCE NO. 13-1648U, EXTENDING THE MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF ANY SMOKE SHOP, ELECTRONIC CIGARETTE RETAILER, OR DRUG PARAPHERNALIA RETAILER Background: On September 17, 2013, City Council adopted Urgency Ordinance No. 13-1646U, which established a 45-day moratorium on the establishment and operation of any new retail sales of cigars, other tobacco products and related goods, including electronic cigarettes (e-cigarettes) and drug paraphernalia in the City of Norwalk. City Council found that further study as to the effects of smoke shops were required, which may lead to amending the City’s Zoning Ordinance. Staff has commenced researching the matter, including surveying different localities in the state that have adopted ordinances which regulate smoke shops. Prior to the passage of the urgency ordinance, City Council noticed the opening of more tobacco/smoke shops. Planning staff also noticed an increased amount of interest and questions with regards to opening up smoke shops with a particular focus on selling electronic cigarettes and accessories such as electronic liquid (e-liquid or e-juice) that is then vaporized in the electronic cigarette becoming what is known as “vape” or “vaping”. Further, Public Safety indicated concerns regarding smoke shops which sold glass pipes and the like which has been associated not only with tobacco use, but also illicit drug use. Thus, City Council recognized that smoke shops and similar type establishments may have negative impacts on the surrounding commercial areas and residential neighborhoods and threaten the welfare of children and minors by increasing their exposure to illegal drug-related paraphernalia. City Council Interim Urgency Ordinance No. 13-1648U Smoke Shops October 15, 2013 Page No. 2 The urgency ordinance temporarily prohibits new smoke shops from opening in Norwalk until a detailed study of the possible adverse effects of such establishments could be made. City Council recognized that allowing smoke shops to open prior to the study’s completion could defeat the purpose of the study and any subsequent rules and regulations and therefore found it necessary to impose a moratorium on the opening of such businesses. As stated before, staff has commenced a study of the potential impacts of smoke shops and possible amendments to the City’s codes related to such uses. Staff is in the process of compiling information from other communities throughout the state on the impacts of smoke shops and options for regulating them. After compiling the data, staff will begin creating development standards, which may include, but are not necessarily limited to hours of operation, minimum distances between shops, distance between shops and schools and other public facilities, and limitation on business operations. The 45-day moratorium expires on November 1, 2013. Review of the Municipal Code and study of potential impacts are still ongoing, and threats to the public health, safety, and welfare identified by the Council in Ordinance No. 13-1646U still exist. Per Government Code Section 65858, City Council may, following a public hearing, extend the moratorium for a period of up to 10 months, 15 days in order to allow staff the necessary amount of time to compile and process the available data and develop a suitable regulatory approach. If after such additional time sufficient progress has not been made to establish code amendments needed to address the issue, City Council would have the option to extend the ordinance an additional year. Pursuant to Government Code Section 65858(d), the City has prepared a written report to describe the measures taken to alleviate the condition which led to the adoption of the urgency moratorium ordinance (Attachment “B”). CEQA Findings City staff have concluded with certainty that there is no possibility the adoption of the Ordinance may have a significant effect on the environment, because the moratorium will impose greater limitations on development in the City, and will thereby serve to reduce potentially significant adverse environmental impacts. It is therefore exempt from California Environmental Quality Act review pursuant to Title 14, Section 15061(b)(3) of the California Code of Regulations. Fiscal Impact: There is no financial impact at this time. Citizens Advised: N/A City Council Interim Urgency Ordinance No. 13-1648U Smoke Shops October 15, 2013 Page No. 3 Strategic Plan Vision/Strategy: N/A Recommended Action: Staff recommends the City Council adopt Interim Urgency Ordinance No. 13-1648U. Attachments: a. Urgency Ordinance No. 13-1648U b. Public Report on Status of Moratorium INTERIM ORDINANCE NO. 13-1648U AN INTERIM ORDINANCE OF THE CITY OF NORWALK ENACTED PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 65858 EXTENDING THE MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF ANY SMOKE SHOP, ELECTRONIC CIGARETTE RETAILER, OR DRUG PARAPHERNALIA RETAILER THE CITY COUNCIL OF THE CITY OF NORWALK DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Findings. The City Council of the City of Norwalk, as the legislative body of the City, makes the following findings in support of the extension of this interim zoning ordinance regulating land use within the City of Norwalk. A. On September 17, 2013, the City Council adopted a forty-five (45) day interim zoning ordinance prohibiting the establishment of any smoke shop, electronic cigarette retailer, or drug paraphernalia retailer as defined in Ordinance No. 13-1646U, in any zone throughout the City. B. The City’s staff is conducting research and formulating options regarding potential new regulation of smoke shops, electronic cigarette retailer, or drug paraphernalia retailer in the City. It is in the best interest of public health, safety and welfare that the existing moratorium should continue until such time as the City Council and Planning Commission have the opportunity to review this issue. C. On October 4, 2013, the City prepared and made available for public review a report regarding the status of Norwalk’s moratorium on any smoke shop, electronic cigarette retailer, or drug paraphernalia as required by Government Code Section 65858(d). The City Council hereby approves the report. D. The City Council held a duly noticed public hearing regarding this subject on October 15, 2013. E. The facts, circumstances and findings adopted by the City Council in Ordinance No. 13-1646U remain true and correct and are incorporated herein by this reference. Accordingly, the City Council finds that there is a current and immediate threat to the public health, safety and welfare as described in Ordinance No. 13-1646U and the City finds that an extension of the temporary moratorium on the establishment of such uses pursuant to Government Code Section 65858 is therefore necessary for the immediate preservation of the public health, safety and welfare. Section 2. A. Extension. The foregoing recitals are true and correct and incorporated herein. B. Moratorium Extended. The moratorium enacted pursuant to City of Norwalk Ordinance No. 13-1646U is hereby extended pursuant to Government Code Section 65858 for ten (10) months and fifteen (15) days past the initial expiration date of Ordinance No. 13-1646U so as to extend the moratorium until September 16, 2014. Therefore, this ordinance shall expire and terminate at midnight on September 16, 2014, unless it is further extended. Section 3. CEQA. The City Council hereby finds and determines that it can be seen with certainty that this extension ordinance has no likelihood of causing a significant negative effect on the environment and therefore is exempt from the California Environmental Quality Act (“CEQA). Accordingly both the City Council’s action of adopting this ordinance and the effects derivative from that adoption are exempt from the application of the CEQA, pursuant to Section 15061(b)(3) of the State CEQA Guidelines (14 Cal. Code Regs. § 15061(b)(3)). The City Council further finds, in the exercise of its independent judgment and analysis, that the adoption of this urgency ordinance is exempt from CEQA, pursuant to Section 15060(c)(2) of the State CEQA Guidelines (14 Cal. Code Regs. § 15060(c)(2)), because it will not result in a direct or reasonably foreseeable indirect physical change in the environment. These findings are premised on the fact that the adoption of the extension of the interim ordinance will maintain the current environmental conditions arising from the current land use regulatory structure as adopted by the City without change or alteration. Section 4. Penalty. Violation of any provision of this Ordinance shall constitute a misdemeanor and shall be punishable by a fine not to exceed one thousand dollars ($1,000) or by imprisonment for a period not to exceed six (6) months, or by both such fine and imprisonment. Each and every day such a violation exists shall constitute a separate and distinct violation of this Ordinance. In addition to the foregoing, any violation of this Ordinance shall constitute a public nuisance and shall be subject to abatement as provided by all applicable provisions of law. Section 5. Direction to staff. The City Council hereby directs staff to continue to study and consider potential revisions to the zoning and business regulations of the City of Norwalk, including analysis of the issues regarding the permissibility, and if permitted, the location, scope, and operational criteria that should be imposed upon smoke shops, electronic cigarette retailers, or drug paraphernalia retailers, and further, the structuring of zoning and other necessary regulatory controls to cause such land uses to be beneficial land uses rather than uses that are detrimental to or cause blight to occur within the City of Norwalk. Section 6. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the decision of any court Interim Ordinance No. 13-1648U Page 2 of 3 of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance. The City Council hereby declares that it would have adopted this ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. Section 7. This Ordinance shall be posted in accordance with Section 36933 of the Government Code of the State of California with the names of the City Councilmembers voting for and against it. PASSED, APPROVED AND ADOPTED this 15th day of October 2013. __________________________ LUIGI VERNOLA MAYOR ATTEST: _______________________ THERESA DEVOY CITY CLERK Interim Ordinance No. 13-1648U Page 3 of 3 Attachment ‘B’ Public Report Regarding the Status of the City of Norwalk’s Moratorium on Smoke Shops, Electronic Cigarette Retailers, or Drug Paraphernalia Retailers October 4, 2013 Introduction On September 17, 2013, the City Council of the City of Norwalk adopted Ordinance No. 13-1646U. That Ordinance is entitled: “An Interim Urgency Ordinance of the City of Norwalk Declaring a Moratorium on the Establishment and Operation of any Smoke Shop, Electronic Cigarette Retailer, or Drug Paraphernalia Retailer.” Pursuant to Government Code Section 65858 (d), the City has prepared this written report to describe the measures taken to alleviate the condition which led to the adoption of the urgency moratorium ordinance. Research Since the September 17, 2013 enactment of the moratorium, staff has consulted with other cities to determine their experience with smoke shops and electronic cigarettes. Staff has been reviewing and monitoring the actions of the Cities of Pico Rivera, Seal Beach, Bellflower, Antioch, and Duarte with respect to moratoriums on these types of facilities. Staff is also reviewing the provisions and policies of other Gateway Cities with regards to the retail sales of tobacco and related products, including e-cigarettes. Further, staff has reached out to other cities within the League of California Cities to see how cities throughout the state are handling this issue. Consultation with Public Safety and Sherriff’s Department Staff has consulted with the Public Safety Department and they have expressed concerns related to the sales of drug paraphernalia at tobacco shops or smoke shops, specifically glass pipes that are focused towards the use of illicit and illegal drugs. Planning staff along with Public Safety staff will begin discussions with the Los Angeles County Sheriff’s Department regarding issues associated with smoke shops. Upcoming Research Over the next several months, staff intends to continue reviewing other cities’ ordinances pertaining to this issue. We will continue to work with the Sheriff’s Department to identify a recommendation for Council. In addition, together with legal counsel, Staff will examine court rulings which may provide further guidance that we can use in crafting an appropriate ordinance. Staff is currently evaluating the following long term options: • Leave the Zoning Code to as is and allow the sales of tobacco and tobacco related products including electronic cigarettes and drug paraphernalia as a retail use and allow them in commercial zones. • Adopt a regulatory ordinance that regulates the operations of smoke shops but not adopt a zoning restriction. • Adopt a regulatory ordinance and zoning ordinance. • Amend the Zoning Code to prohibit smoke shops city-wide. • Amend the Municipal Code to consider the use of e-cigarettes the same as smoking and/or e-cigarettes and associated products the same as tobacco and tobacco related products.
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