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CC - Item 7B - Extension of Urgency Ordinance No 897 to Prohibit Issuance of any new permit , license, approvals, or entitlement pertaining to new massage establishments and massage techniciansROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: JUNE 8, 2010 SUBJECT: EXTENSION OF URGENCY ORDINANCE NO. 897 TO PROHIBIT ISSUANCE OF ANY NEW PERMIT, LICENSE, APPROVAL, OR ENTITLEMENT PERTAINING TO NEW MASSAGE ESTABLISHMENTS AND MASSAGE TECHNICIANS SUMMARY On May 11, 2010, pursuant to Government Code section 65858, the Rosemead City Council enacted Urgency Ordinance No. 897 (Attachment A), which imposed a moratorium on the issuance of any new permit, license, approval, or entitlement pertaining to new massage establishments and massage technicians for a period of 45 days. During this 45-day period, staff and the City Attorney have begun to monitor the initial operations of the California Massage Therapy Council, as well as the interaction between Assembly Bill 1822 ("AB 1822") and Senate Bill 731 ("SB 731"). There remains a considerable delay in the processing of applications by the California Massage Therapy Council, and there remain uncertainties regarding the Council's ability to effectively implement SB 731. Due to City Staff's and the City Attorney's on- going review of SB 371 and AB 1822, as well as review of the Council's interpretations of SB 731 and its implementation of SB 731, the limited 45-day period has not provided a sufficient amount of time to undertake a thorough review of the City's current massage regulations and to determine how such regulations may need to be revised to work in conjunction with AB 1822 and SB 731. Taken together, this warrants the City Council's consideration of the adoption of Urgency Interim Ordinance No. 900 to extend Urgency Interim Ordinance No. 897 for a period of ten (10) months and fifteen (15) days. STAFF RECOMMENDATION Staff recommends that the City Council introduce and conduct the first reading (by title only) of a City Council Ordinance in Attachment B, and adopt, as an urgency measure pursuant to California Government Code section 65858 (b) Ordinance No. 900 entitled "An Urgency Ordinance of the City Council of the City of Rosemead, California, continuing the provisions of Ordinance No. 897 for 10 months and 15 days to continue the moratorium on the issuance of any new permit, license, approval, or entitlement pertaining to new massage establishments and massage technicians." ITEM NO. _ APPROVED FOR CITY COUNCIL AGENDA: City Council Meeting June 8, 2010 Page 2 of 2 DISCUSSION As indicated in the 10-Day Report" (Attachment C), which was prepared by the City Attorney and made available for public review on May 27, 2010, in the limited time allotted by the Initial Ordinance, City staff and the City Attorney's Office have been monitoring the initial operations of the California Massage Therapy Council. This monitoring has shown that there is considerable delay in the processing of applications by the Council, and many ongoing uncertainties regarding the Council's ability to effectively implement SB 731. In addition, in February 2010, Assembly Bill 1822 ("AB 1822") was introduced to clarify the effects of SIB 731 and in particular clarify that a local government may still require massage establishments to obtain conditional use permits and 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, as well as background checks for individuals wishing to receive individual certificates. AB 1822 is still being amended and its final form is not yet known. As it moves through the legislative process, City Staff and the City Attorney's office are monitoring the potential interaction between AB 1822 and SB 731 to ensure that the permanent ordinance that the City will adopt will be consistent with SB 731, AB 1822, and any judicial interpretations thereof. The extension of this moratorium will allow staff the time needed to continue to monitor the Council and AB 1822 and continue the review of the City's current massage regulations. 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. Prepared by; )Submitted bV: Sheri Bermejo n1ty Principal ComvelopmentDirector Attachment: A. Ordinance No. 897 B. Proposed Ordinance No. 900 C. 10-day Report ORDINANCE 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. Findings. 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 licensina of LA 44850.0440.9861 v 1 ATTACHMENT A 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. 1. 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. LA #4850-0440-9861 v1 -2- 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 11 ch day of May, 2010. Gary Taylor, Mayor ATTEST: Gloria Molleda City Clerk APPROVED AS TO FORM: Joe Montes City Attorney LA 04850-0440-9861 0 A- Urgency Ordinance No. 897 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF ROSEMEAD ) CITY CLERK'S CERTIFICATION OF THE ADPOTION OF ORDINANCE I, Gloria Molleda, City Clerk of the City of Rosemead, do hereby certify that the foregoing Ordinance No. 897 was introduced and adopted, as an urgency measure pursuant to California Government Code section 36937 (b), at a regular meeting of the City Council on the 11th day of May, 2010 by the following roll-call vote: AYES. COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Gloria Molleda CITY CLERK LA 44850-0440.9861 v1 -5- Urgency Ordinance No. 897 ORDINANCE NO. 900 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, CONTINUING THE PROVISIONS OF ORDINANCE NO. 897 FOR 10 MONTHS AND FIFTEEN DAYS TO CONTINUE THE 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. Findings. Based on the information contained in the record, the City Council makes the following findings: A. At a duly noticed public hearing on May 11, 2010, and after hearing and considering public testimony, the City Council adopted Ordinance No. 897, an interim urgency ordinance establishing a moratorium on the issuance of any permit, license, approval, or entitlement pertaining to new massage establishments and massage technicians. B. Government Code Section 65858(a) authorizes the City Council to continue the effect of Ordinance No. 897 for a period of 10 months and 15 days. C. The findings made in Ordinance No. 897 are hereby reaffirmed, readopted and incorporated by reference as though they were fully restated herein. D. There remains a considerable delay in the processing of applications by the California Massage Therapy Council, and there remain uncertainties regarding the Council's ability to effectively implement SB 731. E. There have been no substantive changes in any pending legislation relative to AB 1822 in the 45 days since the adoption of Ordinance No. 897. F. It remains necessary for the City to 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. G. There remains 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. -1- ATTACHMENT B H. 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. ENVIRONMENTAL. The City Council finds that: 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 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 3. EXTENSION OF MORATORIUM. The City Council orders as follows: A. In accordance with the authority granted the City of Rosemead under Government Code § 65858(a), and pursuant to the findings stated herein, Ordinance No. 897 is hereby extended and the moratorium on the issuance of any permit, license, approval, or entitlement pertaining to new massage establishments and massage technicians, as set forth fully in Ordinance No. 897, shall remain in effect for an additional period of 10 months and 15 days. SECTION 4. EFFECTIVE DATE AND DURATION Pursuant to Government Code § 65858(a) this Ordinance shall take effect immediately but shall be of no further force and effect 10 months and 15 days from its date of adoption. SECTION 5. Legal, Operational and Planning Study. The Planning Department and the City Attorney's Office are directed to continue to study and analyze issues related to the establishment, permitting, and operation of massage establishments within the City including but not limited to the actions of the California Massage Therapy Council, and to study the potential impacts of massage 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 6. 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 _2_ Urgency Ordinance No. 900 environment, directly or indirectly; rather it prevents changes in the environment pending the completion of the contemplated municipal code review. SECTION 7. 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 8. PUBLICATION. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published and posted pursuant to the provisions of law in that regard and this Ordinance shall take effect immediately and shall be in effect for a period of 10 months and 15 days. INTRODUCED at the regular meeting of Rosemead City Council on June 8, 2010. PASSED, APPROVED AND ADOPTED this 8th day of June, 2010. PASSED, APPROVED, AND ADOPTED this 8th day of June, 2010. Gary Taylor, Mayor ATTEST: Gloria Molleda City Clerk APPROVED AS TO FORM: Joe Montes City Attorney -3- Urgency Ordinance No. 900 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF ROSEMEAD ) CITY CLERK'S CERTIFICATION OF THE ADPOTION OF ORDINANCE I, Gloria Molleda, City Clerk of the City of Rosemead, do hereby certify that the foregoing Ordinance No. 900 was introduced and adopted, as an urgency measure pursuant to California Government Code section 36937 (b), at a regular meeting of the City Council on the 8th day of June, 2010 by the following roll-call vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Gloria Molleda CITY CLERK -a- Urgency Ordinance No. 900 10 DAY REPORT ON THE CITY OF ROSEMEAD'S MORATORIUM ON THE APPROVAL OF APPLICATIONS FOR NEW MASSAGE ESTABLISHMENTS OR NEW MASSAGE TECHNICIANS BACKGROUND On May 11, 2010 pursuant to Government Code section 65858, the Rosemead City Council enacted Urgency Ordinance No. 897, which imposed a 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 for a period of 45 days (the "Initial Ordinance"). This report is submitted in compliance with subsection (d) of Government Code section 65858, which requires the issuance of "a written report describing the measures taken to alleviate the conditions which led to the adoption of the ordinance." UPDATE ON THE MEASURES TAKEN TO ALLEVIATE THE CONDITIONS THAT LED TO THE ADOPTION OF THE INITIAL ORDINANCE 1. In the limited time allotted by the Initial Ordinance, City staff and the City Attorney's Office have monitored the initial operations of the California Massage Therapy Council. Because the Council is a non-profit agency and not a State agency, as well as the fact that it remains in its infancy, the serious reservations about the Council's ability to effectively perform the functions authorized under the Act still remain. There remains the considerable delay in the processing of applications by the Council, and there remain many uncertainties regarding the Council's ability to effectively implement SB 731. 2. 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 conditional use permits and 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, as well as background checks for individuals wishing to receive individual certificates. City Staff and the City Attorney's office are monitoring the interaction between AB 1822 and SB 731 to ensure that the permanent ordinance that the City will adopt to be consistent with SB 731 and any judicial interpretations thereof. 3. At this point, it is necessary that City Staff and the City Attorney's office continue to monitor the Council and AB 1822 and continue the review of the City's 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. These comprehensive regulations 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 ATTACHMENT C Report on Massage Moratorium Page 2 of 2 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. RECOMMENDATION Due to City Staff's and the City Attorney's on-going review of SB 731 and AB 1822, as well as review of the Council's interpretations of SIB 731 and its implementation of SB 731, staff recommends adoption of the Extension Ordinance. If adopted by the City Council, the Extension Ordinance would extend the moratorium on the approval of applications for land use entitlements for adult businesses for a period of 10 months 15 days.