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HomeMy WebLinkAbout01. Adopt Interim Urgency Ord Re-Moratorium on Massage Therapy Establishments11 [a I 11 " APPROVED CITY MANAGER TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: OFFICE OF THE CITY MANAGER Y: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT DATE: NOVEMBER 13, 2018 That the City Council take the following actions: 1) Receive and file the report on actions taken to alleviate conditions that led to the adoption of an urgency ordinance; and, 2) Adopt by a 4/51h vote the following titled interim urgency ordinance: Massage therapy establishments ar- regulated through various sectionsof 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 sections6553 et. seq., provides th- Police Department ihe ability to issue a permit for•i • . • - therapist.code section forth the minimum education requirements, criminal history check, and the manner in which the Chief of • approve • deny permit. In 10 - State of I• adopted SIB 731 (Chapter 384,- of 1t also MORATORIUM ON MASSAGE THERAPY ESTABLISHMENTS NOVEMBER 13, 2018 PAGE 2 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 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. The City is no longer able to properly monitor and regulate these businesses and the 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 prostitution arrests at multiple massage therapy establishments in the City. 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, the City Council adopted Interim Urgency Ordinance No. 18-1399, on October 9, 2018. This ordinance instituted a temporary moratorium on establishing new or expanding existing massage establishments. The intent of establishing the moratorium is to 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 MORATORIUM ON MASSAGE THERAPY ESTABLISHMENTS NOVEMBER 13, 2018 PAGE 3 establishments, update the City's codes, including its Zoning Code, to address said impacts, and create a CAMTC certified massage therapist registration system. The moratorium prevents staff fromacceptingor processing any applications for new massage establishments or to allow expansion of existing massage therapy establishments. The moratorium is set to expire on November 23, 2018. Since adoption of the moratorium, staff has received a request from at least one of the pending applicants for their massage therapy establishment to be rebranded as a "Day Spa". Due to this attempt to circumvent the moratorium, staff has modified the language contained in the moratorium to clarify that day spas that offer massage are also included in the moratorium. Due to the complexity of the issue, staff will need additional time to draft proposed changes to the Zoning Code to ensure that massage therapy can be provided in a manner that is not detrimental to the community. Once the proposed amendments are prepared, staff will then be able to distribute a public notice and schedule the matter for public hearings before the Planning Commission and City Council. Unfortunately, this process cannot be completed within the 45 -day moratorium period. The City Council is authorized by Government Code 65858 to extend the moratorium an additional 10 months 15 days, giving the City a one-year moratorium. If needed, staff can return to the City Council for an additional one-year extension. Report on Actions Taken Government Code 65858 requires the City Council to issue a report describing the measures and actions taken by the City to alleviate the circumstances and conditions, which led to the adoption of Urgency Ordinance, at least 10 days prior to the expiration of said moratorium. This section of the Agenda Memo shall serve as that report. Actions taken to alleviate the circumstances and conditions were focused on gaining a better understanding of the issue and determining the extent of the potential impacts that could incur. These actions include: Staff has begun reviewing massage ordinances from "surrounding agencies to determine best practices. Staff is assembling data from City and CAMTC databases to create a list of all massage technicians working in the City of Downey. • The Police Department is reviewingcalls for service at all known massage therapy establishments to determine the extent of criminal activity occurring at these businesses. NOVEMBER 13,2018 R&GE 4 Public Engagement Quality of Life, Neighborhoo In ras ru ATTACHMENTS AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY EXTENDING INTERIM URGENCY ORDINANCE NO. 18-1399 FOR AN ADDITIONAL 10 MONTHS AND 15 DAYS THEREBY CONTINUING 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 significant research 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 one 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, on October 29, 2018, pursuant Section 65858 of the California Government Code, the City Council of the City of Downey ("City Council") adopted Ordinance No. 18-1399, an interim urgency ordinance, which temporarily prohibits establishing new or expanding existing massage therapy establishments; and, WHEREAS, since implementation of this ordinance, the City of Downey has received requests from applicants of pending massage therapy establishments to be re -branded as "Day Spas," which are a separate listed use in the Zoning Code. This rebranding is an effort to circumvent the temporary moratorium; and, WHEREAS, it is the intent of the City Council of the City of Downey that this moratorium apply to all businesses that offer massage, including day spas; and, yi� WHEREAS, Interim Urgency Ordinance No. 18-1399 is set to expire on November 23, 2018; and, WHEREAS, based on the Report, the City Council has determined that the circumstances and conditions that led to the adoption of Ordinance No. 18-1399, which are set forth in the aforementioned recitals have not been alleviated as of the date of this Ordinance and continue to create concerns; and, WHEREAS. the City now seeks to extend the temporary prohibition on massage therapy establishments (including day spas that offer massage), as currently authorized under Ordinance No. 18-1399, to continue studying possible amendments to the Downey General Plan and the City's zoning regulations to help ensure that all secondary effects are properly mitigated; and, WHEREAS, extension of the 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, notice of public hearing was published as a'/8th page ad in the Downey Patriot on November 1, 2018. The City Council held the duly noticed hearing on November 13, 2018 and after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing adopted this ordinance; and, WHEREAS, based 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. 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 Government Code 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. Multiple prostitution arrests have been made at massage establishments in the City, and such illicit activity harms trafficking victims, City residents, visitors, and the business community. Moreover, pursuant to Government Code 65858(a), this urgency ordinance is necessary to protect against a current and immediate threat to the public 1-111ell 9 `' • 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 (including day spas that offer massage) 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 (including day spas that offer massage) 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 extend Interim Urgency Ordinance No. 18-1399 for 10 months and 15 days (expiring October 8, 2019) unless further extended by the City Council as pursuant to Government Code Section 65858. 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 adoptionofthe Ordinance. SECTION 8., 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. APPROVED AND ADOPTED this 13th day of November, 2018. SEAN ASHTON, Mayor ATTEST MARIA ALICIA DUARTE, CMC City Clerk STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss CITY OF DOWNEY 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 13th day of November, 2018, by the following vote to wit: AYES: NOES: ABSENT ABSTAIN 1 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 M AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE OC'J F DOB WNEY ESTALISHING A TEMPORARY MORATORIUM ON NEW A 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 Section 6553 et. Seq.; and, WHEREAS, S13 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 significant research that demonstrates a correlation between massage therapy establishments and human trafficking. Specifically, a California Attorney General report (The State of Human Trafficking in Califomia 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 Council is concerned that continued growth of massage therapy establishments can have a negative secondary effects on the health, safety, and welfare of those who live, work, and visit the City of Downey; 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 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, based 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 36937(b) and Government Code Section 65858 and that this ordinance shall take effect immediately upon adoption so that the City can study potential impacts that operation of the massage therapy establishments have on the community, Therefore, this interim urgency ordinance is necessary for the 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 1RDAIN AS FOLLOWS: SECTION J. 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 it 99 ORDINANCE R`. `. • t SECTION 2 The City Council finds that this Ordinance is not subject to the California Environmental Quality Act (CQA) pursuant to Sections 15050(c)() (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 1500(c)(3) (the activity is not a project as defined in Section 15378) of the CQA Guidelines, CaliforniaCodeof 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 Government Cade 5588(a), this urgency ordinance is necessary to protect against a current and immediate threat to the public health, safety, and welfare. 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 accept, process, or approve an application to establish a new or expand an existing massage therapy establishment SECTION 5m 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 (415) 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 clays 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. SEgTION 8. 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 g. The City Clerk shall certify the adoption of this Ordinance and cause the same to be published in the manner prescribed by law. ORDINANCE NO. 18-1399 PAGE 3 N,1.7HWMarr 11- "EMMANA11 STATE OF CALIFORNIA COUNTY OF LOS ANGELES SS CITY OF DOWNEY I HEREBY CERTIFY that the foregoing Interim Urgency Ordinance No. 18-1399 was introduced and adopted at a Regular Meeting of the City Council of the City of Downey held on the 9t�' day of October, 2018, by the following vote to wit: AYES: Council Members'. Pacheco, Saab, Vasquez, Rodriguez, Mayor Ashto NOES: Council Members: None. ABSENT' Council Members: None. ABSTAIN: Council Members: None. I FURTHER CERTIFY that a summary of the foregoing Interim Urgency Ordinance No. 18-1399 was published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on October 11, 2018 (including the vote thereon). It was also posted in the Regular posting places in the City of Downey on the same dates.