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HomeMy Public PortalAbout14) 8A ADOPTION OF URGENCY ORD. 15-1001TO EXTEND F MORATORIUM ON MASSAGE ESTABLISHMENTSCity Council March 17, 2015 Page 3 of 3 As noted in the attached urgency ordinance, staff believes that the proposed moratorium is necessary to protect the public health, safety, and welfare. As described in the recommended ordinance, a massage establishment for purposes of this ordinance includes establishments where massage is a primary use or an accessory use. Massage includes acupressure and reflexology. The recommended ordinance does not preclude the continued operation of lawfully existing massage establishments. To ensure that no new or relocated massage establishments are approved that may be inconsistent with the new regulations, staff recommends that the City Council extend the moratorium by adopting Urgency Ordinance No. 15-1001 pursuant to the above provisions. As noted above, such an ordinance would be effective for ten months and fifteen days. Staff believes this should be sufficient time to prepare massage establishment regulations for Planning Commission and City Council consideration. If additional time is required, Section 65858 allows the City Council to extend the moratorium up to an additional year. CONCLUSION: The Temple City Municipal Code needs to be updated to provide adequate regulations for massage establishments. While new regulations are being contemplated, it is necessary and appropriate to extend the existing moratorium on new or relocated massage establishments to protect the public health, safety, and welfare. A moratorium will ensure that no new or relocated massage establishments are constructed that may be inconsistent with the new regulations. FISCAL IMPACT: Extending the existing moratorium would not in and of itself have any impact on the Fiscal Year 2014-15 City Budget. Staff will work with the City Attorney's Office to prepare regulations for massage establishments, which will incur costs for the City Attorney's time and indirect costs in the form of staff time and resources. However, these costs would be incurred even without the proposed moratorium. ATTACHMENT: A. Urgency Ordinance No. 15-1001 ATTACHMENT A URGENCY ORDINANCE NO. 15-1001 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA, EXTENDING A MORATORIUM ON THE ISSUANCE OF ANY PERMIT, LICENSE, APPROVAL, OR ENTITLEMENT PERTAINING TO NEW MASSAGE ESTABLISHMENTS FOR A PERIOD OF 10 MONTHS AND 15 DAYS. THE CITY COUNCIL OF THE CITY OF TEMPLE CITY ORDAINS AS FOLLOWS: SECTION 1. Findings. A. Pursuant to Government Code sections 36937 and 65858, the City Council of the City of Temple City ("City") has adopted Ordinance No. 15-999 as an urgency measure to establish a moratorium on the issuance of any permits, licenses, approvals, or entitlements for new massage establishments or the relocation or expansion of any existing massage establishments (the "Interim Ordinance"). The Interim Ordinance, by law, is effective for only 45 days and is therefore set to expire on March 20, 2015. B. Pursuant to Government Code section 65858, the City may, after notice and a public hearing, extend the Interim Ordinance for an additional 10 months and 15 days. C. The factual basis for extending the moratorium includes the following: 1. The City has adopted a General Plan to ensure a well planned and safe community; and 2. Protection of public health, safety and welfare is fully articulated in the General Plan; and 3. State law requires that the City's zoning ordinance, found at Title 9, Chapter 1 of the Temple City Municipal Code ("TCMC"), conform with the General Plan's goals and policies; and 4. In 2008, Senate Bill 731 ("SB 731 ") was adopted by the Legislature and signed into law by the Governor. SB 731 enacted Section 4600 et seq. of the Business and Professions Code ("Massage Therapy Act"), which preempted many local controls relating to massage therapy. Significantly, the law shifted local regulation of massage therapists and practitioners to a newly created entity known as the California Massage Therapy Council ("CAMTC"). Certificates issued by the CAMTC to qualified applicants entitle Ordinance No. 15-1001 Page 2 of 6 the holder to practice massage therapy anywhere in the State, without the necessity of complying with certain local rules; and 5. Subsequently, in 2011 and 2012, Assembly Bill 619 and Senate Bill 1238, respectively, amended various provisions of the Massage Therapy Act, further limiting the City's ability to regulate massage establishments; and 6. These state laws had the unintended consequence of resulting in a proliferation of massage establishments throughout California, many of which are believed to be fronts for prostitution and/or sex or human trafficking; and 7. In September 2014, the Governor signed Assembly Bill1147, which returns to local governments the authority to more strictly regulate massage establishments. The new law, which became effective on January 1, 2015, authorizes cities and counties to regulate the business of providing massage services through local land use requirements, business licensing schemes, as well as reasonable health and safety operational requirements; and 8. The City Council finds that the amendments to state law that have occurred over the past six years have resulted in an increase of public health and safety issues associated with businesses that provide massage services; and 9. Two massage establishments currently operate within the City. Both opened in 2014 and are located approximately four blocks apart on Las Tunas Drive, one of the City's primary commercial corridors; and, 10.A number of local massage establishments are advertised or reviewed online in the adult entertainment section of backpage.com, rubmaps.com and mpreviews.com, strongly suggesting illicit activity; and 11. Because of the ongoing indication of illicit activities at massage establishments locally, it appears that massage establishments may require different levels of scrutiny and enforcement than other businesses in order to ensure compliance with local and state laws; and 12. The City Council further finds that with the passage of AB 1147, certain provisions of the City's ordinances may conflict with the new state law. As a result of the January 1, 2015 effective date of AB 1147, it is urgent that the City continue to undertake a review of its current massage regulations in order to determine revisions may be necessary in order to be consistent with state law, while still providing adequate protection for the public health, Ordinance No. 15-1001 Page 3 of 6 safety and welfare. The City requires additional time beyond the 45 days to prepare, evaluate and adopt reasonable regulations regarding the establishment and expansion of massage establishments within the City. 13. The absence of this ordinance would impair the orderly and effective implementation of contemplated amendments to the TCMC, and any further authorization to establish or expand massage establishments within the City during the period of this moratorium may be in conflict with or may frustrate the contemplated updates and revisions to the TCMC. D. Pursuant to Government Code section 65858(d}, the City has issued a report relative to the steps taken to alleviate the conditions that necessitated the adoption of the Interim Ordinance, which report is incorporated by this reference. E. The City Council finds that there is a current and immediate threat to the public health, safety, and welfare based on the above findings, and upon that basis has determined that an extension of the moratorium enacted under the Interim Ordinance prohibiting the issuance of any permits, licenses, approvals, or entitlements for new massage establishments or the expansion of any existing massage establishments within the City is warranted. SECTION 2. Extension of Moratorium on New Massage Establishments or the Expansion of Existing Massage Establishments. The City Council orders as follows: A. The findings and determinations in Section 1 are true and correct. B. Based on the foregoing, the City Council finds and declares there is a current and immediate threat to the public health, safety or welfare and upon that basis has determined that an urgency ordinance pursuant to Government Code Sections 65858 and 36937 is warranted and shall take effect immediately upon adoption by a four-fifths (4/5ths) vote of the City Council. C. For a period of 10 months and 15 days from March 20, 2015, no permits, licenses, approvals, or entitlements may be issued for new massage establishments. In addition, no existing massage establishment may be relocated or expanded, whether by means of additional space, construction of a new facility, or by reconfiguration of existing space. D. For purposes of this ordinance, the following definitions apply: 1. "Massage business or establishment" shall mean any establishment, with a fixed place of business within the City where any person engages in, conducts, carries on or permits to be engaged in, conducted or carried on, for money or any other Ordinance No. 15-1001 Page 4 of6 consideration, the administration to another person of a massage, and also includes all businesses or establishments where massage therapy is provided as an ancillary service such as clubs, gyms, day spas and professional offices. 2. "Massage" or "massage therapy" shall mean any method of treating the external parts of the body for remedial, hygienic, relaxation or any other similar purpose, whether by means of pressure on, friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or other manner of touching external parts of the body with the hands, or with the aid of any mechanical or electrical apparatus or appliance with or without supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment or other similar preparations commonly used in this practice and shall include herbal body wraps. For the purposes of this chapter, "massage" or "massage therapy" includes the techniques of acupressure and reflexology. E. City staff is directed to study appropriate modifications to the City's massage and zoning ordinances to reduce and/or mitigate negative secondary effects created by the number, location and illicit uses of massage establishments. Pending the completion of such studies and the adoption of an ordinance to establish appropriate operational and zoning regulations, it is necessary for the immediate preservation of the public health, safety and welfare that this ordinance takes effect immediately. In the absence of immediate effectiveness, massage establishment uses in the City may be in conflict with regulations or requirements established with respect thereto. F. For the pendency of this moratorium, all sections of Section 9-1 N-30(8) of the TCMC relating to the operating requirements for massage establishments shall remain in full force and effect with respect to existing massage businesses. The portions of Chapter 4-11 of the TCMC containing operating requirements for businesses providing acupressure therapy shall remain in full force and effect with respect to existing massage businesses providing acupressure, as "acupressure" is defined in Section 4-11-0-1 of the TCMC. G. This ordinance shall not preclude the continued operation of any lawfully existing massage establishment uses which are not seeking to expand, convert, relocate or otherwise change their use, or the opening or commencement of any massage establishment uses as a new business for which all discretionary and nondiscretionary approvals have been made prior to the effective date of the Interim Ordinance. SECTION 3. Legal, Operational and Planning Study. The Development Services Department and the City Attorney's Office are directed to continue to study and analyze issues related to the establishment, permitting, and operation of massage establishments within the City, and the potential impacts of such facilities on public health, Ordinance No. 15-1001 Page 5 of 6 safety and welfare of the community, the desirability of such facilities in various zones, and the extent of regulatory controls, if any, to impose on such facilities. SECTION 4. Environmental Review. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to 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) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; rather it prevents changes in the environment pending the completion of the contemplated municipal code review. SECTION 5. Severability. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision will not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 6. Effective Date and Duration. This ordinance is an urgency ordinance enacted under California Government Code section 65858(a). This urgency ordinance is effective upon adoption by a four-fifths vote of the City Council on March 17, 2015, and will extend the Interim Ordinance for a period of 10 months and 15 days from the date of March 20, 2015 to February 4, 2016, at which time it will automatically expire unless extended by the City Council in accordance with California Government Code section 65858. SECTION 7. Publication. The City Clerk is directed to cause this ordinance to be posted or published in the manner required by law. PASSED, APPROVED, AND ADOPTED this 17th day of March, 2015. ______________ ,Mayor Ordinance No. 15-1001 Page 6 of 6 ATTEST: Peggy Kuo, City Clerk APPROVED AS TO FORM Eric S. Vail, City Attorney