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AGENDA STAFF REPORT

DATE: TO: THRU: FROM: August 26. 2013 Honorable Mayor and City Council Jill R. Ingram, City Manager Jim Basham, Director of Community Development

SUBJECT: AN URGENCY ORDINANCE OF THE CITY OF SEAL

BEACH DECLARING A MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF ANY SMOKE SHOP, ELECTRONIC CIGARETTE RETAILER, OR DRUG PARAPHERNALIA RETAILER SUMMARY OF REQUEST:
That the City Council adopt Urgency Ordinance No. 1631-U declaring a moratorium on the acceptance, processing or issuance of any zoning permit. building permit, occupancy permit, business license or any other entitlement for the establishment and operation of electronic cigarette retailers, drug paraphernalia retailers and smoke shops.

BACKGROUND AND ANALYSIS:
Recently, staff received an increased number of inquiries to locate electronic cigarette and other similar smoking paraphernalia businesses in the City. Staff reviewed the Municipal Code and determined that adequate provisions are not included to address this use and any other similar smoking related use such as smoke shops and head shops. So far. staff has learned that many cities have adopted ordinances that restrict tobacco retailers within certain distances from schools, residences. and parks. Other cities adopted moratoriums on issuing permits for electronic Cigarette businesses and some have required Conditional Use Permits to include locational provisions and to prevent overconcentration. E-cigarettes are best described as battery operated devices that are filled with liquid nicotine rather than tobacco and create a vapor inhaler. The cartridges come in varying doses of flavored nicotine to no nicotine. E-cigarettes or vapor cigarettes is a recent trend that is proliferating in many local jurisdictions. Cities are placed in enforcement positions because some retailers expand the selling of products and equipment that can be used with controlled SUbstances and

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For example. As you can see from the State definition attached as Attachment A. thereby creating a state-mandated local program. retail food facilities." ENVIRONMENTAL IMPACT: Pursuant to Title 14. the items typically sold in "head shops. drug paraphernalia retailers and electronic cigarette retailers than the limitations currently required under the Municipal Code. Page 2 . and health facilities. because the moratorium imposes greater limitations on smoke shops. this bill would change the definition of crime with respect to certain facilities. When the expansion occurs. and glass pipes sold in head shops. the State and Federal Government has enacted several laws to restrict or prohibit the smoking of tobacco products in various places. school campuses. Staff is currently researching federal and state laws regarding businesses that sell tobacco establishments and e-cigarettes. and will thereby serve to reduce potential significant adverse environmental impacts. and public buildings. including electronic pipes and bongs. By including electronic cigarettes within the restrictions and prohibited activity. places of employment. including. In fact. the proposed Ordinance is exempt from California Environmental Quality Act review because there is no possibility the adoption of the proposed Ordinance. and establishment of the interim moratorium thereby. if not all. FINANCIAL IMPACT: There is no financial impact at this time. residential dwelling units. 2013 extends the existing restrictions and prohibitions against the smoking of tobacco products by including electronic cigarettes. LEGAL ANALYSIS: The City Attorney has reviewed the draft ordinance and approved it as to form. it changes or modifies the nature of the business and use. Section 15061 (b)(3) of the California Code of Regulations. electrical pipes. will have a significant effect on the environment. but not limited to. Also. the definition contains most. day care facilities.advertising of drug paraphernalia. California State Senate Bill (SB) 648 introduced in February. and the selling of tobacco products to minors. the Health and Safety Code Sections 11000­ 11033 ("California Controlled Substances Act") prohibits the sale of drug paraphernalia and list several types of items or products that may be utilized for drug purposes such as bongs. Staff requires additional time to monitor this legislation and to conduct research on this use and to ensure that the community's general health and public welfare is protected.

B. Urgency Ordinance No. processing or issuance of any zoning permit. 1631-U declaring a moratorium on the acceptance. building permit.RECOMMENDATION: That the City Council adopt Urgency Ordinance No. drug paraphernalia retailers and smoke shops. NOTED AND APPROVED: Ji I Basham D ector of Community Development Attachments: A.5 (definition of drug paraphernalia) Page 3 . business license or any other entitlement for the establishment and operation of electronic cigarette retailers. 1631-U California Health & Safety Code Section 11014. occupancy permit.

electronic cigarette retailers. Several existing businesses in the City are already advertising the sale of electronic cigarettes. Smoke shops. and drug paraphernalia retailers may have on the public's health. the adequacy of its existing ordinances and the potential need to adopt new regulations regarding smoke shops. On August 26. and welfare is required to ensure that any negative impacts can be addressed and mitigated. 2013. the City Council and the people of Seal Beach require a sufficient and reasonably limited time to consider and study legally appropriate and reasonable policies regulating these businesses in order to prevent negative impacts on neighboring residents. but the City has not studied how to best manage and mitigate these impacts. The Planning Commission. Anecdotal evidence suggests that smoke shops and the sale of drug paraphernalia can create harmful secondary effects in the neighborhoods in which they are located. electronic cigarette retailers. safety. and welfare presented by the unregulated operation of smoke shops or retailers of electronic cigarettes or drug paraphernalia retailers. within a reasonable time. electronic cigarettes. they could have potential adverse secondary effects on neighborhoods and result in significant irreversible change to the neighborhood and community character. and newer shops have been observed to sell paraphernalia that could be used to consume substances other than tobacco. safety. OR DRUG RETAILER THE SEAL BEACH CITY COUNCIL HEREBY ORDAINS AS FOLLOWS: Findings. or welfare. The City has recently received inquiries regarding the possible establishment of smoke shops.ORDINANCE NUMBER 1631-U AN URGENCY ORDINANCE OF THE CITY OF SEAL BEACH DECLARING A MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF ANY SMOKE SHOP. and drug paraphernalia retailers. the City Council considered Section 1. ELECTRONIC PARAPHERNALIA CIGARETTE RETAILER. electronic cigarette retailers. . There is a current and immediate threat to the public health. The traditional character of smoke shops has changed. f. and drug paraphernalia retailers. the City Council finds that it is necessary to enact an interim moratorium to ensure that operation of businesses that may conflict with the contemplated new development policies are not permitted in the interim. b. the adoption of this Ordinance at a duly noticed public meeting and on the basis of the record thereof finds the following facts to be true. as well as synthetic marijuana substitutes and other products and drug paraphernalia that are potentially harmful to the public health and safety and to the general quality of life. electronic cigarette retailers. a. If smoke shops. safety. d. Given the time required to undertake the study and planning this situation calls for. safety. and welfare is required to ensure that any negative impacts can be addressed and mitigated. The City intends to study. and drug paraphernalia retailers are established and allowed without appropriate review and regulation. The City Council has the authority to adopt an interim ordinance pursuant to the City Charter and Government Code Section 65858 in order to protect the public health. The use and sale of electronic cigarettes are recent developments and further study and consideration of the potential impacts that they might have on the public's health. and drug paraphernalia are not currently addressed in the Municipal Code. Further study and consideration of the potential impacts that smoke shops. c. e.

The City Council hereby finds that it can be seen with certainty that there is no possibility the adoption of this Ordinance and establishment of the interim moratorium hereby. There is therefore an urgent necessity for the City to adopt a temporary moratorium on the establishment of smoke shops. an electronic hookah. stand or cart that devotes any floor space or display area to the sale. structure. or other entitlement for the establishment or operation of any smoke shop. an electronic pipe. as it now exists or may be amended in the future. For purposes of this Ordinance. For purposes of this Ordinance. electronic cigarette retailer. bartering. The City hereby declares a moratorium on the Section 2. marketing. or sold as an electronic cigarette. or any other product name or descriptor. electronic cigarette retailer. marketing. The term includes any such device. c. This Ordinance shall expire 45 days after its adoption unless extended by the City Council at a regularly noticed public hearing pursuant to California Government Code Section 65858. display. structure. vehicle. For purposes of this Ordinance. d. f. the term "smoke shop" means any establishment.Ordinance Number 1631-U g. stand or cart that devotes more than 20% of either its floor space or display area to the sale. Moratorium. electronic cigarette retailer. g. license. marketed. This Ordinance is an urgency ordinance for the immediate preservation of the public peace. Section 3. Term. an electronic cigar. or drug paraphernalia retailer is prohibited. e. establishment of any smoke shop. vehicle. the term "drug paraphernalia" is defined by reference to California Health and Safety Code Section 11014. tobacco products. distributed. or smoking or tobacco paraphernalia. It is therefore . trading or exchange of drug paraphernalia. stand or cart that devotes any floor space or display area to the sale. or drug paraphernalia retailer. The terms defined above shall be broadly and liberally interpreted to carry out the intent of this interim Ordinance. b. the term "electronic cigarette" means an electronic and/or battery-operated device. display. For purposes of this Ordinance. The establishment of any smoke shop. trading or exchange of any combination of tobacco. bartering. because the moratorium imposes greater limitations on smoke shops. drug paraphernalia and electronic cigarette retailers in the City than the limitations currently required under the Municipal Code. will have a significant effect on the environment. facility. the term "drug paraphernalia retailer" means any establishment. the use of which may resemble smoking that can be used to deliver an inhaled dose of nicotine or other substances. For purposes of this Ordinance. and drug paraphernalia retailers to take effect immediately. The City shall not approve any new or pending application for any permit. the term "electronic cigarette retailer" means any establishment. CEQA Finding. Section 4. and will thereby serve to reduce potential significant adverse environmental impacts. marketing. and safety within the meaning of City Charter Section 412 and Government Code Section 36937(b) and therefore shall be passed immediately upon its introduction and shall become effective immediately upon its adoption. a. vehicle. electronic cigarette retailers. display. or drug paraphernalia retailer. facility. bartering. facility. trading or exchange of electronic cigarettes.5. The term does not include any medical inhaler prescribed by a licensed doctor. health. structure. an electronic cigarillo. whether manufactured.

or by both such fine and imprisonment. subdivision. PASSED. clause or phrase hereof. passed. subsections. any violation of this Ordinance shall constitute a public nuisance and shall be subject to abatement as provided by all applicable provisions of law. paragraph. Penalty. City Clerk .000 or by imprisonment for a period not to exceed 6 months. Section 6.Ordinance Number 1631-U exempt from California Environmental Quality Act review pursuant to Title 14. 2013 by the following vote: AYES: NOES: ABSENT: ABSTAIN: Council Members _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ CounCil Members _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Council Members _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Council Members _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ and do hereby further certify that Urgency Ordinance Number 1631-U has been published pursuant to the Seal Beach City Charter and Resolution Number 2836. such invalidity shall not affect the validity of the remaining portions of this Ordinance or any part hereof. Severability. If any section. paragraph. paragraphs. clauses or phrases be declared invalid. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. Section 15061 (b )(3) of the California Code of Regulations. subsection. at a meeting held on the 26th day of August. constitute a misdemeanor and shall be punishable by a fine not to exceed $1. sentences. Each and every day such a violation exists shall constitute a separate and distinct violation of this Ordinance. sentence. 2013. City Clerk of the City of Seal Beach. Mayor ATTEST: City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I. California. approved and adopted by the City Council of the City of Seal Beach. Section 7. The City Council of the City of Seal Beach hereby declares that it would have passed each section. Linda Devine. subdivision. irrespective of the fact that anyone or more sections. sentence. clause or phrase of this Ordinance or any part thereof is for any reason held to be invalid. pursuant to the City Charter and Government Code § 36967(b). Violation of any provision of this Ordinance shall Section 5. In addition to the foregoing. APPROVED AND ADOPTED by the City Council of the City of Seal Beach at a meeting thereof held on the 26th day of August. subdivisions. subsection. do hereby certify that the foregoing ordinance is an original copy of Urgency Ordinance Number 1631-U on file in the office of the City Clerk.

concealing. containing.) 11014. products and materials of any kind which are designed for use or marketed for use. (7) Hypodermic syringes.• 11033. such as a marijuana cigarette. preparing. testing. (6) Containers and other objects designed for use or marketed for use in storing or concealing controlled substances. such as: (A) Carburetion tubes and devices. converting. Ch.] (Division 10 repealed and added by Stats. meaning objects used to hold burning material. producing. ) CHAPTER 1. cultivating. injecting. (5) Scales and balances designed for use or marketed for use in weighing or measuring controlled substances. or in analyzing the strength. propagating. inhaling. ingesting. (F) Carburetor pipes. or otherwise introducing marijuana. converting. or purity of controlled substances. (3) Isomerization devices designed for use or marketed for use in increasing the potency of any species of plant which is a controlled substance.Attachment "8" HEALTH AND SAFETY CODE . effectiveness. (C) Roach clips. growing. or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived. (J) Bongs. repackaging. processing.HSC DIVISION 10. 1407. or otherwise introducing into the human body a controlled substance in violation of this division. Ch. (D) Miniature cocaine spoons. 1407. packaging. or hashish oil into the human body. hashish. inhaling. producing. (4) Testing equipment designed for use or marketed for use in identifying. 1972. -11651. (B) Smoking and carburetion masks. (E) Chamber pipes. (I) Chillums. and other objects designed for use or marketed for use in parenterally injecting controlled substances into the human body. It includes. (G) Electric pipes. and cocaine vials. that has become too small or too short to be held in the hand. (K) Ice pipes or chillers. (8) Objects designed for use or marketed for use in ingesting. (H) Air-driven pipes. cultivating. processing. cocaine. analyzing. or preparing controlled substances. in planting.5. growing. harvesting. propagating. (a) "Drug Paraphernalia" means all equipment.] (Chapter 1 added by Stats. (2) Kits designed for use or marketed for use in manufacturing. but is not limited to: (1) Kits designed for use or marketed for use in planting. manufacturing. UNIFORM CONTROLLED SUBSTANCES ACT [11000. 1972. compounding. storing. General Provisions and Definitions [11000 . . needles. compounding.

(b) For the purposes of this section. (3) (4) (5) (6) (7) (d) If any provision of this section or the application thereof to any person or circumstance is held invalid. inhaling. such as a licensed distributor or dealer of tobacco products. provided with the object concerning its use for ingesting. 1982. Instructions. Expert testimony concerning its use. in addition to all other logically relevant factors. Descriptive materials accompanying the object which explain or depict its use. it is the intent of the Legislature that the invalidity shall not affect other provisions or applications of the section which can be given effect without the invalid provision or application and to this end the provisions of this section are severable. Ch. a court or other authority may consider. (Added by Stats. Sec. Whether the owner. 1278. The manner in which the object is displayed for sale. distributing. or anyone in control of the object. is a legitimate supplier of like or related items to the community. displaying for sale. 1. or materials with controlled substances. the phrase "marketed for use" means advertising. or otherwise introducing a controlled substance into the human body. offering for sale. or selling in a manner which promotes the use of equipment. the following: (1) (2) Statements by an owner or by anyone in control of the object concerning its use. (c) In determining whether an object is drug paraphernalia.) . oral or written. National and local advertising concerning its use. products.