HomeMy WebLinkAboutCC ORD 2017-2433 Moratorium Prohibiting Issuance of Massage Technician Permits or Licenses and Prohibitng New Massage EstablishmentsORDINANCE NO. 2017 — 2433
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
ADOPTED PURSUANT TO GOVERNMENT CODE SECTION 65858
AS AN URGENCY MEASURE TO TAKE EFFECT IMMEDIATELY,
ENACTING A MORATORIUM PROHIBITING THE ISSUANCE OF
MASSAGE TECHNICIAN PERMITS OR LICENSES AND PROHIBITING
NEW MASSAGE ESTABLISHMENTS FROM LOCATING WITHIN
THE CITY OF NATIONAL CITY FOR A PERIOD OF 45 DAYS
WHEREAS, the permitting, regulation, and zoning provisions pertaining to
massage establishments within the City of National City are governed by Municipal Code
Chapters 10.70 (Police Regulated Business Regulations), 10.79 (Massage Establishments),
and 18.30 (Adult Oriented Businesses); and
WHEREAS, the City is authorized to regulate massage establishments pursuant
to Article XI, Section 7 of the California Constitution, as well as by state law, including Section
4600, et seq., of the California Business and Professions Code, and Section 51030, et seq., of
the California Government Code; and
WHEREAS, Section 4600, et seq., of the California Business and Professions
Code, commonly known as the Massage Therapy Act (the "Act"), creates the California
Massage Therapy Council, contains extensive provisions pertaining to the licensing and
regulation of individuals engaged in the practice of massage, and while it states that a city may
enact an ordinance which provides for the licensing of the business of massage, it further states
that no city shall enact or enforce any ordinance that conflicts with the Act or with Section 51034
of the California Government Code, thus creating a partially preemptive effect of state law upon
municipal regulation of massage establishments; and
WHEREAS, the Massage Therapy Act was enacted as urgency legislation by the
State Legislature in January, 2009, and certain provisions of the Act were amended in 2014 and
2016, certain of which amendments were inconsistent with the original version of the Act, and
the latest of which amendments was effective January 1, 2017, all of which created some
uncertainty concerning the manner and degree to which cities may regulate massage
technicians and massage establishments; and
WHEREAS, Section 51034 of the Government Code was amended by the State
Legislature in 2016, effective January 1, 2017, creating inconsistencies between the prohibitory
provisions of that section and certain current provisions of the Municipal Code, including the
following:
• Section 51034(c)(2) prohibits a city from defining a Massage Establishment as an
"adult business", and regulating a massage establishment as an adult
entertainment; Section 18.30.030(B)(14) of the Municipal Code includes "massage
parlor" within the definition of "adult -oriented business", and imposes special
regulations on adult -oriented businesses.
• Section 51034(c)(4) prohibits a city from requiring a massage establishment to
have a shower or bath; Section 10.79.070(G) of the Municipal Code requires
massage establishments to have a minimum of one tub or shower.
• Section 51034(c)(8) prohibits a city from imposing a requirement that a person
certified under the Massage Therapy Act undergo a criminal background check or
submit fingerprints to obtain a massage permit or license; Section 10.70.030(A) of
the Municipal Code provides that the Chief of Police may require a person applying
for a permit to practice massage or operate a massage establishment to be
fingerprinted; Section 10.70.030(B) provides that an applicant shall submit
information regarding arrests; and Section 10.79.060 sets forth additional
requirements such as a certificate from a medical doctor and that a massage
technician shall furnish fingerprints.
• Section 51034(c)(10) prohibits a city from imposing a dress code requirement on a
person certified pursuant to the Massage Therapy Act in excess of those already
imposed by the Act; Section 10.79.080(K) of the Municipal Code requires
massage technicians to be fully covered from a point not to exceed four inches
above the center of the kneecap to the base of the neck, which is a stricter
requirement than what is set forth in the Act;
and
WHEREAS, the Police Department reports a recent increase in prostitution
activity at several business locations throughout the City operating under the guise of massage
establishments, with at least six (6) of such establishments engaged in such activity and
operating without the required City permits or licenses, and in violation of numerous other local
and state laws; and
WHEREAS, the City Council finds it necessary and appropriate to review and
consider the provisions of the legislation pertaining to massage establishments and technicians
enacted over recent years by the State Legislature; and
WHEREAS, the City Council finds that a valid ordinance regulating massage
establishments and massage technicians is necessary to protect the public health, safety, and
welfare, in that such an ordinance will ensure that to the greatest extent possible, massage
businesses will be conducted in a clean and sanitary manner, and in such a way that the
operation of such businesses does not involve prostitution and lewd conduct; and
WHEREAS, the City Council finds that there is a current and immediate threat to
the public health, safety, and welfare of the city and its residents resulting from the absence of a
local ordinance that follows state mandates and prohibitions relating to massage establishments
and technicians, and that the location of such establishments, and the issuance of permits and
other entitlements for such establishments, would result in a threat to the public health, safety,
and welfare if the City's massage regulatory ordinances were to be found invalid; and
WHEREAS, the City Council finds it essential to protect the health, safety, and
welfare of the citizens of the City of National City to enact a moratorium for a period of 45 days
on the issuance of massage technician permits and the locating of, development, or approval of
permits for massage establishments; and
WHEREAS, after appropriate study and legislative review, the City Council
intends to adopt an ordinance that would apply throughout the city for the proper regulation of
massage establishments and technicians as soon as practicable, and directs the City Attorney's
Office to commence the review necessary for the adoption of such proper regulations.
Ordinance No. 2017-2433 2 Interim Ordinance
March 7, 2017 Massage Moratorium Urgency Measure
NOW, THEREFORE, the City Council of the City of National City does hereby
ordain as follows:
Section 1. For a period of 45 days from the effective date of this Ordinance, no
massage technician permit shall be issued; no massage establishment not currently existing
lawfully within the city shall be located within the city; no building permit, certificate of
occupancy, establishment permit, police -regulated business permit, business license,
conditional use permit, nor any other permit or entitlement for a massage establishment or
massage technician shall be issued; no construction shall take place relating to a massage
establishment; and no construction shall take place within the city relating to the location,
development, or approval of any massage establishment.
Section 2. This Ordinance is adopted as an urgency ordinance necessary for the
immediate preservation of the public health, safety, and welfare within the meaning of Section
65858 of the Government Code, and shall take effect immediately.
Section 3. If any portion of this Ordinance is found to be invalid, it is the intention of
the City Council that the remaining valid provisions of the Ordinance be severed from the invalid
provisions and remain in full force and effect.
PASSED and ADOPTED this 7th day of Mar
Mo rison, Mayor
ATTEST
Michael R. Dalla t
Clerk y
APPROVED AS TO FORM:
George H. Eiser, III
Interim City Attorney
Ordinance No. 2017-2433 3 Interim Ordinance
March 7, 2017 Massage Moratorium Urgency Measure
Passed and adopted by the Council of the City of National City, California, on March 7,
2017, by the following vote, to -wit:
Ayes: Councilmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY:
RON MORRISON
Mayor of the City of National City, California
a/(14ti
City Clerk of the City of ational City, California
By:
Deputy
I HEREBY CERTIFY that the foregoing Ordinance was adopted on March 7, 2017,
under the provisions of Section 65858 of the California Government Code and became
effective immediately upon said adoption.
FURTHER CERTIFY THAT said Ordinance was read in full prior to its final passage or
that the reading of said Ordinance in full was dispensed with by a vote of not less than
a majority of the members elected to the Council and that there was available for the
consideration of each member of the Council and the public prior to the day of its
passage a written or printed copy of said Ordinance.
I FURTHER CERTIFY that the above and foregoing is a full, true and correct copy of
ORDINANCE NO. 2017-2433 of the City Council of the City of National City, passed
and adopted by the Council of said City on March 7, 2017.
City Clerk of the City of National City, California
By:
Deputy