Ordinance No. 897 - Urgency Ordinance Establishing A Moratorium on the Issuance of Any New Permit, License, Approval, or Entitlement Pertaining to New Massage Establishments and Massage TechniciansORDINANCE NO. 897
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ROSEMEAD, CALIFORNIA, ESTABLISHING A
MORATORIUM ON THE ISSUANCE OF ANY NEW PERMIT,
LICENSE, APPROVAL, OR ENTITLEMENT PERTAINING TO
NEW MASSAGE ESTABLISHMENTS AND MASSAGE
TECHNICIANS.
THE CITY COUNCIL OF THE CITY OF ROSEMEAD ORDAINS AS FOLLOWS:
SECTION 1. Findinas.
A. Effective September 1, 2009, the City's authority to regulate massage
establishments and massage technicians has been partially preempted by SB
731 (Business & Professions Code section 4600 and following).
B. Among other things, SB 731 establishes a Massage Therapy Organization
("MTO") that is authorized to issue certificates for massage technicians (referred
to as "massage therapists"). The holder of such a certificate is not subject to any
local qualification requirements, however, a local agency may require a business
license and information relevant to an individual's certification by the MTO.
However, because the MTO certification is voluntary, there is no assurance that
existing or new massage service providers will actually obtain such certification
and SB 731 only applies to state certified practitioners.
C. SB 731 also pre-empts the application of certain land use, zoning and
operational regulations on massage establishments if a business employs only
persons certified by the MTO.
D. The MTO is currently processing applications for state certificates, however there
are considerable delays and a number of uncertainties regarding the MTO's
ability to effectively perform the functions authorized in SB 731.
E. In February 2010, Assembly Bill 1822 ("AB 1822") was introduced to clarify the
effects of SB 731 and in particular clarify that a local government may still require
massage establishments to obtain business permits (and in the case of massage
establishments employing persons not certified under SB 731, massage
certificates) from the local government entity in order to do business. AB 1822
would also require persons seeking to obtain an SB 731 certificate to first get the
approval of the local police or sheriff agency after a local background check.
Finally, AB 1822 would specifically allow local governments to use conditional
use permits to provide for oversight and regulation of massage establishments.
F. Under its general police powers (Cal. Const. art. 11, § 7) and Government Code
sections 51030 - 51034, the City is authorized to and currently does under
Municipal Code Chapter 5.24 regulate the qualifications and licensing of
LA 44850-0440-9861 v1 -1-
massage establishments and massage technicians and also imposes certain
operational requirements on such businesses and individuals in order to protect
the public health, safety, and welfare.
G. As a result of the change in law and the pending legislation, it is urgent that the
City undertake a review of its current massage regulations in order to determine
how such regulations may need to be revised in order to be consistent with state
law while still providing comprehensive regulations for the establishment, use
and operation of businesses offering massage services in the City, so that the
public health, safety and welfare remains protected.
H. There is a significant risk of injury to massage clients by improperly trained or
educated massage technicians and the City has a legitimate interest in providing
reasonable safeguards against injury and economic loss to such massage
clients.
Massage establishments are businesses that involve intimate contact between
persons which creates opportunities for acts of prostitution and other unlawful
sexual activity to occur.
J. The establishment of reasonable standards for the issuance of massage
establishment and massage technician licenses and permits and regulations on
the operation of massage establishments would serve to reduce the risk of illegal
and potential injurious activity.
K. Government Code sections 36937 and 65858 authorize the adoption of an
urgency ordinance to protect the public health, safety and welfare and to prohibit
certain land uses that may conflict with land use regulations that the City's
legislative bodies are considering or intend to study within a reasonable time.
L. The City Council finds that there is a current and immediate threat to the public
health, safety, and welfare based on the above findings, and upon that basis has
determined that an urgency ordinance prohibiting the issuance of new massage
establishment and massage technician permits is warranted.
SECTION 2. Moratorium on New Massage Establishments and Massage
Technicians. The City Council orders as follows:
A. For a period of 45 days from the date of adoption of this ordinance, no
permits, licenses, approvals, or entitlements may be issued for new massage
establishments or new massage technicians as such terms are defined in Rosemead
Municipal Code Chapter 5.24. In addition, no existing massage establishment may be
expanded, whether by means of additional space, construction of new facility, or by
reconfiguration.
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Urgency Ordinance No. 897
SECTION 3. Legal, Operational and Planning Study. The Planning Department and
the City Attorney's Office are directed to study and analyze issues related to the
establishment, permitting, and operation of massage establishments within the City, and
the potential impacts of such facilities on public health, safety and welfare of the
community, the desirability of such facilities in various zones, and the extent of
regulatory controls, if any, to impose on such facilities.
SECTION 4. Environmental Review. The City Council finds that this ordinance is not
subject to the California Environmental Quality Act (CEQA) pursuant to Sections
15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment) and 15060(c)(3) (the activity is not a project as
defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title
14, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly; rather it prevents changes in the environment
pending the completion of the contemplated municipal code review.
SECTION 5. Severability. If any section, subsection, sentence, clause, or phrase of
this ordinance is for any reason held to be invalid or unconstitutional by a decision of
any court of competent jurisdiction, such decision will not affect the validity of the
remaining portions of this ordinance. The City Council hereby declares that it would
have passed this ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 6. Effective Date and Duration. This ordinance is an urgency ordinance
enacted under California Government Code section 65858(a). This urgency ordinance
is effective upon adoption and will extend for a period of 45 days from the date of
adoption at which time it will automatically expire unless extended by the City Council in
accordance with California Government Code section 65858.
SECTION 7. Publication. The City Clerk is directed to cause this ordinance to be
published in the manner required by law.
LA #4850-0440-9861 vl -3-
Urgency Ordinance No. 897
PASSED, APPROVED, AND ADOPTED this 11th day of May, 2010.
Gary Tay ayor
AT> ~&I lc) o
Gloria Molleda
City Clerk
APPROVED AS TO FO M:
Joe` es
City Attorney
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Urgency Ordinance No. 897
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS.
CITY OF ROSEMEAD )
I, Gloria Molleda, City Clerk of the City of Rosemead, California, do hereby certify that the
foregoing Urgency Ordinance No. 897 was duly and regularly approved and adopted by the City
Council on the 11th of May, 2010 by the following vote to wit:
Yes: Armenta, Clark, Low, Ly, Taylor
No: None
Absent:None
Abstain: None
m~
Gloria Molleda
City Clerk
ROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGER
DATE: MAY 11, 2010
SUBJECT: PROPOSED 45-DAY MORATORIUM ON NEW MASSAGE
ESTABLISHMENTS AND MASSAGE SERVICE PROVIDERS
SUMMARY
The proposed urgency ordinance would impose a 45-day moratorium on the issuance of
any permits, licenses, tax certificates, approvals, or entitlements for new massage
establishments or new massage technicians as such terms are defined in Rosemead
Municipal Code Chapter 5.24.
STAFF RECOMMENDATION
Staff recommends that the City Council adopt the proposed urgency ordinance, which is
subject to a 4/5ths City Council approval requirement.
DISCUSSION
Until the recent adoption of SB 731 (the "Act"), California found itself in the minority of
states in terms of having no uniform standards concerning the education, training and
licensing of massage practitioners. However, effective September 1, 2009 a newly
created non-profit organization (Massage Therapy Organization or "MTO") is authorized
under the Act to start issuing certificates to massage professionals who satisfy specified
educational and experiential criteria. This statewide certification scheme prevents cities
from imposing similar qualification requirements on holders of such certificates. The Act
also preempts many of the traditional land use, operational and zoning regulations that
local agencies have imposed on massage establishments and practitioners to fill the
void previously created by the lack of statewide massage regulation.
Under its general police powers and Government Code sections 51030 - 51034, the
City is authorized to and currently does under Municipal Code Chapter 5.24 regulate the
qualifications and licensing of massage establishments and massage technicians and
also imposes certain operational requirements on such businesses and individuals.
Since the adoption of the Act, the City Attorney's Office has been monitoring the
establishment and initial operations of the MTO (known as the California Massage
Therapy Council). Because it is a non-profit and not a state agency, as well as the fact
that it is just getting up and running, staff has had serious reservations about the MTO's
ability to effectively perform the functions authorized under the AGk.,Zh I~QTQ is now
APPROVED FOR CITY COUNCIL AGENDA: 1V4~_'~'?
City Council Meeting
May 11, 2010
Page 2 of 2
accepting applications and processing certificates, however there is a considerable
delay in the processing of such applications. As such, there are still many uncertainties
regarding the MTO's ability to effectively implement SB 731.
In addition, in February 2010, Assembly Bill 1822 ("AB 1822") was introduced to clarify
the effects of SB 731 and in particular clarify that a local government may still require
massage establishments to obtain business permits (and in the case of massage
establishments employing persons not certified under SB 731, massage certificates)
from the local government entity in order to do business. AB 1822 would also require
persons seeking to obtain an SB 731 certificate to first get the approval of the local
police or sheriff agency after a local background check. Finally, AB 1822 would
specifically allow local governments to use conditional use permits to provide for
oversight and regulation of massage establishments.
As a result of the change in law and further possible changes, it is urgent that the City
continue to monitor the MTO and AB 1822 and undertake a review of its current
massage regulations. This will allow the City to determine how such regulations may
need to be revised to be consistent with the law while still providing comprehensive
regulations for the establishment, use and operation of businesses offering massage
services in the City.
In addition to the issue of possibly mandating MTO certification for all massage service
providers, other areas of potential regulation that are permitted under the Act that will be
studied in the coming weeks will include: (1) business licensing registration, including
procedures to provide proof of MTO certification if required; (2) potential changes in
zoning requirements for massage establishments; (3) the establishment of appropriate
health and safety requirements, including but not limited to, requirements for cleanliness
of massage rooms, towels, and linens, and reasonable attire and personal hygiene
requirements for persons providing massage services: (4) inspection procedures; (5)
enforcement coordination with the MTO; and (6) license revocation procedures.
LEGAL REVIEW
This staff report has been reviewed and approved by the City Attorney.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
u e
d by:
St Community Dev pment Director
Attachment: A. Proposed Ordinance No. 897