2013/08/27 City Council Ordinance 857ORDINANCE NO. 857
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ROHNERT PARK, CALIFORNIA, ESTABLISHING A TEMPORARY
MORATORIUM ON AND PROHIBITING THE ISSUANCE OF PERMITS OR
OTHER ENTITLMENTS FOR THE ESTABLISHMENT, EXPANSION, OR
RELOCATION OF UNCERTIFIED MASSAGE ESTABLISHMENTS AND NEW
UNCERTIFIED MASSAGE PROVIDERS PENDING THE REVIEW AND
POSSIBLE AMENDMENT OF ZONING AND OTHER REGULATIONS TO
SUCH BUSINESSES AND ACTIVITIES, TO BECOME EFFECTIVE
IMMEDIATELY
THE CITY COUNCIL OF THE CITY OF ROHNERT PARK HEREBY ORDAINS AS FOLLOWS:
SECTION 1. Authority. This Ordinance is adopted pursuant to the provisions set forth in
Government Code Sections 65868 and 36937 and pursuant to other applicable law.
SECTION 2. Findings.
A. Pursuant to Article XI, Section 7 of the California Constitution, the City of Rohnert Park may make
and enforce all regulations and ordinances using its police powers.
B. The stated purpose of the Rohnert Park Zoning Code, codified as Chapter 17 of the Rohnert Park
Municipal Code (RPMC), is to manage future development and growth consistent with the
Rohnert Park General Plan and ensure that development creates harmonious, convenient,
workable relationship among land uses.
C. Under RPMC Chapter 17, massage establishments, as that term is defined in Section 17.04.030
( "Massage Establishments "), are permitted in M -U and C -R Districts, permitted as an incidental
use to a primary use in the I -L and C -O District, and conditionally permitted in C -N District.
Massage, Massage Establishments are further defined in Section 3(B) of this Ordinance and
regulated pursuant to RPMC Chapter 9.80.
D. Recent legislation, Senate Bill 731 (Business and Professions Code Section 4600 et seq.) and
the follow up legislation Assembly Bill 1822 and Assembly Bill 619, has partially pre - empted the
City's authority to regulate massage establishments and massage providers that have been
certified pursuant to Business and Professions Code Section 4600 et seq. However, the City
maintains the authority to enact and enforce ordinances, regulations, rules, requirements,
restrictions, land use regulations, moratoria, conditional use permits, or zoning requirements
applicable to Uncertified Massage Providers and Uncertified Massage Establishments, as these
terms are defined in Section 3(B) of this Ordinance. The terms Uncertified Massage Providers
and Uncertified Massage Establishments are more particularly defined in Section 3 of this
Ordinance. To date, the RPMC has not been amended to address these changes in state law.
E. The Graton Resort and Casino project, a casino development with Las Vegas style gambling and
3,000 slot- machines located adjacent to the City limits ( "Graton Casino "), is expected to open by
November 1, 2013. The Graton Casino will operate 24 hours a day, 7 days a week, and is
expected to attract - on average - approximately 8,000 visitors per day from locations throughout
the Bay Area and beyond.
F. The Graton Casino, like other casinos in California and the United States, is expected to foster
growth in related businesses that cater to the resort and casino clientele. The demand for
massage establishments and massage providers is expected to increase with the influx of
visitors, as vacationing casino patrons often seek other leisure activities when traveling. As a
result, the City anticipates numerous requests by operators regarding the applicable regulations
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for massage establishments and massage providers that are certified, as well as not certified,
pursuant to Business and Professions Code Section 4600 et seq.
G. The RPMC's regulations of massage establishments and massage providers do not currently
conform to the new state law requirements and need to be studied to consider the disbursement
of such businesses throughout the zoning districts, proximity to similar businesses, and
operational regulations such as the hours of operation in relation to public health, safety, and
welfare concerns, including the impacts these businesses may have on the surrounding uses and
the community.
H. Massage establishments and massage providers engage in a business that involves intimate
contact between persons which: (a) create significant risk of injury to massage clients by
improperly trained or educated providers, and (b) create opportunities for acts of prostitution and
other unlawful sexual activity to occur. The City has a legitimate interest in providing reasonable
safeguards against crime, injury, and economic loss to such massage clients.
The establishment of comprehensive regulations for the issuance of permits for uncertified
massage establishments and uncertified massage providers would serve to reduce the risk of
illegal and potential injurious activity.
J. The City published notice of the public hearing to consider the adoption of this interim urgency
ordinance in accordance with Government Code § 65090, held a public hearing on August 27,
2013, and considered the public's testimony.
K. Government Code Sections 65858 and 36937 authorize the adoption of an interim urgency
ordinance to protect the public health, safety, and welfare, and to prohibit otherwise permitted
land uses when those uses may conflict with land use regulations that the City's legislative bodies
are considering, studying, or intending to study within a reasonable time.
L. The City Council hereby determines that the RPMC is in need of further review and possible
revision to protect the public against potential negative health, safety, and welfare impacts and to
address potential deficiencies in its Code associated with massage establishments and massage
providers, particularly those that are not certified pursuant to Business and Professions Code
Section 4600 et seq., because their training and professional standards are variable. Further,
time is required for staff to study and analyze whether to limit such businesses to certain zoning
districts, which districts would be appropriate for such uses, what design and operating conditions
and restrictions would advance the public's interest, and the extent to which the City is permitted
to regulate such businesses in light of recent legislation.
Failure to adopt this moratorium would impair the orderly and effective implementation of
contemplated amendments to the RPMC, and any further authorization of these uncertified
massage establishments and uncertified massage providers within the City during the period of
the moratorium may be in conflict with or may frustrate the contemplated updates and
amendments to the RPMC.
N. The City Council further finds that this moratorium is a matter of local and City -wide importance
and is not directed towards any particular uncertified massage establishment and /or uncertified
massage providers that currently seek(s) the issuance of a permit.
SECTION 3. Imposition of Temporary Moratorium.
A. In accordance with the authority granted the City under Government Code Sections 65858
and 36837, and pursuant to the findings stated herein, the City Council (1) hereby finds that there exists a
current and immediate threat to the public health, safety, and welfare requiring this change in the City's
permitting provisions for Uncertified Massage Establishments and /or Uncertified Massage Providers, (2)
further finds that this ordinance is necessary for the immediate preservation of the public peace, health
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and safety, and (3) hereby declares and imposes a temporary moratorium for the immediate preservation
of the public health, safety and welfare as set forth below.
The City orders as follows: For a period of forty -five (45) days from and after the date of adoption
of this Ordinance, no permits (including use permits, conditional use permits, special or temporary
permits, or massage provider permits) or other applicable use entitlement (including variances, building
permits, or business licenses) under Chapters 17 or 9.80 of the RPMC may be issued for the
establishment or operation of a new Uncertified Massage Establishment and /or new Uncertified Massage
Provider within the City, except as otherwise provided for herein. In addition, no existing Uncertified
Massage Establishment may be relocated or expanded, whether by means of additional space,
construction of new facility, or by reconfiguration.
The moratorium set forth above shall not apply to the renewal of any existing business license for
an uncertified massage establishment (provided the renewal seeks to maintain the business in the
existing location) or existing uncertified massage provider permit issued under Chapter 9.80. In addition,
an uncertified massage provider permit may issue to a qualified employee or independent contractor who
will be employed at any currently permitted uncertified massage establishment to replace a permitted
uncertified massage provider who has left the employ of the permitted establishment subject to
reasonable proof of the termination or departure.
B. For purposes of this Ordinance, the following words and phrases shall have the meanings
indicated by this section:
"Massage" means any rubbing, stroking, kneading, tapping, manipulation or use of friction or pressure
with the hand or any other part of the body or an instrument upon the external parts of the body of
another, whether or not accompanied by the use of heat, light, water, alcohol, oils, lotions, ointments or
other chemicals or preparations, and whether or not accompanied by any sauna, tube, shower or cabinet
bath, or hot or cold pack or any combination thereof.
"Massage Establishment" means any establishment having a fixed place of business where any person
for any consideration whatsoever performs or engages in any act of massage as defined in this section,
whether or not other facilities or services are offered.
"Massage Provider" means any person that for any consideration whatsoever performs or engages in any
act of massage as defined by this section.
"Uncertified Massage Establishment" means a Massage Establishment that does not exclusively use
individuals who are certified pursuant to Business and Professions Code Section 4600 et seq. to provide
massage for compensation.
"Uncertified Massage Provider" means a massage provider who is not certified pursuant to Business and
Professions Code Section 4600 et seq.
C. Establishment or operation of unpermitted uncertified massage establishments and /or
uncertified massage providers in the City of Rohnert Park shall be a public nuisance per se, enforceable
by any applicable law including, but not limited to, injunctions, administrative citations, or criminal
penalties.
SECTION 4. 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 within the City of massage establishments and massage providers that have been certified
pursuant to Business and Professions Code Section 4600 et seq., as well as those that are not certified,
and their potential impacts on public health, safety, and welfare of the community, the desirability of such
massage establishments in various zones, and the extent of regulatory controls, if any, to impose on such
massage establishments and massage providers. The City Council directs that all studies be pursued as
expeditiously as practicable. In order to prevent frustration of these studies and the implementation of
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new regulations, the public interest, health, safety, and welfare require immediate enactment of this
Ordinance.
SECTION 5. Written Report. Pursuant to Government Code Section 65858, staff must prepare
for consideration and issuance by the City Council a written report describing the measures taken to
address the conditions which led to adoption of this Ordinance. The report will be provided to the City
Council so that it may be considered and issued no later than ten (10) days prior to the expiration of this
Ordinance.
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
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. Effective Date and Duration. This ordinance is an urgency ordinance enacted
under California Government Code Sections 65858(a) and 36937. This urgency ordinance is effective
upon adoption by a four - fifths (4/5) vote of the City Council and will extend for a period of forty -five (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 9. Publication. The City Clerk is directed to cause this ordinance to be published in
the manner required by law.
PASSED, APPROVED, AND ADOPTED this 27th day of August, 2013 by the following vote:
AYES: Five (5) Council Members Ahanotu, Belforte,Mackenzie, Callinan and Mayor
NOES: None (0) Stafford
ABSENT: None (0)
ABSTAIN: None (0)
ATTEST: rr� 1)/ 1100 h Ci
JoAnne Bu rgler
City Clerk
r\
APPROVED AS TO FORM:
Mjc'rele Marchetta Kenyon
City Attorney
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Pam Stafford, Mayor
STATE OF CALIFORNIA
COUNTY OF SONOMA
CITY OF ROHNERT PARK
ss.
CITY CLERK'S CERTIFICATION OF
THE ADOPTION OF ORDINANCE
I, JoAnne Buergler, City Clerk of the City of Rohnert Park, do hereby certify that the foregoing
Ordinance No. 857 was adopted at a regular meeting of the City Council on the 27th day of August, 2013
by the following roll -call vote:
AYES: Five (5) Council Members Ahanotu, Belforte, Mackenzie, Callinan and Mayor Stafford
NOES: None (0)
ABSENT: None (0)
ABSTAIN: None (0)
(.)(„L_O.mi-
oAnne Buergler
ITY CLERK
Ord. 857
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