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HomeMy WebLinkAbout02 INTERIM URGENCY ORDINANCE NO. 1452GST♦ MEETING DATE: TO: FROM: SUBJECT: SUMMARY: AGENDA REPORT DECEMBER 2, 2014 Agenda Item 2 Reviewed: City Manager Finance Director HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL PAMELA ARENDS -KING, FINANCE DIRECTOR/CITY TREASURER JULIE INTERRANTE, CUSTOMER SERVICE SUPERVISOR INTERIM URGENCY ORDINANCE NO. 1452 Massage Establishments Ordinance No. 1452 is an interim urgency measure that would extend the effective term of Interim Urgency Ordinance No. 1451. The City Council approved Ordinance No. 1451 on October 21, 2014 to enact 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 in the City of Tustin for a period of forty -five (45) days. On November 18, 2014, the City Council received and filed a written report describing the measures taken by the City to address the conditions which led to the adoption of Interim Urgency Ordinance No. 1451, as required by Government Code Section 65858(d). Pursuant to Government Code Section 65858, the moratorium may now be extended for a period of ten months and fifteen days. Together with Ordinance No. 1451, the total effective period of Ordinance 1452, if approved, would be one year. RECOMMENDATION: It is recommended that the City Council adopt Interim Urgency Ordinance No. 1452 by at least a four -fifths vote. FISCAL IMPACT: Interim Urgency Ordinance No. 1452 is a City- initiated project. There is no direct fiscal impact associated with the proposed Ordinance. CORRELATION TO 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. 1050148.1 INTERIM URGENCY ORDINANCE NO. 1452 MASSAGE ESTABLISHMENTS December 2, 2014 Page 2 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, SB 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 "). • 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 INTERIM URGENCY ORDINANCE NO. 1452 MASSAGE ESTABLISHMENTS December 2, 2014 Page 3 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." City Council adoption of Interim Urgency Ordinance No. 1451 imposed 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 an initial period of forty -five (45) days. Since the enactment of Interim Urgency Ordinance No. 1451, representatives from the Police Department, Community Development Department, Finance Department, and the City Attorney's Office have taken the following actions: • Convened to discuss potential revisions to the Zoning Ordinance (Tustin City Code, Article 9 — Land Use) and the City's Business Regulations (Tustin City Code, Article 3, Chapter 1, Part 3 — Massage Establishments). • Met and corresponded with representatives from other local jurisdictions regarding regulation of massage establishments. • Reviewed massage regulations and enforcement plans proposed by other local jurisdictions. • Assessed the total number of massage establishments located in the City, and the distribution of these establishments across the City's zoning districts. • Continued to monitor massage establishments in the City suspected of illicit activity, including those establishments that commonly advertise their services on adult -only websites using suggestive language and provocative photographs of scantily -clad women, and /or generate reviews on websites where patrons can post reviews and information regarding the sexual services provided at the establishments. City Staff recommends an extension of the moratorium for an additional ten (10) months and fifteen (15) days for the following reasons: • The secondary effects of illicit massage establishments, which gave rise to the need for the moratorium, still exist. INTERIM URGENCY ORDINANCE NO. 1452 MASSAGE ESTABLISHMENTS December 2, 2014 Page 4 To provide additional time to adequately address the issue of proliferation of massage establishments in the City, and to review and study measures to be undertaken to discourage the location and operation of illicit massage establishments in the City. This includes, without limitation: o Research and draft revisions to the Zoning Ordinance (Tustin City Code, Article 9 — Land Use), including the feasibility of requiring a Conditional Use Permit or other special permit and /or restricting the zoning districts within which massage establishments are permitted to locate (the City does not have specific land use regulations in place to govern proposals for the siting of massage establishments). o Research and draft revisions to the City's Business Regulations (Tustin City Code, Article 3, Chapter 1, Part 3 — Massage Establishments), including an update of permitting requirements, conditions of operation, and enforcement provisions. Review enforcement plans from other local jurisdictions, and formulate action plans to address illicit massage establishments in the City. Pamela Arends -King Finance Director /City Treasurer Attachment: Interim Urgency Ordinance No. 1452 ,-- %JJ J ie Interrante Customer Service Supervisor ORDINANCE NO. 1452 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, EXTENDING FOR A PERIOD OF TEN MONTHS AND FIFTEEN DAYS THE EFFECTIVENESS OF INTERIM URGENCY ORDINANCE NO. 1451, PROHIBITING 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. Interim Urgency Ordinance No. 1451 prohibiting the establishment or expansion of massage establishments is hereby extended for an additional period of ten (10) months and fifteen (15) days. SECTION 3. 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 SB 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 SB 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 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. 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. On October 21, 2014, the City Council voted unanimously to adopt Interim Urgency Ordinance No. 1451, which imposed a forty -five (45) day 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. 2 O. The City Council of the City of Tustin has directed 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. P. Pursuant to Section 65858 of the California Government Code, a written report describing the measures taken by the City to address the conditions which led to the adoption of Interim Ordinance No. 1451 has been issued at least ten (10) days prior to the expiration of the moratorium. Q. Unregulated massage establishments continue to pose an immediate threat to the public health, safety and welfare, and that threat would be furthered if the City were to issue massage establishment permits, use permits, building permits, business licenses or other applicable approvals, licenses, permits or other entitlements for the establishment, expansion and /or relocation of any massage establishment prior to the City's completion of its study and review of potential amendments to the Tustin City Code relating to zoning and /or regulation of massage establishments. Therefore, an extension of the forty -five (45) day moratorium is necessary to protect the public health, safety and welfare. 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 or any extension. 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 have the effect of extending the effective term of Interim Urgency Ordinance No. 1451 for ten (10) months and fifteen (15) days 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. 3 PASSED AND ADOPTED at a regular meeting of the City Council for the City of Tustin on this this 2nd day of December, 2014. ELWYN A. MURRAY MAYOR ATTEST: JEFFREY C. PARKER CITY CLERK APPROVED AS TO FORM: DAVID KENDIG CITY ATTORNEY ORDINANCE CERTIFICATION STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN ORDINANCE NO. 1452 Jeffrey C. Parker, City Clerk 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 was passed and adopted at a regular meeting of the City Council held on the 2nd day of December, 2014, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: JEFFREY C. PARKER CITY CLERK