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HomeMy WebLinkAboutPC RES 4135RESOLUTION NO. 4135 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, APPROVING CONDITIONAL USE PERMIT 09-027 TO ESTABLISH A DAY SPA WITH MASSAGE SERVICES LOCATED AT 2833 PARK AVENUE IN THE DISTRICT SHOPPING CENTER. The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That a proper application for Conditional Use Permit 09-027 was filed by CFR Management LLC. to establish a day spa with massage services located at 2833 Park Avenue within the District shopping center. B. That the MCAS Tustin Specific Plan zoning designation and General Plan land use designation provide for a variety of commercial and entertainment uses. In addition, the project has been reviewed for consistency with the Air Quality Sub-element of the City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub-element. C. That a public hearing was duly called, noticed, and held for Conditional Use Permit 09-027 on December 8, 2009, by the Planning Commission. D. No concerns regarding the proposed use were received from the public or neighboring jurisdictions by the Community Development Department, and no members of the public spoke in opposition of the proposed use at the public hearing. E. That the Tustin City Council adopted Interim Urgency Ordinance No. 1386 on August 4, 2009, for the regulation of massage establishments and this application is consistent with said Ordinance. F. That the establishment, maintenance, and operation of the proposed use will not, under the circumstances of this case, be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood of such proposed use, nor be injurious or detrimental to the property and improvements in the neighborhood of the subject property, or to the general welfare of the City of Tustin in that: Pursuant to Section 3.8.4.C the MCAS Tustin Specific Plan, the Director of Community Development determined that day spas with massage services are conditionally permitted uses within Planning Area 19. 2. The proposed use would be required to comply with the regulations for massage establishments, massage operators, and massage technicians as set forth in Interim Urgency Ordinance No. 1368, Resolution No. 4135 Page 2 adopted on August 4, 2009, and future ordinances as adopted by the Tustin City Council. 3. The hours of operation are consistent with other businesses within the District. No parking impacts are anticipated as the use would be classified as a retail use in an existing retail tenant space. 4. The proposed massage services would be provided by appointment only during the business hours of the massage establishment when the business owner, manager, or massage operator is on-site. 5. The City of Tustin Redevelopment Agency and Police Department have reviewed and approved the proposed use subject to the conditions of approval contained within Resolution No. 4135. 6. Massage Envy is a nationwide franchise business with multiple locations throughout Orange County including establishments in cities adjacent to Tustin. G. This project is Categorically Exempt pursuant to Section 15301 (Class 1) of Title 14, Chapter 3 of the California Code of Regulations (Guidelines for the California Environmental Quality Act). II. The Planning Commission hereby approves Conditional Use Permit 09-027 authorizing the establishment of a day spa with massage services located at 2833 Park Avenue within the District shopping center, subject to the conditions contained within Exhibit A, attached hereto. PASSED AND ADOPTED by the Planning Commission of the City of Tustin, at a regular meeting on the 8th day of December, 2009. ELIZABETH A. BINSACK Planning Commission Secretary S EV ZAK Chairperson Resolution No. 4135 Page 3 STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4135 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 8th day of December, 2009. ----, ELIZABETH A. BINSACK Planning Commission Secretary EXHIBIT A RESOLUTION N0.4135 CONDITIONAL USE PERMIT 09-027 CONDITIONS OF APPROVAL GENERAL (1) 1.1 The proposed project shall substantially conform with the submitted plans for the project date stamped December 8, 2009, on file with the Community Development Department, as herein modified, or as modified by the Community Development Director in accordance with this Exhibit. The Director may also approve subsequent minor modifications to plans during plan check if such modifications are consistent with provisions of the Tustin City Code or other applicable regulations. (1) 1.2 Unless otherwise specified, the conditions contained in this Exhibit shall be complied with prior to the issuance of any building permits for the project, subject to review and approval by the Community Development Department. (1) 1.3 The subject project approval shall become null and void unless permits for the proposed project are issued and substantial construction is underway within twelve (12) months of the date of this Exhibit. Time extensions may be considered if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.4 Approval of Conditional Use Permit 09-027 is contingent upon the applicant and properly owner signing and returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk-Recorder a revised, notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. SOURCE CODES (1) STANDARD CONDITION (2) CEQA MITIGATION (3) UNIFORM BUILDING CODES (4) DESIGN REVIEW *~ EXCEPTIONS (5) RESPONSIBLE AGENCY REQUIREMENTS (6) LANDSCAPING GUIDELINES (7) PC/CC POLICY Exhibit A Resolution No. 4135 Page 2 (1) 1.5 The applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of the City Council, the Planning Commission, or any other decision-making body, including staff, concerning this project. The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in defense of any such action under this condition. (1) 1.6 Any violation of any of the conditions imposed is subject to the issuance of an Administrative Citation pursuant to Tustin City Code Section 1162(a). (1) 1.7 The applicant shall be responsible for costs associated with any necessary code enforcement action, including attorney fees, subject to the applicable notice, hearing, and appeal process as established by the City Council by ordinance. (1) 1.8 Conditional Use Permit 09-027 may be reviewed annually or more often, if deemed necessary by the Community Development Department, to ensure compatibility with the area and compliance with the conditions contained herein. If the use is not operated in accordance with conditions of approval included in Exhibit A of Resolution No. 4135, or is found to be a nuisance or negative impacts are affecting the surrounding tenants or neighborhood, the Community Development Director may impose additional conditions to eliminate the nuisance or negative impacts, or may initiate proceedings to revoke the Conditional Use Permit. USE RESTRICTIONS (1 j 2.1 The use shall comply with the Tustin City Code and any future ordinances pertaining to massage uses and establishments as adopted by the Tustin City Council. (1) 2.2 Prior to providing massage services, the applicant shall obtain a massage operator permit and all technicians shall obtain a massage technician permit, excepting those persons who are certified by the Massage Therapy Organization (MTO). (1) 2.3 The day spa with massage services is limited to the maximum operational hours of 8:00 AM to 10:00 PM daily and when the business owner or manager is on-site. Massage services may be offered by appointment only and shall operate only when day spa services are offered. The type of services, business hours, number of rooms, floor plan, or number of employees performing massage services shall not be modified without written approval of the Community Development Department. Exhibit A Resolution No. 4135 Page 3 (1) 2.4 This approval shall become null and void if the use is discontinued or abandoned for twelve (12) months or more. (1) 2.5 No person shall enter, be, or remain in any part of the facility while in the possession of, consuming, or using alcoholic beverages or drugs except as pursuant to a prescription for such drugs. The owner, and/or operator, and/or responsible managing employee, and/or manager, and/or licensees shall not permit any person in violation of this condition to enter or remain upon the premises. (1) 2.6 The customer entrance door shall remain unlocked during business hours. The room where massage services are performed shall not be equipped with any locking devices on the door(s). (1) 2.7 The applicant, and any subsequent massage operator at this location, shall ensure that any massage establishment, massage operator, or massage technician operating out of this location is in compliance with all local, state and federal regulations, as may be updated over time, for massage establishments, massage operators, and massage technicians. (1) 2.8 The owner, and/or operator, and/or responsible managing employee, and/or manager, and/or licensees of the facility shall cooperate fully with all City officials, law enforcement personnel, and Code Enforcement officers and shall not obstruct or impede their entrance into the licensed premises while in the course of their professional duties. (1) 2.9 A recognizable and readable sign shall be posted at the main entrance, identifying the establishment as a massage establishment, provided that all such signs shall comply with the Tustin Sign Code. (1) 2.10 Minimum lighting shall be provided in accordance with the City Building Codes. In addition, a light level of no less than five (5) foot candles shall be maintained in public rooms, walkways, and at any point within each room or enclosure where massage services are performed, at all times such services are being provided. (1) 2.11 Minimum ventilation shall be provided in accordance with the Uniform Building Code. (1) 2.12 Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided which are approved by the department or agency designated by the City Manager to make inspections for compliance with health standards. (1) 2.13 Pads used on massage tables shall be covered in a workmanlike manner with durable, washable plastic or other waterproof material acceptable to Exhibit A Resolution No. 4135 Page 4 the department or agency designated by the City Manager to make inspections for compliance with health standards. (1) 2.14 In any massage establishment in which massage services are rendered only to members of the same sex at any one time, such persons of the same sex may be placed in a single separate room or the massage operator may elect to place such persons of the same sex in separate enclosed rooms or booths having adequate ventilation to an area outside said room or booth while massage services are being performed. (1) 2.15 If the facility provides steam rooms or sauna baths it shall provide adequate bathing, dressing, locker, and toilet facilities for patrons in accordance with the Tustin City Code. (1) 2.16 All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments, and toilet rooms shall be thoroughly cleaned each day the business is in operation. Bathtubs shall be thoroughly cleaned after each use. (1) 2.17 Clean and sanitary towels and linens shall be provided for each patron of the establishment or each patron receiving massage services. No common use of towels or linens shall be permitted. Towels, sheets, and linens shall be provided in sufficient quantity and shall not be used by more than one (1) person unless they have been first re-laundered. Separate closed cabinets or containers shall be provided for the storage of clean and soiled linen and shall be plainly marked: "clean linen," "soiled linen." (1) 2.18 A minimum of one separate wash basin shall be provided in each massage establishment for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times, and shall be located within or as close as practicable to the area devoted to the performing of massage services. In addition, there shall be provided at each wash basin sanitary towels placed in permanently installed dispensers. (1) 2.19 Except to the extent required, in writing, by a state licensed medical practitioner, no massage establishment employee or independent contractor shall massage the genital, buttock, or anal area of any patron or the breasts of any female patron, nor shall any operator or manager of a massage establishment allow or permit such massage. No massage operator or designated manager, while performing any task or service associated with the massage business, shall be present in any room with a patron unless the patron's genitals, buttocks, anus, or, in the case of female, her breast(s), are fully covered. Exhibit A Resolution No. 4135 Page 5 (1) 2.20 No person granted a massage permit shall use any name or conduct business under any designation not specified in his or her permit. (1) 2.21 The facility shall have a manager on the premises at alt times the massage establishment is open. The operator shall file a statement with the Director of Community Development designating the person or persons with power to act as a manager. The operator and/or on-duty manager shall post, on a daily basis, the name of each on-duty manager and each on-duty technician in a conspicuous public place in the lobby of the massage establishment. The operator, or the manager in the operator's absence, shall be responsible for ensuring compliance with all conditions of approval and the Tustin City Code. All operators and/or on- duty managers must be able to communicate effectively in English with City regulatory officials. (1) 2.22 No licensed establishment shall be open for business without having at least one massage technician, or MTO certificate holder on the premises, and on duty, at all times when said establishment is open and ready to perform massage therapy. (1) 2.23 The operator shall ensure that copies of massage technician permits or MTO certificates, as the case may be, are prominently displayed for each individual authorized to perform massage in a conspicuously public place in the lobby and each massage technician shall wear his/her massage technician permit at all times when in the massage establishment. Such identification shall be provided to City regulatory officials upon demand. (1) 2.24 No operator or manager shall employ or retain any person to perform massage therapy who does not have a valid massage technician permit or MTO certificate. Every operator or manager shall report to the Director of Community Development any change of employees/independent contractor, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the Director. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five days of the hire or termination. The operator shall deliver the permit and photo identification card of any massage technician/independent contractor no longer employed by the operator to the Director within five days. (1) 2.25 All persons employed or retained in the massage establishment shall be fully clothed at all times. Clothing shall be of a fully opaque, nontransparent material and shall provide complete covering from mid- thigh to three inches below the collar bone. (1) 2.26 The operator and/or on duty manager shall maintain a register of all employees/independent contractors, showing the name, nicknames, and Exhibit A Resolution No. 4135 Page 6 E aliases used by the such person, home address, age, birth date, sex, height, weight, color of hair and eyes, phone numbers, social security number, date of employment and termination, if any, and duties of each employee. The above information on each employee shall be maintained in the register on the premises for a period of two years following termination. The operator and/or manager on duty shall make the register of employees available immediately for inspection by police upon demand of a representative of the Police Department at all reasonable times. (1) 2.27 Pursuant to Business and Professions Code section 4612(c), the massage establishment permittee is responsible for the conduct of all employees and independent contractors working on the business premises. Accordingly, an operator's permit may be suspended or revoked based also upon violations of this chapter committed by the permittee's employees or independent contractors. BUILDING DIVISION (1) 3.1 At the time of building permit application, the plans shall comply with the latest applicable codes, City Ordinances, State, Federal laws, and regulations as adopted by the City Council of the City of Tustin. FEES (1) 4.1 Prior to issuance of any building permits, payment shall be made of all applicable fees, including but not limited to, the following. Payments shall be required based upon those rates in effect at the time of payment and are subject to change. a. All applicable Building and Planning plan check and permit fees and Orange County Fire Authority fees shall be paid to the Community Development Department. b. Within forty-eight (48) hours of approval of the subject project, the applicant shall deliver to the Community Development Department, a CASHIER'S CHECK payable to the County Clerk in the amount of fifty dollars ($50.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period the applicant has not delivered to the Community Development Department the above-noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened.