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CC - Item 3B - Extension of Urgency Ordinance No. 945 to Prohibit Issuance Relating to Massage Establishments E M E e, ROSEMEAD CITY COUNCIL ,ef STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER I44- DATE: FEBRUARY 10, 2015 SUBJECT: EXTENSION OF URGENCY ORDINANCE NO. 945 TO PROHIBIT ISSUANCE OF ANY NEW PERMIT, LICENSE, APPROVAL, OR ENTITLEMENT PERTAINING TO NEW MASSAGE ESTABLISHMENTS OR THE RELOCATION OF MASSAGE ESTABLISHMENTS SUMMARY On December 9, 2014, pursuant to Government Code section 65858, the Rosemead City Council enacted Urgency Ordinance No. 945 (Attachment "A"), which imposed a moratorium on the issuance of any permits, licenses, tax certificates, approvals, or entitlements for new massage establishments or the relocation of massage establishments as such terms are defined in Rosemead Municipal Code ("RMC") Chapter 5.24 for a period of 45 days. During this 45-day period, staff and the City Attorney begun the task of analyzing and interpreting AB 1147 ("Massage Therapy Act of 2014") to determine whether the City's current laws regarding massage establishments need to be amended to be consistent with the new law while still providing comprehensive regulations for the establishment, use, and operation of businesses offering massage services in the City. AB 1147 was signed into law by Governor Brown on September 18, 2014 and went into effect on January 1, 2015. In summary, the bill authorizes the continuation of statewide voluntary certification for massage therapists by the California Massage Therapy Council and restores some renewed regulatory authority to local governments. However, the extent of this renewed regulatory authority is still being analyzed. Due to City staff and the City Attorney's on-going review of AB 1147, the limited 45-day period has not provided a sufficient amount of time to undertake a thorough assessment of the City's current massage ordinance and zoning regulations, to determine how they may need to be revised for compliance with AB 1147. Therefore, this warrants the City Council's consideration for the adoption of Urgency Interim Ordinance No. 946 to extend Urgency Ordinance No. 945 for a period of ten (10) months and fifteen (15) days. Staff Recommendation It is recommended that the City Council take the following actions: 1. Conduct the noticed public hearing and receive public comment, and ITEM NUMBER:.31i4) City Council Report February 10,2015 Page 2 of 2 2. Adopt, as an urgency measure pursuant to California Government Code section 65858 (b), Ordinance No. 946 "An Urgency Ordinance of the City Council of the City of Rosemead, California, continuing the provisions of Ordinance No. 945 for 10 months and 15 days to continue the moratorium on the issuance of any permits, licenses, tax certificates, approvals, or entitlements for new massage establishments or the relocation of massage establishments". DISCUSSION As indicated in the "10-Day Report" (Attachment C) and made available for public review on January 29, 2015, in the limited time allotted by the Initial Ordinance, City staff and the City Attorney's Office have been analyzing AB 1147 to determine the changes needed to the City's current massage ordinance and zoning regulations, to ensure that the City has adequate code language to legally regulate and license massage establishments. Massage establishments remain a difficult business to monitor. Public Safety personnel continually monitor these businesses; and advertisements on the web suggest that illegal activities may be taking place at some of these locations. An extension of this moratorium will allow City staff, in conjunction with the City Attorney's Office, time to continue studying the effects of AB 1147 to determine whether the City municipal codes should be amended with different, or additional provisions or regulations with respect to massage establishments. LEGAL REVIEW This staff report and Ordinance No. 946 has been reviewed and approved by the City Attorney. PUBLIC NOTICE PROCESS Pursuant to California Government Code Section 65091, this public hearing notice has been published in at least one (1) newspaper of general circulation within the local agency, as the number of owners of real property within 300 feet of the project site is greater 1,000. Lastly, this notice is also posted in six (6) public locations, specifying the availability of the application, plus the date, time and location of the public hearing. Submitted by: Michel mire Community Development Director Attachment A—Ordinance No. 945 Attachment B—Proposed Ordinance No. 946 Attachment C— 10-Day Report ATTACHMENT "A" ORDINANCE NO. 945 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA,ADOPTING A CITYWIDE 45- MORATORIUM ON THE ISSUANCE OF ANY NEW PERMIT, LICENSE, APPROVAL, OR ENTITLEMENT PERTAINING TO NEW MASSAGE ESTABLISHMENTS OR THE RELOCATION OF MASSAGE ESTABLISHMENTS. THE CITY COUNCIL OF THE CITY OF ROSEMEAD ORDAINS AS FOLLOWS: SECTION 1. Findings. A. The City of Rosemead ("City") has adopted a General Plan, including strategies to invigorate the City's Prosperous Community as well as its Well-Planned and Designed Community; and B. Protection of public health, safety and welfare is fully articulated in the General Plan; and C. State law requires that the City's zoning ordinance, found at Chapter 17 of the Rosemead Municipal Code ("RMC"), conform with the General Plan's goals and policies; and D. In 2008, Senate Bill 731 ("SB 731 ") was adopted by the Legislature and signed into law by the Governor; it became effective on January 1, 2009 and is to sunset on January 1, 2015. SB 731, which enacted Section 4600 et seq. of the Business and Professions Code, preempted many local controls relating to massage therapy. Significantly, the law shifted local regulation of massage therapists and practitioners to a newly created entity known as the California Massage Therapy Council ("CAMTC," formerly the Massage Therapy Organization). Certificates issued by the CAMTC to qualified applicants entitle the holder to practice massage therapy anywhere in the State, without the necessity of complying with certain local rules; and E. In 2011, Assembly Bill 619 ("AB 619") and in 2012, Senate Bill 1238 ("SB 1238") amended various provisions of Business and Professions Code Section 4600 et seq., further limiting the City's ability to regulate massage establishments; and F. The state laws had the unintended consequence of resulting in a proliferation of massage establishments throughout California, many of which were or are believed to be fronts for prostitution and/or sex or human trafficking; and G. In September 2014, the Governor signed Assembly Bill 1147, which returns to local governments the authority to more strictly regulate massage establishments. The new law, which becomes effective on January 1, 2015, authorizes cities and counties to enforce their zoning requirements on massage establishments, even it the same requirements do not apply to other professional service providers; and H. The City Council finds that current state law, with its significant limits on local land use control of massage, has resulted in an alarming increase in the number of massage establishments in the City; and I. The City Council finds that in 2008, the City had 1 massage establishment and currently has 13 such establishments; and J. The City Council finds that 7 of these businesses, or 54% of all massage establishments, lie along Valley Boulevard, one of the City's primary commercial corridors; and K. The City Council finds that city staff regularly receives complaints of suspect illicit activity occurring at massage establishments. Massage establishments therefore require a higher level of scrutiny and enforcement than other businesses in order to ensure compliance with local and state laws; and L. The City Council finds that a number of local massage establishments are advertised or reviewed online in the adult entertainment section of backpage.com, rubmaps.com and mpreviews.com, strongly suggesting illicit activity; and M. The City Council finds that since 2012, the City has initiated action, whether criminally or through the administrative citation process, against massage establishment owners or operators; and N. Though state law requires cities to treat massage the same as other professional services, such as medical, dental, and law offices, massage businesses do not conduct themselves like other professional service businesses, despite certification by the CAMTC of their employees; and 0. The City Council finds that the oversaturation of massage establishments, a number of which have been found in violation of the law, changes the character of a neighborhood, causes blights and impacts quality of life and the local economy by compromising public trust; and P. The City Council further finds that with the passage of AB 1147, certain provisions of the current massage ordinance, found at in Chapter 5.24 of the RMC, may conflict with the new state law. As a result of the January 1, 2015 effective date of AB 1147, 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 remain protected; and Ordinance 897 was adopted on May 11, 2010, imposing a moratorium on massage establishments in order to allow staff to study the preemptive effect of SB 731 and appropriately update the local ordinance. Section 65858(f) of the California Government Code allows for additional moratoria relating to the same matter provided that the new moratorium relates to an event, occurrence, or set of circumstances different from the event, occurrence, or set of circumstances that led to the adoption of the prior moratorium. A different event, occurrence, or set of circumstances is present here. Since 2012, the explosive growth in the number of establishments has resulted in a significant strain on City resources, and the new state law, AB 1147, giving the city tools to more effectively deal with negative associated impacts needs to be studied and explored. SECTION 2. Moratorium on Massage Establishments. The City Council orders as follows: A. The findings and determinations in Section 1 are true and correct. B. Based on the foregoing, the City Council finds and declares there is a current and immediate threat to the public health, safety or welfare and upon that basis has determined that an urgency ordinance pursuant to Government Code Section 65858 is warranted and shall take effect immediately upon adoption by a four-fifths (4/5ths) vote of the City Council. C. For a period of 45 days from the date of January 1, 2015, no permits, licenses, approvals, or entitlements may be issued for new massage establishments or the relocation of massage establishments as such terms are defined in RMC 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. D. For purposes of this ordinance, "massage business or establishment" shall have the same meaning as in Chapter 5.24 of the RMC. E. City staff is directed to study appropriate modifications to the City's massage and zoning ordinances to reduce and/or mitigate negative secondary effects created by the number, location and illicit uses of massage establishments, Pending the completion of such studies and the adoption of an ordinance to establish appropriate operational and zoning regulations, it is necessary for the immediate preservation of the public health, safety and welfare that this ordinance takes effect immediately. In the absence of immediate effectiveness, massage establishment uses in the City may be in conflict with regulations or requirements established with respect thereto. F. For the pendency of this moratorium, all sections of Chapter 5.24 of the RMC, which relate to the operating requirements for massage establishments and massage professionals, shall remain in full force and effect with respect to existing massage businesses. G. This ordinance shall not preclude the continued operation of any lawfully existing massage establishment uses which are not seeking to expand, convert, relocate or otherwise change their use, or the opening or commencement of any massage establishment uses as a new business for which all discretionary and nondiscretionary approvals have been made prior to the effective date of this ordinance. SECTION 3. Legal, Operational and Planning Study. The Community Development 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 January 1, 2015 (with the sunset of SB 731 and effective date of AB 1147) and will extend for a period of 45 days from this date 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. PASSED, APPROVED, AND ADOPTED this 9th day of December, 2014. Bill Alarcon, Mayor City of Rosemead, California ATTEST: - •ria, Molleda, City Clerk City of Rosemead, California APPROVED AS TO FORM Rachel H. Richman, City Attorney Burke, Williams & Sorensen, LLP 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.945 was duly and regularly approved and adopted by the Rosemead City Council on the 9th of December 2014, by the following vote to wit: Yes: Alarcon, Armenia, Clark, Low, Ly No: None Absent: None Abstain: None Sol 1V11 J/ Gloria Molleda City Clerk ATTACHMENT "B" ORDINANCE NO. 946 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, EXTENDING THE PROVISIONS OF ORDINANCE NO. 945 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 OR THE RELOCATION OF MASSAGE ESTABLISHMENTS FOR 10 MONTHS 15 DAYS.. THE CITY COUNCIL OF THE CITY OF ROSEMEAD ORDAINS AS FOLLOWS: SECTION 1. Findings. A. At a duly noticed public hearing on December 9, 2014, and after hearing and considering public testimony, the City Council adopted Ordinance No. 945 (with an effective date of January 1, 2015), an interim urgency ordinance establishing a moratorium on the issuance of any permit, license, approval, or entitlement pertaining to new massage establishments or the relocation of massage establishments; and B. Government Code Section 65858(a) authorizes the City Council to continue the effect of Ordinance No. 945 for a period of 10 months and 15 days subject to appropriate findings; and C. The findings made in Ordinance No. 945 are hereby reaffirmed, readopted and incorporated by reference as though they were fully restated herein; and D. Consistent with the requirements of Government Code section 65858(d), the City issued a written report, describing the measures being taken to alleviate the conditions which led to the adoption of the initial moratorium extension and the need for the extension of the moratorium. E. It remains necessary for the City to continue to undertake the 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; and F. There remains a significant oversaturation of massage establishments, a number of which have been found in violation of the law, which changes the character of a neighborhood, causes blights and impacts quality of life and the local economy by compromising public trust; and G. The City Council finds that there continues to be a current and immediate threat to the public health, safety, and welfare based on the above findings, and upon that basis determines that there is a need to adopt a moratorium ordinance prohibiting the creation of new massage establishments or relocation of massage establishments is warranted. SECTION 2. Extension of Moratorium on Massage Establishments. The City Council orders as follows: In accordance with the authority granted the City of Rosemead under Government Code Section 65858(a), and pursuant to the findings stated herein, Ordinance No. 945 is hereby extended and the moratorium on the issuance of any permit, license, approval, or entitlement pertaining to new massage establishments or relocation of massage establishments, as set forth fully in Ordinance No. 945, shall remain in effect for an additional period of 10 months and 15 days. SECTION 3. Legal, Operational and Planning Study. The Community Development 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, 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 declared to be an urgency ordinance by authority conferred on the City Council of the City of Rosemead by Government Code Sections 36937 and 65858, and shall be in full force and effect immediately upon its adoption by a four-fifths vote of the City Council 2 Ordinance No. 946 SECTION 7. 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. PASSED, APPROVED, AND ADOPTED this day of 2015. William Alarcon, Mayor City of Rosemead, California ATTEST: Gloria, Molleda, City Clerk City of Rosemead, California APPROVED AS TO FORM Rachel H. Richman, City Attorney Burke, Williams & Sorensen, LLP 3 Ordinance No. 946 ATTACHMENT C 10 DAY REPORT ON THE CITY OF ROSEMEAD'S MORATORIUM ON THE APPROVAL OF APPLICATIONS FOR NEW MASSAGE ESTABLISHMENTS OR THE RELOCATION OF MASSAGE ESTABLISHMENTS BACKGROUND On December 9, 2014, pursuant to Government Code Section 65858, the Rosemead City Council enacted Urgency Ordinance No. 945 (with an effective date of January 1, 2015), which imposed a moratorium on the on the issuance of any permits, licenses, tax certificates, approvals, or entitlements for new massage establishments or the relocation of massage establishments as such terms are defined in Rosemead Municipal Code ("RMC") 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. AB 1147 was signed into law by Governor Brown on September 18, 2014 and went into effect on January 1, 2015. In summary, the bill authorizes the continuation of statewide voluntary certification for massage therapists by the California Massage Therapy Council and restores local governments with some renewed regulatory authority. In the limited time allotted by the Initial Ordinance, City staff and the City Attorneys Office have begun the task of analyzing and interpreting AB 1147 ("Massage Therapy Act of 2014") to determine whether the City's current laws regarding massage establishments need to be amended to be consistent with the new law while still providing comprehensive regulations for the establishment, use, and operation of businesses offering massage services in the City. 2. In addition, massage establishments remain a difficult business to monitor. Public Safety personnel continually monitor these businesses; and advertisements on the web suggest that illegal activities may be taking place at some of these locations. An extension to the moratorium provides the City with the ability to prevent or enjoin any additional illicit massage establishments while the City studies, drafts, and/or adopts new regulations. 3. At this point, it is necessary that City staff and the City Attorney's Office continue to studying the effects of AB 1147 and whether the City municipal codes should be amended with different, or additional provisions or regulations with respect to massage establishments to be consistent with AB 1147 and any judicial interpretations thereof. Report on Massage Moratorium Page 2 of 2 RECOMMENDATION Due to City staff and the City Attorney's Office on-going review of AB 1147, staff recommends adoption of the Extension Ordinance. If adopted by the City Council, the Extension Ordinance would extend the moratorium on the issuance of any permits, licenses, tax certificates, approvals, or entitlements for new massage establishments or the relocation of massage establishments as such terms are defined in Rosemead Municipal Code ("RMC") Chapter 5.24 for a period of 10 months 15 days.