HomeMy WebLinkAbout14 SECOND EXTENSION OF THE INTERIM URGENCY MASSAGE ORDINANCEMEETING DATE
TO:
FROM
AGENDA REPORT
OCTOBER 6, 2015
Agenda Item 14
Reviewed:
City Manager
Finance Dire
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
PAMELA ARENDS-KING, FINANCE DIRECTOR/CITY TREASURER
JULIE INTERRANTE, CUSTOMER SERVICE SUPERVISOR
SUBJECT: INTERIM URGENCY ORDINANCE NO. 1463 EXTENDING THE EFFECTIVE
TERM OF INTERIM URGENCY ORDINANCE NO. 1452
MASSAGE ESTABLISHMENTS
SUMMARY:
Ordinance No. 1463 is an interim urgency measure that would extend the effective term
of Interim Urgency Ordinance No. 1452. The City Council approved Interim Urgency
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 ("Moratorium"). On December 2, 2014 the City Council
approved Interim Urgency Ordinance No. 1452, extending the effective term of the
Moratorium for ten (10) months and fifteen days. Pursuant to Government Code Section
65858, the Moratorium may now be extended for an additional period of one (1) year.
The additional extension is necessary to provide City Council with sufficient time to
consider and act on proposed amendments to the Land Use Code (Article 9 of the Tustin
City Code) and the City's Business Regulations (Article 3 of the Tustin City Code)
concerning the regulation of massage establishments and to prevent the establishment or
expansion of massage establishments in the City prior to the effective date of such
amendments.
RECOMMENDATION:
It is recommended that the City Council: (1) adopt Interim Urgency Ordinance No. 1463
by at least a four-fifths vote, and (2) receive and file the written report describing the
measures taken by the City to address the conditions which led to the adoption of the
massage moratorium as required by Government Code Section 65858(d).
INTERIM URGENCY ORDINANCE NO. 1463
MASSAGE ESTABLISHMENTS
October 6, 2015
Page 2
FISCAL IMPACT:
Interim Urgency Ordinance No. 1463 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.
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 limited 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 varied from the requirements 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 differed 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 human
INTERIM URGENCY ORDINANCE NO. 1463
MASSAGE ESTABLISHMENTS
October 6, 2015
Page 3
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"), otherwise known as the Massage Therapy Act ("MTA"), 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."
On October 21, 2014, the City Council adopted Interim Urgency Ordinance No. 1451,
which 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 (the "Moratorium"). On
December 2, 2014, City Council adopted Interim Urgency Ordinance No. 1452, extending
the effective term of the Moratorium for ten (10) months and fifteen (15) days.
Since the enactment of the Moratorium, 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 Land Use Code (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.
INTERIM URGENCY ORDINANCE NO. 1463
MASSAGE ESTABLISHMENTS
October 6, 2015
Page 4
• 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.
• Based on the foregoing, prepared Code Amendment 2015-003, amending and
restating the City's Land Use Code and amending the City's Business Regulations,
to the extent authorized by the Massage Therapy Act, to discourage the location and
operation of illicit massage establishments in the City.
City Staff recommends an extension of the Moratorium for an additional term of up to (1)
year for the following reasons:
• The secondary effects of illicit massage establishments, which gave rise to the need
for the Moratorium, still exist.
• The requested extension will provide sufficient time for the City Council to consider
and act on proposed Code Amendment 2015-003, amending and restating the City's
Land Use Code and amending the City's Business Regulations.
o At its September 22, 2015 meeting, the Planning Commission adopted
Resolution No. 4296 recommending that the City Council approve Code
Amendment 2015-003.
o City Council is expected to introduce for first reading Ordinance No. 1462
pertaining to Code Amendment 2015-003 ("Massage Ordinance") at its
regular meeting on October 20, 2015. The second reading and potential
adoption of the Massage Ordinance would occur at the regular meeting of
City Council on November 3, 2015. If adopted at that time, the Massage
Ordinances would be effective on December 3, 2015.
o Absent an extension, the Moratorium will expire on October 22, 2015.
INTERIM URGENCY ORDINANCE NO. 1463
MASSAGE ESTABLISHMENTS
October 6, 2015
Page 5
o An extension of the Moratorium is necessary in order to prevent the
establishment of new or expansion of existing massage establishments prior
to the enactment of Code Amendment 2015-003, and the effective date of the
Massage Ordinance..
Pamela Arends-King
Finance Director/City Treasurer
Attachments
J# Interrante
Customer Service Supervisor
Interim Urgency Ordinance No. 1463
Written Report required by Government Code Section 65858(d).
ORDINANCE NO. 1463
AN INTERIM URGENCY ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA,
EXTENDING FOR A PERIOD OF ONE YEAR THE
EFFECTIVENESS OF INTERIM URGENCY ORDINANCE
NO. 1452, 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. 1452 prohibiting the
establishment or expansion of massage establishments is hereby extended for an
additional period of one (1) year.
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."
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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.
F1
O. On December 2, 2014, the City Council voted unanimously to adopt
Interim Urgency Ordinance No. 1452, which extended the effective term of Interim
Urgency Ordinance No. 1451 for ten (10) months and fifteen days.
P. Since the enactment of Interim Urgency Ordinance Nos. 1451 and
1452, staff has prepared Code Amendment 2015-003, amending and restating the
City's Land Use Code (Article 9 of the Tustin City Code), and amending the City's
Business Regulations (Article 3 of the Tustin City Code), consistent with the provisions
of AB 1147, to discourage the location and operation of illicit massage establishments in
the City.
Q. On September 22, 2015, a public hearing was duly noticed, called,
and held on Code Amendment 2015-003 by the Planning Commission. The Planning
Commission adopted Resolution No. 4296 and recommended that the City Council
approve Code Amendment 2015-003.
R. The City Council is expected to introduce for first reading
Ordinance No. 1462 pertaining to Code Amendment 2015-003 ("Massage Ordinance")
at its regular meeting on October 20, 2015. The second reading and potential adoption
of the Massage Ordinance would occur at the regular meeting of City Council on
November 3, 2015. If adopted at that time, the Massage Ordinance would become
effective on December 3, 2015.
S. Unless extended by this Interim Urgency Ordinance No. 1463, the
Moratorium will expire on October 22, 2015, prior to the effective date of the proposed
Massage Ordinance.
T. 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 enactment of Code Amendment 2015-003, and the
effective date of the Massage Ordinance. Therefore, an extension of the Moratorium is
necessary to protect the public health, safety and welfare.
SECTION 4. For the purpose of this interim urgency 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. Pursuant to Section 65858 of the California Government
Code, a written report describing the measures taken by the City to address the
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conditions which led to the adoption of Interim Ordinance No. 1452 has been issued at
least ten (10) days prior to the expiration of the Moratorium.
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. 1452 for a maximum period of one (1) year. This interim urgency
ordinance shall be of no further force and effect upon the effective dates of the Massage
Ordinance, if approved by City Council, or any other amendments to the City's Land
Use Code (Article 9 of the Tustin City Code) or the City's Business Regulations (Article
3 of the Tustin City Code) concerning the regulation of massage.
PASSED AND ADOPTED at a regular meeting of the City Council for the City of Tustin
on this this 6`" day of October, 2015.
ATTEST:
ERICA N. RABE
CITY CLERK
APPROVED AS TO FORM:
DAVID KENDIG
CITY ATTORNEY
ORDINANCE CERTIFICATION
CHARLES E. PUCKETT
MAYOR
19
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
ORDINANCE NO. 1463
Erica N. Rabe, 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 6th day of October, 2015, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
ERICA N. RABE
CITY CLERK
bi
J
WRITTEN REPORT REQUIRED BY GOVERNMENT
CODE SECTION 65858(D) IN REFERENCE TO
INTERIM URGENCY ORDINANCE NO. 1452,
PROHIBITING THE ESTABLISHMENT OR
EXPANSION OF MASSAGE ESTABLISHMENTS
BACKGROUND:
On October 21, 2014, the City Council of the City of Tustin unanimously adopted Interim
Urgency Ordinance No. 1451, prohibiting the establishment or expansion of massage
establishments for a period of 45 days ("Moratorium"). On December 2, 2014, City
Council unanimously adopted Interim Urgency Ordinance No. 1452, extending the
effective term of the Moratorium for ten (10) months and fifteen days. The Moratorium
is set to expire on October 22, 2015. Pursuant to Government Code Section 65858(d),
at least ten (10) days prior to the expiration or extension of a moratorium, the City
Council must issue a report describing the measures taken to alleviate the conditions
leading to the adoption of the Interim Urgency Ordinance. This document constitutes the
written report required by Government Code Section 65858(d).
RECOMMENDATION:
It is recommended the City Council receive and file this report.
DISCUSSION:
Since the enactment of Interim Urgency Ordinance No. 1451, as extended by Interim
Urgency Ordinance No. 1452, representatives from the Police Department, Community
Development, Finance, and the City Attorney's Office have taken the following actions:
1. Convened to discuss potential revisions to the Land Use Code (Tustin City
Code, Article 9 — Land Use) and the City's Business Regulations (Tustin
City Code, Article 3, Chapter 1, Part 3 — Massage Establishments).
2. Met and corresponded with representatives from other local jurisdictions
regarding regulation of massage establishments.
3. Reviewed massage regulations and enforcement plans proposed by other
local jurisdictions.
4. Assessed the total number of massage establishments located in the City,
and the distribution of these establishments across the City's zoning
districts.
5. Continued to monitor massage establishments in the City suspected of
illicit activity, including those establishments that commonly advertise their
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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.
6. Based on the foregoing, prepared Code Amendment 2015-003, amending
and restating the City's Land Use Code and amending the City's Business
Regulations, to the extent authorized by the State law, to discourage the
location and operation of illicit massage establishments in the City.
The City Council will consider an extension of the Moratorium at its October 6, 2015
meeting. City Staff recommends an extension of the Moratorium for an additional term
of up to one (1) year for the following reasons:
1. The secondary effects of illicit massage establishments, which gave rise to
the need for the Moratorium, still exist.
2. An extension will provide sufficient time for the City Council to consider
and act on proposed Code Amendment 2015-003, amending and restating
the City's Land Use Code and amending the City's Business Regulations.
a. At its September 22, 2015 meeting, the Planning Commission
adopted Resolution No. 4296 and recommended that the City
Council approve Code Amendment 2015-003.
b. City Council is expected to introduce for first reading Ordinance No.
1462 pertaining to Code Amendment 2015-003 ("Massage
Ordinance") at its regular meeting on October 20, 2015. The
second reading and potential adoption of the Massage Ordinance
would occur at the regular meeting of City Council on November 3,
2015. If adopted at that time, the Massage Ordinance would be
effective on December 3, 2015.
c. Absent an extension, the Moratorium will expire on October 22,
2015.
d. An extension of the Moratorium is necessary in order to prevent the
establishment of new or expansion of existing massage
establishments prior to the enactment of Code Amendment 2015-
003, and the effective date of the Massage Ordinance.
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