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HomeMy WebLinkAbout10C Temp Prohibit of Hookah Lounges r.4 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: February 10, 2014 AGENDA #: 10C PREPARED BY: Frank Boyles, City Manager PRESENTED BY: Frank Boyles AGENDA ITEM: CONSIDER APPROVAL OF AN INTERIM ORDINANCE TEMPORARILY PROHIBITING HOOKAH LOUNGES AND A RESOLUTION AUTHORIZING A STUDY TO DETERMINE WHAT AMENDMENTS TO CITY CODE ARE REQUIRED TO PROTECT THE PUBLIC HEALTH, SAFETY AND WELFARE WITH RESPECT TO HOOKAH LOUNGES DISCUSSION: Introduction The purpose of this agenda item is to adopt an interim ordinance temporarily prohibiting hookah lounges and a resolution authorizing a study to determine city code amendments that should be made for the protection of public health safety and welfare. History At the City Council's January 27, 2014 work session, the City Council received a PowerPoint presentation from the City Attorney and discussed hookah lounges and the issues associated therewith. Discussion took place on a number of questions: • Would a hookah lounge be allowed under current city code? • Is the definition of sampling in the State law or city code inadequate to regulate such facilities? • Does the present zoning ordinance allow such facilities and, if so, is the zoning appropriate? • Are there hours of operation for such facilities? • What enforcement issues are other cities like Burnsville having? • What have cities like Minneapolis done to attempt to address such issues? • Other cities like Shakopee, Savage and Eden Prairie have adopted or are considering interim ordinances. What do they hope to achieve? Current Circumstances The City Attorney's office has prepared a report on hookah lounges focusing largely on the Burnsville experience. Hookah lounges are allowed to exist under a narrow portion of the Statute which allows "sampling" to take place in tobacco shops as an exception to the Minnesota Clean Indoor Act. No one has yet tested this exception, so cities are seeking to establish regulations that are more restrictive than the Minnesota Clean Indoor Air Act. The City Attorney's memo outlines the Burnsville experience with hookah lounges. They presently have two such lounges. Attached to the memo is a Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com portion of a Burnsville City Council meeting packet which recommends changes to their ordinance. The Burnsville ordinance allow Iicensure of the lounges on the premise that they are retail tobacco shops. In fact, they are lounges with similarities to nightclubs, game rooms, bowling alleys and the like. Both facilities have received neighborhood complaints as they stay open well past midnight, charge entrance fees and attract large crowds which can be noisy and create parking issues. Complaints include smoke odors illegal activities, loud vehicles and, in some cases, confrontational attendees. Burnsville has proposed an ordinance that contains additional regulations like: size of lounge, distance from other lounges, cover charges, hours of operation, state building and fire code considerations, carbon monoxide levels, illegal acts on premises and reporting thereof. The ordinance was adopted including a prohibition of tobacco sampling from such devices. Because adoption of the new ordinance occurred in December 2013, there has been insufficient time to gauge its effectiveness. Attached to this agenda item is an ordinance that would prevent, temporarily, hookah lounges in the City of Prior Lake in any zoning district. Also attached is a resolution calling for a study which presumably will result in recommended ordinance amendments regulating hookah lounges. ISSUES: No hookah lounges have been proposed for Prior Lake as of now. However, cities including Shakopee and Savage have invoked interim ordinances which could result in a facility proposing to locate in Prior Lake since there is no prohibition. The fact that other communities are studying this topic should be helpful for Prior Lake since we can compare our results. If an establishment were to apply to locate in Prior Lake before the ordinance is adopted, they would not come under the purview of the moratorium. The interim ordinance, as proposed, is for a one -year period. FINANCIAL The cost associated with the ordinance and study will be staff time. IMPACT: Additional time may be required if the City Council desires to have the Community Safety Advisory Committee critique the report before it is submitted for City Council consideration. ALTERNATIVES: 1. Adopt the interim ordinance as proposed or with amendments. 2. Adopt the attached resolution as proposed or with amendments. 3. Take no action. RECOMMENDED Alternatives #1 and #2 in that order. MOTION: 1 PRIO ti 4646 Dakota Street SE Prior Lake, MN 55372 41f so l" CITY OF PRIOR LAKE ORDINANCE NO. 114 -XX AN INTERIM ORDINANCE OF THE CITY OF PRIOR LAKE, MINNESOTA, TEMPORARILY PROHIBITING ALL HOOKAH LOUNGES; ADOPTING ENFORCEMENT PROVISIONS; AND ADOPTING BY REFERENCE CITY CODE PART 1 WHICH, AMONG OTHER THINGS, CONTAINS PENALTY PROVISIONS. The City Council of the City of Prior Lake, Minnesota, hereby ordains: Section 1. Findings and Intent. The City of Prior Lake ( "City ") hereby finds that: (1) Hookah lounges are establishments where patrons share shisha (flavored tobacco) or other similar products from a communal hookah or nargile or where patrons are served individual hookah pipes that are smoked on site. (2) Hookah lounges have become popular establishments. However, little regulation exists due to their fairly recent emergence in the area. (3) The City Council finds that in order to protect the planning process and the health, safety and welfare of the general public the City must conduct a study to determine what amendments to the City Code will be required to deal effectively with hookah lounges. This study will include review of scientific and factual data relating to shisha and related devices and products; review of actions taken by other governmental entities relating to hookah lounges; and analysis of the options relating to hookah lounges available to the City in order to protect the planning process and the health, safety and welfare of the general public. Section 2. Authorization. Pursuant to Minn. Stat. § 462.355, subd. 4, the City is authorized to adopt interim ordinances to regulate, restrict, or prohibit any use or development in all or part of the City, for a period of one year (subject to exceptions as stated in Section 462.355), while the City is conducting studies, or has authorized a study to be conducted, or has scheduled a hearing to consider adoption or amendment of official controls, including ordinances, regulating, restricting, or prohibiting any use, development or subdivision within the City. Section 3. Study. Pursuant to this Interim Ordinance and as authorized by separate Resolution, the City determines to conduct a study to determine what amendments to the City Code will be required to deal effectively with hookah lounges. This study will include review of scientific and factual data relating to shisha and related devices and products; review of actions taken by other governmental entities relating to hookah lounges; and analysis of the options relating to hookah lounges available to the City in order to protect the planning process and the health, safety and welfare of the general public. Section 4. Study Area. This Interim Ordinance shall apply to all property within the City. Section 5. Interim Ordinance. Pending the completion of the above - referenced Study, and the adoption of appropriate official controls, for a period of one year (subject to exceptions as stated in Section 462.355) after the Effective Date of this Ordinance, there shall be no use, development or subdivision of property for hookah lounges within the City and no applications shall be accepted, processed or approved for use of property for hookah lounges within the City. Section 6. Exceptions. This moratorium shall not apply to hookah lounges in operation as of the date of this Ordinance. Section 7. Enforcement. The City may enforce this Ordinance by mandamus, injunction or any other appropriate civil remedy. Section 8. Violation. City Code Section 103 entitled "Definitions" and Section 104 entitled "General Penalty" are hereby adopted in their entirety, by reference, as though repeated verbatim herein. Section 9. Effective Date. This Ordinance shall become effective from and after its passage and publication. Passed by the City Council of the City of Prior Lake this Day of , 2014. ATTEST: Frank Boyles, City Manager Kenneth Hedberg, Mayor O1 PRIO+ t'l 4646 Dakota Street SE Prior Lake, MN 55372 d iMNBSol P RESOLUTION 14 -xxx A RESOLUTION AUTHORIZING A STUDY TO DETERMINE WHAT AMENDMENTS TO THE CITY CODE ARE REQUIRED TO PROTECT THE PUBLIC HEALTH, SAFETY, AND WELFARE AND TO PROVIDE FOR SOUND PLANNING WITH RESPECT TO HOOKAH LOUNGES Motion By: Second By: WHEREAS, Hookah lounges are establishments where patrons share shisha (flavored tobacco) or other similar products from a communal hookah or nargile or where patrons are served individual hookah pipes that are smoked on site. WHEREAS, Hookah lounges have become popular establishments. However, little regulation exists due to their fairly recent emergence in the area. WHEREAS, the City Council finds that in order to protect the planning process and the health, safety and welfare of the general public the City must conduct a study to determine what amendments to the City Code will be required to deal effectively with hookah lounges. This study will include review of scientific and factual data relating to shisha and related devices and products; review of actions taken by other governmental entities relating to hookah lounges; and analysis of the options relating to hookah lounges available to the City in order to protect the planning process and the health, safety and welfare of the general public. WHEREAS, the City Council has concluded that the public health, safety and welfare and sound planning require that a moratorium be imposed on the approval of any hookah lounges during the pendency of the study and the various public hearings preceding possible adoption amendments to the City Code. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: The City Council hereby authorizes a study to be conducted to determine what amendments to the City Code will be required to deal effectively with hookah lounges. This study will include review of scientific and factual data relating to shisha and related devices and products; review of actions taken by other governmental entities relating to hookah lounges; and analysis of the options relating to hookah lounges available to the City in order to protect the planning process and the health, safety and welfare of the general public. PASSED AND ADOPTED THIS 10th DAY OF FEBRUARY, 2014. YES NO Hedberg Hedberg Keeney Keeney Soukup Soukup Morton Morton McGuire McGuire Frank Boyles, City Manager MEMORANDUM To: Frank Boyles From: Richard Rosow, Sarah Schwarzhoff Date: January 29, 2014 Re: Hookah Lounges — Sampling; Burnsville Sampling The Minnesota Clean Indoor Act prohibits smoking indoors. However, there are several exceptions to the prohibition including an exception for "sampling ". Minn. Stat. 144.4167, Subd. 4 states: Tobacco products shop. Sections 144.414 to 144.417 do not prohibit the lighting of tobacco in a tobacco products shop by a customer or potential customer for the specific purpose of sampling tobacco products. For the purposes of this subdivision, a tobacco products shop is a retail establishment with an entrance door opening directly to the outside that derives more than 90 percent of its gross revenue from the sale of loose tobacco, plants, or herbs and cigars, cigarettes, pipes, and other smoking devices for burning tobacco and related smoking accessories and in which the sale of other products is merely incidental. "Tobacco products shop" does not include a tobacco department or section of any individual business establishment with any type of liquor, food, or restaurant license. Owners and supporters of hookah lounges rely on this exception to the Minnesota Clean Indoor Air Act. The hookah lounge obtains tobacco license through the city and allows customers to purchase tobacco and "sample" it communally in the licensed retail location. Though it is likely the exception was not intended to include social use of tobacco in a retail location, the language of the exception is, in the opinion of some, not specific enough to exclude it. No one has yet challenged the use of the sampling exception as authorization for hookah lounges in court. Therefore, cities seeking to prohibit or regulate hookah lounges have generally done so by creating city regulations that are more restrictive than the Minnesota Clean Indoor Air Act, either through licensing or the limitation or prohibition of sampling. Burnsville The City of Burnsville currently has two hookah lounges with tobacco licenses operating within Burnsville and another lounge which has applied for a license. As a result of some issues with the hookah lounges, related to both zoning and operations, the Burnsville City Council discussed the matter at a workshop on December 10, 2013 and a meeting on December 17, 2013. Burnsville reviewed its tobacco licensing ordinance with a focus on hookah lounges and e cigarettes. Attached are the agenda packets for the workshop and meeting. The workshop packet contains an in depth discussion of both hookah lounges and e cigarettes as well as multiple surveys and handouts related to the matters on pages 15 -59. The meeting packet includes the minutes from the workshop on pages 16 -20, and proposes revisions to Burnsville's tobacco licensing ordinance to address hookah lounges on pages 91 -102. The lounges were licensed and were allowed in their current locations by Burnsville on the premise that they are retail tobacco shops. However, they operate as lounges, which are not permitted in the zoning district in which they are located. Similar uses, such as nightclubs, blowing alleys and game rooms are not permitted in the zoning district the lounges are in, though they are permitted by CUP in other zoning districts. The majority of the discussion, however, related to neighbor complaints and code violations. The lounges operate in the afternoon or evening and stay open well past midnight, some charge entrance fees, and they often attract large crowds. Burnsville received several complaints from neighboring businesses and residents in relation to the lounges. In addition the police and fire departments have had multiple contacts with the lounges. The lounges have repeatedly been determined to be over occupancy and other fire code violations have also been observed. In particular, the fire department noted a lack of code compliant exists, flammable wall coverings, lack of clear occupancy load, and electrical code violations. One of the lounges was discovered at one point to have a carbon monoxide level five times the normal acceptable OSHA level. The police department has had to increase patrols near the lounges based on resident complaints and police observations. The resident complaints have included smoke and odors in adjacent buildings, use of restrooms in other business, concern about illegal activities, traffic, noise, large crowds, and loud vehicles. The large crowds have required multiple police to respond and during some contacts the customers have been confrontational. In addition, the lounges have armed security, which is unusual in Burnsville. Burnsville also discussed e cigarettes at the workshop but the discussion was general with no specific issues noted. The Burnsville staff recommended prohibiting sampling in order to prohibit hookah lounges and treating e cigarettes similar to tobacco for regulation. The Burnsville Council directed staff not to proceed with any regulations related to e cigarettes at this time, but to return with an ordinance that would better define and regulate tobacco shops. At the meeting on December 17, 2013, Burnsville staff presented a proposed ordinance for adoption, pages 93 -101 of the Council agenda packet. The proposed ordinance added additional regulations to Burnsville's tobacco licensing ordinance addressing matters such as: size of shop, distance from other shops, cover charges, hours of operation, state building, fire etc. codes, carbon monoxide levels, illegal acts on premises, and reporting of illegal acts. Burnsville adopted the proposed ordinance with the addition of prohibiting tobacco sampling from devices. Burnsville has not adopted any regulations relating to e cigarettes.