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HomeMy WebLinkAboutOrdinance No. 2021-01ORDINANCE NO. 2021-01 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA ADOPTING CODE AMENDMENT NO. 249 ADDING SECTION 88.42.240 TO THE AZUSA MUNICIPAL CODE AND AMENDING SECTIONS 88.22.065, 88.24.005, 88.26.005, AND 88.70.020 TO REGULATE TOBACCO AND VAPING SHOPS AND DETERMINING THE ORDINANCE TO BE EXEMPT FROM CEQA WHEREAS, the City of Azusa, California (the "City") is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, by virtue of the police powers delegated to it by the California Constitution, the City has the authority to enact laws which promote the public health, safety, and general welfare of its citizens; and WHEREAS, California Government Code, Section 65800 et seq. authorizes the adoption and administration of zoning laws, ordinances, rules and regulations by cities as a means of implementing the General Plan; and WHEREAS, on February 22, 2005, the City Council of the City of Azusa (the "City Council") adopted the new Development Code (Chapter 88 of the Azusa Municipal Code) with the understanding that the new format included wholesale changes to the prior Code, and that revisions would be necessary after the new Code was implemented; and WHEREAS, requiring tobacco shops and vaping shops to obtain a Minor Use Permit will not unduly burden legitimate business activities of retailers who sell tobacco products to adults, but will allow the City to regulate the operation of lawful businesses and to discourage violations of federal, state, and local tobacco control and youth tobacco access laws; and WHEREAS, the City has a substantial interest in protecting the health, safety, and welfare of its residents and visitors by promoting compliance with local, state and federal tobacco control and youth tobacco access laws; and WHEREAS, on December 9, 2020, the Planning Commission conducted a public hearing on the proposed Development Code Amendment No. 249 at a regular meeting, and recommended that the City Council approve this Ordinance. WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred. Ordinance No. 202 1 -01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 2 of 11 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. Additions to the Azusa Municipal code are shown in underlined and the deletions are denoted by strikethrough. Text underlined in blue font represent hyperlinks. SECTION 3. The tables shown in Sections 88.22.065, 88.24.005 and 88.26.005 of the Azusa Municipal Code are hereby amended as shown below "88.22.065 (Allowable Uses in Neighborhoods) (Table 2-1) LAND USE TYPE (1) PERMIT REQUIRED BY ZONE Specific Use Regulations NC NG1 NG2 NG3 L IVIED MOD L IVIED MOD L IVIED MOD RETAIL SALES General retail, except with any of the following P — — — — — — — — — [Indent] TobaccoNaping — — — — — — — — — — 88.42.240 [Insert hyperlink] Shop 88.24.005. (Allowable Uses in Districts) (Table 2-2) LAND USE TYPE (1) PERMIT REQUIRED BY ZONE Specific Use Ordinance No. 202 1 -01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 3 of 11 DE DW DWL Regulations RETAIL SALES General retail, except with P P P any of the following features [Indent] TobaccoNapinq — MUP MUP 88.42.240 Shop [Insert hyperlink] 88.24.005. (Allowable Land Uses and Permit Requirements for University District (DU)) (Table 2-2) LAND USE TYPE (1) PERMIT REQUIRED BY ZONE Specific Use Regulations DU -MU DU-RM DU-RMO RETAIL SALES General retail, except with any of the following features P — — [Indent] TobaccoNapinq Shop — — — 88,42.240 [Insert hyperlink] 88.26.005. (Allowable Uses in Corridors) (Table 2-3) Ordinance No. 2021-01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 4 of 11 LAND USE TYPE PERMIT REQUIRED BY ZONE Specific Use (1) Regulations CAZ CSG CSA CAH CFB RETAIL SALES General retail, P -- P P P except with any of the following features [Indent] — — — -- -- 88.42.240 [Insert Tobacco/Vaping hyperlink] Shop SECTION 4. Section 88.22.240 is hereby added to the Azusa Municipal Code to read as follows: "88.42.240. — Tobacco and Vaping Shops A. Where allowed by Article 2 (Urban Standards), a tobacco/vaping shop shall comply with the regulations of this section. B. Purpose. The purpose and intent of this Section is encourage responsible tobacco retailing and to discourage violations of tobacco -related laws, especially those which prohibit or discourage the sale or distribution of tobacco and nicotine products to youth in a manner consistent with regulations imposed by federal or state law. As a result, this Section provides concentration, separation, spacing and distance, and operational standards for tobacco and vaping shops in the City of Azusa in order to maintain the City's character, the diversity and vitality of the community's commercial areas, and protect the health, safety and welfare of Azusa's youth, its residents and visitors. C. Definitions. For the purposes of this section, the definitions contained herein shall govern the meanings of the following terms, words, phrases, and their derivations: Ordinance No. 2021-01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 5 of 11 1. "Drug Paraphernalia" has the meaning set forth in California Health and Safety Code section 11014.5, as that section may be amended from time to time. 2. "Electronic smoking device" means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part or accessory of such device whether or not sold separately. This definition includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette (E-Cigarette), an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or destript including any component, part or accessory of such device, whether or not sold separately. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease, where such product is marketed and sold separately for such an approved purpose. 3. Flavored tobacco product" means any tobacco product that imparts a characterizing flavor. 4. "Hookah Tobacco Lounge" shall mean a restaurant that operates within the City pursuant to a valid City business license that also engages, as an accessory use, in the retail sale of shisha tobacco products, Hookah, and Hookah smoking accessories. "Hookah" is defined as type of water pipe, used to smoke shisha or other Tobacco Products, with a long flexible tube for drawing aerosol through water. Components of a Hookah may include heads, stems, bowls, and hoses. 5. "Hookah Tobacco Retailer" shall mean a tobacco retailer that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories. 6. "Marijuana Paraphernalia" shall mean any instrument or object intended for use or designed for use in ingesting, inhaling, or otherwise introducing cannabis, marijuana, hashish, or hashish oil into the human body, such as the following: a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls. b. Water pipes. c. Carburetion tubes and devices. d. Smoking and carburetion masks. e. Roach clips, meaning objects used to hold burning material, such as a cannabis cigarette that has become too small or too short to be held in the hand. f. Miniature cocaine spoons, and cocaine vials. g_ Chamber pipes. h. Carburetor pipes. i. Electric pipes. L Air -driven pipes. k. Chillums. 1_ Bongs. m. Ice pipes or chillers. 7. "Tobacco" shall mean any preparation of the nicotine -rich leaves of the tobacco plant, which are cured by a process of drying and fermentation for use in smoking, chewing, absorbing, dissolving, inhaling, snorting, sniffing, or ingesting by any other means into the body. Ordinance No. 2021-01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 6 of 11 8. "Tobacco Paraphernalia" shall mean any instrument or object that is designed for the smoking or ingestion of lawful tobacco products including without limitation cigarette papers, cigarette wrappers, cigar wrappers, blunt wraps, tobacco pipes, holders, clips, and cigarette rolling machines. "Tobacco paraphernalia" excludes "drug paraphernalia" as that term is defined in Health and Safety Code Section 11364.5(d), as amended from time to time. 9. "Tobacco Product" shall mean any product in leaf, flake, plug, liquid, or any other form, containing nicotine derived from the tobacco plant, or otherwise derived, which is intended to enable human consumption of the tobacco or nicotine in the product, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means. For the purposes of this chapter, the term "tobacco product" excludes any product that has been specifically approved by the United States Food and Drug Administration (FDA) for sale as a tobacco/smoking cessation product or for other medical purposes, where such product is marketed and sold solely for such an approved purpose. 10. "Tobacco or Vaping Shop" means any place where a person sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, or who distributes free or low-cost samples of tobacco products or tobacco paraphernalia. D. Permit Requirement. No person shall cause or permit the creation, operation, or intensification of any tobacco or vaping shop use without first obtaining and maintaining a minor use permit pursuant to Chapter 88.51.040 (Use Permit and Minor Use Permit). The requirements of this section do not apply to the sale of flavored shisha tobacco products by a hookah tobacco retailer if all of the following conditions are met: 1. The hookah tobacco retailer has a valid license to sell tobacco products issued pursuant to Chapter 2 (commencing with Section 22971.7) of Division 8.6 of the Business and Professions Code. 2. The hookah tobacco retailer does not permit any person under 21 years of age to be present or enter the premises at any time. 3. The hookah tobacco retailer shall operate in accordance with all relevant state and local laws relating to the sale of tobacco products. 4. If consumption of tobacco products is allowed on the premises of the hookah tobacco retailer, the hookah tobacco retailer shall operate in accordance with all state and local laws relating to the consumption of tobacco products on the premises of a tobacco retailer, including, but not limited to, Section 6404.5 of the Labor Code. E. Location Requirements. 1. No tobacco or vaping shop shall be established within 1,000 feet of a Youth - Populated Area as measured by a straight line from the nearest point of the property line of the parcel on which the Youth -Populated Area is located to the nearest point of the property line of the parcel on which the applicant's business is located. For the purpose of this subsection, a "Youth -Populated Area" means a parcel in the City that is occupied by any of the following: Ordinance No. 202 1 -01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 7 of 11 a. A private or public preschool, kindergarten, elementary, middle, or high school, b. A library open to the public, c. A playground open to the public, d. A youth center, defined as a facility where children, ages 6 to 17, inclusive, come together for programs and activities, e. A recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes. "Recreation facility" includes, but is not limited to, a gymnasium, playing court, playing field, and swimming pool, f. An arcade open to the public, g_ A park open to the public or to all the residents of a private community, or h. A licensed child-care facility or preschool as defined in California Health & Safety Code § 1596.78 2. No tobacco or vaping shop shall be located within 1,000 feet of another tobacco or vaping shop as measured by a straight line from the nearest point of the property line to the nearest point of the property line on which the applicant's business is located. 3. No tobacco or vaping shop shall be located on the same parcel. 4. The City shall have no more than 1 tobacco/vaping shops for every 8,000 residents, to a maximum of 7 tobacco/vaping shops, within the City's boundaries including existing and proposed new tobacco/vaping shops. F. Development and Operational Standards. 1. Tobacco shops and vaping shops shall comply with all applicable local, State, and Federal laws regarding the advertising, display, or sales of tobacco and electronic cigarette/vaping products. 2. No smoking shall be permitted on the premises at any time. 3. All electronic cigarettes/vaping products, tobacco products and tobacco paraphernalia shall be kept and displayed in a secure and locked enclosure, which can only be accessed with the assistance of a clerk. Self-service displays of such products is prohibited. 4. It is unlawful for a tobacco shop or vaping shop to knowingly allow or permit a minor, not accompanied by his or her parent or legal guardian, to enter or remain within the tobacco /vaping shop. 5. Sampling of electronic cigarettes/vaping products and tobacco products by individuals less than 21 years of age is prohibited. 6. All tobacco shops and vaping shops shall post clear signage stating that minors may not enter the premises unless accompanied by a parent or legal guardian. At least one such sign shall be placed in a conspicuous location near each public entrance to the shop. It shall be unlawful for a tobacco shop/vaping shop to fail to display and maintain, or fail to cause to be displayed or maintained, such signage. 7. It is unlawful for a tobacco shop or vaping shop to offer for sale or sell any cannabis products or any drug/marijuana paraphernalia. Ordinance No. 202 1 -01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 8 of 11 G. Revocation of a Business License and/or Minor Use Permit. In addition to any other penalty authorized by law or the Azusa Municipal Code, the business license and minor use permit of any business that violates any provision of this Section, the California Uniform Controlled Substances Act (including without limitation Health and Safety Code Sections 11364 to 11376.5), as amended from time to time, or any other local, State or Federal law or regulation may be revoked pursuant to the procedure set forth in Chapter 88.56 (Appeals and Revocations). H. Nonconforming Tobacco/Vaping Shops. Tobacco shops and vaping shops that are located in the DW and DWL zones and are legally existing on the effective date of the ordinance codified in this chapter may continue to operate as legal nonconforming uses in accordance with Chapter 88.54 (Nonconforming Uses, Structures, and Parcels) and shall not be required to obtain a minor use permit. Amortization of Existing Nonconforming Tobacco Shops and Vaping Shops Not Located in the DW and DWL Zones. 1. All requirements set forth in this Chapter are deemed to be necessary for the protection of the public health, safety, and welfare and shall be applicable to and govern all existing and proposed tobacco shops and vaping shops immediately upon the date the ordinance codified in this Chapter becomes effective. 2. Any existing tobacco shops and vaping shops which are located within a zone in which tobacco shops and vaping shops are not permitted which is a nonconforming use as of the effective date of the ordinance codified in this Section shall be subject to an amortization period of three years. An extension of time request for one year may be permitted if written documentation is provided by the business owner that: a. The applicant/owner has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted into another use; and such investment was made prior to the date this ordinance is adopted; and b. The applicant/owner will be unable to recoup said investment as of the date established for termination of the use; and c. The applicant has made good faith efforts to recoup investment and to relocate the use to a location in conformance with this Section. 3. No more than two, one-year time extensions may be granted. The total amortization period shall not exceed five years. 4. For existing tobacco or vaping shops that seek to relocate within the DW or DWL zone, their MUP applications will be reviewed on a first -come, first -serve basis until the maximum of 7 tobacco/vaping shops has been reached. 5. Upon the conclusion of the amortization period, any tobacco shop or vaping shop which is a nonconforming use shall cease all business operations, and all signs, advertising and displays relating to such business shall be removed within 30 days thereafter." Ordinance No. 202 1 -01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 9 of 11 SECTION 5. Section 88.70,020 of the Azusa Municipal Code is hereby amended to read as follows: "88.70.020. — Definitions of Specialized Terms and Phrases. V. Definitions "W' Vaping Shop/Retailer. See Section 88.42.240 (Tobacco and Vaping Shop). T. Definitions "T." Tobacco Shop/Retailer. See Section 88.42.240 (Tobacco and Vaping Shop). SECTION 6. In accordance with Section 88.51.060 of the Azusa Municipal Code, the City Council approves said Code Amendment No. 249 based on the following findings: 1. That the proposed amendment is consistent with the goals, policies, and objectives of the general plan, any applicable specific plan, development agreement, owner participation agreement or disposition and development agreement; and The proposed amendment is not a part of any applicable specific plan, development agreement, owner participation agreement or disposition and development agreement. It is, however, consistent with the goals, policies, and objectives of the General Plan below: Chapter 3, Land Use Goal 10: Ensure the compatibilitycoMpatibility among various types of land ases. By introducing a Minor Use Permit (MUP) process for tobacco/vaping shops/retailers in the DW and DWL zones, it will allow the City to adequately protect the public safety, health, and welfare of Azusa residents because it will provide the City with a regulatory mechanism to ensure compatibility with these types of uses. Chapter 3, Land Use Goal 12: Ensure that the City's General Plan and Development Code are updated and maintained to increase effectiveness. The proposed Development Code changes relating to tobacco shops and vaping shops, will ensure that the Development Code is up-to-date with respect to the City's desire to regulate these uses in compliance with local, state, and federal laws. Ordinance No. 202 1 -01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 10 of 11 2. That a proposed zone change will not adversely affect surrounding properties. A zone change is not proposed as a component of this Development Code amendment. Therefore, the proposed Development Code amendment would not adversely affect surrounding properties. SECTION 7. CEQA. This Ordinance is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act ("CEQA") Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The City Council further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this Ordinance is nonetheless exempt from the requirements of CEQA in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The City Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines. SECTION 8. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk's office located at 213 E. Foothill Blvd., Azusa, CA 91702. The custodian of these records is the City Clerk. SECTION 9. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this 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 of the City of Azusa hereby declares that it would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 10. Effective Date. This Ordinance shall become effective thirty (30) days following its adoption. SECTION 11. Publication. The City Clerk shall certify to the adoption of this Ordinance. Not later than fifteen (15) days following the passage of this Ordinance, the Ordinance, or a summary thereof, along with the names of the City Council members voting for and against the Ordinance, shall be published in a newspaper of general circulation in the City of Azusa. Ordinance No. 202 1 -01 — Code Amendment No. 249 — Tobacco and Vaping Shops February 1, 2021 Page 11 of 11 PASSED, APPROVED, and ADOPTED this I" day of February, 2021. Robert onzales, Mayor ATTEST: ee4a ce Cornejo, Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF AZUSA ) I HEREBY CERTIFY that the foregoing Ordinance No. 2021-01, was duly introduced and placed upon first reading at a regular meeting of the Azusa City Council on the 19th day of January, 2021 and that thereafter, said Ordinance No. 2021-01 was duly adopted and passed at a regular meeting of the Azusa City Council on the 1st day of February, 2021 by the following vote: AYES: COUNCILMEMBERS: MACIAS, ALVAREZ, AVILA, MENDEZ NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: GONZALES ve 21" /-,- Je e w • Cornejo, Ji ity Clerk APPROVED AS TO FORM: Best, est & Kriege LLP City ttorney