BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG ) ) ) ) ) )

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1 In the Matter of: BEFORE THE CITY COUNCIL OF THE CITY OF PITTSBURG Urgency Ordinance of the City of Pittsburg Extending byone (1 year, Ten(10 Months, and Fifteen(15 Days the Forty- Five (45 day Moratorium Established by Interim Ordinance No on Smoke Shops and Smoking Lounges ORDINANCE NO. 16-XXXX WHEREAS, Government Code section 65858, subdivision (a provides that city legislative bodies may, to protect public safety, health and welfare, adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body is considering or studying or intends to study within a reasonable time; and WHEREAS, on April 4, 2016, following a public hearing noticed pursuant to Government Code section 65090, the City Council adopted by four-fifths voteinterim Ordinance No imposing a forty-five (45 day moratorium on the establishment and operation of smoke shops and smoking lounges in Pittsburg; and WHEREAS, Interim Ordinance No will, unless extended, expire by its own terms on May 19, 2016; and WHEREAS, Interim Ordinance No may be extended for up to one (1 year, ten (10 months, and fifteen (15 days pursuant to Government Code section 65858, subdivision (b; and WHEREAS, Government Code section 65858, subdivision (d requires that ten (10 days prior to the expiration of an interim ordinance, the legislative body issue a written report describing the measures taken to alleviate the condition which led to the adoption of the interim ordinance; and WHEREAS, on or before May 6, 2016, a copy of the written report required by Government Code section 65858, subdivision (d was made available for review in the Planning Division located at 65 Civic Avenue in Pittsburg, was posted on the Public Notices section of the City s website, and is incorporated herein as Exhibit A ; and WHEREAS, on May 16, 2016, the City Council held a public meeting noticed pursuant to Government Code section to consider extending Interim Ordinance No , at which time oral and/or written testimony was considered; and Ordinance No. 16-XXXX Page 1 of 6 May 16, 2016

2 WHEREAS, NOW, THEREFORE, the City Council of the City of Pittsburg Does ORDAINas follows: Section 1. Moratorium Imposed. A. Scope. In accordance with the authority granted the City of Pittsburg under Article XI, Section 7 of the California Constitution and Government Code Section 65858, from and after the effective date of this ordinance, no permit or any other applicable license or entitlement for use, including, but not limited to, the issuance of a business license, shall be approved or issued for the establishment or operation of a smoke shop or smoking lounge in the City of Pittsburg. This moratorium shall not apply to the renewal of a business license for an existing business of these types in the City provided the renewal seeks to maintain the business in its existing location without expansion of the use. Additionally, this moratorium shall not apply to the issuance of an initial business license for a person to operate, engage in, carry on, or allow the operation of an existing smoke shop or smoking lounge, provided that the applicant seeks to maintain the business without expansion and in its current location and the establishment complies with all City, State, Federal or otherwise applicable codes, rules, regulations or laws. B. Definitions. For the purposes of this ordinance: 1. Smoke shop is defined as a retail establishment that devotes fifteen percent (15% or more of its total floor space to products intended or designed for use in ingesting, inhaling or otherwise introducing tobacco or controlled substances into the human body, including but not limited to tobacco products, smoking oils and extracts, electronic cigarettes which contain nicotine and emit smoke or vapor, smoking accessories, including but not limited to rolling papers, rolling machines, herb grinders, scales, glass pipes, hookah pipes, bongs, bubbler or other paraphernalia. Herbal and nicotine containing products which do not generate smoke or vapor, and incense used solely for olfactory purposes and not containing tobacco or nicotine, are not included in this definition. 2. "Smoking lounge" means a business establishment that is dedicated, in whole or in part, to the smoking or vaporization of tobacco or other substances, including but not limited to establishments commonly known as cigar lounges, hookah cafes, tobacco clubs, tobacco bars, e-cigarette lounges and vapor bars. 3. Smoke means the gases, particles or vapors released into the air as a result of combustion, electrical ignition or vaporization when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts. The term Smoke includes but is not limited to tobacco smoke and electronic cigarette vapors. The term Smoke does not include the product of combustion of incense or similar products which do not contain tobacco or nicotine, when used solely for olfactory Ordinance No. 16-XXXX Page 2 of 6 May 16, 2016

3 purposes. 4. Expansion includes, but is not limited to, a net increase an establishment s floor space. C. Statutory Findings and Purpose. This ordinance is declared to be an interim ordinance as defined under Government Code section This ordinance is deemed necessary based on the following findings of the City Council of the City of Pittsburg: 1. The purpose of this Ordinance is to protect the public safety, health and welfare from a current and immediate threat posed by the establishment of new and expansion of existing smoke shops and smoking lounges. The facts constituting the urgency are: a growing number of smoke shops are locating or planning on locating within the City. Additionally, the City recently received a business license application for a smoke shop to be located near an elementary school within the City. Smoke shops and smoking lounges sell tobacco products and the use of tobacco products is a serious health issue. Smoke shops and smoking lounges may promote the illegal consumption and purchase of tobacco products by children and minors by increasing their exposure to tobacco product and smoking paraphernalia. Furthermore, within the last year the City suspended the business license of a smoke shop for selling tobacco products to minors. The City of Pittsburg does not currently have standards in the Pittsburg Municipal Code related to the location, operation and concentration of smoke shops and smoking lounges within the City. 2. Absent the adoption of this urgency ordinance, the establishment and operation of smoke shops and smoking lounges in the City would result in the harmful secondary effects detailed herein. 3. The City Council finds that smoke shops and smoking lounges, as currently regulated, are not specifically prohibited or regulated in areas adjacent to schools, public parks, or public libraries. Thus, as applications for business license are submitted to the City, there is no determination as to whether such potential uses are consistent with the purpose and intent of the City s Zoning Code and General Plan. 4. The City Council finds that, in general, these types of businesses can result in serious harmful effects, including but not limited to loitering, drug sales, illegal sales to minors, littering, aesthetically unappealing premises, lowering of surrounding property values, increase of public nuisances, and an increase of other criminal activity. 5. The City Council finds that smoke shops and smoking lounges promote the illegal consumption and purchase of tobacco products by children and minors by increasing their exposure to tobacco products and smoking paraphernalia, contribute to high concentrations of controlled substance-related uses in certain neighborhoods, and adversely affect the City s economic vitality. 6. The City has concluded that the best method of protecting the public Ordinance No. 16-XXXX Page 3 of 6 May 16, 2016

4 safety, health, and welfare is to adopt regulations concerning the operation of smoke shops and smoking lounges. 7. The City finds that absent the extension of Interim Ordinance No , the City could be required to approve the establishment of the above mentioned type of businesses, which in turn would result in an increase in the identified harmful effects. 8. The City Council finds that it is necessary to ensure that these types of businesses are properly located and regulated within the City, both to protect public health, safety, and welfare, and to ensure that the locations for these types of businesses are established in a manner that is consistent with the standards, goals, and policies of the City s General Plan. 9. The City Council finds it necessary and desirable to have the Community Development Department review and consider the possible adoption of new zoning standards regulating these types of businesses in the City in order to ensure that the locations for these types of businesses are established in a manner that is consistent with the standards, goals, and policies of the City s General Plan. 10. In light of the harmful secondary effects associated with the establishment of smoke shops and smoking lounges within City of Pittsburg, and the current and immediate threat such secondary effects pose to the public health, safety and welfare, it is necessary, in accordance with Government Code Section 65858, to extend the current moratorium on the issuance of permits and any other applicable licenses or entitlements for and the establishment of new and/or expanded smoke shops and smoking lounges in the City to provide additional time for the City Council to further evaluate and consider possible adoption of legislation, guidelines and/or polices as required to avert the potential impacts of smoke shop and smoking lounge uses in the City. Section 2. Nuisance Declared. Except as otherwise permitted under this Ordinance, the establishment, relocation or expansion of a smoke shop or smoking lounge within the limits of the City of Pittsburg is declared to be a public nuisance. Violations of this Ordinance may be enforced by any applicable laws or ordinances, including, but not limited to, injunctions or administrative or criminal penalties under the Pittsburg Municipal Code. Section 3. Urgency. This Ordinance is adopted as an urgency measure pursuant to Government Code section 65858, and is for the protection of the public safety, health, and welfare. This Ordinance is deemed necessary based on the findings of the City Council as set forth in the recitals in Section 1 of this Ordinance. Section 4. Severability. If any provision of this Ordinance, or the application thereof to any person or circumstance, is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and Ordinance No. 16-XXXX Page 4 of 6 May 16, 2016

5 shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid or unenforceable. Section 5. CEQA. Pursuant to Section of the California Environmental Quality Act (CEQA Guidelines, this ordinance is not subject to CEQA under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment and this ordinance is not a project within the meaning of Section of the California Code of Regulations, Title 14, Chapter 3 ( CEQA Guidelines, because it merely preserves the status quo for development within the City of Pittsburg pending review of the City Zoning Code and potential adoption of new legislation relating to said uses, and therefore has no potential for resulting in physical change in the environment, directly or indirectly. Section 6. Effective Date and Duration. This Ordinance shall become effective immediately upon passage and adoption if passed and adopted by at least four-fifths (4/5 vote of the City Council and shall be in effect for one (1 year, ten (10 months, and fifteen (15 days. Section 7. Publication. law. The City Clerk is hereby directed to publish this Ordinance as required by applicable The foregoing Ordinance was adopted and ordered published at a meeting of the City Council of the City of Pittsburg held on May 16, 2016, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: BR Johnson, Mayor Alice E. Evenson, City Clerk Ordinance No. 16-XXXX Page 5 of 6 May 16, 2016

6 Exhibit A Subdivision (d of Government Code section provides that, ten days prior to the expiration of an interim ordinance or any extension, the legislative body shall issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. The following measures have been taken by the City since the adoption of City Council Ordinance No : Staff reviewed the April 1, 2016 letter from Contra Costa Health Services (CCHS in support of Interim Ordinance No The letter outlined several policy and land use regulation options for smoke shops and smoking lounges near schools and other youth-sensitive areas. On April 26, 2016, the City s Land Use Subcommittee considered several policy options, including those outlined in the CCHS letter, for the regulation of smoke shops and smoking lounges in the City. One of the options considered was requiring Planning Commission approval of a use permit and up to a 1,500-foot distance between smoke shops, smoking lounges, and youth-sensitive land uses including, but not limited to schools, residences, parks, playgrounds, recreational centers, libraries, and childcare facilities. The Subcommittee unanimously supported extending the current moratorium to allow staff additional time to develop an ordinance with the strictest regulations possible. Staff is currently in the process of developing a draft ordinance which should be presented for City Council adoption by November Ordinance No. 16-XXXX Page 6 of 6 May 16, 2016