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HomeMy WebLinkAboutOrdinance No. 11-O5ORDINANCE NO. 11-05 AN INTERIM URGENCY ORDINANCE OF THE CITY OF AZUSA ESTABLISHING A MORATORIUM ON THE ESTABLISHMENT OF TATTOO PARLORS PURSUANT TO GOVERNMENT CODE SECTION 65858 WHEREAS, on September 9, 2010, the Ninth Circuit Court of Appeals issued a decision in Anderson v. City of Hermosa Beach holding that a municipal prohibition on the establishment of tattoo parlors is an unconstitutional restriction on freedom of expression; and WHEREAS, the Ninth Circuit's Anderson holding is at odds with the holdings of various other federal appellate court decisions, thereby creating a likelihood of appeal to the Supreme Court of the United States and, therefore, has put the ability of municipalities to regulate tattoo parlors and establishments in a state of flux; and WHEREAS, there is a significant risk of injury to tattoo parlor customers by the improper use and possible unsanitary condition of the tools used by tattoo parlor technicians to permanently transfer pigmentation onto the skin's surface. Additionally, if tattoo establishments were allowed to operate, they should be located in the appropriate zone in the City of Azusa ("City") and subject to reasonable regulation to protect customers of such establishments; and WHEREAS, although tattoo establishments are permitted in restricted zones in the City and specifically addressed in the Azusa Municipal Code ("AMC") the City has concerns about the proliferation of such establishments. The City Council has directed staff to study the issue of tattoo establishments and has asked the City Attorney to research legal issues and draft an ordinance banning the issuance of permits or licenses for tattoo establishments in the City while the issue is being studied. There is a likelihood that the City will receive an application for a tattoo parlor before it can properly evaluate where future tattoo establishments should be allowed, what regulations should be adopted to protect customers of such establishments and where such establishments should be located; and WHEREAS, to address the apparent conflict in laws, as well as the community, statewide, and federal concerns regarding the establishment of tattoo parlors, it is necessary for the City to study the potential impacts such establishments may have on the public health, safety, and welfare, what City regulations, if any, should be imposed on such establishments and where such establishments should be located if the City cannot ban such establishments; and WHEREAS, California Government Code Section 65858 authorizes the City Council to adopt, by a four-fifths vote, without following the procedures otherwise required for the adoption of a zoning ordinance, an interim urgency ordinance prohibiting 1 any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City Council, planning commission or the planning department is considering or studying or intends to study within a reasonable time. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES ORDAIN AS FOLLOWS: Section 1. The recitals set forth above are hereby adopted as the findings of the City Council in connection with the adoption of this ordinance. In addition to the recitals stated above, the City Council hereby finds and determines that the absence of adequate regulation of the operations of tattoo establishments constitutes an immediate threat to the public health, safety and welfare. The adoption of this ordinance is necessary for the immediate protection of the public safety, health and welfare. Section 2. The purpose of this interim urgency ordinance is to establish a moratorium on the approval or issuance of any new use permits, variance, building permit, business license, operator's permit, or other applicable entitlement to tattoo establishments in the City, for the immediate preservation of the public health, safety and welfare. For purposes of this ordinance, the term "tattoo" means an indelible mark or figure viewable on or through skin created by inserting pigment under the surface skin of a human being by pricking with a needle or otherwise. A "tattoo establishment" may include a place where body art is applied or where body piercing service is provided. Section 3. During the time this ordinance is in effect, no new operator's permit, use permit, variance, building permit, business license, or other entitlement for the establishment or operation of a tattoo establishment in the City shall be issued or approved, nor shall any existing permit for a tattoo establishment be transferred to a new location. Section 4. The requirements of this ordinance shall have no application and no effect upon and shall not be construed as applying to the following: A) any treatment administered physician licensed to practice in supervision of such a physician; or FA in the practice of medicine by a this state, or under the personal B) the application of permanent make-up or cosmetic reconstruction by a licensed cosmetologist, electrologist, or nurse, as defined in the California Business and Professions Code, who has received additional training in the procedures, practices, and techniques of permanent make- up application and cosmetic reconstruction, including the appropriate sanitary practices. Section 5. The City Council hereby enacts this interim urgency ordinance by not less than a four-fifths vote, and in light of the findings set forth in Section 1, under the authority granted to it by Article XI, Section 7 of the California Constitution and Section 65858 of the California Government Code, which allows the City to adopt an interim urgency ordinance prohibiting land uses which may be in conflict with a zoning proposal that the City Council, planning commission or the planning department is considering or studying or intends to study within a reasonable time. The City Council hereby directs the Police and Planning Departments and the City Attorney to consider and study possible means of regulating tattoo establishments and tattoo technicians, including zoning -based regulations and other regulations Section 6. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Section 15358 (the activity. will not result in a direct or reasonably, foreseeable indirect physical change in the environment) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Further, the City Council finds that this ordinance is exempt under CEQA pursuant to Section 15061(b)(3) (there exists no possibility that the activity will have a significant adverse effect on the environment) of the CEQA Guidelines because this ordinance will not cause a change in any of the physical conditions within the area affected by the ordinance. Section 7. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. Section 8. This ordinance shall become effective immediately upon adoption if adopted by at least a four-fifths vote of the City Council and shall remain in effect for forty-five (45) days from the date of adoption unless extended by the City Council as provided for in Government Code Section 65858. 9 Section 9. The City Clerk of the City of Azusa shall certify the passage and adoption of this Ordinance and shall cause the same, or a summary thereof, to be published and/or posted in the manner required by law. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Azusa on this 18th day of April, 2011, by the following vote: AYES: COUNCILMEMBERS: GONZALES, CARRILLO, MACIAS, HANKS, ROCHA, NAYS: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE ABSTAIN: COUNCILMEMBERS: NONE Joseph Rocha, Mayor ATTEST: i Vera Mendoza, City Clerk APPROVED AS TO FORM: ._. A Sonia A. Carvalho City ttorney Best, Best & Krieger, LLP 0