Loading...
HomeMy WebLinkAboutOrdinance #4342 ORDINANCE NO. 4342 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH, ADDING A NEW CHAPTER 9.94 ENTITLED "PROHIBITION ON SALE OR DISTRIBUTION OF NITROUS OXIDE"TO TITLE 9 OF THE HUNTINGTON BEACH MUNICIPAL CODE TO ESTABLISH REGULATIONS PROHIBITING THE UNLAWFUL SALE OR DISTRIBUTION OF NITROUS OXIDE IN THE CITY WHEREAS, the City of Huntington Beach is a Charter City and municipal corporation duly created and existing under a Charter pursuant to which the City has the right and power to make and enforce all laws and regulations in respect to municipal affairs. Nitrous Oxide is an odorless, colorless chemical that can be inhaled for legitimate purposes associated with medical or dental procedures in a clinical setting, and is legitimately used for industrial purposes and as a propellant for food products; and Nitrous Oxide is also subject to recreational misuse and abuse, in part, because it is easy to purchase from retail vendors and relatively inexpensive; and The recreational misuse and abuse of Nitrous Oxide can cause permanent vitamin deficiencies in the blood, and can cause long-term neurological effects, including paralysis and death; and The incidence of Nitrous Oxide recreational misuse and abuse has been on the rise both within the City and internationally over the past decade, with multiple medical studies noting significant increases in recreational misuse in the past five years, as well as a broader medical understanding of the long-term hematological and neurological impacts of Nitrous Oxide misuse and abuse; and The City does not currently regulate the sale of Nitrous Oxide and finds and declares that in the absence of local regulation,Nitrous Oxide remains subject to significant risk of misuse and abuse through sale to individuals who intend to misuse or abuse the product; and The City desires to regulate the sale of Nitrous Oxide in order to preserve and protect public health and to dissuade sellers of Nitrous Oxide products from selling to individuals which they know or have reason to know intend to use the products for illegal purposes (i.e., recreational ingestion and/or inhalation); and On February 25, 2025, the County of Orange Board of Supervisors adopted Ordinance No. 25-004, adding Division 19 to Title 3 of the Codified Ordinances of the County of Orange to prohibit the sale of nitrous oxide in the county, except when sold for culinary use, wholesale, for use in a vehicle, for the purpose of providing medical or dental care, or by a pharmacist. The ordinance was supported by the Orange County District Attorney, the Orange County Sheriff's Department, and the Costa Mesa Police Department; and The City of Huntington Beach, pursuant to the provisions of the California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000 et seq.) and State 1 25-17237/392023 ORDINANCE NO. 4342 CEQA guidelines (Sections 15000 et seq.) has determined that the ordinance is not a"project" and further,that it is exempt from the provisions of CEQA pursuant to CEQA Guidelines Section 15061(b)(3) (because it can be seen with certainty that the adoption of this Ordinance will not have an effect on the environment) such that no environmental review under CEQA is required; and The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. The above recitals are true and correct. SECTION 2. A new Chapter 9.94 entitled"Prohibition on Sale or Distribution of Nitrous Oxide" is added to Title 9 of the Huntington Beach Municipal Code, to read as follows: Chapter 9.94. Prohibition on Sale or Distribution of Nitrous Oxide 9.94.010 Definitions. For purposes of this article, the following definitions apply. A. "Device" means any cartridge, compressed gas cylinder, apparatus, container, balloon, attachment, nozzle, or other object used to contain, dispense or administer nitrous oxide. B. "Nitrous oxide" means the colorless nonflammable gas sometimes identified as N20, which is sometimes used in aerosols and sometimes used as an anesthetic, and which, when inhaled, produces loss of sensibility to pain, often preceded by exhilaration and laughter and often used as an anesthetic in dentistry. Nitrous oxide is often informally or colloquially referred to as "laughing gas," "NOX," "galaxy gas," "whippits," amongst others. C. "Person" means any individual or legal entity however constituted or organized. D. "Wholesale capacity" means sale of or distribution of nitrous oxide or a device to dispense nitrous oxide to a person that will use nitrous oxide or the device in service or products for resale. Examples include, but are not limited to, commercial sale of dentistry supplies to dentists or dentistry offices, commercial sale of devices for the use in food production or in a commercial kitchen, and/or commercial sale of nitrous oxide for the purpose of producing food products for commercial sale (e.g., whipped cream canisters). 9.94.020. Prohibition on Sale or Distribution of Nitrous Oxide Except as otherwise authorized by law or allowed under this Chapter, it is unlawful for any person to sell, attempt to sell, offer, distribute or otherwise provide to any person nitrous oxide, a device to dispense or administer nitrous oxide, or any device that contains any quantity of nitrous oxide. 9.94.030. Exceptions to Prohibition. This Chapter does not apply to the sale, attempt to sell, distribution, or other manner of providing nitrous oxide, or a device containing nitrous oxide, in the following exempt circumstances: 2 ORDINANCE NO. 4342 A. If the nitrous oxide is contained in a food product for use as a propellant. B. If the nitrous oxide or device is being sold, attempted to be sold, offered, or distributed in a wholesale capacity, for uses similar to those described in subsection (D) of section 9.94.010. This exemption only applies if the wholesaler does not know or have reason to know that the recipient intends to use the nitrous oxide or device in violation of section 9.94.020. C. If the nitrous oxide or device that is being sold, attempted to be sold, offered, or distributed is specifically designed for use in a vehicle to enhance the performance of the vehicle, sold by a licensed retailer, and is flavorless. D. If the nitrous oxide is being sold, attempted to be sold, offered, or distributed specifically for the purpose of providing medical or dental care, by or at the direction and under the supervision of, a medical or dental practitioner licensed by the State of California and in accordance with all applicable rules and regulations. E. If the nitrous oxide or device is being sold, attempted to be sold, offered, distributed, or dispensed by a pharmacist, pharmacist intern, or pharmacy as defined by California Business & Professions Code§§ 4030, 4036, and 4037, as may be amended, in the course of their duties as a pharmacist or pharmacist intern, or wholesalers licensed by the Board of Pharmacy. F. Or any other circumstances exempted under law. Any sales or distributions of Nitrous Oxide contemplated under this section shall comply with all documentation requirements set forth in California Penal Code §3 81 e. 9.94.040. Violations and Penalties. a. Any person who violates this chapter is guilty of a misdemeanor and upon conviction thereof may be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment in the County Jail for a period of not more than six (6) months or by both such fine and imprisonment. Each day any violation of any said provision of this chapter shall continue shall constitute a separate offense. b. Alternatively, violations may be addressed through the use of administrative citations as set forth in Chapter 1.18 of this Code. c. Use of criminal enforcement and/or administrative citations shall not prevent or preclude the City from seeking injunctive relief and civil penalties in court for violation of this article. This section shall not serve to limit any other legal remedies or actions that the City may have to address violations of this chapter. A violation of this chapter is grounds for a revocation of a business license, if applicable, pursuant to Section 5.04.300 of the Huntington Beach Municipal Code. SECTION 3. CEQA. This Ordinance was assessed in accordance with the authority and criteria contained in the California Environmental Quality Act ("CEQA"), the State CEQA Guidelines, and the environmental regulations of the City. The City Council hereby finds and determines that the Ordinance is not subject to CEQA under the general rule in CEQA 3 ORDINANCE NO. 4342 Guidelines Section 15061(b)(3)that CEQA applies only to projects which have the potential for causing a significant effect on the environment. City staff shall cause a Notice of Exemption to be filed as authorized by CEQA and the State CEQA Guidelines. SECTION 4. Inconsistencies. Any provision of the Huntington Beach Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, are repealed or modified to the extent necessary to affect the provisions of this Ordinance. SECTION 5. Effective Date. This Ordinance shall become effective 30 days after its passage. SECTION 6. Severability. If any section, subsection, subdivision, sentence, clause,phrase, or portion of this Ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance and shall not affect other provisions 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 hereby declares it would have adopted this Ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses,phrases, or portions thereof be declared invalid or unconstitutional. SECTION 7. Publication. The City Clerk shall certify to the adoption of this Ordinance and shall post or publish this Ordinance in the manner required by law. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Huntington Beach at a regular meeting thereof held on the L- day of Ki 6 , 2025. Mayor ATTEST: APPROVED AS TO FORM: �-��-- Ci Jerk City Attorney INITIATED AND APPROVED: ity Manager 4 Ord. No. 4342 STATE OF CALIFORNIA ) • COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, LISA LANE BARNES,the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a Regular meeting thereof held on October 21,2025, and was again read to said City Council at a Regular meeting thereof held on November 4,2025, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Twining, Kennedy, McKeon, Burns,Van Der Mark, Gruel, Williams • NOES: None ABSENT: None ABSTAIN: None I,Lisa Lane Barnes,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Wave on November 13,2025. J' In accordance with the City Charter of said City. 114-(UXittritt J Lisa Lane Barnes, City Clerk City Clerk and ex-officio Clerk Senior Deputy City Clerk of the City Council of the City _ P of Huntington Beach, California