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Home My WebLink About03 PC REPORT MASSAGE ORDINANCE UPDATE • }% AGENDA REPORT ITEM #3 MEETING DATE: FEBRUARY 28, 2017 TO: PLANNING COMMISSION FROM: JOHN A. BUCHANAN, ACTING FINANCE DIRECTOR JULIE INTERRANTE, CUSTOMER SERVICE SUPERVISOR SUBJECT: MASSAGE ORDINANCE No. 1462 UPDATE BACKGROUND: On September 22, 2015, the Planning Commission approved Resolution No. 4296 recommending that the City Council adopt Ordinance No. 1462, amending the Tustin City Code (TCC) relating to the regulation of Massage Establishments (Code Amendment 2015-003). City Council adopted Ordinance No. 1462 on November 3, 2015. Significant elements of the amended massage regulations included the following: • All massage practitioners must be California Massage Therapy Council (CAMTC) certified. (Section 3663(x)) • All massage businesses must obtain a massage establishment permit from the City in order to commence and continue operation. (Section 3663(c)) • The period during which massage establishment permits will not be issued at locations where a massage establishment has been closed due to misconduct has been increased from twelve (12) months to twenty-four (24) months. (Section 3664(h)) • The owner or operator must provide the City with a complete roster of massage establishment employees, and proof of CAMTC certification for all massage practitioners; thereafter, the City must be notified of any subsequent change in staffing. (Section 3668(x)) • Massage establishment may not be open without having at least one (1) CAMTC-certified massage technician and an owner, operator, or manager present. (Section 3668(8)-(h)) Planning Commission Report Massage Ordinance No. 1462 Update February 28, 2017 Page 2 • Dress attire restrictions consistent with the Massage Therapy Act (MTA). While engaged in the practice of massage, or while visible to patrons of the massage establishment, the massage therapist shall not dress in: attire that is transparent, see-through, or substantially exposes the massage technician's undergarments. (Section 3669(c)) Prohibition on "unprofessional conduct" as defined by the MTA, including prohibition against engaging in sexual activity while providing massage services for compensation. (Section 3669(g)) • Owners, operators and managers are responsible for the onsite conduct of all massage establishment employees. (Section 3669.1) City officials may make reasonable inspections of massage establishments. (Section 3669.2) Additionally, Ordinance No. 1462 included: (1) updated references and definitions related to massage establishments; (2) prohibited new massage establishments in the Professional Office District; and (3) added a requirement for a Conditional Use Permit for the establishment of new chiropractic offices in the Professional Office District, where massage services are provided by anyone other than a state-licensed chiropractor or other exempted professional. STATUS UPDATE: At the time of the passing of Ordinance No. 1462, there were forty-six (46) active massage establishments in the City. Today there are forty-four (44). Four (4) of these are new locations. The Professional Office zoned areas are very popular due to the reclusive nature and location of the buildings. Since the inception of Ordinance No. 1462, Finance Staff has denied more than ten (10) applications seeking to locate in the Professional Office District. i Prior to the Ordinance amendment, the number of complaints and the number of illegally operated establishments was significant. Since the Ordinance amendments, the number of complaints is similar; however, we now have the tools to screen the applications more thoroughly. The application process for a massage establishment permit can be very lengthy depending on the applicant. if the applicant is a CAMTC certified therapist, no fingerprints are required so the process is much faster than if the applicant is not certified. Livescan fingerprints are required for non-CAMTC certified applicants and this can add as much as four (4) to eight (8) weeks to the process because an investigation is completed by the Department of Justice. Additionally, Finance Staff is contacting cities that applicants have listed on their applications and inquiring if the Planning Commission Report Massage Ordinance No. 1462 Update February 28, 2017 Page 3 applicant has had any known illegal activities in their city. Pursuant to TCG §3712(5 and 8a), the Director of Finance has denied two (2) Massage Permit applications because staff found that one (1) applicant had his license revoked in another city due to a prostitution arrest and another received a citation for prostitution. Overall, Finance staff believes that Ordinance No. 1462 is performing to its expectations by providing staff more tools to review applications for those establishments who operate or have operated illicit establishments. RECOMMENDATION: That the Planning Commission receive and file this report. Jo A. Buchanan Joli Interrante < —A ng Finance Director Customer Service Supervisor Attachments: TCC 3712(5 and 8a) § 3712 - DENIAL An application for a permit, including renewal of a permit, may be denied for any of the following reasons: (1) The applicant has made material misrepresentations of fact or omitted material information required by the application; (2) The applicant does not meet the prerequisites for a permit as specified in this Article. The Director or the Planning Commission has the discretion to evaluate information presented to satisfy prerequisites and to determine its credibility or reliability; (3) In the case of a renewal, the permit may be also denied if the permittee has failed to abide by the operational regulations specified in this code or the conditions of the permit.The proposed denial of the renewal of a permit for these reasons shall be heard and decided by the Director or the Planning Commission; (4) In the case of an adult entertainment booking agency, massage establishment, or mobile ice cream vendor, if the applicant or any of his/her manages, supervisors, or employees have been convicted within the last five (5) years of any offense classified by the State of California as an offense involving sexual crimes against children, sexual abuse, rape, kidnapping, distribution of obscene material or material harmful to minors, prostitution or pandering, including, but not necessarily limited to, the violation of any crime requiring registration under California Penal Code Section 290, or any violation of Penal Code sections 243.4, 261, 261.5, 264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5, 288, 288a, 311 through 311.10, inclusive, 314, 315, 316, or 647,or any offense outside the State of California that would constitute any of the above-described offenses if committed within the State of California, or if the applicant or any of his/her agents, managers, supervisors, employees, or independent contractors have been convicted within the five (5) years immediately preceding the application of any offense involving the sale of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058, or the possession for sale and/or possession of a controlled substance, as specified above, or been subjected to a permanent injunction against the conducting or maintaining of nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any similar provisions of law in a jurisdiction outside the state; (5) Any applicant has engaged in conduct in the City or in another jurisdiction which, if it had occurred within the City, would constitute grounds for denial, suspension, or revocation under any Part under this Article; (6) Any applicant has been convicted within the five (5) years immediately preceding the application of an act involving dishonesty, fraud, deceit or an act of violence, which act or acts are related to the qualifications, functions, or duties of the permittee; (7) The application does not contain all of the information required by the Part applicable to the permit application; (8) In the case of a massage establishment: (a) The applicant has had a massage establishment permit, MTO certificate, massage technician permit or other similar license or permit denied, suspended, revoked, or refused to be renewed for cause by a permitting authority or by any city, county, or state; or (b) The massage establishment as proposed by the applicant does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards; or (c) The applicant, or any of the applicant's employees or independent contractors, has violated a provision of Business and Professions Code Sections 4600 through 4613. Denial of permits, including renewals of permits, may be appealed in accordance with Part 3 of this Chapter. I (Ord. No. 1252, Sec. II, 6-3-02; Ord. No. 1380, Sec. III, 6-15-10)