HomeMy WebLinkAboutNS-2763 - Adding Article XIV to Chapter 18, and Adding Section 41-73.5 ...bk:2f25l08
ORDINANCE NO. NS-2763
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'/~) years the Anaheim Police 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
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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 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
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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 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:
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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 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.
Ordinance No. NS-2763
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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. 18-851. 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.
(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,
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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 the
processing, treatment, manufacturing, assembling or compounding
of any product, other than that which is clearly and traditionally
incidental and essential to a particular retail activity.
(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 conditignal 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
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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 3`d day of March, 2008.
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
n
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By:
Chi~f/Assistant ¢ity Attorney
AYES: Councilmembers: Alvarez, Benavides, Bustamante. Martinez,
Pulido, Sarmiento, Tinaiero (7)
NOES: Councilmembers: None (0)
ABSTAIN: Councilmembers: None (0)
NOT PRESENT: Councilmembers: None (0)
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-2763 to be the original ordinance adopted by the City
Council of the City of Santa Ana on March 3. 2008, and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date: c 3 O ~ ®~
Patricia E. Healy
Clerk of the Council
City of Santa Ana
Ordinance No. NS-2763
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