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HomeMy WebLinkAboutORD 1392 (2011)ORDINANCE NO. 1392 AN INTERIM URGENCY ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, ENACTING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF TATTOO ESTABLISHMENTS WITHIN THE CITY OF TUSTIN FOR A PERIOD OF 45 DAYS PENDING A STUDY OF LAND USE REGULATIONS PURSUANT TO GOVERNMENT CODE SECTION 65858. (4/5ths Vote Required) City Attorney Summary This interim urgency ordinance imposes a temporary moratorium on the establishment or operation of tattoo establishments in the City of Tustin pending completion of a study by the City to determine the appropriate land use regulations, development standards, and operational regulations necessary to protect the public health, welfare, or safety from impacts associated with or implicated by use of property for tattoo establishments. THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. This interim urgency ordinance is adopted pursuant to Section 65858 of the California Government Code. SECTION 2. The City Council hereby finds, determines and declares that this urgency ordinance is necessary because: A. Tattoo establishments are not listed as permitted uses in the Tustin Zoning Code, and the Tustin City Code contains no specific provisions regulating the location, development, or operational characteristics of establishments where tattoos are placed on individuals. B. In a recent case, Anderson v. City of Hermosa Beach, the Ninth Circuit Court of Appeals ruled that the City of Hermosa Beach's total prohibition on the establishment and operation of tattoo parlors within the city was unconstitutional, and that cities may only impose reasonable "time, place, and manner" regulations on such activities. The Ninth Circuit held, as a matter of first impression, that a tattoo itself, the process of tattooing, and the business of tattooing are pure forms of expression fully protected by the First Amendment to the United States Constitution, and that the City of Hermosa Beach's total ban on tattoo parlors was not a reasonable "time, place, or manner" restriction. The Ninth Circuit's decision calls into question the effectiveness of the Tustin City Code in regulating the act and/or business of tattooing and addressing land uses related to tattooing. Ordinance No. 1392 Page 1 of 5 C. Tattooing is an activity that, if undertaken in unsanitary conditions, can lead to the transmission of infectious diseases, including hepatitis, syphilis, tuberculosis, and HIV. In addition, other California cities that have permitted the establishment of tattoo establishments have recognized that doing so has resulted in secondary negative impacts, such as an increase in crime and the sale of illegal drugs immediately surrounding tattoo establishments and the impairment of the market values and aesthetic and visual qualities of the properties adjacent to tattoo establishments. Based upon the experience of other cities, it is reasonable to conclude that similar negative effects could occur in the City of Tustin as a result of the establishment or operation of tattoo establishments. D. The City has received inquiries regarding the permitting and establishment of tattoo establishments within the City. The issuance or approval of any business license, permit or other entitlement for the establishment or operation of tattoo establishments is a threat to the public health, safety, and welfare in that there currently are no specific standards or regulations in the Tustin City Code that comprehensively address the potential negative effects associated with the location and operation of such facilities. Absent reasonable time, place, and manner regulations governing tattoo establishments, such uses could be established in areas of the City where they are inconsistent and/or incompatible with the surrounding land uses and/or operated under unsanitary conditions, thereby increasing the risk of transmission of infectious diseases. E. The City intends to perform or cause to be performed a study regarding appropriate land use regulations, development standards, and other operational regulations necessary to protect the public health, safety, and welfare of the community from impacts associated with or implicated by use of property for the operation of tattoo establishments. F. The establishment or operation of any tattoo establishments could be in conflict with any regulations adopted in conjunction with such study and could result in the negative impacts described above; therefore, it is necessary to prohibit the establishment and/or operation of tattoo establishments in the City of Tustin until such time that the study described above is completed and/or appropriate regulations to protect the public health, safety, and welfare are enacted by the City. Ordinance No. 1392 Page2of5 G. Based on the foregoing, the City Council finds that there is a current and immediate threat to the public health, safety, or welfare and that the approval of additional subdivisions, use permits, variances, business licenses, building permits, or any other applicable entitlement authorizing the use, establishment or operation of tattoo establishments would result in that threat to public health, safety, or welfare. SECTION 3. For purposes of this ordinance, "tattoo establishment" means any premise or establishment and facilities incidental thereto which engages in the business of marking or coloring skin which is the method of placing designs, letters, scrolls, figures, symbols, or other marks upon or under the skin with ink or any other substance resulting in the coloration of the skin by the aid of needles or any other instrument designated to penetrate the skin. A tattoo establishment shall not include a permanent cosmetic facility, as defined in Section 4140.010 of the Tustin City Code. SECTION 4. For the period of this ordinance, or any extension thereof, no person, firm, corporation, or other entity shall establish or operate, and no subdivision, use permit, variance, building permit, certificate of use or occupancy, or other land use entitlement or license shall be issued for, a tattoo establishment in any zoning district of the City, even if located in conjunction with an otherwise permitted use. SECTION 5. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (uCEQA") pursuant to CEQA Guidelines Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) (Title 14, of the California Code of Regulations) because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated City study. SECTION 6. Ten (10) days prior to the expiration of this interim urgency ordinance, or an extension thereof, the City Council shall issue a written report describing the measures which the City has taken to address the conditions which led to the adoption of this ordinance. SECTION 7. This interim urgency ordinance shall take effect immediately upon its adoption by a four-fifths (4/5) vote of the City Council. This interim urgency ordinance shall continue in effect for forty-five (45) days from the date of its adoption and shall thereafter be of no further force and Ordinance No. 1392 Page3of5 effect unless, after notice pursuant to California Government Code Section 65090 and a public hearing, the City Council extends this interim urgency ordinance for an additional period of time pursuant to California Government Code Section 65858. SECTION 8. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance or any part thereof is for any reason, held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional. PASSED, APPROVED, AND ADOPTED this 1st day of February, 2011. ATTEST: PAMELA TOKER City Clerk Ordinance No. 1392 Page 4 of 5 ORDINANCE CERTIFICATION STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN ORDINANCE NO. 1392 ss. PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Interim Ordinance was passed and adopted at a regular meeting of the City Council held on the 1st day of February, 2011, by the following vote: COUNCILMEMBERAYES: Amante, Nielsen, Gavello, Gomez, Murray (5) COUNCILMEMBER NOES: None (0) COUNCILMEMBER ABSTAINED: None (0) COUNCILMEMBER ABSENT: None (0) PA ELA STOKER City Clerk Ordinance No. 1392 Page 5 of 5