HomeMy WebLinkAbout09-11 - Extending Interim ORD 09-7; Message Establishments and/or Massage PractitionersORDINANCE NO. 09-11
' AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF COSTA MESA, CALIFORNIA, EXTENDING
UP TO A MAXIMUM OF 10 MONTHS, 15 DAYS, INTERIM
ORDINANCE NUMBER 09-7 IMPOSING A CITY-WIDE
MORATORIUM ON THE APPROVAL OF ANY BUSINESS
LICENSE, USE PERMIT, OR ANY APPLICABLE
APPLICATION RELATED TO MASSAGE
ESTABLISHMENTS AND/OR MASSAGE
PRACTITIONERS.
WHEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES
HEREBY ORDAIN AS FOLLOWS:
WHEREAS, the City of Costa Mesa General Plan was adopted in January 2002,
and it embodies the community's long-range vision of providing for the balanced
development of a diverse mix of commercial goods and services and employment
opportunities in consideration of the needs of the business and residential segments of
the community; and
WHEREAS, a high concentration of massage establishments exists in specific
' areas of the City; and
WHEREAS, the growing number of massage establishments and associated
massage practitioners in the city has increased staff workload for licensing, inspection,
and enforcement for massage related issues; and
WHEREAS, the City recognizes that while many massage establishments are
legitimate businesses, the Costa Mesa Police Department has reported the following
ongoing problems at several massage establishments:
1. Ongoing prostitution under the guise of a massage business;
2. Flagrant violation of the Costa Mesa Municipal Code governing massage
establishments;
3. Citizen complaints regarding the concentration of massage establishments in
specific areas;
4. Citizen complaints regarding the proximity of massage establishments to
residential areas and the associated impact on traffic, parking, noise, and quality of
life;
5. The organized sale and utilization of fraudulent transcripts of massage training for
purposes of obtaining a license;
6. An organized, for profit, cheating scam to assist applicants in cheating on the
massage tests; and
' 7. Falsified massage establishment and practitioner applications; and
WHEREAS, new State laws instituted under Section 4600 of the California
Business and Professions Code (SB 731) governing massage establishments will '
become effective in September of 2009. While the full impact of the new regulations is
not entirely clear, there will be significant changes in how massage practitioners and
establishments will be licensed, zoned and permitted. The City of Costa Mesa
Municipal Code needs to be reviewed and revised to reflect the new state law covering
massage enterprises and practitioners; and
WHEREAS, the Costa Mesa Police Department has requested a moratorium to
reevaluate the Costa Mesa Municipal Code in regards to the revising and strengthening
the code to curtail illegitimate and criminal operations within the City and to consider an
appropriate fee structure to offset the cost of processing the massage permits,
licensing, and inspection. Additionally, complaints from citizens suggest that the City's
zoning regulations of massage establishments adjacent to residential neighborhoods
needs to be evaluated in regards to the potential for negative impacts on the residents'
quality of life; and
WHEREAS, the Citys current Zoning Code does not require a discretionary
review for massage establishments and practitioners that would include evaluation of
impacts to surrounding properties and ensure that such activities are occurring in
appropriate locations; and
WHEREAS, City staff has indicated that time is needed to conduct '
comprehensive studies and public hearings relating to the issue of massage
establishments and practitioners, in order to adequately determine information such as,
but not limited to, the following: (1) whether such activity should be subject to
discretionary review processes, (2) whether development standards and/or conditions of
approval, which do not now exist, should be implemented for such activity, (3) whether
processing fees should be adjusted to correlate with the amount of staff time required to
process a request, (4) whether massage establishments should be subject to a
specified distance requirement from another massage establishment or other zoning
requirements; and (5) whether the public nuisance provisions of the Zoning Code
should be amended to account for massage establishments declared as nuisances; and
WHEREAS, the City Council adopted a forty-five (45) day moratorium on new
massage establishment permits and new massage practitioner permits that became
effective on July 7, 2009 and is set to expire on August 20, 2009, by urgency ordinance;
and
WHEREAS, the City Council approved and issued a report at its meeting of
August 4, 2009 regarding the steps taken by City staff to address the conditions which led
to the adoption of the urgency moratorium on July 7, 2009; and
WHEREAS, the City Council held a public hearing on August 18, 2009 to
consider the moratorium, circumstances giving rise to it, and its possible extension; and '
WHEREAS, the same factors that served as justification for the initial 45 -day
' moratorium still exist and it can be foreseen that they will continue to exist for an
extended period of time; and
WHEREAS, the Costa Mesa City Council finds, determines, and declares that
the current and immediate threat to the public health safety and welfare of the city and
its citizens necessitates the immediate enactment of the ordinance. The facts
constituting such urgency are set forth above; and
WHEREAS, the City Council finds that an extension of the moratorium
temporarily prohibiting, the issuance of and/or approval by City staff of any approval,
license, permit or other applicable entitlement which would allow for new massage
businesses or expansion or intensification of massage businesses, or the granting of
permits for new massage practitioners, except for those who are necessary to replace
leaving employees or contractors of existing businesses, would best serve the public
health, safety, and welfare, while the City conducts necessary research into the possible
means and methods of addressing the serious problems identified in these findings and
to address the new legal requirements set out in SB 731 while ensuring that the
interests of existing businesses and residents are balanced against the needs of new
businesses seeking to enter the massage establishment or practitioner business and
the health, safety, peace and welfare of both residents and visitors to the City.
' NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA
HEREBY ORDAINS AS FOLLOWS:
SECTION 1:
1. In order to protect against this current and immediate threat to the public health,
safety, and welfare and pursuant to the provisions of California Government Code
Section 65858, the previously enacted moratorium adopted July 7, 2009 is extended
for a period of ten (10) months and fifteen (15) days as to the following:
a. No new massage establishment whether as a primary use or an ancillary use
shall be established, constructed, or permitted in the City of Costa Mesa, except
as allowed by the Costa Mesa City Council on August 4, 2009.
b. No existing massage establishment in the City of Costa Mesa shall be
expanded, whether by means of addition of space, construction of a new facility
or by reconfiguration.
2. No new massage practitioner permit shall be issued in the City of Costa Mesa
except (a) that the City may issue a massage practitioner permit to a qualified
employee or independent contractor who will be employed at any currently permitted
massage establishment to replace a permitted massage practitioner who has left the
employ of the permitted establishment and (b) as allowed by the Costa Mesa City
' Council on August 4, 2009
3. This moratorium extension shall be effective immediately upon adoption, but may be
extended after notice, pursuant to California Government Code Section 65090, and
a public hearing, for an additional period of no more than one (1) year, if findings are
made that there remains a current and immediate threat to public health, safety, or
welfare, pursuant to California Government Code Section 65858(c).
4. This urgency is based on the following fads:
a.
The enactment of SB 731, scheduled to take effect on September 1, 2009 has
made substantial changes to California law on the subject of permitting
massage establishments and practitioners and staff needs time to assess
these changes and make code revisions to account for them;
b.
While some massage establishments are legitimate, many have been shown
to be fronts for prostitution;
c.
There are significant pockets of concentration of massage establishments in
Costa Mesa, and staff needs to time to assess whether distance requirements
or other zoning restrictions are necessary and appropriate to protect residential
uses from negative impacts caused by such concentration, such as traffic,
noise, parking problems, and illegal behavior;
d.
There exists schemes for the organized sale and utilization of fraudulent
transcripts of massage training for purposes of obtaining a license;
e.
There are organized, for profit, cheating scams to assist applicants in cheating
on the massage tests required to obtain a license; and
f.
The police department has identified a number of falsified massage
establishment and practitioner applications
5. Definitions: For the purposes of this ordinance the following terms shall be defined
as follows:
a. "Massage" means any method of treating the external parts of the human body
for remedial, health, hygienic, relaxation or any other reason or purpose,
whether by means of pressure on, friction against or stroking, kneading,
tapping, pounding, vibrating, rubbing or any other manner of touching external
parts of the human body with the hands, or with the aid of any mechanical or
electrical apparatus or appliance, with or without supplementary aids such as
rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment or other
similar preparations commonly used in this type of business or trade.
b. "Massage establishment" shall be defined as that term is defined in Section 9-
324(1) of the Costa Mesa Municipal Code.
c. "Massage practitioner" shall be defined as that term is defined in Section 9-
324(m) of the Costa Mesa Municipal Code.
d. "Primary use" shall mean a use that is not an ancillary use.
e. "Ancillary use" shall be defined as massage performed in any business that has
or provides other types of services as a primary function.
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SECTION 2: ENVIRONMENTAL DETERMINATION. The project has been reviewed
' for compliance with the California Environmental Quality Act (CEQA), the CEQA
Guidelines, and the City's environmental procedures, and has been found to be exempt.
SECTION 3: INCONSISTENCIES. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of this ordinance, to the extent of such
inconsistencies, is hereby repealed or modified to the extent necessary to affect the
provisions of this ordinance.
SECTION 4: SEVERABILITY. If any provision or clause of this ordinance or the
application thereof to any person or circumstances is held to be unconstitutional or
otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect
other provisions or clauses or applications of this ordinance which can be implemented
without the invalid provision, clause or application; and to this end, the provisions of this
ordinance are declared to be severable.
SECTION 5: APPLICABILITY. The provisions of this ordinance shall be applicable to
the licensing of new massage establishments or massage practitioners. The provisions
of this ordinance shall not be applied to any licenses or permits issued to massage
establishments or practitioners approved prior to the effective date of this ordinance.
SECTION 6: PUBLICATION. The City Clerk shall certify to the passage and adoption
' of this ordinance, by at least a four-fifths vote of the City Council, and shall cause the
ordinance to be published in the manner required by law. This ordinance shall become
effective immediately from and after its passage.
PASSED AND ADOPTED this 18" day of August, 2009.
&I'd /,/�
Allan R. Mansoor, Mayor
ATTEST:
yJulie Icic, Cit
E
APPROVED AS TO FORM:
P &4.
Kimberly Fiall Barlow, City Attorney
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss '
CITY OF COSTA MESA )
I, JULIE FOLCIK, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY
that the above and foregoing Ordinance No. 09-11 was duly introduced for first reading
and duly passed and adopted at a regular meeting of the City Council held on the 18"'
day of August, 2009, by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS: MANSOOR, LEECE, BEVER, FOLEY, MONAHAN
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the
City of Costa Mesa this 19x' day of August, 2009.
'JULICLERK
E FL
(SEAL)
I hereby certify that the above and foregoing is the original of Ordinance No. 09-11 duly
passed and adopted by the Costa Mesa City Council at the regular meeting held August
18, 2009, and that the Summary of the Ordinance were published in the Newport
Beach -Costa Mesa Daily Pilot on August 26, 2009.
i
JUETPOLCIK, CITY CLERK
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