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

Agenda Item

L

advertising of drug paraphernalia, including electronic pipes and bongs. When the expansion occurs, it changes or modifies the nature of the business and use. Staff is currently researching federal and state laws regarding businesses that sell tobacco establishments and e-cigarettes. For example, the State and Federal Government has enacted several laws to restrict or prohibit the smoking of tobacco products in various places, including, but not limited to, residential dwelling units, school campuses, and public buildings, places of employment, day care facilities, retail food facilities, and health facilities, and the selling of tobacco products to minors. In fact, California State Senate Bill (SB) 648 introduced in February, 2013 extends the existing restrictions and prohibitions against the smoking of tobacco products by including electronic cigarettes. By including electronic cigarettes within the restrictions and prohibited activity, this bill would change the definition of crime with respect to certain facilities, thereby creating a state-mandated local program. 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. Also, 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, electrical pipes, and glass pipes sold in head shops. As you can see from the State definition attached as Attachment A, the definition contains most, if not all, the items typically sold in "head shops."

ENVIRONMENTAL IMPACT:
Pursuant to Title 14, Section 15061 (b)(3) of the California Code of Regulations, 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, will have a significant effect on the environment, because the moratorium imposes greater limitations on smoke shops, drug paraphernalia retailers and electronic cigarette retailers than the limitations currently required under the Municipal Code, and will thereby serve to reduce potential significant adverse environmental impacts.

LEGAL ANALYSIS:
The City Attorney has reviewed the draft ordinance and approved it as to form.

FINANCIAL IMPACT:
There is no financial impact at this time.

Page 2

RECOMMENDATION:
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. NOTED AND APPROVED:

Ji I Basham D ector of Community Development

Attachments:
A. B. Urgency Ordinance No. 1631-U California Health & Safety Code Section 11014.5 (definition of drug paraphernalia)

Page 3

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, ELECTRONIC PARAPHERNALIA CIGARETTE RETAILER, OR DRUG RETAILER

THE SEAL BEACH CITY COUNCIL HEREBY ORDAINS AS FOLLOWS: Findings. On August 26, 2013, the City Council considered Section 1. 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. a. The City has recently received inquiries regarding the possible establishment of smoke shops, electronic cigarette retailers, and drug paraphernalia retailers. Several existing businesses in the City are already advertising the sale of electronic cigarettes. Smoke shops, electronic cigarettes, and drug paraphernalia are not currently addressed in the Municipal Code. b. The traditional character of smoke shops has changed, and newer shops have been observed to sell paraphernalia that could be used to consume substances other than tobacco, 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. 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, but the City has not studied how to best manage and mitigate these impacts. Further study and consideration of the potential impacts that smoke shops, electronic cigarette retailers, and drug paraphernalia retailers may have on the public's health, safety, and welfare is required to ensure that any negative impacts can be addressed and mitigated. c. 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, safety, and welfare is required to ensure that any negative impacts can be addressed and mitigated. d. If smoke shops, electronic cigarette retailers, and drug paraphernalia retailers are established and allowed without appropriate review and regulation, they could have potential adverse secondary effects on neighborhoods and result in significant irreversible change to the neighborhood and community character. e. The City intends to study, within a reasonable time, the adequacy of its existing ordinances and the potential need to adopt new regulations regarding smoke shops, electronic cigarette retailers, and drug paraphernalia retailers. The Planning Commission, 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. Given the time required to undertake the study and planning this situation calls for, 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. 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, safety, or welfare. f. There is a current and immediate threat to the public health, safety, and welfare presented by the unregulated operation of smoke shops or retailers of electronic cigarettes or drug paraphernalia retailers.

Ordinance Number 1631-U g. There is therefore an urgent necessity for the City to adopt a temporary moratorium on the establishment of smoke shops, electronic cigarette retailers, and drug paraphernalia retailers to take effect immediately. Moratorium. The City hereby declares a moratorium on the Section 2. establishment of any smoke shop, electronic cigarette retailer, or drug paraphernalia retailer. a. The establishment of any smoke shop, electronic cigarette retailer, or drug paraphernalia retailer is prohibited. The City shall not approve any new or pending application for any permit, license, or other entitlement for the establishment or operation of any smoke shop, electronic cigarette retailer, or drug paraphernalia retailer. b. For purposes of this Ordinance, the term "smoke shop" means any establishment, structure, facility, vehicle, stand or cart that devotes more than 20% of either its floor space or display area to the sale, display, marketing, bartering, trading or exchange of any combination of tobacco, tobacco products, or smoking or tobacco paraphernalia. c. For purposes of this Ordinance, the term "drug paraphernalia retailer" means any establishment, structure, facility, vehicle, stand or cart that devotes any floor space or display area to the sale, display, marketing, bartering, trading or exchange of drug paraphernalia. d. For purposes of this Ordinance, the term "drug paraphernalia" is defined by reference to California Health and Safety Code Section 11014.5, as it now exists or may be amended in the future. e. For purposes of this Ordinance, the term "electronic cigarette retailer" means any establishment, structure, facility, vehicle, stand or cart that devotes any floor space or display area to the sale, display, marketing, bartering, trading or exchange of electronic cigarettes. f. For purposes of this Ordinance, the term "electronic 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 electronic 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. g. The terms defined above shall be broadly and liberally interpreted to carry out the intent of this interim Ordinance. Section 3. Term. This Ordinance is an urgency ordinance for the immediate preservation of the public peace, health, 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. 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. Section 4. CEQA Finding. 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, will have a significant effect on the environment, 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, and will thereby serve to reduce potential significant adverse environmental impacts. It is therefore

Ordinance Number 1631-U exempt from California Environmental Quality Act review pursuant to Title 14, Section 15061 (b )(3) of the California Code of Regulations. Penalty. Violation of any provision of this Ordinance shall Section 5. constitute a misdemeanor and shall be punishable by a fine not to exceed $1,000 or by imprisonment for a period not to exceed 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 6. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to be invalid. such invalidity shall not affect the validity of the remaining portions of this Ordinance or any part hereof. The City Council of the City of Seal Beach hereby declares that it would have passed each section, subsection. subdivision. paragraph. sentence, clause or phrase hereof. irrespective of the fact that anyone or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared invalid. Section 7. 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. PASSED. APPROVED AND ADOPTED by the City Council of the City of Seal Beach at a meeting thereof held on the 26th day of August, 2013.

Mayor ATTEST:

City Clerk

STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine. City Clerk of the City of Seal Beach, California, 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, passed, approved and adopted by the City Council of the City of Seal Beach, pursuant to the City Charter and Government Code § 36967(b), at a meeting held on the 26th day of August, 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.

City Clerk

Attachment "8"
HEALTH AND SAFETY CODE - HSC
DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT
[11000. -11651.]

(Division 10 repealed and added by Stats. 1972, Ch. 1407. )

CHAPTER 1. General Provisions and Definitions [11000 .• 11033.] (Chapter 1 added by Stats. 1972, Ch. 1407.) 11014.5.

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

(b) For the purposes of this section, the phrase "marketed for use" means advertising, distributing, offering for sale, displaying for sale, or selling in a manner which promotes the use of equipment, products, or materials with controlled substances. (c) In determining whether an object is drug paraphernalia, a court or other authority may consider, in addition to all other logically relevant factors, the following: (1) (2) Statements by an owner or by anyone in control of the object concerning its use. Instructions, oral or written, provided with the object concerning its use for ingesting, inhaling, or otherwise introducing a controlled substance into the human body. Descriptive materials accompanying the object which explain or depict its use. National and local advertising concerning its use. The manner in which the object is displayed for sale. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products. Expert testimony concerning its use.

(3) (4) (5) (6)

(7)

(d) If any provision of this section or the application thereof to any person or circumstance is held invalid, 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.

(Added by Stats. 1982, Ch. 1278, Sec. 1.)