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HomeMy WebLinkAbout75C - PUBLIC HRG HOOKAH PARLOR CITY COUNCIL MEETING DATE: REQUEST FOR COUNCIL ACTION CLERK OF COUNCIL USE ONLY: FEBRUARY 5, 2007 TITLE: PUBLIC HEARING - EMERGENCY ORDINANCE EXTENDING MORATORIUM FOR ONE YEAR ON THE PROHIBITION, CONSTRUCTION OR ESTABLISHMENT OF HOO~U7a- CITY MANAGER APPROVED o As Recommended o As Amended o Ordinance on 1" Reading o Ordinance on 2M Reading o Implementing Resolution o Set Public Hearing For CONTINUED TO ~ FILE NUMBER RECOMMENDED ACTION Adopt an emergency ordinance of the City of Santa Ana extending the moratorium on the construction or establishment of any new hookah parlor for a period of one year. DISCUSSION The City recently received an application to establish a hookah parlor within an existing commercial retail center. A "hookah parlor," for the purposes of this ordinance, shall mean any facility or location whose business operation is denoted by the smoking of tobacco or other substances through one or more pipes (commonly known as a hookah, waterpipe, shisha or narghile) designed with a tube passing through an urn of water that cools the smoke as it is drawn through it, including but not limited to, establishments known variously as hookah bars, hookah lounges or hookah cafes. Hookah parlors have been associated with a number of detrimental impacts such as public loitering, public drinking and intoxication, and noise. Provisions of the General Plan of the City and Chapter 41 of the Santa Ana Municipal Code do not specifically identify hookah parlors as a land use or designate zoning districts throughout the City where hookah parlors may be permitted. As such, provisions of the General plan and the Santa Ana Municipal Code need review, study and possible revision in order to respond to concerns relating to the impacts of hookah parlors and the potential establishment of new hookah parlors in the City. The City Council adopted a 45-day moratorium on February 21, 2006 and extended the moratorium on April 3, 2006 for a 10 month and 15 day time period which is due to expire on February 18, 2007. The City Charter and State law authorizes interim ordinances and moratoria in instances where it is necessary to create policies and standards for land uses. The City 75C-1 Hookah Parlor Moratorium Extension February 5, 2007 Page 2 at present has no standards regulating hookah parlors, as they are uncommon and a newer land use in the City. This moratorium will allow time to ensure that proper standards are developed. Particular areas requiring further study include how hookah parlors relate to California Labor Code section 640.5, various environmental regulations and the Ci ty' s recently adopted Tobacco Retailers ordinance. One continuing issue is the ambiguity of the California Labor Code concerning the State's smoking regulation exemption for inside retail or wholesale tobacco shops, lounges and private clubs. A one year extension of the moratorium is recommended so as to allow the development of appropriate standards for hookah parlors and to determine the appropriate level of review required for proposed locations. It is anticipated that the development and operational standards for this use will be presented to the Planning Commission and City Council for review later this year. FISCAL IMPACT There is no fiscal impact associated with this action. JaY~e~~ Executive Director Planning & Building Agency LP:rb Ip/rfca/hookah extension.cc 75C-2 ORDINANCE AN EMERGENCY ORDINANCE OF THE CITY OF SANTA ANA EXTENDING THE TEMPORARY PROHIBITION ON THE CONSTRUCTION OR ESTABLISHMENT OF ANY NEW HOOKAH PARLOR 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. Provisions of the General Plan of the City and Chapter 41 of the Santa Ana Municipal Code do not specifically identify hookah parlors as a land use or designate zoning districts throughout the City where hookah parlors may be permitted. B. For this reason, on February 21, 2006, at a regularly scheduled public meeting the City Council adopted Ordinance No. NS-2707, which established a moratorium on the construction or establishment of a hookah parlor (hereafter "the moratorium ordinance"). On April 3, 2006, the City Council adopted Ordinance No. NS-2709, which extended this moratorium 10 months and 15 day. C. Because of its age, current provisions of the Santa Ana Municipal Code fail to fully take into account the potential impacts associated with the establishment of hookah parlors and fail to address the needs of the City and its residents today and in the future. As such, provisions of the General Plan and the Santa Ana Municipal Code ("the Code") need review, study and possible revision in order to respond to recent concerns relating to the impacts of hookah parlors and the potential establishment of new hookah parlors in the City. D. Given these concerns, the City Council has requested, in adopting this moratorium, that further study be undertaken of the current provisions of the General Plan and Chapter 41 of the Code to classify hookah parlors and determine whether such businesses should be permitted in the City and if so, where, and under what conditions. During this study period, the City has adopted Ordinance No. NS-2729, which regulates the sale of retail tobacco; established an interagency task force to focus on this issue; and evaluated regulatory decisions adopted by other cities in Orange County, California, the United States and Canada. 75C-3 Ordinance No. NS - XXXX Page 1 of 6 E. Without adoption of this ordinance, properties in the City would quickly receive entitlements to establish hookah parlors despite the fact that the city council has determined that the Code is in need of updating and has directed that a study be done to recommend new standards and revise the Code to address concerns created by hookah parlors. F. It has come to the City Council's attention that at least two individuals have made efforts in an attempt to establish a hookah parlor in Santa Ana. G. The City is not, at this time, able to determine under what circumstances, if any, hookah parlors should be established within the City for the following reasons: 1. In other cities, the operation of hookah parlors have led to complaints of loud music, drinking in public and large crowds milling outside of the site. 2. The Orange County Register reports (November 10, 2005) that in two and one-half (2%) years the Anaheim Police Department has responded to 413 incidents tied to hookah parlors. 3. This same news report further states that illegal weapons and underage drinking were found by an Anaheim Police Department vice operation directed at hookah parlors. 4. This news report further stated that some hookah parlors in Anaheim had been the target of fire bombs and arson. 5. While there is a widespread belief that smoking from a hookah pipe is safer than other types of tobacco smoking, the World Health Organization ("WHO") reported in 2005 that "waterpipe smokers and second-hand smokers [are] at risk for the same kinds of diseases as are caused by cigarette smoking, including cancer, heart disease, respiratory disease, and adverse effects during pregnancy." 6. 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." 7. The WHO investigatory panel also found that sharing a hookah's mouthpiece poses a serious risk of transmission of communicable diseases. 75C-4 Ordinance No. NS - XXXX Page 2 of 6 8. The WHO investigatory panel found that the common practice of sweetening and flavoring hookah tobacco, giving it a sweet taste and smell, may account for the increase of its use among young people who otherwise avoid smoking. 9. The smoking of tobacco in a hookah "is frightening because it is a gateway toward a lifetime use of tobacco, including cigarettes," according to Dr. Christopher Loffredo, Ph.D., Director of the Cancer Genetics and Epidemiology program at Georgetown University Medical Center, who has studied hookah smoking since 1997. Dr. Loffredo further reports that: "People think the water absorbs the toxins, and that is true to some extent if the toxins are water soluble, but tar isn't, and tar contains the carcinogens. We believe that, compared to the typical cigarette smoker, waterpipe smokers are exposed to larger total amounts of nicotine, carbon monoxide and certain other toxins. And because the tobacco is burning at a lower temperature, it is more tolerable to inhale deeply, and in fact you need more force to pull air through the high resistance of the water pathway. That means the tobacco smoke can be penetrating deeper in a person's respiratory tract than cigarette smoke does. The damage could be even worse than seen in cigarette smokers, but we haven't done studies long enough to quantify the true cancer risk." 10. According to Dr. Loffredo, another concern is that hookah use may represent a loophole around city and state laws banning smoking in public places. 11. While California Labor Code section 6404.5 generally bans indoor smoking at restaurants and bars, it exempts smoking inside retail or wholesale tobacco shops and private smokers' lounges. It is unclear how substantial the sale of tobacco for offsite consumption must be to qualify for this exemption. While the City is currently studying this issue, the Public Health Institute's Technical Assistance Legal Center, funded by the California Department of Health Services, recommends that this exception should only be available to a business that derives seventy-five percent (75%) or more of gross sales receipts from the sale of tobacco products and tobacco paraphernalia. H. If hookah parlors are permitted in the City and left unregulated, they will pose a serious threat to the public interest, health, safety and welfare for the following reasons: 1. Hookah parlors established in other cities have been associated with increases in noise, loitering, public drinking, possession of illegal weapons, underage drinking, and arson. 75C-5 Ordinance No. NS - XXXX Page 3 of 6 2. Unregulated 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. 3. Hookah parlors if allowed in the City under the current state of the City's regulations will have adverse secondary effects on surrounding properties, including but not limited to lowering property values and introducing incompatible land uses to existing neighborhoods. I. In order to prevent frustration of said studies and the implementation thereof, the public interest, health, safety and welfare require the immediate enactment of this ordinance. The absence of this ordinance would create a serious threat to the orderly and effective implementation of any code amendments, general plan amendments or specific plan amendments which may be adopted by the city as a result of the studies in that the establishment or construction of hookah parlors may be in conflict with or frustrate the contemplated updates and revisions to the Code, general plans or specific plans. Moreover, permitting hookah parlors to be established or constructed during said studies and implementation would create impacts on the public health, safety and welfare that the city council, in adopting this ordinance, has found to be unacceptable. J. In response to the threat of unregulated hookah parlors several cities, including but not limited to the Cities of Anaheim, Garden Grove, and Dublin California, have adopted similar moratoriums or development restrictions. Other cities, such as New York and Calgary, Alberta, and the State of Washington, have simply banned them. K. The Request for Council Action for this ordinance dated February 5, 2007 and duly signed by the City Manager 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. L. The city council finds, determines and declares that the current and immediate threat to the public health, safety and welfare of the city and its citizens necessitates the immediate enactment of the ordinance. The facts constituting such urgency are set forth in paragraphs A-L of this ordinance. Section 2. Extension of Moratorium Ordinance. A. The City Council hereby extends Ordinance No. NS -2707 and Ordinance No. NS-2709 for the period specified in this Section 2. 75C-6 Ordinance No. NS - XXXX Page 4 of 6 B, Pursuant to section 415 of the city's charter, this interim ordinance is introduced, passed and adopted at the same meeting and shall take effect immediately. It shall be effective for a period of one year from the date of its adoption, and thereafter shall be null and void. Section 3. It shall be unlawful and a misdemeanor for any person to violate or fail to comply with any provision of this ordinance, Ordinance No. NS-2707, or Ordinance No. NS-2709. The violation of any provision of this ordinance shall be punished as provided in Section 1-8 of the Code. Section 4. The Clerk of the Council shall certify to the adoption of this ordinance and cause the same to be published in the manner prescribed by law. Section 5. This ordinance is introduced, passed and adopted at one and the same meeting and is thereafter immediately effective. The city council finds that this ordinance is necessary to protect the public safety, health and welfare. The reasons for the emergency are set forth in Section 1, paragraphs A-L, inclusive of this ordinance. ADOPTED this day of ,2007. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney 75C-7 Ordinance No. NS - XXXX Page 5 of 6 AYES: Councilmembers NOES: Council members ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana 75C-8 Ordinance No. NS - XXXX Page 6 of 6