HomeMy WebLinkAboutCC ORD 2018-2445 Moratorium Prohibiting Masssge Technician Permits or LicensesORDINANCE NO. 2018 — 2445
AN URGENCY 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, EXTENDING
FOR ONE YEAR A MORATORIUM PROHIBITING
THE ISSUANCE OF MASSAGE TECHNICIAN PERMITS OR
LICENSES AND PROHIBITING NEW MASSAGE ESTABLISHMENTS
FROM LOCATING WITHIN THE CITY OF NATIONAL CITY
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(8)(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(8) 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 reported 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, at their regular public hearing held on March 7, 2017, the
City Council adopted, as an urgency interim ordinance, Ordinance No. 2010-2433,
enacting a moratorium for 45 days prohibiting the issuance of massage technician
permits and prohibiting new massage establishments from locating within the City; and
Ordinance No. 2018-2445 2 Urgency Ordinance
February 6, 2018 Massage Moratorium Extended
WHEREAS, on April 4, 2017, the City Council adopted Resolution No.
2017-43 Approving and Authorizing Issuance of a Written Report Pertaining to a
Moratorium Ordinance Prohibiting the Issuance of Massage Technician Permits or
Licenses and Prohibiting New Massage Establishments from Locating within the City;
and
WHEREAS, on April 18, 2017, the City Council held a public hearing, at
which time oral and documentary evidence was heard, and adopted Ordinance No. 2017-
2435, an urgency ordinance to extend for an additional period of 10 months and 15 days
the 45 day moratorium established by Ordinance No. 2017-2433; and
WHEREAS, on January 16, 2018, the City Council adopted Resolution
No. 2018-03 Approving and Authorizing Issuance of a Written Report Pertaining to a
Moratorium Ordinance Prohibiting the Issuance of Massage Technician Permits or
Licenses and Prohibiting New Massage Establishments from Locating within the City;
and
WHEREAS, on February 6, 2018, the City Council held a public hearing, at
which time oral and documentary evidence was heard, to consider adopting an urgency
ordinance to extend for an additional period of one year the 10 months and 15 day
moratorium established by Ordinance No. 2017-2435; 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 extend for an additional period of
one year the moratorium established by Ordinance No. 2017-2435 prohibiting the issuance
of massage technician permits and prohibiting new massage establishments from
locating within the City; 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.
NOW, THEREFORE, the City Council of the City of National City does
hereby ordain as follows:
Section 1. For a period of one year from the effective dateof 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 necessaryfor
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.
Ordinance No. 2018-2445 3 Urgency Ordinance
February 6, 2018 Massage Moratorium Extended
Section 3. The City Council hereby directs the City staff to engage in studies
and procedures necessary for the adoption or regulations governing massagetechnicians
permits and the locating of massage establishments from locating within the City.
Section 4. 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 6th day of February, 2
ATTEST:
Mic ael R. Dalla it
y Clerk
APPROVED AS TO FORM:
es
y Attorney
Morfison, Mayor
Ordinance No. 2018-2445 4 Urgency Ordinance
February 6, 2018 Massage Moratorium Extended
Passed and adopted by the Council of the City of National City, California, on
February 6, 2018, 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
//
City t erk of the Cityjf National City, California
By:
Deputy
I HEREBY CERTIFY that the foregoing Ordinance was adopted on February 6, 2018,
under the provisions of Section 65858 of the California Government Code and became
effective immediately upon said adoption.
I 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. 2018-2445 of the City Council of the City of National City, passed
and adopted by the Council of said City on February 6, 2018.
City Clerk of the City of National City, California
By:
Deputy