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2013/09/24 City Council Ordinance 869ORDINANCE NO. 869 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK, CALIFORNIA, EXTENDING THE CITY'S MORATORIUM ON AND PROHIBITION OF THE ISSUANCE OF PERMITS OR OTHER ENTITLEMENTS FOR THE ESTABLISHMENT, EXPANSION OR RELOCATION OF UNCERTIFIED MASSAGE ESTABLISHMENTS AND NEW UNCERTIFIED MASSAGE PROVIDERS THE CITY COUNCIL OF THE CITY OF ROHNERT PARK ORDAINS AS FOLLOWS: SECTION 1. Findings. The City Council finds as follows: A. On August 27, 2013, pursuant to Government Code sections 36937 and 65858, following notice and a public hearing, the City Council adopted Urgency Ordinance No. 857 establishing a 45 -day moratorium on the issuance of any new permit, license, approval, or entitlement pertaining to uncertified massage providers and massage establishments (the "Interim Ordinance "). B. Pursuant to Government Code section 65858(b), the City may, after notice and a public hearing, extend the Interim Ordinance for an additional period of up to 22 months and 15 days. C. Based on substantial evidence in the record, the Development Services Manager has recommended that the approval or issuance of permits for uncertified massage providers and massage establishments presents an immediate threat to and specific adverse impact upon the public health, safety and welfare of the community. D. On September 24, 2013, the City Council held a duly noticed public hearing to consider extending Ordinance No. 857 for an additional twenty two (22) months and 15 days from the date Ordinance No. 857 expires. E. The City Council considered all of the written and oral testimony offered at the duly noticed public hearing held on September 24, 2013, concerning whether to extend Ordinance No. 857 F. The factual basis for extending the Interim Ordinance includes the following: 1. The recitals, provisions and findings made in Ordinance No. 857 are hereby reaffirmed, readopted and incorporated by reference as though they were fully restated herein. 2. As a result of changes to California law, the City's authority to regulate massage establishments and massage technicians is partially pre - empted by SB 731 (Business & Professions Code section 4600 and following). Urgency Ordinance No. 869 Page 1 of 6 2. Among other things, SB 731 establishes a Massage Therapy Organization, called the California Massage Therapy Council ( "CMTC "), that is authorized to issue certificates for massage technicians (referred to as "massage practitioners" and "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 CMTC. 3. 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 CMTC. The City has also learned that a bill is currently pending in the California Legislature which may further amend the provisions of Business and Professions Code section 4600 et seq. This bill may further pre -empt or affect the City's ability to regulate in this area. 4. 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 Rohnert Park Municipal Code Chapter 9.80 regulate the qualifications and licensing of 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. 5. As a result of this change in law, the City imposed a moratorium on the issuance of any new permit, license, approval, or entitlement pertaining to uncertified massage providers and massage establishments to give it time 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 SB 731 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. 6. The City desires to further study the potential effects of uncertified massage providers and uncertified massage establishments on the public health, safety, and welfare, in order to determine whether reasonable conditions, such as those imposed by neighboring jurisdictions should be placed on uncertified massage providers and uncertified massage establishments in the City. 7. City staff is reviewing RPMC Chapter 9.80 as well as Business & Professions Code section 4600 et seq. However, as provided for in the staff report, which is incorporated by reference, the City Council finds that staff needs additional time to study, review and make an infoiined recommendation regarding possible amendments to RPMC that would impose reasonable regulations on uncertified massage providers and uncertified massage establishments. 8. Once a draft ordinance is prepared, that legislation must first be reviewed by the Planning Commission and City Council and the public at two meetings, and if adopted, the ordinance would not go into effect for an additional 30 -days. Urgency Ordinance No. 869 Page 2 of 6 9. In order to avoid a lapse in the moratorium, it is necessary that the Interim Ordinance be extended so that there is no conflict between Chapter 9.80 and the provisions of Business & Professions Code section 4600 et seq. until such time as the proposed amended regulations are adopted and effective. 10. Until such time as the proposed amended regulations are adopted and effective, 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. 11. Massage establishments are businesses that involve intimate contact between persons, which creates opportunities for acts of prostitution and other unlawful sexual activity to occur. 12. The establishment of new reasonable standards for the issuance of licenses and regulations on the operation of massage establishments will serve to reduce the risk of illegal and potential injurious activity. 13. The absence of this ordinance would create a serious threat to the orderly and effective implementation of any RPMC amendments that may be adopted in that the issuance of permits to uncertified massage providers and uncertified massage establishments within the City may be in conflict with or frustrate the contemplated RPMC amendments. G. Pursuant to Government Code section 65858(d), the City has issued a report relative to the steps taken to alleviate the conditions that necessitated the adoption of the Interim Ordinance, which report is incorporated by this reference. 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 extension of the moratorium prohibiting the issuance of new massage establishment and massage technician permits is warranted. SECTION 2. Extension of Moratorium. The City Council orders that, pursuant to the authority granted to the City Council by California Government Code Section 65858 to protect the health, safety and general welfare of the residents of the City of Rohnert Park, the City Council hereby extends Ordinance No. 857 which established a moratorium on uncertified massage providers and uncertified massage establishments as follows: A. 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. Urgency Ordinance No. 869 Page 3 of 6 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 preparation, 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 3. Legal, Operational and Planning Study. Development Services and the City Attorney's Office are directed to continue 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 new Urgency Ordinance No. 869 Page 4 of 6 regulations, the public interest, health, safety, and welfare require immediate enactment of this Ordinance. 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(b). This urgency ordinance is effective immediately upon adoption by a four -fifths (4/5) vote of the City Council and, unless terminated sooner by the City Council, will extend the moratorium for a period of 22 months and 15 days from the date of adoption at which time it will automatically expire. 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 24th day of September, 2013 by the following vote: AYES: Three (3) Council Members Ahanotu, Belforte and Vice Mayor Callinan NOES: None (0) ABSENT: Two (2) Mayor Stafford and Council Memb ackenzie ABSTAIN: None (0) ATTEST: 171 g Jonne Buergler, City Cle Page 5 of 6 Stafford, Mayor Urgency Ordinance No. 869 APPROVED A TO FORM: Mi /ch-lle archetta Kenyon, City Attorney Page 6 of 6 Urgency Ordinance No. 869