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HomeMy WebLinkAbout13. Adopt Interim Urgency Ordinance re-Moratorium on Massage Therapy Establishmentsnem . APPROVED BY TO HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL CITY MANAGER FROM: OFFICE OF THE CITY MANAGER BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOP EN �, DATE: OCTOBER 9, 2018 SUBJECT: MORATORIUM ON MASSAGE THERAPY ESTABLISHMENTS That the City Council adopt by a 4/5th vote the following titled interim urgency ordinance: •-r • • • • NOUN Massage therapy establishments are regulated through various section of the Downey Municipal Code. Within the C-2, C-3, and C -M zones, massage therapy establishments are allowed with approval of a Conditional Use Permit. Other types of business such as beauty salons and medical professionals (chiropractors and acupuncturists) can offer massage with no additional zoning review. In addition to regulating the businesses through the Zoning Code, DMC sections 6553 et. seq., provides the Police Department the ability to issue a permit for an individual massage therapist. This code section sets forth the minimum education requirements, criminal history check, and the manner in which the Chief of Police can approve or deny a permit. In 2008, the State of California adopted SB 731 (Chapter 384, Statutes of 2008), also known as the Massage Therapy Act. This Act established a private, non-profit organization called the California Massage Therapy Council (CAMTC) and created a voluntary certification program for massage therapists. Upon certification of a therapist by CAMTC, local jurisdictions are no longer allowed to require additional educational requirements, background checks, or a separate permit (i.e. Police Permit). The Massage Therapy Act has twice been extended and modified through AB 1147 (Chapter 406, Statutes of 2014) and AB 2194 (Chapter 411, Statutes of 2016). There are currently 11 known massage therapy establishments operating in the City of Downey, eight of which have been approved since the implementation of SB 731 (January 1, 2009). This is a 266% increase in massage therapy establishments. The City is also reviewing three new applications, which are in various stages of the review process. Additionally, there is an unknown amount of chiropractors, acupuncturists, day spas, beauty salons, and the like that offer massage services as part of their business operations. It should be noted that these types of business do not require a Conditional Use Permit to offer massage services. This uptick in applications for MORATORIUM ON TDCTOBER 9, 2018 PAGE 2 massage therapy establishments can be attributed to, among other things, the changes in State law and the City of Pico Rivera implementing a moratorium in 2017, resulting in a spillover effect. Staff is concerned with the City's ability to properly monitor and regulate these businesses and what impacts their operations are having on the surrounding neighborhoods. Massage therapy establishments have been associated with prostitution and human trafficking operations. A-2012 State Attorney General report (The State of Human Trafficking in California 2012) noted that trafficking can occur in a number of places, including massage therapy establishments. The Polaris Project, an anti-human trafficking organization, issued a report in 2018 (Human Trafficking in Illicit Massage Businesses) that found trafficking related to massage therapy establishments is second only to escort services. A review of websites known to advertise "massage services" that allude to illicit activities shows that massage therapy establishments operating in Downey could be conducting criminal activities. This includes customer reviews that provide that illegal activities are occurring at the site and advertisements suggesting massages being performed by scantily clad women. Validation of this activity in Downey surfaced from a recent Police investigation, resulting in a prostitution arrests at multiple massage therapy establishments in the City. Staff understands that not all massage therapy establishments operating in Downey are conducting criminal activities. However, because of the severity of the potential crimes that may occur at massage establishments and their immediate effects on the public health, welfare, and safety, Staff is proposing a temporary moratorium on new and expansion of existing massage therapy establishments. This will allow the City time to fully assess the availability of massage establishments in Downey, analyze the potential impacts resulting from the operations of massage therapy establishments, update the City's codes, including its Zoning Code, to address said impacts, and create CAMTC certified massage therapist registration system. As proposed, the moratorium would prevent staff from accepting or processing any applications for new massage establishments or to expand existing massage therapy establishments. The urgency ordinance requires approval by 4/5th vote and would go into effect immediately. If adopted, the moratorium would be valid for 45 days, which could be extended through a noticed public hearing for an additional ten months and 15 days, and then for an additional year. The City may adopt no more than two extensions of a moratorium. Pursuant to Government Code section 65858, staff will return to the City Council within 45 days to report the progress made on creating any new regulations. This progress report and any requested extension to the moratorium will be conducted through a duly noticed public hearing. Ultimately, any proposed change in the Municipal and Zoning Code will require public hearings before the Planning Commission and/or the City Council. CITY COUNCIL i Public Engagement Quality of Life, Neighborhood & Infrastructure FISCAL IMPACT There is no fiscal impact associated with this report. Attachments: "A Interim Urgency Ordinance AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DONEY ESTABLISHING A TEMPORARY MORATORIUM ON NEW AND EXPANDING EXISTING MASSAGE THERAPY ESTABLISHMENTS WHEREAS, massage therapy establishments are regulated through various sections of Article IX of the Downey Municipal Code. Additionally, the licensing of individual massage therapists is regulated through the Downey Municipal Code sections 6553 et. seq.; and, WHEREAS, SB 731 (Chapter 384, Statutes of 2008) and subsequent legislation prohibited cities from requiring licenses or permits of holders of California Massage Therapy Council (CAMTC) certificates; and, WHEREAS, there has been significantresearch that demonstrates a correlation between massage therapy establishments and human trafficking. Specifically, a California Attorney General report (The State of Human Trafficking in California 2012) noted that trafficking can occur in a number of places, including massage therapy establishments; and the Polaris Project issued a report in 2018 (Human Trafficking in Illicit Massage Businesses) that found trafficking related to massage therapy establishments is second only to escort services; and, WHEREAS, the City's Police Department has investigated illicit activity at massage establishments in the City, and investigation culminated in an arrest for prostitution at one of the establishments; and, WHEREAS, the City Council is concerned that continued growth of massage therapy establishments can have a negative secondary effects on the immediate health, safety, and welfare of those who live, work, and visit the City of Downey. Such negative secondary effects include human trafficking and prostitution; and, WHEREAS, since passage of SB 731, the number of massage therapy establishments operating in the City of Downey increased from three to 11 (a 266% increase); and, WHEREAS, it is the City Council of the City of Downey's desire to regulate massage therapy businesses to balance community needs and to minimize the negative secondary effects associated with such uses; and, WHEREAS, immediate adoption of this Interim Urgency Ordinance is needed to prevent any further degradation of the City, to prevent additional negative secondary effects on the community, and to give the City sufficient time to study potential mitigation; and, WHEREAS, bused on the foregoing, the City Council finds and determines that the immediate preservation of the public health, safety and welfare requires that this interim urgency ordinance be enacted pursuant to Downey City Charter Section 511, Government Code section 36937(b) and Government Code section 65858, and that this ordinance shall take effect immediately upon adoption so that the City may study potential impacts that the operation of massage therapy establishments have on the community. Therefore, this interim urgency ordinance is necessary for the immediate preservation of the public peace, health, safety and welfare and its urgency is hereby declared. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Downey hereby finds that the above recitals are true and correct and are hereby incorporated by reference. Attachment "A" ORDINANCE NO. PAGE 2 SECTION 2. The City Council finds that this Ordinance isnot 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. SECTION 3. Pursuant to GovernmentCode section 36937(b), this urgency ordinance is necessary for the immediate preservation of the public peace, health, and safety in that massage establishments are associated with negative, secondary effects including human trafficking and prostitution. At least one prostitution arrest has been made at a massage establishment in the City, and such illicit activity harms trafficking victims, City residents, visitors, and the business community. Moreover, pursuant to Government Code 65858(x), this urgency ordinance is necessary to protect against a current and immediate threat to the public health, safety, and welfare including illicit activity that is associated with massage establishments. As such, the City requires time to study the impacts that operation of the massage therapy establishments have on the community. SECTION 4. From and after the effective date of this Interim Urgency Ordinance, the City shall not (1) process or approve any new establishment or expansion of a massage establishment use and shall not (2) process, approve or issue any permit, variance, building permit, business license, tenant improvement permit, license, or other applicable entitlement for the establishment, operation, expansion, or modification of a new or existing massage establishment use within the City. SECTION 5. This moratorium shall apply to any application that has already been deemed `complete' by City staff, but has not been approved by the Planning Commission before the effective date of the Interim Urgency Ordinance. SECTION 6. This Ordinance shall become effective immediately upon adoption if adopted by at a least four-fifths (4/5) vote of the City Council and shall be in effect for forty-five (45) days from the date of adoption unless extended by the City Council as provided for in the Government Code. SECTION 7. Ten days prior to the expiration or any extension of this Ordinance, the City Council shall issue a written report describing the measures taken to alleviate the condition which led to the adoption of the Ordinance. SECTION 13. If any section,subsection, paragraph, sentence, clause or phrase of this Interim Urgency Ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this Interim Urgency Ordinance. The City Council declares that it would have adopted this Interim Urgency Ordinance, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional SECTION 9. The City Clerk shall certify the adoption of this Ordinance and cause the same to be published in the manner prescribed by law. . I A 0 1 ffir-AW mffi�� APPROVED AND ADOPTED this 91h day of October, 2018. SEAN ASHTON, Mayor ATTEST: MARIA ALICIA DUARTE, CMC City Clerk STATE OF CALIFORNIA COUNTY OF LOS ANGELES Ss CITY OF DOWNEY I HEREBY CERTIFY that the foregoing Interim Urgency Ordinance No. 18- was adopted at a Regular Meeting of the City Council of the City of Downey held on the 9th day of October, 2018, by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: I FURTHER CERTIFY that a summary of the foregoing Interim Urgency Ordinance No. 18- was published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on —, 2018 (including the vote thereon). It was also posted in the Regular posting places in the City of Downey on the same dates. MARIA ALICIA DUARTE, CMC City Clerk