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HomeMy WebLinkAbout75C - PH - EXTEND MORT CYBER CAFEREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: NOVEMBER 20, 2018 TITLE: AN EMERGENCY ORDINANCE OF THE CITY OF SANTA ANA MAKING FINDINGS AND EXTENDING THE MORATORIUM ON THE APPROVAL, COMMENCEMENT, ESTABLISHMENT, OPERATION, RELOCATION OR EXPANSION OF CYBER CAFES AND INTERNET ACCESS BUSINESSES WITHIN THE CITY FOR AN ADDITIONAL TEN (10) MONTHS AND FIFTEEN (15) DAYS, PERSUANT TO GOVERNMENT CODE SECTION 65858 PENDING STUDY AND ADOPTION OF REGULATORY AND ZONING STANDARDS OR OPTIONS (STRATEGIC PLAN NO. 5, 4) 17 CITY rj. RECOMMENDED ACTION Ca111=1:L'(d;Ld•111k,Cd1111111`9X•]kil A APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1n Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt an emergency ordinance extending the 45 -day temporary moratorium on the approval, commencement, establishment, operation, relocation or expansion of cyber cafes and internet access businesses within the city for an additional ten (10) months and fifteen (15) days pursuant to Government Code 65858 pending study and adoption of regulatory and zoning standards. As in other cities in California, there has been a proliferation of cyber cafes and internet access businesses in the City of Santa Ana. Customers purchase phone time in exchange for opportunities to win chances at internettnetwork based sweepstakes prizes and money. On October 16, 2018, the City Council adopted Urgency Ordinance No. NS -2956 establishing a forty-five (45) day moratorium on the approval, commencement, establishment, operation, relocation or expansion of cyber cafes and internet access businesses within the city. The current provisions of the Santa Ana Municipal Code allow cyber cafes in specific zones, and sets forth the operational standards for such businesses. The provisions of the Santa Ana Municipal Code require further review, study, and possible revision in order to respond to recent 75C-1 Emergency Ordinance Adopting Moratorium on Cyber Cafes November 20, 2018 Page 2 concerns relating to the impacts of these internet access businesses and cyber cafe uses in the City. Cities such as Garden Grove, Westminster, and Stanton have implemented ordinances that limit the number of computers and access at these locations, provide clarity in the definition of the approved internet uses, and implemented ordinances specifically addressing illegal gambling. Crime statistics and calls for service in the City of Santa Ana and neighboring cities where cyber cafes and internet access businesses are located are significantly higher since these establishments opened for business. The Santa Ana Police Department identified 460 incidents occurring between January 1, 2018 and September 2018 at various locations in the City. These incidents have included criminal arrests to include the possession of firearms, possession of narcotics, possession of a stolen vehicle, and parole/probation violations. Since January of this year the Santa Ana Police Department has responded to noticeable increase of calls for service and officer generated activities. Since the City Council's approval of the moratorium on October 16, 2018, there have been two additional serious incidents at and/or near cyber cafes and internet access businesses. One involved an altercation and the shooting of a female victim in an adjacent parking lot of a business allowing internet access and possible illegal gaming. The second incident involved the arrest of documented gang members by the Santa Ana Police Department for firearm violations and gang enhancements at an approved Cyber Cafe. City staff recommends extension of the emergency ordinance which, if approved by 4/5 vote of the council (six affirmative votes), shall become effective upon adoption. The emergency measure proposes an extension of the interim ordinance which shall be effective for ten (10) months and fifteen (15) days. This measure could be further extended by the Council, if after public hearing, the City Council members, by four-fifths (4/5) vote, extend this ordinance for one more year (Government Code section 65858). The Ordinance will expire on October 15, 2019. The purpose of extending the interim ordinance is to promote the public health, safety and welfare during the time that City staff continues to gather and analyze information; prepare a study on cyber cafes and internet access businesses impact on surrounding businesses and neighborhoods; and provide a multi -agency enforcement plan. The study will include options and recommendations on whether to adopt a regulatory ordinance permitting the operation of such establishments, institute operational guidelines, or adopt an outright ban on these businesses. PUBLIC NOTICE Public notice of the proposed extension of the moratorium ordinance was published in the Orange County Reporter on November 9, 2018 in accordance with Government Code Section 65090. 75C-2 Emergency Ordinance Adopting Moratorium on Cyber Cafes November 20, 2018 Page 3 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 — Community Health, Livability, Engagement and Sustainability; Objective #4 (Support neighborhood vitality and livability). FISCAL IMPACT There is no fiscal impact associated with this action. Q Minh Thai Executive Director Planning & Building Agency AN:fg r� J D alentin Chief of Police Santa Ana Police Department Exhibit: 1. Emergency Ordinance Extension 75C-3 75C-4 LS 11.20.18 ORDINANCE NO. NS-XXXX AN EMERGENCY ORDINANCE OF THE CITY OF SANTA ANA MAKING FINDINGS AND EXTENDING THE MORATORIUM ON THE APPROVAL, COMMENCEMENT, ESTABLISHMENT, OPERATION, RELOCATION OR EXPANSION OF CYBER CAFES AND INTERNET ACCESS BUSINESSES WITHIN THE CITY FOR AN ADDITIONAL TEN MONTHS AND FIFTEEN DAYS PENDING STUDY AND ADOPTION OF REGULATORY AND ZONING STANDARDS THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of Santa Ana hereby finds, determines and declares as follows: A. As in other cities in California, there has been a proliferation of cyber cafes and internet access businesses in the City of Santa Ana. Customers purchase phone time in exchange for opportunities to win chances at intemet/network based sweepstakes prizes and money. B. The current provisions of the Santa Ana Municipal Code allow cyber cafes in specific zones, and sets forth the operational standards for such businesses. The provisions of the Santa Ana Municipal Code require review, study, and possible revision in order to respond to recent concerns relating to the impacts of these Internet access businesses and cyber cafe uses in the City. C. On October 16, 2018, the City Council adopted Urgency Ordinance No. NS -2956 establishing a forty-five (45) day moratorium on the approval, commencement, establishment, operation, relocation or expansion of cyber cafes and internet access businesses within the city, through November 30, 2018. D. Since the City Council's approval of the moratorium on October 16, 2018, there have been two additional serious incidents at and/or near cyber cafes and internet access businesses. One involved an altercation and the shooting of a female victim in an adjacent parking lot of a business allowing internet access and possible illegal gaming. The second incident involved the arrest of documented gang members by the Santa Ana Police Department for firearm violations and gang enhancements at an approved cyber cafe. E. In order to address the community's concerns regarding the negative impacts associated with the operation of cyber cafes and internet access businesses, it is Ordinance No. NS - Page 1 of 7 75C-5 necessary for the City of Santa Ana to continue to study the potential impacts such facilities may have on the public health, safety and welfare. F. While no new regulations have been formulated or proposed in the brief time since the adoption of the moratorium, progress has been made toward identifying key stakeholders and logical next steps. G. City staff, the Santa Ana Police Department, Code Enforcement, and the City Attorney's office are continuing to conduct research into the possible and likely impacts of regulating or outlawing cyber cafes and internet access businesses in the City in order to mitigate such impacts. H. City staff is continuing to gather factual data regarding the adverse impacts experienced by other cities that permit cyber cafes and internet access businesses. This information is currently being processed as a tool to draft provisions for regulating cyber cafes and internet access businesses in the City. I. City staff continues to conduct research into the City's options for regulating cyber cafes and internet access businesses. This research includes a review of many city ordinances in California that either prohibit or regulate cyber cafes and internet access businesses. J. As a result, the City Council desires to extend the moratorium as it applies to cyber cafes and internet access businesses for a period of ten (10) months and fifteen (15) days (Government Code section 65858) to allow staff and the City Council the opportunity to continue to research and select the best course of action for the City's citizens and the community at large. K. The City Council has determined that the circumstances and conditions that led to the adoption of Ordinance No. NS -2956, which are set in the recitals of Ordinance No. NS -2956, have not been alleviated as of the date of this Urgency Ordinance and continue to create the concerns described in Ordinance No. NS -2956. L. Based on the foregoing, the City Council finds that issuing permits, business licenses, or other applicable entitlements to individuals wishing to use their property for the purposes of cyber cafes and internet access businesses, prior to the City's completion of its study of the potential impact of such cyber cafes and internet access businesses, would pose a current and immediate threat to the public health, safety, and welfare, and that a temporary moratorium on the issuance of such permits, licenses, and entitlements is thus necessary. M. Based on the foregoing, the City Council finds that the use of property as a cyber cafe and internet access businesses in any zone of the City prior to the City's completion of its study of the potential impact of such cyber cafes and internet access businesses is a public nuisance and poses a current and immediate threat to the public health, safety, and welfare. Ordinance No. NS - _ Page 2 of 7 75C-6 Section 2.Extension of Moratorium and Findings. A. In accordance with the authority granted to the City of Santa Ana under Government Code Section 65858, from and after the date of this Ordinance, no use permit, variance, building permit, business license or other applicable entitlement for use shall be approved or issued for a cyber cafe or internet access business for a period extending through and including October 15, 2019, pending the completion of zoning or other regulations that are needed to alleviate a current and actual threat to the public health, safety and welfare. B. In addition, no property in any zone of the City is to be used for purposes of a cyber cafe or internet access business for a period extending through and including October 15, 2019. The use of any property for such purpose shall be deemed a public nuisance. Any violation of this provision shall be treated as a violation of Section 1-8 of the Santa Ana Municipal Code. C. This Ordinance is an interim urgency ordinance adopted pursuant to the authority granted to the City of Santa Ana by Government Code Section 65858, and is for the immediate preservation of the public health, safety, and welfare. The City Council hereby FINDS and DETERMINES as follows: (1) The City has received an increased number of public nuisance complaints emanating from cyber cafes and internet access businesses in recent weeks, involving the following: (a) Even where cyber cafes and internet access businesses utilize lawful sweepstakes features, these businesses have created adverse impacts on public health, safety and welfare, including a dramatic increase in crime including serious and violent crimes such as loitering, illegal drug use and sales, burglaries, assaults, fights, theft, robbery, public intoxication, vandalism, property damage, weapons offenses, and other criminal activity in and around cyber cafes and internet access business, as well as increased pedestrian traffic, noise, parking violations, and other nuisance activities. These businesses have also resulted in a tremendous increase and demand for police response. (b) The City of Santa Ana and neighboring cities have experienced serious adverse impacts due to the unique manner in which cyber cafes and internet access businesses operate the "sweepstakes" games. Customers may occupy a particular computer system for multiple hours, creating lines and people congregating or loitering while waiting for a computer. Parking availability may also be impacted due to extended periods of game playing, and such businesses have also Ordinance No. NS - Page 3 of 7 75C-7 resulted in increased demand for police response, as well as increased demand for maintenance of public streets and sidewalks. These late night gaming sessions which extend play beyond typical commercial business hours may cause noise and related impacts on the surrounding community as customers enter and exit these businesses during the late night hours. (c) Crime statistics and calls for service in the City of Santa Ana and neighboring cities where cyber cafes and internet access businesses are located are significantly higher since these establishments opened for business. The Santa Ana Police Department identified 460 incidents occurring between January 1, 2018 and September 2018 at various locations in the city. These incidents have included criminal arrests to include the possession of firearms, possession of narcotics, possession of a stolen vehicle, and parole / probation violations. Since January of this year the Santa Ana Police Department has responded to noticeable increase of calls for service and officer generated activities. The Staff Report for this item, which is incorporated herein by reference, includes these statistics and calls for service. (d) Since the City Council's approval of the moratorium on October 16, 2018, there have been two additional serious incidents at and/or near cyber cafes and internet access businesses. One involved an altercation and the shooting of a female victim in an adjacent parking lot of a business allowing Internet access and possible illegal gaming. The second incident involved the arrest of documented gang members by the Santa Ana Police Department for firearm violations and gang enhancements at an approved Cyber Cafe. (e) The Police Department reports its officers have spent a significant amount of time conducting surveillance operations around cyber cafes. This type of business appears to attract clientele involved in criminal activity. Several enforcement stops of customers entering or leaving such locations have yielded drug related arrests, evidence of drug trafficking, an influx of individuals on probation, parole, or wanted subjects. There is also the possibility of prostitution related activity gravitating to the parking lots and surrounding areas based on known subjects being contacted at such locations who either have prior arrests or contacts involving prostitution. Since the City Council's approval of the moratorium on October 16, 2018, there have been two additional serious incidents at and/or near cyber cafes and internet access businesses. One involved an altercation and the shooting of a female victim in an adjacent parking lot of a business allowing internet access and possible illegal gaming. The second incident involved the arrest of documented gang members by the Santa Ana Police Ordinance No. NS - _ Page 4 of 7 75C-8 Department for firearm violations and gang enhancements at an approved Cyber Cafe. (f) The City Council of the City of Santa Ana is concerned with increased calls for service, increasing reports of violent criminal behavior and related detrimental neighborhood effects associated with cyber cafes and internet access businesses. The City of Santa Ana and neighboring cities have experienced criminal activity associated with cyber cafas and internet access businesses, such as loitering, illegal drug activity, assaults, fights, theft, robbery, public intoxication, vandalism, property damage, and other criminal activity such as gang and prostitution related activity. (2) After receiving complaints of this nature, the City has committed resources to study the impacts of cyber cafes and internet access businesses on the surrounding community. (3) Absent the adoption of this extension of Urgency Ordinance No. NS -2956, the continued existence of cyber cafes and internet access businesses in the City of Santa Ana could result in an even greater increase in nuisance conditions which negatively affect the health and safety of the community. (4) As a result, it is necessary to extend the moratorium established pursuant to Urgency Ordinance No. NS -2956 for ten months and fifteen days, on the issuance of any entitlements permitting of cyber cafes and internet access businesses in the City, pending completion of the City's study of the potential Impacts of cyber cafes and internet access businesses, and possible amendments to the City's zoning ordinances. (5) In addition, it is necessary to prohibit, as a public nuisance, the use of property in any zone of the City for purposes of cyber cafes and internet access businesses for the duration of the ten month and fifteen -day extension. Section 3. Compliance with California Environmental Quality Act, The City Council finds that this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated study of impacts. Section 4. Severability. If any sentence, clause, or phrase of this Ordinance, or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each sentence, clause, or phrase Ordinance No. NS - Page 5 of 7 75C-9 thereof, irrespective of the fact that any one or more sentence, clause, or phrase be declared unconstitutional. Section 5. Effective Date. This Ordinance shall become effective immediately upon adoption if adopted by at a least four-fifths (4/5) vote of the City Council and shall be in effect for period of ten months and fifteen days, extending through and including October 15, 2019, unless extended by the City Council as provided for in the Government Code. Section 6. Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published once in a newspaper of general circulation printed and published within the City of Santa Ana. Section 7. Report. City staff is instructed to prepare the report required by Government Code Section 65858(d) describing the measures taken to alleviate the condition which led to this Ordinance's adoption for presentation to the City Council no later than ten days prior to the expiration of this Ordinance. Section 8. The Request for Council Action for this ordinance dated November 20, 2018, and duly signed by the Executive Director of the Planning and Building Agency and/or Chief of Police shall, by this reference, be incorporated herein, and together with this ordinance, any amendments or supplements, and oral testimony constitute the necessary findings for this ordinance. Section 9. Any ordinance declared by the City Council to be necessary as an emergency measure for preserving the public peace, health and safety, and containing a statement of the reasons for its urgency, may be introduced and adopted at one and the same meeting if passed by the affirmative votes of at least four-fifths (4/5) vote of the City Council members. Further, California Government Code Section 65858 authorizes the City Council to adopt an interim urgency ordinance, without following the procedures otherwise required for the adoption of an ordinance, to protect the public safety, health, and welfare, prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City Council, Planning Commission or the planning department is considering or studying or intends to study within a reasonable time. Section 10. This ordinance shall have no further force and effect ten (10) months and fifteen (15) days after adoption, unless subsequently, after public hearing, the City Council members, by four-fifths (4/5) vote, extend this ordinance one more year. Section 11. It shall be unlawful and a misdemeanor for any person to violate or fail to comply with any provision of this ordinance. The violation of any provision of this ordinance shall be punished as provided in Section 1-8 of the Santa Ana Municipal Code. Ordinance No. NS - _ Page 6 of 7 75C-10 Section 12. This ordinance is introduced, passed and adopted at one and the same meeting and is thereafter immediately effective upon expiration of the original 45 day moratorium. The City Council finds that this ordinance is necessary to protect the public safety, health and welfare. ADOPTED this _ day of 2018. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney Lisa Storck Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS-XXXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , 2018. Date: Clerk of the Council City of Santa Ana Ordinance No. NS Page 7 of 7 75C-11 75C-12