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HomeMy WebLinkAbout01 URGENCY ORDINANCE NO. 1451 - MASSAGE ESTABLISHMENTSAgenda Item AGENDA REPORT Reviewed: City Manager Finance Director MEETING DATE: OCTOBER 21, 2014 TO: JEFFREY C. PARKER, CITY MANAGER FROM: PAMELA ARENDS -KING, FINANCE DIRECTOR /CITY TREASURER JULIE INTERRANTE, CUSTOMER SERVICE SUPERVISOR SUBJECT: INTERIM URGENCY ORDINANCE NO. 1451 MASSAGE ESTABLISHMENTS SUMMARY: Adoption of Interim Urgency Ordinance No. 1451 would enact a temporary moratorium on the approval of massage establishment permits, use permits, building permits, business licenses and other applicable approvals, licenses, permits or other entitlements for the establishment, expansion and /or relocation of any massage establishment in the City of Tustin. RECOMMENDATION: It is recommended that the City Council adopt Interim Urgency Ordinance No. 1451 by at least a four -fifths vote. FISCAL IMPACT: Interim Urgency Ordinance No. 1451 is a City- initiated project. There is no direct fiscal impact associated with the proposed Ordinance. CORRELATION TO THE STRATEGIC PLAN: Goal B: Public Safety and Protection of Assets - Ensure Tustin is an attractive, safe and well maintained community in which people feel pride. BACKGROUND AND DISCUSSION: In 2008, the state legislature adopted Senate Bill 731 ( "SB 731 "), Section 4600 et seq. of the Business and Professions Code, relating to massage therapy. As amended in 2011 by Assembly Bill 619, SB 731 limits the ability of local governments to regulate massage establishments. In part, SIB 731: • Prohibited the City from adopting ordinances, regulations, rules, requirements, restrictions, or land use and zoning regulations applicable to massage establishments that are different from the requirements that are uniformly applied to other businesses providing professional services. • Prohibited the City from regulating massage businesses that provide massage services through employees or independent contractors certified by the California Massage Therapy Council ( "CAMTC "). INTERIM URGENCY ORDINANCE NO. 1451 MASSAGE ESTABLISHMENTS October 21, 2014 Page 2 of 2 • Prohibited the City from requiring an applicant for a business license to operate a massage establishment to fill out an application requesting relevant information that differs from the information requested of applicants for other businesses providing professional services. • Required the local business licensing fee for massage establishments to be no higher than the lowest fee applied to all other businesses providing professional services. Reports from other California cities show that the enactment of SB 731, as amended by AB 619, has had as an unintended consequence the proliferation of illicit massage establishments that are fronts for prostitution and may also be involved in sex trafficking. In 2013, the City initiated permit revocation proceedings against two massage establishments where prostitution was occurring, and a number of other establishments are suspected of such illicit activities. Numerous massage establishments located within the City commonly advertise their services on adult -only websites using suggestive language and provocative photographs of scantily -clad women. Additionally, numerous massage establishments located within the City generate reviews on websites where patrons can post reviews and information regarding the sexual services provided at these establishments. On September 18, 2014, the Governor of California signed Assembly Bill 1147 ( "AB 1147 "), which restores local land use authority over massage establishments by removing SB 731's broad state preemption of local massage ordinances and gives local governments greater authority to establish reasonable regulations to manage massage establishments in the best interests of the individual community. As acknowledged by the author of AB 1147, SB 731 "had serious unintended consequences; with bad actors masquerading as legitimate massage professionals exploiting loopholes in current law to insulate themselves against the ability of local governments and law enforcement to shut them down." Adoption of Interim Urgency Ordinance No. 1451 would impose a moratorium on the approval of massage establishment permits, use permits, building permits, business licenses and other applicable approvals, licenses, permits or other entitlements for the establishment, expansion and /or relocation of any massage establishment for a period of forty -five (45) days. Adoption of Interim Urgency Ordinance No. 1451 would provide the City with some initial time to study, draft and /or adopt amendments to the Tustin City Code relating to regulation of massage establishments, consistent with the provisions of AB 1147, to discourage the location and operation of illicit massage establishments in the City. Pamela Arends -King U JuI9 Interrante Finance Director /City Treasurer Customer Service Supervisor Attachment: Interim Urgency Ordinance No. 1451 ORDINANCE NO. 1451 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, ADOPTED PURSUANT TO GOVERNMENT CODE SECTION 65858 TEMPORARILY PROHIBITTING THE ESTABLISHMENT OR EXPANSION OF MASSAGE ESTABLISHMENTS (4 /5ths Vote Required) The City Council of the City of Tustin does hereby ordain as follows SECTION 1. This interim urgency ordinance is adopted pursuant to Section 65858 of the California Government Code and is for the immediate preservation of the public health, safety, and welfare. SECTION 2. The City Council hereby finds, determines, and declares that this interim urgency ordinance adopted pursuant to California Government Code Section 65858 is necessary because: A. In 2008, the state legislature adopted Senate Bill 731 ( "SB 731 "), Section 4600 et seq. of the Business and Professions Code, relating to voluntary statewide certification of massage practitioners and therapists, and restricting local control of massage establishments. B. Section 4600 et seq. of the California Business and Professions Code provides for the certification of massage practitioners and massage therapists by a non - profit entity known formerly as the Massage Therapy Organization ( "MTO ") and currently named the California Massage Therapy Council ( "CAMTC "). C. On August 4, 2009, the City Council adopted Interim Urgency Ordinance No. 1368 intended to reasonably implement the provisions of SIB 731, while allowing City Staff to review and consider future regulations and implementation guidelines anticipated from the MTO applicable to the regulation of massage therapists. D. On June 15, 2010, the City Council enacted Ordinance No. 1380 relating to the regulation of massage establishments and amending Article 9 of the Tustin City Code to comply with the mandate of SIB 731 that zoning requirements applicable to massage establishments "shall be no different than the requirements that are uniformly applied to all other individuals and businesses providing professional services." E. In 2011, the state legislature adopted Assembly Bill 619 ( "AB 619 ") amending Section 4612 of the Business and Professions Code, and further restricting the City's ability to regulate and restrict massage establishments. . F. The enactment of SIB 731, as amended by AB 619, has had as an unintended consequence the proliferation of illicit massage establishments that are fronts for prostitution and may also be involved in sex trafficking. G. In 2013, the City initiated permit revocation proceedings against two massage establishments where prostitution was occurring, and a number of other establishments are suspected of such illicit activities. H. Numerous massage establishments located within the City commonly advertise their services on adult -only websites using suggestive language and provocative photographs of scantily -clad women. I. Numerous massage establishments located within the City generate reviews on websites where patrons can post reviews and information regarding the sexual services provided at these establishments. J. The presence of illicit massage establishments changes the character of neighborhoods, causes blight, and impacts the local economy, as legitimate businesses refuse to locate next door to such uses. K. Illicit massage establishments threaten the public health, safety and welfare in that they operate as fronts for prostitution and potentially human trafficking operations. L. On September 18, 2014, the Governor of California signed Assembly Bill 1147 ( "AB 1147 "), which restores local land use authority over massage establishments by removing SB 731's broad state preemption of local massage ordinances and gives local governments greater authority to establish reasonable regulations to manage massage establishments in the best interests of the individual community. M. Pursuant to Section 65858 of the California Government Code, the City Council may, in order to protect the public health, safety and welfare, adopt as an urgency measure an interim ordinance prohibiting any use that may be in conflict with a contemplated specific plan, general plan amendment, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time. N. The City Council of the City of Tustin hereby directs staff to study and review potential amendments to the Tustin City Code relating to zoning and /or regulation of massage establishments, consistent with the provisions of AB 1147, to discourage the location and operation of illicit massage establishments in the City. O. This interim urgency ordinance will provide the City with some initial time to study, draft and /or adopt regulations, consistent with state laws, to regulate the location and operation of massage establishments. P. The immediate preservation of the public health, safety and welfare necessitates the enactment of this ordinance as an urgency ordinance. City staff shall conduct studies forthwith as to potential amendments to the Tustin City Code, which will reduce and /or mitigate the negative impacts of illicit massage establishments. Pending the completion of such studies and the adoption of an ordinance to establish 2 appropriate zoning and /or operational 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 establishments in the City may be in conflict with regulations or requirements established with respect thereto, and this ordinance is therefore necessary to prevent a current and immediate threat to the public health, safety and welfare. SECTION 3. In accordance with the authority granted to the City of Tustin under Section 65858, subdivision (b), of the California Government Code the City Council hereby imposes a moratorium on the approval of massage establishment permits, use permits, building permits, business licenses and other applicable approvals, licenses, permits or other entitlements for the establishment, expansion and /or relocation of any massage establishment for a period of forty -five (45) days from the date of enactment. SECTION 4. For the purpose of this ordinance, the term "massage establishment' shall have the same meaning as set forth at Section 3141 of the Tustin City Code. SECTION 5. For the pendency of this moratorium, all sections of Article 3, Chapter 6, Part 6 of the Tustin City Code relating to operating requirements and inspections etc., for existing massage establishments shall remain in full force and effect. SECTION 6. Ten (10) days prior to the expiration of this interim urgency ordinance, and any 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 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. PASSED AND ADOPTED at a regular meeting of the City Council for the City of Tustin on this 21st day of October, 2014. ELWYN A. MURRAY MAYOR 3 ATTEST: JEFFREY C. PARKER CITY CLERK APPROVED AS TO FORM: DAVID KENDIG CITY ATTORNEY ORDINANCE CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF TUSTIN ) ORDINANCE NO. 1451 Jeffrey C. Parker, 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 Ordinance No. 1451 was passed and adopted at a regular meeting of the City Council held on the 21st day of October, 2014, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: JEFFREY C. PARKER CITY CLERK El