HomeMy WebLinkAboutZAA 19-003 ZONING ADMINISTRATOR ACTION 19-003
USE DETERMINATION 2019-00002
CONDITIONAL USE PERMIT 2019-00007
165 YORBA STREET
The Zoning Administrator of the City of Tustin does hereby resolve as follows:
1. The Zoning Administrator finds and determines as follows:
A. A proper application was filed by Amy B. Friedman, D.C., requesting
authorization to conditionally permit a chiropractic office with massage
services as an accessory use by massage technicians other than the
chiropractor at a chiropractic office located at 165 Yorba Street.
B. The site is designated Professional Office (PO) by the City General Plan
and is zoned Professional-Specific Plan 9 (SP-9), which is comprised
primarily of single and multi-tenant offices that include legal and medical
services, financial institutions, corporate and government offices, and other
supporting uses. The project is consistent with the Air Quality Sub-element
of the City of Tustin General Plan.
C. The site is currently improved with an existing 1,097 square-foot office
building.
D. That a public hearing was duly called, noticed, and held for Use
Determination (UD) 2019-0021Conditional Use Permit (CUP) 2019-00007
on July 18, 2019, by the Zoning Administrator.
E. That a use determination has been made that Specific Plan (SP) 9 is
similar to the Professional District (PR) for land uses purposes in
accordance with Section 9298 of the Tustin City Code (TCC) in that:
1. Massage practitioners and therapists are certified healing arts
professionals pursuant to Section 4600 of the Business &
Professions Code, Division 2, Healing Arts. Massage
practitioners would provide therapeutic massage under the
supervision of the chiropractor.
2. The proposed use would not result in a negative impact as it
would remain as a professional office which is allowed in SP-9
and parking for the use is adequate.
3. No traffic issues are anticipated.
4. SP-9 is similar in land use characteristics to the PR District
where a chiropractic office with accessory massage services is
a conditionally permitted use and the proposed use is consistent
with the PO (Professional Office) General Plan land use
designation.
I.
Zoning Administrator Action 19-003
UD-2019-000021 CUP 2019-00007
Page 2
5. SP-9 does not specifically identify chiropractic offices, where
massage services are provided as an accessory use by anyone
other than a state-licensed chiropractor or other exempted
professional. This type of use is conditionally permitted in the
Professional (PR) District. (TCC 9231c2).
6. A determination that SP-9 is a professional zoning district
similar to the, PR District would bring this conditionally permitted
use into alignment.
7. Massage services provided as an accessory use by anyone
other than a state-licensed chiropractor or- other exempted
professional as a conditionally permitted use in SP-9 would.
allow the City to place conditions of approval on the use to
alleviate potential concerns such as compliance with Section
3665 of the Tustin City Code, parking, and other issues that
may arise related to the use.
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:
1. The proposed use, as conditioned, would not be detrimental to
the surrounding properties in that the use would occur entirely
within the existing commercial building. The number of patients,
hours of operation and type of business are consistent with
other businesses in SP-9.
2. As conditioned, the chiropractic office would operate with a
maximum of one (1) chiropractor and one (1) massage
technician working at any given time and parking is adequate for
the proposed use.
3. The proposed business hours are consistent with the hours of
operation for other uses in the area and therapeutic massage
services would be limited to the hours when the chiropractic
professional is onsite and parking is adequate for the proposed
use.
4. As conditioned,- the chiropractic professional is responsible for
ensuring that 611 massage technicians operating at this location
would obtain massage permits pursuant to TCC Section 3661, et
seq.
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Zoning, Administrator Action 19-003
UD-2019-00002 CUP 2019-00007
Page 3
5. The Tustin Police Department has reviewed the application and
has no immediate concerns.
6. As conditioned, CUP-2019-00007 may be reviewed by the,
Community Development Director, if necessary, to ensure
compatibility with surrounding uses. If the use is not operated in
accordance with CUP-2019-00007 and is found to be a nuisance
or negative impacts are affecting the surrounding uses, the
Community Development Director would have the authority to
impose additional conditions to eliminate the nuisance or negative
impacts or may initiate proceedings to revoke the CUP.
H. This, project is Categorically Exempt pursuant to Section 115301 (Class, 1) of
the California Code of Regulations (Guidelines for the California
Environmental Quality Act).
IL The Zoning Administrator hereby approves LID 2019-00002 and CUP 2019-
00007 authorizing a chiropractic office with massage services as an accessory
use by massage technicians other than the chiropractor on the property located
within P-9 at 165 Yorba Street, subject to the conditions contained within
Exhibits A and B, attached hereto.
PASSED AND, ADOPTED by the Zoning Administrator of the City of Tustin, at a regular
meeting, on the 18th day of July, 2019.
`-ELIZABETH A. BIN,SACK
........ ZONING ADMINISTRATOR
A 2N
VERA fISCAR046
EXECUTIVE ASSISTANT
Zoning Administrator Action 19-003
UD-2019-00002 / CUP, 2019-00007
Page 4
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF TUSTIN
1, Vera Tiscareno, the undersigned, hereby certify that I am the Zoning Administrator
Secretary of the City of Tustin, California; that Zoning Administrator Action 19-003 was
duly passed and adopted at a regular meeting of the Tustin Zoning Administrator, held
on the 18th day of July, 2019,
VERA't `CAktN6A'\"
EXECUTIVE ASSISTANT
I
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EXHIBIT A
CONDITIONS OF APPROVAL
USE DETERMINATION 2099-00002
CONDITIONAL USE PERMIT 2019-00007
165 YORBA STREET
GENERAL
(1) 1.1 The proposed project shall substantially conform with the submitted
plans for the project date stamped July 18, 2019, on file with the
Community Development Department, as herein modified, or as
modified by the Director of Community Development in accordance with
this Exhibit. The Director of Community Development may also approve
subsequent minor modifications to plans during plan check if such
modifications are consistent with provisions of the Tustin City Code
(TCC).
(1) 1.2 This approval shall become null and void unless the use is established
within twelve (12) months of the date of this Exhibit. Time extensions
may be granted if a written request is received by the Community
Development Department within thirty (30) days prior to expiration.
(1) 1.3 Unless otherwise specified, the conditions contained in this Exhibit shall
be complied with as specified, subject to review and approval by the
Community Development Department.
(1) 1.4 Approval of Conditional Use Permit (CUP) 2019-0007 is contingent upon
the applicant and property 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 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.
(1) 1.5 Any violation of any of the conditions imposed is subject to issuance of an
administrative citation pursuant to TCC 1162(a).
SOURCE CODES
(1) STANDARD CONDITION (5) RESPONSIBLEAGENCY REQUIREMENTS
(2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES
(3) UNIFORM BUILDING CODEIS (7) PCICC POLICY
(4) DESIGN REVIEW '"" ' EXCEPTIONS
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Zoning Administrator Action 19-003
UD 2019-000021 CUP 2019-00007
Exhibit "A"
Page 2
(1) 1.6 The applicant shall be responsible for costs associated with any necessary
code enforcement action, including attorney's fees, subject to the applicable
notice, hearing, and appeal process as established by the City Council by
ordinance.
(1) 1.7 CUP 2019-00007 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 the conditions of
approval 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 CUP.
(1) 1.8 If in the future the City's Community Development Director, Police Chief,
and/or Public Works Department determine that a parking problem exists
on the site or in the vicinity as a result of the facility, the Community
Development Director, Police Chief, and/or Public Works Department may
require that the applicant prepare a parking demand analysis and the
applicant shall bear all associated costs. If said study indicates that there is
inadequate parking, the applicant shall be required to provide measures to
be reviewed and approved by the Community Development Department,
Police Chief, and/or Public Works Department. Said mitigation measures
may include, but are not limited to, the following:
a) Establish alternative hours of operation,
b) Limit the number of patients to one (1) at any given time,
c) Eliminate or reduce number of massage technicians, or
d) Provide additional parking.
(1) 1.9 As a condition of approval of CUP 2019.00007, 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.
Zoning Administrator Action 19-003
UD 2019-000021 CUP 2019-00007 ;
Exhibit "A"
Page 3
USE RESTRICTIONS
(1) 2.1 The proposed chiropractic office with massage services provided as an
accessory use by anyone other than a state-licensed, chiropractor shall
operate with a maximum of one (1) chiropractor and one (1) massage
technician working at any given time. If additional chiropractors and/or
massage technicians are proposed, additional parking shall be provided
in compliance with the parking requirements of the Yorba Street Specific
Plan (SP-9) and the Tustin City Code.
(1) 2.2 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 and the Massage Establishment Conditions
identified in Attachment "B" hereto, obtain a Massage Establishment
Business License and sign and submit the "Revocation of Permits" form
attached thereto to the Director of Finance Department.
(1) 2.3 Prior to providing massage services to patients, the applicant shall
obtain a massage operator permit and all massage technicians shall
obtain a massage technician permit from the Director of Finance.
(1) 2.4 Therapeutic massage services are limited to the hours when the
chiropractic professional is onsite.
(1) 2.5 The applicant shall ensure that massage technicians operating at this
location are in compliance with all local, state, and federal regulations,
as may be updated from time to time, for massage establishments,
massage operators and massage technicians.
(1) 2.6 No signs or other forms of advertising or attraction may be placed on-
site without approval from the Community Development Department.
(1) 2.7 If the use authorized by CUP 2019-00007 is discontinued for one (1)
year, then it shall be conclusively presumed that such use has been
abandoned and CUP will be deemed expired.
FEES
(1) 3.1 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.
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EXHIBIT B 1
MASSAGE ESTABLISHMENT CONDITIONS
USE DETERMINATION 2019-00002
CONDITIONAL USE PERMIT 2019-00007
165 YORBA STREET
No massage establishment permit shall be issued unless an inspection by the City of
Tustin reveals that the massage establishment complies with each of the following
regulations:
1. Each massage establishment must renew the permit annually.
2. A valid Business License must be kept current.
3. Every massage establishment must comply with all applicable provisions of
the Tustin City Code, including without limitation Article 3, Chapter 6, Part 6 of
the Tustin City Code.
4. Every massage establishment shall maintain facilities meeting the following
requirements:
a. Sign - subject to applicable provisions of the City's Codes, a
recognizable and legible sign shall be posted at the main entrance
identifying the business as a massage establishment.
b. Lighting - minimum lighting shall be provided in accordance with the
Electrical Code adopted by the City and, in addition, at least one artificial
light of not less than forty (40) watts shall be provided in each room or
enclosure where massage services are performed on patrons and shall
be activated at all times while a patron is in such room or enclosure.
c. Equipment - adequate equipment for disinfecting and sterilizing
instruments used in performing the acts of massage shall be provided.
d. Water- hot and cold running water shall be provided at all times.
e. Linen storage -- closed cabinets shall be provided and utilized for storage
of clean linens, and approved receptacles shall be provided for the
deposit of soiled linen.
f. Separation of sexes - if male and female patrons are to be sewed
simultaneously at the massage establishment, a separate massage
room or rooms and separate dressing, bathing and toilet facilities (if
provided) shall be provided and utilized for male and female patrons.
Each separate facility or room shall be clearly marked as such.
Zoning Administrator Action 19-003
UD 2019-000021 CUP 2019-00007
Exhibit "B
Page 2
g. Massage table pads - pads used on massage tables shall be covered in
a professional manner with durable, washable plastic or other
waterproof material acceptable to Orange County Health Care Agency.
h. Steam rooms and sauna facilities - Where steam rooms or sauna baths
are provided, if male and female patrons are to be served
simultaneously, separate steam rooms or sauna rooms shall be provided
for male and female patrons.
5. Every massage establishment shall comply. with the following operating
requirements:
a. A complete roster of the names, job titles and residence address of all
employees and independent contractors for the massage
establishment, including but not limited to, massage technicians and
managers, and the date the employee or independent contractor was
hired shall be kept at the premises and be available for inspection by
City officials.
b. Copies of a State certificate and CAMTC-issued identification card for
all individuals providing massage, shall be kept at the premises and be
available for inspection by City officials.
C. The massage establishment permit shall be displayed in an accessible
and conspicuous place, visible from the entrance and/or reception and
waiting area of the massage establishment.
d. Establishment owners must notify City Officials BEFORE new
employees or contractors begin working at the massage
establishment.
e. Massage services shall be carried on and the premises shall be open
only..between the hours of 6:00 a.m. and 10:00 p.m. A massage begun
any time before 10:00 p.m. must nevertheless terminate at 10:00 p.m.
No person may provide massage on the premises after 10:00 p.m.
f. A list of services shall be posted in an open, public place on the
. premises, and shall be described in readily understood. language. No
owner; operator, or manager shall permit, and no massage technician,
or any other massage establishment employee or independent
contractor, shall offer to perform any services other than those posted.
g. The following notice shall be posted in an open, public place on the
premises:
Zoning Administrator Action 19-003
UD 2019-000021 CUP 2019-00007
Exhibit "B"
Page 3
NOTICE TO ALL PATRONS: THIS MASSAGE ESTABLISHMENT
AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE
PRIVACY AND ARE SUBJECT TO INSPECTION BY AUTHORIZED
CITY OF TUSTIN PERSONNEL WITHOUT PRIOR NOTICE.
h. The following notice, measuring at least eight and one-half (8.5) inches
by eleven (11) inches in size, written in 16-point font, shall be posted in
a conspicuous place in the massage establishment in clear view of the
public and employees, and displayed in English, Vietnamese,
Mandarin, Spanish, Cantonese, Korean:
If you or someone you know is being forced to engage in any activity
and cannot leave—whether it is commercial sex, housework, farm
work, construction, factory, retail, or restaurant work,. or any other
activity—Call the National Human Trafficking Resource Center at 1-
888-373-7888 or the California Coalition to Abolish Slavery and
Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to
access help and services. Victims of slavery and human trafficking are
protected under United States and California law.
The hotlines are:
• Available 24 hours a day, 7 days a week
• Toll-free
• Operated by nonprofit, nongovernmental organizations
• Anonymous and confidential
• Accessible in more than 160 languages
• Able to provide help, referral to services, training, and general
information
i. No massage establishment shall be open for business without having at
Ieast one (1) certified massage technician on the premises, and on duty.
j. An owner, operator or manager shall be at the massage establishment
at all times when the massage establishment is open for business.
k. Each massage technician shall, at all times while on the premises, wear
and display their original CAMTC-issued identification card on their
outer clothing and in plain view.
Zoning Administrator Action 19-003 i
UD 2019-000021 CUP 2019-00007
Exhibit "B"
Page 4 i
I. Front doors used for patron access, and internal doors leading into an
area where massages are being performed, shall remain unlocked
during business hours, unless the massage establishment is a business
entity owned by one (1) individual with one (1) or no employees or
independent contractors. Internal doors shall not be equipped with a
"peep hole" or any other device that allows anyone to see into or out of
a room when the door is closed.
m. Towels and .linens shall not be used on more than one (1) ,patron unless
they have first been laundered and disinfected. Disposable towels and
coverings shall not be used on more than one (1) patron. 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."
n. Wet and dry heat rooms, steam or vapor rooms or cabinets, shower
rooms and compartments, toilet rooms and pools shall be thoroughly
cleaned and disinfected as needed, and at least once each day the
premises are open, with a disinfectant approved by the Health
Department. Bathtubs shall be thoroughly cleaned after each use. All
walls,.. ceilings, floors, and other physical facilities for the establishment
must be in good repair and maintained in a clean and sanitary condition.
o. Instruments utilized in performing massage shall not be used on more
than one (1) patron unless they have been sterilized using approved
sterilizing methods. 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.
p. Where a covering is furnished by the massage establishment, it shall
not be used by more than one (1) patron until it has first been laundered
and disinfected.
q. The massage establishment shall keep a written record of the date and
hour of each treatment administered, the name and address of each
patron, the name of the massage technician administering treatment,
and the type of treatment administered, to be recorded on a patron
release form. Such written record shall be open to inspection by City
officials and shall be kept on the premises of the massage
establishment for a period of two (2) years.
r. No part of the massage establishment shall be used for residential or
sleeping purposes.
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Zoning Administrator Action 19-003
UD 2019-000021 CUP 2019-00007 „
Exhibit "B" i
Page 5
s. Only professional massage tables may be placed in massage rooms
and utilized for massage services. The tables must have a minimum
height of eighteen (18) inches. Beds, mattresses, waterbeds, futons,
sofa beds, or any type of portable or convertible beds are not permitted
on the premises.
t. No massage establishment shall simultaneously operate as a school of
massage, or share facilities with a school of massage.
6. Every massage establishment shall adhere to the following standards of
conduct:
a. No massage technician, or any other massage establishment employee,
inclusive of independent contractors, shall violate the provisions of Section
647(a)' and (b) of the. California Penal Code, or any other state. law
involving a crime of moral turpitude, and such practices shall not be
allowed or permitted by anyone.
b. No massage technician, or any other massage establishment employee or
independent contractor, shall expose their genitals, pubic area, buttocks,
anus, or breast(s) below the point immediately above the top of the
aureole to the view of a massage establishment patron.
c. No massage technician while engaged in the practice of massage, or while
visible to patrons of the massage establishment, shall dress in: attire that is
transparent, see-through, or substantially exposes the massage
technician's undergarments; swim attire, if not providing a water-based
modality approved by CAMTC; a manner that exposes the massage
technician's breast, buttocks, or genitals; or a manner that constitutes
indecent exposure in violation of Section 314 of the California Penal Code.
d. Except as expressly ,permitted herein, a massage technician shall not
massage a patron of one (1) sex within the view of a patron of the opposite
sex, and such practices shall not be allowed or,permitted by anyone unless
all parties expressly consent to the treatment, location, and presence of the
patron of the opposite sex.
1. This-subsection shall not apply if all involved, patrons are fully
clothed, excluding socks or stockings.
2. No more than one (1) male and one (1) female may consent to
be massaged in the same treatment room.
3. No person under the age of eighteen (18) may consent to a
massage in the presence of another unless the other patron
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Zoning AdministratorAction 19-003 �
UD 2019-00002 I CUP 2019-00007
Exhibit "B"
Page 6
present is the minor's parent or legal guardian, and the parent or
legal guardian consents.
e. No person(s) other than an owner, operator, manager, employee,
independent contractor or patron shall be allowed beyond the reception
and waiting area during the hours of operation. Any other person(s) found
beyond the reception and waiting area. including, but not limited to,
hallways, massage rooms, offices, lounge areas, or dressing rooms will be
in violation of this section. Notwithstanding the foregoing, the following
persons may be permitted beyond the reception area, and present in
massage rooms while massage services are provided without violating
this subsection:
1. The parents or guardian of a patron who is a minor child;
2. minor child of a patron; or
3. The conservator, aide, or other caretaker of a patron.
f. No more than two (2) members of the same sex may consent to be
massaged in the same treatment room unless all involved patrons are fully
clothed, excluding socks or stockings.
g. No massage technician, or any other massage establishment employee,
inclusive of independent contractors, shall engage in any form of
"unprofessional conduct" as defined by Section 4609(a)(1) of the Massage.
Therapy Act, including:
1. Engaging in any form of sexual activity on the premises of the
massage establishment.
2. Engaging in sexual activity while providing massage services for
compensation.
3. Providing massage of the genitals or anal region.
4. Providing massage of female breasts without the written
consent of the person receiving the massage and a referral from
a licensed California health care provider.
h. A massage establishment patron's genitals, anus, and in the case of a
female, her breasts (except as expressly permitted by subsection (g)
above), must be fully covered at all times while a massage technician or
any other massage establishment employee, inclusive of independent
contractors, is present in the same room as the patron.
L No person shall enter, be, or remain in any part of a massage
establishment while in the possession of, consuming, or using any
Zoning Administrator Action 19-003
UD 2019-000021 CUP 2019-00007
Exhibit "B"
Page 7
alcoholic beverage or illegal drug. Legal over-the-counter drugs and
prescription drugs are permitted, provided the individual in possession of
the prescription drug is the individual identified on the prescription label.
3. The owner, operator, manager or any other massage establishment
employee or independent contractor shall not permit any person in
possession of illegal drugs to enter or remain upon such premises.
7. No person granted a permit shall use any name or conduct business under any
designation not specified in his/her permit.
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REVOCATION OF PERMITS
UNDER THE PROVISIONS OF THE TUSTIN CITY CODE FOR ANY OF THE FOLLOWING
REASONS:
THE DIRECTOR OR PLANNING COMMISSIN MAY REVOKE A PERMIT ISSUED
1. WHERE THE DIRECTOR OR THE PLANNING COMMISSION HAS . FOUND AND
DETERMINED THAT THE PRESERVATION OF THE PUBLIC HEALTH, SAFETY AND
WELFARE DEMAND REVOCATION OR SUSPENSION OF THE PERMIT;
2. WHERE THE PERMITTEE HAS VIOLATED ANY PROVISION OF THE TUSTIN CITY
CODE, OR STATUTES OF THE STATE OF CALIFORNIA, OR OF THE UNITED
STATES OF AMERICA
3. WHERE A PERMIT HAS BEEN ISSUED ON FALSE STATEMENTS IN AN
APPLICATION;
4. WHERE THE PERMITTEE HAS VIOLATED ANY OF THE TERMS AND CONDITIONS
OF THE PERMIT OR CONDITIONAL USE PERMIT;
5. WHERE THE USE OR ACTIVITY FOR WHICH THE PERMIT WAS GRANTED HAS
CEASED OR HAS BEEN SUSPENDED FOR ONE (1)YEAR OR MORE;
6. WHERE THE PERMITTEE NO LONGER MEETS THE PREREQUISITES OR
REQUIREMENTS OF THE PERMIT; AND
7. FAILURE TO PROVIDE COUNTY, STATE, AND/OR FEDERAL MANDATED
LICENSING CERTIFICATES ON AN ANNUAL BASIS IF SUCH CERTIFICATES ARE
REQUIRED.
THIS PERMIT IS GRANTED AND SHALL BE VALID UNLESS ABANDONED OR REVOKED.
My signature below verifies that I have read, understand and agree to the conditions under which
this permit has been granted and have read and understand the conditions under which this permit
may be revoked.
AMY B. FRIEDMAN, D.C. DATE SIGNED