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Ordinance No. 1073334 ORDINANCE NO. 1073 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CYPRESS CALIFORNIA ADDING A NEW SECTION 17 -51 AND RENUMBERING EXISTING SECTIONS 17 -51 THROUGH 17 -53 TO SECTIONS 17 -52 THROUGH 17 -54 AND DELETING EXISTING SECTION 17 -54 OF THE CYPRESS CITY CODE, AMENDING TABLE 2 -6 OF SECTION 6, ARTICLE 2 AND ADDING A NEW SECTION 3.17.215 TO THE CYPRESS ZONING CODE RELATING TO SMOKING LOUNGES WHEREAS, pursuant to its Charter authority and to provide for the public health, safety and general welfare, the City Council of the City of Cypress determines that regulation of commercial businesses is necessary to maintain commerce as well as to maintain compatibility with surrounding land uses; and WHEREAS, the City Council in the exercise of its Charter and police powers desires to amend Sections 17 -51 through 17 -54 of the Cypress City Code and to add a new Section 3.17.215 to the Cypress Zoning Ordinance in order to ensure the above, NOW, THEREFORE, the City Council of the City of Cypress does hereby ordain as follows: Section 1: That a new Section 17 -51 is hereby added to Chapter 17 of the Cypress City Code to read as follows: "Sec. 17 -51 SMOKING LOUNGES A. DEFINITIONS. `Smoking Lounge.' A business establishment that is dedicated, in whole or in part, to the smoking of tobacco or other substances including, but not limited to, establishments known variously as Cigar Lounges, Hookah Cafes, Tobacco Clubs or Tobacco Bars. B. PERMIT REQUIRED. .010 It is unlawful fir any person to engage in, conduct, or carry on, in or upon any premises within the City of Cypress, the business of a Smoking Lounge in the absence of a permit issued pursuant to this Chapter. .020 The holding or conducting of any event or activity subject to the provisions of this chapter without a valid permit issued therefore pursuant to the provisions of this chapter, unless expressly exempt hereunder, is declared a public nuisance. C. OPERATING REQUIREMENTS FOR SMOKING LOUNGES. It is unlawful for any person to engage in, conduct, or carry on, in or upon any premises with in the City of Cypress, the business of a Smoking Lounge except in compliance with all of the following requirements: .010 The business shall be owner - operated or otherwise exempt from the prohibition of smoking in the workplace set forth in California Labor Code Section 6404.5. .020 No alcoholic beverages shall be sold or consumed on the premises. .030 No persons under 18 years of age shall be permitted within the business. .040 No live entertainment, including but not limited to, singers, DJs, dancers and comedians shall be permitted in such business except as provided in Articles I and II of Chapter 9 of the Cypress City Code. .050 All business related activities shall be conducted wholly within a building. No outdoor seating shall be permitted. Operation of outdoor barbeques or braziers or the lighting of coals or other heating devices shall not be permitted. .060 No admittance fee, cover charge or requirement of any charge or minimum payment as a condition of entry shall be permitted. .070 Uniformed security guard(s) shall be provided, as deemed necessary by the Chief of Police or the Chief's designee. .080 No window coverings shall prevent visibility of the interior of the tenant space from outside the premises during operating hours. Any proposed window tint shall be approved in advance by the Cypress Police Department. .090 The interior of the business shall be maintained with adequate illumination to make the conduct of patrons within the premises readily discernable to persons of normal visual acuity. .100 Amusement Game Machines as defined by Chapter 15E of the Cypress City Code shall not be permitted anywhere within the business. .110 Adequate ventilation shall be provided for the heating of coals in accordance with all requirements imposed by the Orange County Fire Authority or as otherwise required by state or federal laws. .120 Parking shall be provided using the standard for nightclubs (1 space /3 persons based on occupancy as determined by the Building Official). .130 The occupancy shall not exceed the lesser of (i) the occupancy limit for the premises established by the Building Official, or (ii) an occupancy limit established as a condition of the permit approved pursuant to this Chapter. .140 The business shall also be in conformity with all other city, state and federal laws. D. APPLICATION FOR PERMIT .010 Applications for permits pursuant to this chapter shall be filed with the Community Development Director or the Director's designee on forms provided by the Director and shall include a nonrefundable application fee in an amount designated by resolution of the City Council and, at least, shall contain the following information: .a The legal name, address, e mail address, fax, cell phone and telephone number of the owner(s) of the proposed establishment making application; .b The legal name, address, e mail address, fax and telephone number of the owner(s) of the premises where the proposed establishment seeks to operate; .c The legal name, address, fax and telephone number of the person submitting the application as authorized agent of the owner(s) of the premises where the proposed establishment seeks to operate; .d The business name, address and telephone number under which the business activity will be conducted; .e A listing of all similar business(es) any and all of the above referenced individuals have operated or are operating including the business(es) name, physical address(es) and telephone number(s); -2 .f The exact nature and location of the activity for which the permit is requested and an estimate of the numbers of patrons of the establishment, including a dimensioned floor plan showing all physical improvements and exiting pathways; .g A security plan for control of pedestrian and vehicular traffic and prevention of unlawful conduct by employees and patrons (such as assaults, vandalism, littering, theft, sale or use of controlled substances, vehicle code violations, and consumption of alcohol) either within the building(s) or outside in the areas affected by the public patronizing the business; provided, however, that this requirement shall be excused in the case of a noncommercial activity or event where the public is invited free of charge and which event shall not be in conjunction with any other commercial activity; .h A plan for the control of noise affecting nearby premises (noise control plan) with special attention to prevention of noise nuisance to nearby residences, if any, including but not limited to amplified sound within the business premises, within vehicles of business patrons, vehicles of business patrons, or the business patrons themselves; .i The proposed operational days and hours of the business; .j Such other information pertaining to the public health, safety and welfare as may be required by the Community Development Director to ensure compliance with the provisions of this Section and of the requirements of the Cypress City Code and Cypress Zoning Code related to Smoking Lounges and, in addition, any information that the applicant may wish to include. .020 The submittal of false information on the application shall constitute grounds for denial of the application and the permit. E. ACTION BY COMMUNITY DEVELOPMENT DIRECTOR UPON APPLICATION .010 Upon the filing of an application, the Community Development Director or the Director's designee shall determine whether the application is complete. If the application is not complete, the Community Development Director shall, within five (5) business days, give written notice by mail or personal delivery to the applicant advising that the application is incomplete and cannot be acted upon. The notice shall state what information is needed to complete the application. .020 Upon the filing of a completed application, the Community Development Director or the Director's designee shall conduct such investigation as the Director or the designee deem necessary (including consultation with the Planning, Police, and Orange County Fire Authority representatives) and inspection of the proposed premises as needed. Within twenty (20) business days after receipt of a completed application, the Community Development Director or designee shall either grant or deny the application. A change in ownership of the business shall require the submittal and evaluation of a new Smoking Lounge permit application. .030 An application for a Smoking Lounge permit pursuant to this Section shall be granted by the Community Development Director subject to compliance with the requirements set forth herein and in Section 3.17.215 of the Cypress Zoning Code, unless it is found and determined that issuance of the permit would allow the Smoking Lounge to be held or conducted: .a In violation of any provision of the Cypress City Code, Cypress Zoning Code or any state of federal laws; or .b In a building or structure which is hazardous to the health, safety or general welfare of the employees or patrons of the business, activity or event, or - 3 - the general public, under the standards established by the Uniform Building Codes, Fire Codes or other such codes as are adopted or may be adopted pursuant to the Cypress City Code; or .c On premises which lack adequate on -site parking for employees and the public attending the proposed event or activity, under the standards set forth in Section 17- 51.C.120 above or in Table 2 -9 of Section 2.06.050 of the Cypress Zoning Ordinance as may be applicable, except for existing uses that are legal and non - conforming with respect to parking; or .d In a manner in which proposed security measures are determined to be inadequate to deter unlawful conduct on the part of employees and patrons, or to promote the safe and orderly assembly and movement of persons and vehicles, or the proposed noise control plan is determined to be inadequate to prevent disturbance of the neighborhood by excessive noise created by the activity or by patrons entering, leaving or loitering in and around the premises. F. NOTIFICATION .010 The Community Development Director shall give written notice to the applicant of action taken upon the completed application, including any conditions of approval, within twenty (20) business days after receipt of the completed application. .020 In the event the application is denied, written notice of such denial shall be given to the applicant specifying the grounds for such denial. The notice shall also advise the applicant of the right to appeal the denial of the application and shall state the last date on which an appeal may be filed, which shall state the fifteenth (15th) working day after the date on which the notice was deposited in the mail or was personally delivered to the applicant. G. APPEAL TO CITY COUNCIL — NOTICE AND HEARING .010 An applicant whose application for a Smoking Lounge permit has been denied or has been granted conditionally may appeal such decision directly to the City Council by filing an appeal with the Community Development Director subject to the payment of a non - refundable appeal fee in an amount designated by resolution of the City Council. The time within which such written appeal may be filed shall expire at the end of the fifteenth (15th) working day after the date on which notice to the applicant of the action on his application was personally delivered or deposited in the mail. .020 Upon the filing of a timely appeal, the City Clerk shall set a hearing to be held within fifteen (15) business days from the date of receipt of such appeal. The applicant, by written request, may waive the time limits set forth in this section except the time within which an appeal may be filed. H. CITY COUNCIL ACTION UPON APPEAL After an administrative hearing and consideration of the report and recommendation of the Community Development Director and any written materials submitted by the applicant or other persons, the City Council shall either grant the permit with or without conditions, or shall deny the permit upon finding that issuance thereof would result in any of the circumstances set froth in Subsection J of this Section. The decision of the City Council shall be final. I. ISSUANCE OF PERMIT — CONDITIONS .010 After the decision approving or conditionally approving any permit becomes final, the Community Development Director or the Director's designee shall issue the permit. 4 .020 The permit shall be issued subject to compliance with all operating requirements in Subsection C and such additional conditions as may be required to ensure compliance with city regulations governing the matters contained in the application. J. REVOCATION OF PERMIT .010 Any permit issued pursuant to the provisions of this Section shall be revoked by the City Council following a hearing on the basis of any of the following: .a That the business or activity has been conducted in a manner which violates one or more of the conditions imposed upon the issuance of the permit or which fails to conform to the plans and procedures described in the application, or which violates the occupant load limits set forth by the Building Official; or .b That the permittee has failed to obtain or to maintain all required city, county and state licenses and permits; or .c That the permit is being used to conduct an activity different from that for which it was issued; or .d That the permittee misrepresented any material fact in the application for the permit or has not answered each question therein truthfully; or .e That the permittee has failed to comply with one or more of the required conditions and has failed to cure such noncompliance after reasonable notice thereof; or .f That the building or structure in which the permitted event or activity is held or conducted, or is to be conducted, is hazardous to the health, safety and general welfare of the employees or patrons of the business, activity or event, or of the general public, under the standards set forth in the Uniform Building and/or Fire Codes as such Codes shall be adopted from time to time: or .g That the permitted event or activity creates sound levels which violate any ordinance of the city; or .h That the security measures provided are inadequate to deter unlawful conduct on the part of employees or patrons, or to promote the safe and orderly assembly and movement of persons and vehicles, or that the noise control measures provided are inadequate to prevent disturbance of the neighboring properties by excessive noise created by patrons entering, loitering or leaving the premises where the activity takes place. .020 Written notice of the hearing on the proposed permit revocation, together with written notification of the specific grounds of complaint against the business or activity of the permittee, shall be personally delivered or sent by certified mail to the permittee at least ten (10) days prior to the hearing. .030 In the event a permit is revoked pursuant to the provisions of this Section, another permit shall not be granted to the permittee, or to any other applicant, for the subject location within twelve (12) months after the date of such revocation. The City Council's determination following a public revocation hearing shall be based on written findings and shall be final and conclusive in the matter. K. APPLICATION TO EXISTING BUSINESSES Any Smoking Lounge lawfully existing on the effective date of this ordinance which becomes a nonconforming use by reason of the adoption of this ordinance shall cease operation, or otherwise be brought into full compliance with the provisions of this ordinance, not later than either (i) one year following the -5- 339 effective date of this ordinance, or (ii) six months following the date of written notice provided below, whichever is later (the "amortization period "), except that no lawfully existing Smoking Lounge shall be deemed to be nonconforming for failure to comply with the location and parking requirements established for such uses by this ordinance unless said business is terminated for any reason or voluntarily discontinued for a period of sixty (60) consecutive calendar days or more following the effective date of this ordinance. A Smoking Lounge which is not operational due to a fire, flood or natural disaster on the effective date of this ordinance shall be deemed a "lawfully existing Smoking Lounge" for the purposes of this section provided such Smoking Lounge resumes operation within a period of not more than two (2) years from the date of said fire, flood or natural disaster which rendered such business non - operational. Any such lawfully existing Smoking Lounge may continue to operate, provided said operation is in conformity with all other applicable city, state and federal laws, until the application pursuant to this section has been acted upon and the decision thereon has become final. L. RULES AND REGULATIONS The City of Cypress may establish reasonable administrative rules and regulations to implement the provisions of this section. A copy of such rules and regulations shall be made available to applicants by the Community Development Director. M. PENALTY Any person violating or failing to comply with any of the provisions of this section is guilty of a misdemeanor and shall be subject to a fine of not to exceed one thousand dollars ($1,000.00) or by imprisonment not to exceed six months, or by both such fine and imprisonment. Each such person is guilty of a separate offense for each and every day during any portion of which any violation of the provisions of the section is committed. Section 2: That existing Section 17 -51 through 17 -53 of the Cypress City Code are hereby renumbered to Sections 17 -52 through 17 -54 and that the existing Section 17 -54 is hereby repealed. Section 3: That Table 2 -6 (Allowable Uses and Permit Requirements for Commercial Zoning Districts) of Section 6 of Article 2 of the Cypress Zoning Ordinance is hereby amended to add the following: "TABLE 2 -6 ALLOWABLE USES AND PERMIT REQUIREMENTS FOR COMMERCIAL ZONING DISTRICTS (Continued) Key to Table P Permitted C Conditional Use — Conditional Use Permit required (See Subsection 4.19.070) " -" Use not allowed Land Use Permit Required by District OP CN CG CH See Section Services (Continued) Smoking Lounges - - P P 3.17.215" Section 4. That a new Subsection 3.17.215 is created and added to Section 17 of Article 3 of the Cypress Zoning Ordinance reading as follows: "3.17.215 — SMOKING LOUNGES. The provisions of this Subsection shall apply to Smoking Lounges as said term is defined in Section 17 -51.A of the Cypress City Code. .010 Locations Allowed. 6- 340 .a Smoking Lounge is a permitted primary use within specified commercially zoned properties as indicated in Table 2 -6 of Section 6 of Article 2 of the Cypress Zoning Ordinance subject to the approval of a Smoking Lounge Permit pursuant to the provisions of Section 17 -51 of the Cypress City Code. .b The tenant space shall not be located within one hundred feet (100') from any residential zone boundary or property containing a residential use, whether said residential boundary of property containing a residential use is within or outside the corporate boundaries of the City of Cypress. Measurement shall occur from the closest tenant space point to the residential zone boundary. .c The tenant space shall be a minimum distance of five hundred feet (500') from any public educational use, whether or not such educational use is within or outside the corporate boundaries of the City of Cypress. .020 Existing Non - Conforming Uses. Any Smoking Lounge lawfully existing on the effective date of this ordinance which becomes a nonconforming use by reason of the adoption of this ordinance shall cease operation, or otherwise be brought into full compliance with the provisions of this ordinance as set forth in Subsection 5,25 of the Cypress Zoning Ordinance and Section 17 -51 of the Cypress City Code. No nonconforming use shall be increased, enlarged, extended or altered except that the use or any portion thereof may be changed to a conforming use. Any Smoking Lounge which becomes a nonconforming use by reason of the adoption of this ordinance shall be notified in writing of its nonconforming status by the Community Development Director of the City of Cypress by certified mail or personal service. Such notice shall be given to the property owner of record upon such business is located, the owner of the business, and the holder of the business tax certificate (to the extent such parties are different and are identifiable and accessible). Such notice shall also identify the applicable amortization period as provided herein. Failure of any person to actually receive such notice shall not affect the validity of any proceedings pursuant to the provisions of this ordinance." Section 5. Severability. The City Council of the City of Cypress hereby declares that should any section, paragraph, sentence or word of this ordinance of the Code, hereby adopted, be declared for any reason to be invalid, it is the intent of the Council that it would have passed all other portions of this ordinance independent of the elimination herefrom of any such portion as may be declared invalid. Section 6. Savings Clause. Neither the adoption of this ordinance nor the repeal or renumbering of any other ordinance of this city shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments. Section 7. Publication. The City Clerk shall certify to the passage and adoption of this ordinance, and shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted. This ordinance shall be in full force and effect thirty (30) days after its final passage and adoption, and within fifteen (15) full days after its final passage, the City Clerk shall cause it to be published in a newspaper of general circulation and shall post the same at City Hall, the Police Department and the Community Center. 341 FIRST READ at a regular meeting of the City Council of said City held on the 27th day of March, 2006, and finally adopted and order posted at a regular meeting held on the 10`h day of April, 2006. ATTEST: taha( CLERK OF THE C OF CYPRESS STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS Stoi/ttL,N) MAYO' O' THE CITY OF CYPRES I, JILL R. INGRAM, City Clerk of the City of Cypress DO HEREBY CERTIFY that the foregoing was duly adopted at a regularly scheduled meeting of said City Council held on the 10`h day of April, 2006, by the following roll call vote: AYES: 5 COUNCIL MEMBERS: McCoy, McGill, Seymore, Luebben and Sondhi NOES: 0 COUNCIL MEMBERS: None ABSENT: 0 COUNCIL MEMBERS: None 8