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HomeMy WebLinkAbout11B - ORD HOOKAH PARLORSbk:2/25/08 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADDING ARTICLE XIV TO CHAPTER 18, AND ADDING SECTION 41-73.5 AND AMENDING SECTION 41-144 OF THE SANTA ANA MUNICIPAL CODE TO PROHIBIT THE ESTABLISHMENT AND OPERATION OF HOOKAH PARLORS 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, following a noticed public hearing, the City Council adopted Ordinance No. NS-2709, which extended this moratorium ordinance 10 months and 15 days, and on February 5, 2007, following a noticed public hearing, the City Council adopted Ordinance No. NS-2709, which extended this moratorium ordinance one year. C. It has come to the City Council's attention that within the last two plus years at least two individuals have made efforts in an attempt to illegally establish a hookah parlor in Santa Ana. D. Hookah parlors have been shown to create the following deleterious effects on the public health, safety and general welfare: 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%2) years the Anaheim Police Ordinance No. NS-XXX 11 B-1 Page 1 of Department has responded to 413 incidents tied to hookah parlors. The Anaheim Police Department reported to its City Council that this number does not include an additional 86 police calls on hookah parlors that were made without a request to a Police response (for a total of 499 police calls on hookah parlors over 2 1 /2 years). 3. This same Police Department Report and news article further states that illegal weapons and underage drinking were found by an Anaheim Police Department vice operation directed at hookah parlors. 4. This Police Department Report and news article 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. 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 Ordinance No. NS-XXX Page 2 of 4 11 B-2 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. Many hookah bar owners claim they are tobacco retailers and state law does not clearly repudiate this claim. This allows tobacco smoking inside establishments where people work, eat and drink. Hookah smoking is not a safe alternative to smoking tobacco. Smoking hookah pipes has been reported to cause oral, esophageal and lung cancer, as well as heart disease, chronic bronchitis and of course, nicotine addiction. 12. According to a report authored by Dr. Kamlesh Asotra, Ph.D., for the University of California Tobacco Related Disease Program, hookah parlors create unique problems of second hand smoke, due to the increased presence of carbon monoxide (CO), which is present both in the tobacco smoke and the burning of charcoal indoors to ignite the tobacco. Dr. Asotra reports that "It is becoming increasingly clear that, like tobacco smoking, mainstream hookah smoke and second-hand hookah smoke cause deleterious effects on reproductive systems in men and women and produce genotoxic, mutagenic, and teratogenic effects on babies of smoking parents." Many commercial tenant spaces in Santa Ana share a ventilation system with other spaces within the Ordinance No. NS-XXX 11 B-3 Page 3 of same building, thus allowing second hand smoke from hookahs to propagate throughout an entire building. 13. The California Legislature approved a bill this year, AB 1467, which would have expressly banned hookah parlors throughout California. This bill, which would have additionally banned cigar lounges, and smoking in hotel lobbies and meeting rooms, was vetoed by the Governor on October 14, 2007. E. If hookah parlors are permitted in the City, they will pose a serious threat to the public health, safety and general 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. 2. 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. Hookah parlors would additionally create unique problems of second hand smoke, because of the hot charcoal coals used to enhance the burning tobacco. 3. Hookah parlors if allowed in the City would have adverse secondary effects on surrounding properties, including but not limited to lowering property values and introducing incompatible land uses to existing neighborhoods. F. 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 moratoriums or development restrictions. Other cities, such as New York and Calgary, Alberta, and the State of Washington, have simply banned them. Other countries, including the United Kingdom, France, Germany and Turkey, have banned hookah parlors. G. The Request for Council Action for this ordinance dated February 4, 2008 and duly signed by the City Manager shall, by this reference, be incorporated herein, and together with this ordinance, any Ordinance No. NS-XXX Page 4 of 4 11 B-4 amendments or supplements, and oral testimony constitute the necessary findings for this ordinance. H. Pursuant to the California Environmental Quality Act a categorical exemption has been approved for this project. Section 2. Article XIV is added to Chapter 18 of the Santa Ana Municipal Code to read as follows: Article XIV Hookah Parlors Sec. 18-650. Purpose and Findings. The City Council finds that hookah parlors have been associated with increases in noise, loitering, public drinking, possession of illegal weapons, underage drinking, and arson; that hookah parlors 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; and that hookah parlors if allowed in the City would have adverse secondary effects on surrounding properties, including but not limited to lowering property values and introducing incompatible land uses to existing neighborhoods; and that in order to serve public health, safety, and welfare of the residents and businesses within the City, the declared purpose of this article is to prohibit hookah parlors as defined in this article. Sec. 18-651. Hookah Parlor Defined. (a) "Hookah parlor" shall mean any facility or location whose business operation, whether as its primary use or as an ancillary use, 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. 11 B-5 Ordinance No. NS-XXX Page 5 of (b) "Ancillary use" shall be defined as that term is defined in section 41-13.5 of the Code. (c) "Primary use" shall mean a use that is not an ancillary use. Sec. 18-652. Hookah Parlors Prohibited. It shall be unlawful for any person or entity to own, manage, conduct, or operate any hookah parlor or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any hookah parlor in the City. Section 3. Section 41-73.5 of the Santa Ana Municipal Code is hereby added to define hookah parlors as follows: Sec. 41-73.5. Hookah Parlors. (a) "Hookah parlor" shall mean any facility or location whose business operation, whether as its primary use or as an ancillary use, 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. (b) "Primary use" shall mean a use that is not an ancillary use. Section 4. Section 41-144 of the Santa Ana Municipal Code is hereby amended to prohibit hookah parlors as a retail or service use in the City such that it reads as follows: Sec. 41-144. Retail and service uses. Retail and service uses include any use of property for the purpose of offering merchandise or services to the public for compensation, and include banks, savings and loan associations, and similar financial institutions, but do not include the following: (a) Sheet metal shops, body-fender works, automobile paint shops, repair garages, and any activity which includes Ordinance No. NS-XXX Page 6 of 4 11 B-6 the processing, treatment, compounding of any product, and traditionally incidental an activity. manufacturing, assembling or other than that which is clearly d essential to a particular retail (b) A medical marijuana dispensary as defined in section 41-121 of this Code. (c) A hookah parlor as defined in section 41-73.5 of this Code. (d) Any use which is more specifically identified as a permitted use or as a use which may be permitted subject to the issuance of a conditional use permit in one or more use districts pursuant to Article III of this chapter. Section 5. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of 2008. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney 11 B-7 Ordinance No. NS-XXX Page 7 of AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 8 of 4 11 B-8